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2020-12-04 06:08:05.333452+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007474PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 748 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports HIGGINS v. CURRIER Cite as 307 Neb. 748 Billy Meredith Higgins, appellee, v. Rashell Rene Currier, appellant. ___ N.W.2d ___ Filed November 13, 2020. No. S-19-343. 1. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court’s determinations regarding custody, child support, division of property, alimony, and attorney fees. 2. Evidence: Appeal and Error. In a review de novo on the record, an appellate court is required to make independent factual determinations based upon the record, and the court reaches its own independent con- clusions with respect to the matters at issue. 3. Judges: Words and Phrases. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriv- ing a litigant of a substantial right and denying just results in matters submitted for disposition. 4. Divorce: Property Division. All property accumulated and acquired by either spouse during the marriage is part of the marital estate, unless it falls within an exception to the general rule. 5. ____: ____. Any given property can constitute a mixture of marital and nonmarital interests; a portion of an asset can be marital property while another portion can be separate property. 6. ____: ____. The original capital or value of an asset may be nonmarital, while all or some portion of the earnings or appreciation of that asset may be marital. 7. ____: ____. The active appreciation rule sets forth the relevant test to determine to what extent marital efforts caused any part of an asset’s appreciation or income. 8. Divorce: Property Division: Presumptions. Accrued investment earnings or appreciation of nonmarital assets during the marriage are  - 749 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports HIGGINS v. CURRIER Cite as 307 Neb. 748 presumed marital unless the party seeking the classification of the growth as nonmarital proves: (1) The growth is readily identifiable and traceable to the nonmarital portion of the account and (2) the growth is not due to the active efforts of either spouse. 9. Divorce: Property Division: Words and Phrases. Appreciation caused by marital contributions is known as active appreciation, and it consti- tutes marital property. 10. ____: ____: ____. Passive appreciation is appreciation caused by sepa- rate contributions and nonmarital forces. 11. Divorce: Property Division: Proof. The burden is on the owning spouse to prove the extent to which marital contributions did not cause the appreciation or income. Petition for further review from the Court of Appeals, Moore, Chief Judge, and Arterburn and Welch, Judges, on appeal thereto from the District Court for Douglas County, James M. Masteller, Judge. Judgment of Court of Appeals affirmed in part, and in part reversed and remanded with directions. Corey J. Wasserburger, of Johnson, Flodman, Guenzel & Widger, for appellant. Megan E. Shupe and Richard W. Whitworth, of Reagan, Melton & Delaney, L.L.P., for appellee. Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Papik, J. In its decree dissolving the marriage of Billy Meredith Higgins and Rashell Rene Currier, the district court for Douglas County found that Currier should be awarded $10,500 from a 401K account owned by Higgins, but otherwise awarded Higgins all funds in his retirement and investment accounts. Currier appealed, challenging various aspects of the dis- trict court’s dissolution decree, and the Nebraska Court of Appeals affirmed. See Higgins v. Currier, No. A‑19‑343, 2020 WL 634183 (Neb. App. Feb. 11, 2020) (selected for posting to court website). We granted Currier’s petition for further  - 750 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports HIGGINS v. CURRIER Cite as 307 Neb. 748 review. We find that the Court of Appeals erred in concluding that the district court did not abuse its discretion in its disposi- tion of Higgins’ 401K accounts. BACKGROUND Parties’ Marriage. Higgins and Currier were married in Washington on May 20, 2016. At the time of the marriage, Currier and her son from a prior relationship lived in Washington and Higgins lived in Council Bluffs, Iowa. Following the marriage, Currier and her son moved to Council Bluffs to live with Higgins. Higgins and Currier have no children together. Higgins has been employed by TD Ameritrade since 1997. During a portion of the 14 months Currier lived with Higgins, she worked part time. In July 2017, Currier and her son moved back to Washington. Shortly thereafter, Higgins moved to Omaha, Nebraska. After July 2017, the parties remained in contact and took occasional trips to visit one another. The parties were unable to reconcile and ended their relationship in March 2018. Higgins initially filed a complaint for legal separation in April 2018, but later filed an amended complaint for dissolu- tion of marriage. Trial was held in December 2018. Higgins was represented by counsel at trial. Currier represented herself. Both parties testifed and offered exhibits, which were received into evidence by the district court. Summary of Trial Evidence. Much of the evidence at trial concerned investment and retirement accounts owned by Higgins. Higgins testified that he had a TD Ameritrade account with an account number end- ing in “3733” (the 3733 account). He testified that the 3733 account was in existence prior to the marriage and that he did not make any deposits into the 3733 account during the mar- riage. Higgins’ counsel referred to the account as a “brokerage account” during direct examination. Higgins asked that the  - 751 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports HIGGINS v. CURRIER Cite as 307 Neb. 748 court award all funds in that account to him as a premari- tal asset. In addition, Higgins testified that he had a 401K account, which was established prior to the marriage. He also asked that the district court award that account to him, but he did not provide any other testimony or documentation with respect to that account. Currier also presented evidence regarding Higgins’ accounts. She testified that Higgins had two different 401K accounts and that he was depositing $1,500 per month into the accounts. Currier also introduced and the court received two account statements for a TD Ameritrade 401K account with an account number ending in “0510” (the 0510 account). The account state- ments are in Higgins’ name and are from May 2016 and March 2018. These statements show that the 0510 account had a value of $218,182.02 as of May 2016 and a value of $359,128.29 as of March 2018. The statements show that Higgins held stocks and mutual funds within the account and that securities were sold and purchased and interest income was received during the period summarized by each statement. When referencing the account statements for the 0510 account, Currier noted that the account statements corresponded to the month the parties were married and the month the parties separated and asked the district court to divide the account equitably. The district court also received evidence regarding the pur- chase and sale of the Council Bluffs house in which the parties resided together. Higgins testified that he purchased that house in 2014 for approximately $675,000 and that, at the time, the house was appraised at $625,000. Higgins testified that he made a downpayment on the purchase of about $350,000, and a closing statement shows that he and his previous wife bor- rowed $315,000 to purchase the house. Higgins testified that, at Currier’s request, he sold the Council Bluffs house in July 2017. Higgins testified that the house sold for $615,000, about $58,000 less than its purchase price, and that he paid about $31,000 in fees and closing  - 752 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports HIGGINS v. CURRIER Cite as 307 Neb. 748 costs. He testified that he realized about $300,000 from its sale. Following the sale of the house, Higgins used $25,000 of the proceeds to pay off a marital credit card debt. He applied the rest of the proceeds to the purchase of a new house in Omaha. Higgins asked the district court to award him the Omaha house as nonmarital property traceable to his premarital Council Bluffs house. District Court Decree. In March 2019, the district court entered a decree of dissolu- tion, dissolving the marriage and identifying and dividing the marital estate. Perhaps unsurprisingly, given the duration of the marriage, relatively little property was identified as marital and subject to equitable division. The district court awarded Currier $303, representing half of the balance in a bank account in both parties’ names. The court also awarded her $3,570, a sum representing half of an income tax refund that accumulated during the portion of 2016 the parties were married. The district court found that the TD Ameritrade account end- ing in “0733” (presumably the 3733 account) was Higgins’ pre- marital asset and that “all accumulations to [that] account were from that premarital asset.” It awarded Higgins that account and any other “TD Ameritrade accounts which belonged to [Higgins] prior to the marriage.” In a separate subsection of the decree, the district court discussed retirement plans. It found that Higgins had a 401K account through TD Ameritrade which was established prior to the marriage. It found that during the marriage, he made monthly contributions of $1,500 from marital funds to that account. The court found that for purposes of divid- ing the marital portion of the 401K account, the operative dates for the marriage were from May 2016 to July 2017 and that Higgins thus made $21,000 in contributions to the 401K account that were subject to division. Accordingly, it awarded Currier $10,500 from Higgins’ 401K and ordered it transferred through a qualified domestic relations order. The  - 753 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports HIGGINS v. CURRIER Cite as 307 Neb. 748 district court awarded the parties any other retirement plans held in their own names. In a subsection of the decree addressing real property, the district court concluded that the Council Bluffs house was not a marital asset. It also concluded that the equity in the Council Bluffs house could be traced to the house Higgins purchased in Omaha. It found that the Omaha house was not a marital asset and thus awarded Higgins all right, title, interest, and equity in that property. Court of Appeals. Currier appealed. Among other things, she assigned that the district court had erred in classifying the increase in value of the 0510 account and the Council Bluffs house as non- marital property. The Court of Appeals affirmed the district court’s decree. The Court of Appeals found that the district court did not abuse its discretion by declining to include in the marital estate the amount by which the 0510 account increased during the marriage. The Court of Appeals recognized that the question of whether the increase in value was appropriately treated as nonmarital called for the application of the active appre- ciation rule, whereby the burden is on the owning spouse to prove the extent to which marital contributions did not cause the appreciation or income. It also acknowledged the district court’s receipt of account statements showing that the value of that account increased from $218,182.02 in May 2016 to $359,128.29 in March 2018 and that stocks and mutual funds were sold and purchased within the account during that time. It concluded, however, that those statements did not indicate that active appreciation was the cause of the increase in value, but, rather, they suggested that “the account fluctuates, pre- sumably depending on market forces.” Higgins v. Currier, No. A‑19‑343, 2020 WL 634183 at *6 (Neb. App. Feb. 11, 2020) (selected for posting to court website).  - 754 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports HIGGINS v. CURRIER Cite as 307 Neb. 748 The Court of Appeals also concluded the district court did not err by finding that the Council Bluffs residence was a non- marital asset. ASSIGNMENTS OF ERROR Currier argues on further review that the Court of Appeals erred by improperly shifting the burden to her to prove that the increase in value in the 0510 account during the parties’ marriage was due to active appreciation. She argues that, in this regard, the Court of Appeals’ opinion is at odds with our recent opinion in White v. White, 304 Neb. 945 , 937 N.W.2d 838 (2020). She contends that the increase in value of the 0510 account during the marriage should have been treated as mari- tal property subject to equitable division. Currier also claims that the Court of Appeals erred by failing to find that mortgage payments made during the marriage were inextricably comingled with the equity in the marital residence. We find no error in the district court’s disposition of this issue, and we see no need for further comment on it. Therefore, our analysis below is limited to the assignment of error concerning the disposition of the 0510 account. STANDARD OF REVIEW [1] In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court’s determinations regarding cus- tody, child support, division of property, alimony, and attorney fees. White v. White, supra. [2] In a review de novo on the record, an appellate court is required to make independent factual determinations based upon the record, and the court reaches its own independent conclusions with respect to the matters at issue. Id. [3] A judicial abuse of discretion exists if the reasons or rul- ings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Id.  - 755 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports HIGGINS v. CURRIER Cite as 307 Neb. 748 ANALYSIS Currier introduced evidence showing that the value of the 0510 account increased during the course of the marriage. The account statements Currier introduced showed that the value of the account was $218,182.02 in May 2016 and $359,128.29 in March 2018. Currier argues that the district court should have classified this increase in value as marital property and divided it equitably. [4‑6] We have said that all property accumulated and acquired by either spouse during the marriage is part of the marital estate, unless it falls within an exception to this gen- eral rule. Stephens v. Stephens, 297 Neb. 188 , 899 N.W.2d 582 (2017). Thus, for example, income from either party that accu- mulates during the marriage is a marital asset. Id. Any given property can constitute a mixture of marital and nonmarital interests; a portion of an asset can be marital property while another portion can be separate property. Id. Therefore, the original capital or value of an asset may be nonmarital, while all or some portion of the earnings or appreciation of that asset may be marital. Id. Currier argues that is the case here. Although she concedes that the value of the 0510 account at the time of the parties’ marriage was Higgins’ nonmarital property, she contends that the growth in that account during the marriage was marital. She argues that this result is compelled by the active apprecia- tion rule. [7‑11] The active appreciation rule sets forth the relevant test to determine to what extent marital efforts caused any part of an asset’s appreciation or income. White v. White, 304 Neb. 945 , 937 N.W.2d 838 (2020). Under the rule, accrued investment earnings or appreciation of nonmarital assets dur- ing the marriage are presumed marital unless the party seeking the classification of the growth as nonmarital proves: (1) The growth is readily identifiable and traceable to the nonmarital portion of the account and (2) the growth is not due to the active efforts of either spouse. Id. Appreciation caused by  - 756 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports HIGGINS v. CURRIER Cite as 307 Neb. 748 marital contributions is known as active appreciation, and it constitutes marital property. Id. Passive appreciation is appre- ciation caused by separate contributions and nonmarital forces. Id. The burden is on the owning spouse to prove the extent to which marital contributions did not cause the appreciation or income. Id. In Stephens v. Stephens, 297 Neb. at 205 , 899 N.W.2d at 595, we made clear that these principles “apply equally to appreciation or income during the marriage of any nonmarital asset.” We also explained that placing the burden on the own- ing spouse to prove that the growth is not due to active efforts “is the better policy, because it places the burden on the party who has the best access to the relevant evidence.” Id. at 206, 899 N.W.2d at 595. We recently had occasion to apply the active appreciation rule in White v. White, supra. In that case, the husband created an investment account with funds he inherited. He argued that the district court abused its discretion by treating the appre- ciation in that account during the course of the marriage as marital property. We rejected the argument. We explained that under the active appreciation rule articulated in Stephens v. Stephens, supra, it was the husband’s burden to establish that the growth in the account was attributable solely to passive market forces or separate contributions. We also noted ways in which the husband might have been able to carry this bur- den: by showing that the growth was consistent with “some recognized benchmark of general market growth,” that the annual rate of return was guaranteed or statutorily prescribed, or that he relied on the recommendations or management of his account by a third party. White v. White, 304 Neb. at 961 , 937 N.W.2d at 851. But because the husband failed to present evidence on any of these points or any evidence showing that his efforts did not cause the appreciation, we found that the district court did not err in classifying the appreciation in the account as marital.  - 757 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports HIGGINS v. CURRIER Cite as 307 Neb. 748 Currier argues that under the active appreciation rule, as applied in White, the increase in the value of the 0510 account is also marital property subject to equitable division. She does not dispute that Higgins satisfied the first element of the active appreciation rule by showing that the growth in the 0510 account was readily identifiable and traceable to the nonmarital portion of the account. But she contends that like the husband in White, Higgins introduced no evidence showing that the growth was not due to the active efforts of either spouse. In response to this argument, Higgins has not directed us to any evidence in the record that might tend to show that the increase in the value of the 0510 account came about as a result of something other than the active efforts of either spouse. Indeed, during closing argument, Higgins’ counsel seemed to acknowledge the lack of such evidence, stating “there’s been absolutely no testimony that would guide the Court in deter- mining how to divvy up any income and interest that would have come into that account during the time . . . that these folks have been married.” Unable to point to evidence that the increase in value in the 0510 account was the result of passive appreciation, Higgins attempts to undermine Currier’s argument in other ways. First, he contends that Currier did not adequately raise this issue in the district court. We disagree. In referencing the exhibit she offered into evidence showing the increase in value of the 0510 account between May 2016 and March 2018, Currier mentioned that the account statements corresponded with the month the parties were married and the month they sepa- rated, and she asked the district court to “divide that equi- tably.” Higgins’ counsel appeared to understand that Currier was asking that at least some portion of Higgins’ accounts be treated as marital property subject to equitable division. On cross‑examination, he had Currier confirm that she was asking the district court to award her a portion of Higgins’ 401K, and, in closing argument, he contended that, with the possible exception of funds that were contributed to accounts  - 758 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports HIGGINS v. CURRIER Cite as 307 Neb. 748 during the marriage, Higgins should be awarded the entirety of any investment or retirement accounts. We believe Currier adequately informed the district court and Higgins that she sought the equitable division of the 0510 account. Higgins also argues that despite the lack of evidence that the increase in the value of the 0510 account was the result of passive appreciation, the Court of Appeals correctly applied the active appreciation rule. Again, we disagree. The Court of Appeals stated that the exhibits Currier offered regarding the 0510 account did not show any funds being deposited, but instead showed stocks and mutual funds being sold and purchased within the account along with the receipt of inter- est income. It noted that the March 2018 statement showed a $20,000 loss for the month. It concluded that this evidence “does not indicate that active appreciation is the cause of the increase in value during the marriage; rather, it indicates that the account fluctuates, presumably depending on market forces.” Higgins v. Currier, No. A‑19‑343, 2020 WL 634183 at *6 (Neb. App. Feb. 11, 2020) (selected for posting to court website). Although the Court of Appeals recognized earlier in its opinion that the burden is on the owning spouse to prove the extent to which marital contributions did not cause the appre- ciation or income, its analysis treated Currier as if she had the burden to show that the increase was caused by active appre- ciation. After concluding that the exhibits Currier offered did not demonstrate active appreciation, the Court of Appeals pre- sumed that the account increased due solely to market forces. This was an incorrect application of the active appreciation rule. The burden was on Higgins to show that the increase in the 0510 account was the result of passive appreciation. Higgins was obligated to adduce evidence to carry that burden as opposed to relying on presumptions. He did not do so. Thus, under the active appreciation rule, the increase in value of the 0510 account during the marriage should have been treated as marital property.  - 759 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports HIGGINS v. CURRIER Cite as 307 Neb. 748 We are not swayed from this conclusion by Higgins’ conten- tion at oral argument that Currier’s argument is flawed because the district court, for purposes of determining contributions to Higgins’ 401K, treated the marriage as effectively concluded in July 2017 when Currier returned to Washington. Higgins pointed out that although Currier offered evidence of the value of the account in March 2018, she did not offer evidence of the value of the account in July 2017. He claimed that there is thus no evidence of how much the value of the 0510 account increased from the beginning of the marriage until its effective conclusion as determined by the district court. Higgins is correct that Currier did not introduce evidence showing the value of the 0510 account in July 2017, but that does not affect our conclusion that under these circumstances, the increase between May 2016 and March 2018 should have been treated as marital property subject to equitable division. As we have discussed, because Higgins did not show that the increase in the 0510 account resulted from passive apprecia- tion, the increase in the account during the marriage should have been treated as marital property under the active appre- ciation rule. To the extent the value of the account increased after the effective end of the marriage as determined by the district court and rendered any marginal increase after that time nonmarital property, Higgins had the burden to prove it. See Burgardt v. Burgardt, 304 Neb. 356 , 363, 934 N.W.2d 488 , 494 (2019) (“[i]n a marital dissolution proceeding, the burden of proof rests with the party claiming that property is nonmarital”). Higgins, however, introduced no evidence regarding the value of the 0510 account in July 2017 or any other time. For all these reasons, we conclude that the increase in the value of the 0510 account should have been treated as marital property subject to equitable division. The district court abused its discretion by finding otherwise, and the Court of Appeals erred by failing to reverse on this issue.  - 760 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports HIGGINS v. CURRIER Cite as 307 Neb. 748 Disposition. Currier argues that given the district court’s error, we should modify the decree to award her half of the increase in the value of the 0510 account. While our de novo on the record stan- dard of review permits us to modify a dissolution decree, we believe it best to instead reverse, and remand with directions in this case. As we have noted, while the district court did not treat the entire increase of the 0510 account as marital property, it did find that Higgins deposited $21,000 into a 401K account dur- ing the marriage. It determined those were marital contribu- tions and, as a result, awarded Currier $10,500 from the 401K account. It is not clear to us from the decree or the broader record, however, whether the district court determined that those contributions were made to the 0510 account or another account. If the contributions were found to be made to the 0510 account, it would be double counting to treat both those contri- butions and the full $140,946.27 increase in the 0510 account as marital property. If the contributions were found to be made to some other account, however, then the entire increase in the 0510 account should be treated as marital property in addition to the $21,000 in marital contributions the district court treated as marital in its initial decree. Given this uncertainty in the record and because the district court is in a better position to make an equitable division, we will return this case to the district court. We do so by remand- ing the cause to the Court of Appeals and directing that it reverse the district court’s decree in part and remand the cause to the district court with the following directions. The district court should clarify whether the $21,000 in contributions found by the district court to be marital property were made to the 0510 account. If so, an additional $119,946.27 should also be treated as marital. If not, an additional $140,946.27 should be treated as marital. The district court should also determine the equitable division of marital property. See Stephens v. Stephens, 297 Neb. 188 , 899 N.W.2d 582 (2017) (remanding  - 761 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports HIGGINS v. CURRIER Cite as 307 Neb. 748 to district court to determine equitable distribution of asset found to be marital). All such determinations should be made based on the existing record. CONCLUSION The Court of Appeals and the district court erred in their application of the active appreciation rule. We reverse the decision of the Court of Appeals to the extent it affirmed the district court’s award of all but $10,500 from Higgins’ 401K account to Higgins. On that issue, we remand the cause to the Court of Appeals and direct that it reverse the district court’s decree in part and remand the cause with directions to the dis- trict court as outlined above. In all other respects, we affirm. Affirmed in part, and in part reversed and remanded with directions.

2020-12-04 06:08:06.392568+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007469PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 695 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. TEPPERT Cite as 307 Neb. 695 State of Nebraska, appellee, v. Aaron Teppert, appellant. ___ N.W.2d ___ Filed November 6, 2020. No. S-19-688. 1. Sentences: Prior Convictions: Appeal and Error. A sentencing court’s determination concerning the constitutional validity of a prior plea-based conviction, used for enhancement of a penalty for a subsequent convic- tion, will be upheld on appeal unless the sentencing court’s determina- tion is clearly erroneous. 2. Convictions: Presumptions: Right to Counsel: Waiver: Proof. Convictions obtained after Gideon v. Wainwright, 372 U.S. 335 , 83 S. Ct. 792 , 9 L. Ed. 2d 799 (1963), are entitled to a presumption of regular- ity such that records of conviction are admissible unless the defendant can show that he or she did not have or waive counsel at the time of conviction. 3. Sentences: Prior Convictions: Proof. In a proceeding to enhance a punishment because of prior convictions, the State has the burden to prove the fact of prior convictions by a preponderance of the evidence and the trial court determines the fact of prior convictions based upon the preponderance of the evidence standard. Appeal from the District Court for Scotts Bluff County: Andrea D. Miller, Judge. Affirmed. Paul Payne and Darin J. Knepper, Deputy Scotts Bluff Public Defenders, for appellant. Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.  - 696 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. TEPPERT Cite as 307 Neb. 695 Papik, J. Aaron Teppert appeals his conviction for driving under the influence (DUI), fourth offense. He argues that the district court erred by receiving evidence of a prior conviction offered by the State in support of sentence enhancement. We find that the district court did not err and therefore affirm. BACKGROUND Teppert was charged with and pleaded guilty to DUI and driving under suspension. At the subsequent sentence enhance- ment proceeding, the State sought to introduce evidence of three prior DUI convictions. Teppert did not object to the dis- trict court’s receipt of two of the prior DUI convictions, and those convictions are not at issue in this appeal. Teppert did object to the admission of court records showing that he was convicted of DUI in 2010 in Red Willow County Court. He argued that those records were inadmissible because they did not affirmatively show that he had counsel or had knowingly, intelligently, and voluntarily waived the right to counsel before entering his guilty plea in that case. We will discuss the content of the court records at issue in more detail in the analysis section below. The district court overruled Teppert’s objection, found that the current conviction was his fourth offense, and sentenced Teppert accordingly. Teppert appeals. ASSIGNMENT OF ERROR Teppert assigns one error on appeal. He contends the district court erred by receiving the records of his 2010 DUI convic- tion for purposes of sentence enhancement. STANDARD OF REVIEW [1] A sentencing court’s determination concerning the con- stitutional validity of a prior plea-based conviction, used for enhancement of a penalty for a subsequent conviction, will be upheld on appeal unless the sentencing court’s determina- tion is clearly erroneous. State v. Orduna, 250 Neb. 602 , 550  - 697 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. TEPPERT Cite as 307 Neb. 695 N.W.2d 356 (1996), overruled on other grounds, State v. Vann, 306 Neb. 91 , 944 N.W.2d 503 (2020). ANALYSIS Law Governing Admissibility of Records of Prior Convictions in Enhancement Proceedings. As both parties recognized at oral argument, the legal land- scape on the issue raised in this appeal changed after the dis- trict court proceedings and the filing of briefs in this case. For many years, this court held that evidence of a prior conviction was inadmissible unless the State proved that, at the time of the prior conviction, the defendant either had counsel or knowingly, intelligently, and voluntarily waived the right to counsel. See, e.g., State v. Nowicki, 239 Neb. 130 , 474 N.W.2d 478 (1991), overruled, Vann, supra. See, also, Orduna, supra. Under this rule, if a record was silent as to whether the defendant had or validly waived counsel in the prior proceeding, evidence of that conviction was not admissible; affirmative evidence that the defendant’s Sixth Amendment right to counsel was honored in the prior proceeding was required. See, e.g., State v. Garcia, 281 Neb. 1 , 792 N.W.2d 882 (2011), overruled, Vann, supra. At the enhancement proceeding in this case, Teppert relied on this line of cases to argue that the district court should not receive evidence of the 2010 DUI conviction. [2] Earlier this year in Vann, supra, we overruled this line of cases. In Vann, we concluded that the rule prohibiting courts from presuming that prior convictions were obtained in com- pliance with the Sixth Amendment was based on a reading of a U.S. Supreme Court case, Burgett v. Texas, 389 U.S. 109 , 88 S. Ct. 258 , 19 L. Ed. 2d 319 (1967), that the U.S. Supreme Court later rejected in Parke v. Raley, 506 U.S. 20 , 113 S. Ct. 517 , 121 L. Ed. 2d 391 (1992). In light of Parke, we concluded that convictions obtained after the recognition of a federal constitu- tional right to counsel in state court in Gideon v. Wainwright, 372 U.S. 335 , 83 S. Ct. 792 , 9 L. Ed. 2d 799 (1963), are “entitled to a presumption of regularity such that records of conviction are admissible unless the defendant can show that  - 698 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. TEPPERT Cite as 307 Neb. 695 he or she did not have or waive counsel at the time of convic- tion.” Vann, 306 Neb. at 102 , 944 N.W.2d at 512. Additionally, we noted that many other state and federal courts apply the same rule, including some courts that once applied the rule we followed prior to Vann. While the fact of a prior conviction was an element of the underlying offense in Vann, we made clear that the same rule would apply to the use of prior convictions in sentence enhancement proceedings. At oral argument, counsel for Teppert acknowledged that if Vann applied, the records of the 2010 DUI conviction would be entitled to a presumption of regularity and Teppert would have the burden to show he did not have or validly waive counsel at the time of that conviction. He argued, however, that because the enhancement proceeding occurred prior to the release of our opinion in Vann, we should reverse, and remand to the district court so that Teppert would have the opportunity to present evidence to carry his burden. Counsel for the State argued that no remand was necessary because the records were admissible whether the case is governed by Vann or the line of cases Vann overruled. We do not believe remand is required. As we will explain, even under the pre-Vann law, the district court did not err by receiving evidence of the convictions. Records Admissible Under Pre-Vann Law. [3] In a proceeding to enhance a punishment because of prior convictions, the State has the burden to prove the fact of prior convictions by a preponderance of the evidence and the trial court determines the fact of prior convictions based upon the preponderance of the evidence standard. See, State v. Hall, 270 Neb. 669 , 708 N.W.2d 209 (2005); State v. Hurbenca, 266 Neb. 853 , 669 N.W.2d 668 (2003). Prior to our decision in Vann, in order for evidence of a prior conviction to be admit- ted for enhancement purposes, the State also had the burden to show by a preponderance of the evidence that the defendant had or waived counsel at the time of the prior conviction. See, e.g., Hall, supra.  - 699 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. TEPPERT Cite as 307 Neb. 695 At the enhancement proceeding, the State offered various authenticated court records from a 2010 criminal case. Those records show that Teppert was charged with DUI, pleaded guilty, and was sentenced accordingly. The State argues that a September 30, 2010, journal entry and order from that case also shows that Teppert validly waived counsel before entering his guilty plea. The journal entry and order states that Teppert pleaded guilty and was found guilty, followed by sections summarizing the advisements given and the arraignment: APPEARANCES AND ADVISEMENT .... Defendant advised of the nature of the above charges, all possible penalties, effect of conviction on non-citizens, and each of the following rights: Counsel; Appointed Counsel; Trial; Jury Trial; Confront Accusers; Subpoena Witnesses; Remain Silent; Request Transfer to Juvenile Court; Defendant’s Presumption of Innocence; State’s Burden of Proof . . . ; Right to Appeal. Indigency inquiry held[:] Defendant adjudged indigent, public defender appointed. ARRAIGNMENT Defendant advised of and waived rights. Defendant waives jury trial. Defendant enters above pleas. Pleas entered knowingly, intelligently, voluntarily, and a factual basis for plea(s) found. Teppert argues that the district court could not have found that he validly waived his right to counsel at the plea hear- ing for his 2010 DUI conviction based on the journal entry and order. Teppert maintains that the journal entry and order is silent as to whether he validly waived his right to counsel before entering his guilty plea. We disagree. Teppert points out that the journal entry and order does not directly state that Teppert knowingly, intelligently, and volun- tarily waived the right to counsel. Nonetheless, we find that  - 700 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. TEPPERT Cite as 307 Neb. 695 one could reasonably conclude from the information included in the journal entry and order that Teppert validly waived the right to counsel. After stating that Teppert was advised of a number of rights, including the right to counsel, the journal entry and order states that Teppert was “advised of and waived rights.” Read together, we believe it fair to infer that Teppert waived the specific rights referred to earlier, including the right to counsel. The journal entry and order also contain several indications that Teppert waived his right to counsel knowingly, intelli- gently, and voluntarily. First, the fact that Teppert was advised about his rights before waiving them suggests a knowing, intelligent, and voluntary waiver. Second, the journal entry and order shows that after entering his guilty plea, Teppert invoked his right to counsel and was appointed counsel for sentencing. Teppert’s exercise of his right to counsel for the sentencing phase of the case also suggests he understood the right. Finally, the notation that Teppert entered his plea know- ingly, intelligently, and voluntarily shows that his waiver of counsel was also done knowingly, intelligently, and vol- untarily. We explored the relationship between a valid plea and a valid waiver of the right to counsel in State v. Orduna, 250 Neb. 602 , 550 N.W.2d 356 (1996), overruled on other grounds, State v. Vann, 306 Neb. 91 , 944 N.W.2d 503 (2020). In Orduna, like this case, a record of the defendant’s prior conviction expressly stated that he had made a knowing, intelligent, and voluntary guilty plea, but did not expressly state that he had knowingly, intelligently, and voluntarily waived the right to counsel. We nonetheless found that the records affirmatively demonstrated a valid waiver of the right to counsel. We reasoned that if a trial court finds that a plea was entered knowingly, intelligently, and voluntarily, and the record reflects that the defendant also waived the right to counsel, the right to counsel must also have been waived knowingly, intelligently, and voluntarily. As we explained, “a plea cannot be legally sufficient unless those elements  - 701 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. TEPPERT Cite as 307 Neb. 695 underlying the plea are also legally sufficient.” Id. at 611, 550 N.W.2d at 362-63 . As noted above, a sentencing court’s determination concern- ing the constitutional validity of a prior plea-based conviction, used for enhancement of a penalty for a subsequent conviction, will be upheld on appeal unless the sentencing court’s determi- nation is clearly erroneous. Orduna, supra. Given all that the district court could fairly conclude from the journal entry and order, we cannot say the district court clearly erred by finding that Teppert knowingly, intelligently, and voluntarily waived his right to counsel prior to entering his guilty plea for his 2010 DUI conviction. Because Teppert failed to demonstrate that the district court erred even if this case is reviewed under the more restric- tive rule governing the admissibility of prior convictions that applied prior to Vann, we see no basis to reverse the decision of the district court. CONCLUSION The district court did not err by receiving records of Teppert’s 2010 DUI conviction and finding that his conviction in this case was his fourth offense. We affirm. Affirmed.

2020-12-04 06:08:08.912838+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007464PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 716 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 Douglas County School District No. 10, also known as the Elkhorn School District, appellant, v. Tribedo, LLC, a Nebraska limited liability company, appellee. ___ N.W.2d ___ Filed November 6, 2020. No. S-19-986. 1. Trial: Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such deter- minations will not be disturbed on appeal unless they constitute an abuse of that discretion. 2. Evidence: Appeal and Error. In a civil case, the admission or exclu- sion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. 3. Eminent Domain: Verdicts: Appeal and Error. A condemnation action is reviewed as an action at law, in connection with which a verdict will not be disturbed unless it is clearly wrong. 4. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court’s failure to give a requested jury instruction, an appel- lant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court’s failure to give the requested instruction. 5. Motions for New Trial: Appeal and Error. An appellate court reviews a denial of a motion for new trial for an abuse of discretion. 6. Constitutional Law: Eminent Domain: Damages: Words and Phrases. The Nebraska Constitution provides that property shall not be taken or damaged for public use without just compensation, and the phrase “or damaged” provides that consequential damages may be an element of recovery in some situations. 7. Eminent Domain: Damages. The measure of damages for land taken for public use is the fair and reasonable market value of the land  - 717 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 actually appropriated and the difference in the fair and reasonable mar- ket value of the remainder of the land before and after the taking. 8. ____: ____. Severance damages for land taken for public use are measured by all factors and inconveniences that would influence a purchaser. 9. Jury Instructions: Appeal and Error. If the jury instructions given, which are taken as a whole, correctly state the law, are not misleading, and adequately cover the issues submissible to a jury, there is no preju- dicial error concerning the instructions and necessitating a reversal. 10. Trial: Expert Witnesses. Expert witness testimony is not binding on the triers of fact. 11. Attorney Fees: Appeal and Error. When an attorney fee is authorized, the amount of the fee is addressed to the trial court’s discretion, and its ruling will not be disturbed on appeal absent an abuse of discretion. 12. Attorney Fees. An award of attorney fees involves consideration of such factors as the nature of the case, the services performed and results obtained, the length of time required for preparation and presentation of the case, the customary charges of the bar, and general equities of the case. Appeal from the District Court for Douglas County: J Russell Derr, Judge. Affirmed. Duncan A. Young, Jeff C. Miller, and Keith I. Kosaki, of Young & White Law Office, for appellant. Adam W. Barney, Trenten P. Bausch, and Sydney M. Huss, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellee. Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke, and Freudenberg, JJ. Miller‑Lerman, J. I. NATURE OF CASE To acquire property for a new high school site, Douglas County School District No. 10, also known as the Elkhorn School District (Elkhorn), condemned 43.36 acres of a 73.99‑acre tract owned by Tribedo, LLC. The board of apprais- ers issued an award of $2,601,600 for the taking. Tribedo appealed the award to the district court for Douglas County  - 718 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 and alleged that the award did not reflect the fair market value of the property taken and did not adequately compensate for damages to the remainder of Tribedo’s property. At trial, the parties offered evidence of the value of the taken property and the severance damages to the remainder property. Elkhorn unsuccessfully objected to Tribedo’s pre- sentation of evidence regarding the factors which went to the damages related to the change in fair market value of the remainder property. The jury returned a verdict finding compensation totaling $4,625,967. Elkhorn moved for a new trial, which was denied. The court granted Tribedo’s posttrial motions for an award of interest and attorney fees. Elkhorn appeals, and it assigns several errors related to the compen- sation awarded Tribedo and the award of attorney fees to Tribedo. We affirm. II. STATEMENT OF FACTS In April 2015, Tribedo executed a purchase agreement to acquire a 73.99‑acre tract located on the northeast corner of West Maple Road and 180th Street in Douglas County, Nebraska (Property). The Property was zoned for agricultural use and was used as farmland. The managing agent of the partnership that owns Tribedo testified that Tribedo purchased the Property for $60,000 per acre with the intent to develop it into a mixed‑use development. The sale closed on October 20, 2016. The intersection of West Maple Road and 180th Street, where the Property is located, is designated as a “[C]ommunity 165” intersection on the city of Omaha’s future land use map. A Community 165 designation refers to a large mixed‑use development area of at least 165 acres, which includes big‑box stores, grocery stores, office buildings, and other commercial development. There is evidence that it is the most intensive land use development that is allowed within the city of Omaha. Another such example is Village Pointe, located at 168th Street and West Dodge Road.  - 719 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 Tribedo planned to develop the Property with the use of a sanitary and improvement district. Pursuant to the purchase agreement for the Property, Tribedo began implementing land use planning and zoning processes to enable development of the land. Subsequent to the execution of the purchase agreement, the 180th Street viaduct bridge, which connects Blondo Street to north of the Property, received federal funding and an environ- mental impact review. At the time of trial, Tribedo was acquir- ing right‑of‑way for the bridge project for construction to start in 2020, which it claims adds significant value to the Property. Tribedo had attempted to rezone the Property, which approval Tribedo believes it could have obtained, but once Elkhorn’s condemnation occurred, the process was halted. On February 22, 2017, 4 months after Tribedo closed on the land, Elkhorn condemned 43.36 acres of the Property for a new high school site. The board of appraisers appraised the 43.36‑acre tract at $60,000 per acre, awarding Tribedo a total amount of $2,601,600 for the taking. Tribedo appealed to the district court, where it alleged that the award was inadequate and that the highest and best use of the Property was as a mixed‑use commercial development. 1. Total Compensation: Condemned Property Plus Diminished Fair Market Value of Remainder As we explain in greater detail below, at trial, the experts addressed their opinions to both the 43.36 acres taken and the diminished fair market value of the 30.63‑acre remainder, as well as a dollar value of total compensation incorporating both aspects of the award. Tribedo’s first real estate appraiser, Kevin Kroeger, valued the total compensation at $5,890,000; Tribedo’s second appraiser, Nicholas Dizona, valued the total compensation at $7,022,000; and Elkhorn’s appraiser, Martin Giff, valued the total compensation at $2,601,600.  - 720 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 2. Compensation for the 43.36 Acres of Condemned Property Both parties presented evidence of the value of the con- demned parcel. Kroeger valued the 73.99‑acre Property at $98,010 per acre and the taken property at $4,249,720. Dizona valued the Property at $124,769 per acre and the taken prop- erty at $5,410,000. Giff valued the Property at $60,000 per acre, the same price it had sold for previously, and calculated the value of the taken property at $2,601,600. 3. Compensation for Severance Damages to the Remaining 30.63 Acres At trial, Tribedo sought compensation for both the 43.36 acres taken and the reduction in fair market value to the remaining 30.63 acres. According to the evidence, after the condemnation, Tribedo’s 30.63 acres remained in a Community 165 intersection and Tribedo’s revised preliminary plat to develop that parcel into a mixed‑use development had been approved at the time of trial. Prior to trial, Elkhorn filed a motion in limine seeking to exclude testimony and evidence relating to Tribedo’s “item- ized” damages, based on the contention that they were not related to the reduction in fair market value to the remaining 30.63 acres. During trial, the district court overruled Elkhorn’s evidentiary objections and motions to strike concerning the loss of market value of the remaining 30.63 acres. Tribedo’s first appraiser, Kroeger, testified that the high- est and best use of the Property was “for a future mixed‑use development, which would incorporate a combination of com- mercial, retail, office, and multi‑family uses.” He calculated severance damages to the 30.63 acres of $1,640,280, based on the impact of the project on the remainder and included grad- ing costs. Kroeger explained that the topography of the site varied by 80 feet from very low‑lying along the south side to significantly higher elevations on the north side. Potential wet- lands had been identified on the low‑lying south side.  - 721 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 Kroeger noted that there would be additional expenses to implement a new development plan, due to the condemna- tion and losses to the condemnee incurred because of lag time caused by starting over with a new development model. Kroeger explained that Tribedo would now have overall fixed costs for any future mixed‑use development spread over fewer acres. For example, a mixed‑use development on the remain- der property would likely lose 1.5 acres of developable land required to address wetlands mitigation required by the city of Omaha, which would previously have been spread out across the larger parcel. The second appraiser, Dizona, opined that the 30.63 acres suffered diminution in the fair market value of approximately $1,500,000. On direct examination, Dizona testified that the highest and best use for the remaining 30.63 acres had changed from mixed‑use “anchored development” to a development without an anchor tenant. According to Dizona, “the boulevard made it so that any potential anchored development would be impossible” because any improvements would have to face the boulevard, which could limit the useable space for Tribedo’s new proposed development. He opined that a parcel the size of the Property would have attracted a higher dollar purchaser, because it could support a larger market participant like a grocery store, with mixed‑use surrounding, and high‑density residential to the north. He stated that comparable sales of sites 20 to 30 acres were more appropriate to determine the present value after the condemnation, because of the differences in functionality and usability as compared to a development of a larger area. Dizona incorporated an estimate of $937,000 asso- ciated with site elevation issues such as grading and dirt work in reaching his opinion. Elkhorn’s expert, Giff, valued the 30.63 acres at $69,000 per acre after the taking, and he concluded that the remain- der property suffered no diminution in fair market value. He opined that the highest and best use of the condemned portion of the Property would have been as low‑density residential  - 722 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 development and that the highest and best use of the remain- der of the Property would be for commercial development. Giff testified that in reaching his valuation, he performed a comparable sales analysis on the remaining 30.63 acres by comparing the remainder with sales of three other properties situated nearby, all of which had at least a quarter mile of frontage on West Maple Road, including a sale on the south- west corner of the West Maple Road and 180th Street intersec- tion. Giff attributed the higher price per acre he assigned to the remainder property to its proximity to the West Maple Road frontage road. Other evidence at trial showed that Tribedo’s preliminary plat to develop the remaining 30.63 acres included no imported dirt. However, the managing agent of Tribedo testified that importing dirt is a “cost benefit” for a developer that he needed to think through to evaluate the rewards compared to the risks of developing the site. 4. Jury Instructions At the jury instruction conference, Elkhorn proffered the fol- lowing jury instruction regarding Tribedo’s severance damages: To determine the fair market value of the property taken in this case and to determine if there is a reduc- tion in the fair market value of the property that was not acquired, you may consider everything which affects the market value of the subject property. You have heard some testimony about [sic] from the witnesses regarding the “costs to cure,” and like mat- ters. You may only consider such “costs to cure” if they have an impact on the diminution of the fair market value of the remaining [30.63] acres as a result of the condemnation. The district court refused this jury instruction, and instead instructed the jury, inter alia, that “Tribedo is entitled to recover the fair market value of the 43.36 acres taken by Elkhorn, and the diminished value, if any, of the remaining 30.63 acres  - 723 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 owned by Tribedo, figuring the value as of February 22, 2017.” Instruction No. 4 defined “fair market value” as follows: The “fair market value” of a piece of property is the price that someone ready to sell, but not required to do so, would be willing to accept in payment for the property, and that someone ready to buy, but not required to do so, would be willing to pay for the property. In determining fair market value, you may consider the uses to which the property has been put and the uses to which it might reasonably be put in the immedi- ate future. 5. Jury Verdict and Posttrial Pproceedings The jury found that Elkhorn owed compensation to Tribedo totaling $4,625,967, broken down as follows: $3,295,967 “[f]or the 43.36 acres owned by Tribedo taken by Elkhorn” and $1,330,000 “[f]or the decrease in value, if any, of Tribedo’s remaining 30.63 acres.” After the conclusion of the jury trial and after the jury returned its verdict, the district court issued an order setting forth its rationale for denying Elkhorn’s motions and objec- tions concerning the testimony and evidence of the severance damages. The May 24, 2019, order stated, inter alia, that the $937,000 to import dirt was not an impermissible “consequen- tial cost” to the taking, but was “part of the diminished value of the remaining property,” because imported dirt was needed to level the remaining property, and that without imported fill, the property would be worth less than if it had been level. Elkhorn moved for judgment notwithstanding the verdict and for a new trial, and Tribedo moved for attorney fees, expert witness fees, and costs. Hearing was held on June 14, 2019. Elkhorn argued that the verdict was not supported by the evidence with respect to severance damages, because there was no evidence to support an amount of $1,330,000 for the dimin- ished fair market value of the remainder property. The district court ultimately denied Elkhorn’s motions.  - 724 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 With respect to Tribedo’s request for attorney fees, expert witness fees, and interest, Tribedo submitted affidavits of three attorneys who had reviewed Tribedo’s billing records and opined that the amount of fees requested was reasonable. Elkhorn objected to the affidavits, because they did not include actual billings and Elkhorn could not verify that the work was applicable and that the fees were not duplicative. The district court overruled Elkhorn’s objections to the attorney fees affi- davits. The district court rejected Elkhorn’s opposition to the attorney fees request and stated that under the circumstances, it could determine the reasonableness of an attorney fees request even in the absence of a detailed billing record. On September 16, 2019, the district court entered judgment for Tribedo for $4,625,967 on the jury’s verdict; $143,681.89 in prejudgment interest; postjudgment interest at $295.58 per day or as permitted by law; and $590,924.89 in attorney fees. In a written order, the district court found that the requested attorney fees were reasonable, given the complexity and dura- tion of the litigation; the number of issues litigated; the result of a judgment exceeding the award by the board of appraisers by over 75 percent; and the size of the judgment, which it believed to be one of the largest jury awards in a condemnation matter on record. Elkhorn appeals. III. ASSIGNMENTS OF ERROR Elkhorn first assigns various errors related to the loss in value of Tribedo’s remainder property. Summarized and restated, these claims are that the district court erred (1) when it denied Elkhorn’s motions to strike appraisal evidence offered by Tribedo; (2) when it instructed the jury regarding severance damages; (3) when it accepted the jury’s award of damages, which Elkhorn claims was excessive; and (4) when it denied Elkhorn’s motion for a new trial. Elkhorn further claims that the district court erred when it awarded attorney fees, expert fees, and interest to Tribedo.  - 725 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 IV. STANDARDS OF REVIEW [1] 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. Walker v. BNSF Railway Co., 306 Neb. 559 , 946 N.W.2d 656 (2020). [2] In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. Id. [3] A condemnation action is reviewed as an action at law, in connection with which a verdict will not be disturbed unless it is clearly wrong. Curry v. Lewis & Clark NRD, 267 Neb. 857 , 678 N.W.2d 95 (2004). [4] To establish reversible error from a court’s failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court’s failure to give the requested instruction. Hike v. State, 288 Neb. 60 , 846 N.W.2d 205 (2014). [5] An appellate court reviews a denial of a motion for new trial for an abuse of discretion. Anderson v. Babbe, 304 Neb. 186 , 933 N.W.2d 813 (2019). V. ANALYSIS 1. Damage to Remainder Property and Law on Severance Damages Elkhorn claims generally that the district court improperly allowed Tribedo’s expert appraisers to itemize damages to the remainder property. Specifically, it claims that reversible error occurred when the district court admitted evidence of Tribedo’s increased costs, when it instructed the jury regarding severance damages, when it accepted the jury’s award of damages, and when it denied Elkhorn’s motion for a new trial. We consider each claim in turn below.  - 726 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 [6] Several principles of law govern damages to the remain- der property in this case. The Nebraska Constitution provides that property shall not be taken or damaged for public use without just compensation, and the phrase “or damaged” pro- vides that consequential damages may be an element of recov- ery in some situations. See Patrick v. City of Bellevue, 164 Neb. 196 , 82 N.W.2d 274 (1957). See, also, NJI2d Civ. 13.01, comment & authorities, § X(G) (discussing just compensation as it relates to consequential damages). [7,8] The measure of damages for land taken for public use is the fair and reasonable market value of the land actu- ally appropriated and the difference in the fair and reasonable market value of the remainder of the land before and after the taking. Armbruster v. Stanton‑Pilger Drainage Dist., 169 Neb. 594 , 100 N.W.2d 781 (1960). Severance damages for land taken for public use are measured by all factors and incon- veniences that would influence a purchaser. See, Sorenson v. Lower Niobrara Nat. Resources Dist., 221 Neb. 180 , 376 N.W.2d 539 (1985) (superseded by statute on other grounds); State v. Dillon, 175 Neb. 444 , 122 N.W.2d 223 (1963). A jury may take into account “‘every (nonspeculative) element of annoyance and disadvantage resulting from the improvement which would influence an intending purchaser’s estimate of the market value of such property.’” Armbruster v. Stanton‑Pilger Drainage Dist., 169 Neb. at 610 , 100 N.W.2d at 792 . For example, “‘[t]he burden of additional fencing, and like mat- ters, are to be included, not by being added together item by item, but to the extent that, taken as a whole, they detract from the market value of the property.’” Id. at 609 , 100 N.W.2d at 791 . Other such elements which could influence market value include expenses for additional fencing, repairs, removal, and rebuilding thereof; the expenses of removal and repair of plaintiffs’ private roads and bridge, together with incon- venience and disadvantage caused thereby; the expenses of repair and the threatened peril and damages to one  - 727 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 of plaintiffs’ two valuable irrigation wells, irrigation and sewer systems, and to their buildings; and the expenses incurred attempting, in good faith, to stop the erosion and damages when defendant refused to do so, and like mat- ters . . . . Id. at 610, 100 N.W.2d at 792 . Ultimately, evidence of itemized damages may be considered only if such damages diminish the market value of the property. See Armbruster v. Stanton‑Pilger Drainage Dist., supra. 2. Elkhorn’s Claims (a) Motion to Strike and Objections to Tribedo’s Appraisers’ Testimony Elkhorn argues that the district court abused its discretion when it allowed Tribedo’s expert appraisers to testify about damages to the remainder over Elkhorn’s objections. As stated previously, a trial court’s decision to admit or exclude evidence is reviewed for abuse of discretion. Walker v. BNSF Railway Co., 306 Neb. 559 , 946 N.W.2d 656 (2020). In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complain- ing party. Id. Elkhorn specifically objects to evidence by Kroeger, who testified to a number of factors that diminished the value of the remainder for the property owner. Kroeger first testified that he believed the value of the property taken was $4,249,720. Kroeger later opined that the total amount of compensation due for the taking, composed of property taken and diminution of fair market value of the remainder, was $5,890,000. Regarding the remainder, Kroeger presented evidence of the costs of several restoration items, such as grading and addi- tional wetland rehabilitation that he stated were necessary as a result of dividing the Property. Kroeger testified that compen- sation was payable to the property owner based on a change in the fair market value of the remainder.  - 728 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 Elkhorn also argues that Dizona’s testimony should not have been admitted, because Dizona utilized a summation approach by tacking on itemized damages to determine the reduction in fair market value. To illustrate, Elkhorn notes that Dizona referred to elements influencing value, including dirt fill and leveling costs, a decrease in usable space, and changes in high- est and best use. The question is whether Dizona’s “itemized” costs were improperly considered as add‑ons to the market value or whether they were properly considered as factors influencing his opinion of the fair market value of the remain- der property. We find the factors to which Tribedo’s experts referred were properly considered in reaching their opinions regarding the fair market value of the remainder. Consistent with the district court ruling, Kroeger and Dizona detailed numerous elements that influenced their valuations, and both appraisers testified that their references to dam- ages related to a reduction in fair market value. Items such as grading and importing dirt may properly be considered to the extent they affected the fair market value of the remain- ing property. To the extent that Elkhorn notes conflicting testimony by Tribedo’s experts, or doubts the propriety of ele- ments considered in the valuation, such conflicting testimony is a question of fact. See Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173 , 459 N.W.2d 718 (1990). The district court did not abuse its discretion when it admitted expert testimony regarding the diminution of market value to Tribedo’s remain- ing property. (b) Jury Instruction Elkhorn next contends that the district court erred when it refused to give its proposed jury instruction relating to the remainder which stated that the “‘costs to cure’” could be con- sidered only if they have an impact on the fair market value of the remaining property. [9] As set forth above, a court’s failure to give a requested jury instruction is not reversible error unless an appellant shows that (1) the tendered instruction is a correct statement  - 729 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court’s failure to give the requested instruction. Hike v. State, 288 Neb. 60 , 846 N.W.2d 205 (2014). However, if the instructions given, which are taken as a whole, correctly state the law, are not misleading, and adequately cover the issues submissible to a jury, there is no prejudicial error concerning the instructions and necessitating a reversal. See id. Although the requested instructions are a correct statement of the law, Elkhorn was not prejudiced by the district court’s refusal to give them. The instruction actually given on this ques- tion stated that “Tribedo is entitled to recover the fair market value of the 43.36 acres taken by Elkhorn, and the diminished value, if any, of the remaining 30.63 acres owned by Tribedo, figuring the value as of February 22, 2017.” Instruction No. 4 defined “fair market value” as follows: The “fair market value” of a piece of property is the price that someone ready to sell, but not required to do so, would be willing to accept in payment for the property, and that someone ready to buy, but not required to do so, would be willing to pay for the property. In determining fair market value, you may consider the uses to which the property has been put and the uses to which it might reasonably be put in the immedi- ate future. Instruction No. 5 stated, “The Nebraska and United States Constitutions provide that the property of no person shall be taken for public use without just compensation therefore.” “‘Just Compensation,’” as defined in instruction No. 5, is “the fair market value of the property at the time it was taken and the diminished value, if any, of the remainder as a result of the taking which occurred on February 22, 2017.” The substance of the proposed instruction was consistent with the instructions given by the district court. Because the jury was adequately instructed on the measure of damages to the remaining property, this assignment of error is with- out merit.  - 730 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 (c) Amount of Damages Elkhorn next argues that the district court erred when it accepted the jury verdict with respect to damages to the remaining property. The crux of Elkhorn’s argument is that the jury awarded severance damages which, Elkhorn argues, were not specifically supported by the opinion of any expert. The amount of damages sustained in a condemnation action is peculiarly a question of a local nature and ordinarily is to be determined by a jury. Patterson v. City of Lincoln, 250 Neb. 382 , 550 N.W.2d 650 (1996). Where the evidence is conflict- ing, an appellate court will not ordinarily interfere with the verdict of the jury unless it is clearly wrong. Id. [10] Here, the jury’s total award of $4,625,967, as com- pensation for both the taken property and diminution to the fair market value of the remainder, was supported by suf- ficient evidence. Kroeger valued the total compensation at $5,890,000; Dizona valued the total damages at $7,022,000; and Giff valued the total damages at $2,601,600. Expert witness testimony is not binding on the triers of fact. Id. In condemnation cases, we generally do not set aside a jury award which has fallen within the range of conflicting sets of testimony. See In re Petition of Omaha Pub. Power Dist., 268 Neb. 43 , 680 N.W.2d 128 (2004). The jury award of $4,625,967 in total compensation was supported by sufficient competent evidence. We will not speculate as to how the jury reached the amount of its award. This assignment of error is without merit. (d) Motion for New Trial Elkhorn’s claim arising out of the denial of its motion for new trial is generally grounded in the question of whether Kroeger and Dizona testified to an improper measure of dam- ages, particularly with respect to the remainder property. Because we have found the district court did not err when it admitted such testimony, it likewise did not abuse its discretion when it denied the motion for a new trial.  - 731 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 3. Attorney Fees There is no dispute in this case that Tribedo had a right to an award of attorney fees. See Neb. Rev. Stat. § 76 ‑720 (Reissue 2018). Elkhorn claims that the amount of the fees was unrea- sonable. We recognize that the attorney fees are substantial, but we find no abuse of discretion. [11,12] When an attorney fee is authorized, the amount of the fee is addressed to the trial court’s discretion, and its rul- ing will not be disturbed on appeal absent an abuse of discre- tion. ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 , 896 N.W.2d 156 (2017). An award of attorney fees involves consideration of such factors as the nature of the case, the services performed and results obtained, the length of time required for preparation and presentation of the case, the customary charges of the bar, and general equities of the case. Id. In support of its fee application, Tribedo offered affida- vits of three members of the Nebraska bar, who testified that they had reviewed the fees charged by Tribedo’s attorneys, received a detailed summary of the work provided by coun- sel, and stated that they found the requested fees reasonable. Following submission of evidence and briefing, the district court found: The amount sought by Tribedo is extremely reasonable, particularly given the fact that the judgment exceeded the award by more than 75%, the judgment is believed to be one of the largest jury awards in a condemnation matter to be found in a reported court decision in this State, the litigation was fairly complex and, thus far, has persisted over a nearly 2 1⁄2 year period, complex appraisals had to be prepared by highly trained and experienced apprais- ers, the experience and professional training of Tribedo’s attorneys, the customary charges of the bar and the gen- eral equities of the case. After reviewing the district court’s detailed explanation for its award of attorney fees, we agree that the above factors  - 732 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DOUGLAS CTY. SCH. DIST. NO. 10 v. TRIBEDO, LLC Cite as 307 Neb. 716 support the attorney fees awarded. The district court did not abuse its discretion when it awarded Tribedo $590,924.89 in attorney fees. VI. CONCLUSION For the reasons set forth above, we conclude that the district court did not err in its trial rulings nor in accepting the jury ver- dict for total compensation due Tribedo of $4,625,967. Further, the district court did not abuse its discretion when it awarded Tribedo $590,924.89 in attorney fees. All assignments of error have been considered and are without merit. Accordingly, we affirm the judgment of the district court. Affirmed. Papik, J., not participating.

2020-12-04 06:08:10.182597+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007465PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 733 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 Benjamin M., appellant, v. Jeri S., appellee. ___ N.W.2d ___ Filed November 6, 2020. No. S-19-1144. 1. Motions to Dismiss: Rules of the Supreme Court: Pleadings: Appeal and Error. A district court’s grant of a motion to dismiss for failure to state a claim under Neb. Ct. R. of Pldg. § 6-1112(b)(6) is reviewed de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. 2. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. 3. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. 4. Courts: Jurisdiction: Paternity. District courts have subject matter jurisdiction of actions to determine paternity of a child. 5. Limitations of Actions: Pleadings. A challenge that a pleading is barred by the statute of limitations is a challenge that the pleading fails to allege sufficient facts to constitute a claim upon which relief can be granted. 6. Limitations of Actions: Pleadings: Waiver. A statute of limitations does not operate by its own force as a bar, but, rather, operates as a defense to be pleaded by the party relying upon it and is waived if not pleaded. 7. Limitations of Actions: Jurisdiction. The failure to comply with a statute of limitations is not an issue of subject matter jurisdiction. 8. Paternity: Acknowledgments. The proper legal effect of a signed, nota- rized acknowledgment of paternity is a finding that the individual who signed as the father is in fact the legal father.  - 734 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 9. ____: ____. The establishment of paternity by acknowledgment is the equivalent to establishment of paternity by judicial proceeding. 10. Constitutional Law: Parental Rights: Minors. Parents have a consti- tutional right to retain custody and control of their child. 11. Constitutional Law: Jurisdiction: Equity: Child Custody. Article V, § 9, of the Nebraska Constitution confers equity jurisdiction upon the district courts, and issues of child custody fall within that general equity jurisdiction. 12. Paternity: Acknowledgments: Child Custody: Child Support. Neb. Rev. Stat. § 43-1402 (Reissue 2016) authorizes the filing of an action for child custody and child support when an acknowledgment of paternity has been executed by the parties. 13. Limitations of Actions: Paternity: Acknowledgments: Child Custody: Child Support. The 4-year statute of limitations on paternity actions does not bar an action for child custody and child support for a father who executed an acknowledgment of paternity. 14. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. Appeal from the District Court for Lancaster County: Susan I. Strong, Judge. Reversed and remanded for further proceedings. Megan E. McDowell and Jerrad R. Ahrens, of Cordell & Cordell, P.C., for appellant. Robert Wm. Chapin, Jr., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Funke, J. NATURE OF CASE Benjamin M. filed an action to establish paternity, custody, support, and parenting time. Benjamin later filed two notarized acknowledgments of paternity contemporaneously with an amended complaint to establish custody, support, and parent- ing time. The district court dismissed the amended complaint  - 735 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 based on statute of limitations grounds. Benjamin appeals and argues that the district court erred in failing to give proper legal effect to the notarized acknowledgments of paternity. We agree and reverse the district court’s order and remand the cause for further proceedings. BACKGROUND Benjamin and Jeri S. are the unmarried parents of two minor children: F.M., born in 2010, and L.M., born in 2012. Two days after the birth of F.M., Benjamin and Jeri executed a notarized acknowledgment of paternity for F.M. One day after the birth of L.M., Benjamin and Jeri executed a notarized acknowledg- ment of paternity for L.M. In April 2019, Benjamin filed a complaint in the district court for Lancaster County, Nebraska, to establish paternity, child custody, child support, and parenting time. Jeri filed a motion to dismiss pursuant to Neb. Rev. Stat. § 43-1411 (Reissue 2016), arguing that the court lacked subject matter jurisdic- tion to adjudicate the case because the complaint was filed beyond the 4-year statute of limitations for a paternity action. In response, Benjamin filed an amended complaint to establish child custody, child support, and parenting time in which he pled that he and Jeri had executed notarized acknowledgments of paternity for both children. The amended complaint further alleged that as a result of the acknowledgments of paternity, Benjamin was the legal father of both children. The court held hearings on the motion to dismiss on August 23 and September 10, 2019. The hearings were held “in chambers [and] not on the record.” However, at the September 10 hearing, the court went on the record to “see if [counsel for Benjamin] would like to offer the acknowledg- ments of paternity as exhibits that the Court could consider on the motion to dismiss,” as well as to “address [counsel for Benjamin’s] comment that an Amended Complaint has been filed after the motion to dismiss.” Certified copies of the notarized acknowledgments of paternity for both F.M. and  - 736 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 L.M. were offered and received into evidence, without objec- tion from Jeri. In response, the court proposed converting the motion to dismiss into a motion for summary judgment. Neither party objected. On September 11, 2019, the district court entered an order of dismissal. In its order, the district court determined that Benjamin set forth no allegations that would toll the statute of limitations and pointed out that Benjamin knew he was the biological father at the time of the births, as evidenced by the notarized acknowledgments of paternity, but he waited more than 4 years to bring this action. The district court discussed Neb. Rev. Stat. § 43-1409 (Reissue 2016), which recognizes that a signed, notarized acknowledgment of paternity can be rescinded within the earlier of 60 days or the date of a judi- cial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party. The district court also discussed Cesar C. v. Alicia L., 1 in which this court found that a lower court committed plain error when it failed to give proper legal effect to a notarized acknowledgment of paternity signed at birth. However, the district court noted that Cesar C. did not involve the statute of limitations. The district court concluded that Benjamin failed to timely exercise his parental rights with due diligence and that thus, his action was barred by the 4-year statute of limitations set forth in § 43-1411. Because the court consid- ered evidence (in the form of the acknowledgments of pater- nity), it applied a motion for summary judgment standard to Jeri’s motion to dismiss. The court stated that when viewing the evidence and all reasonable inferences in the light most favorable to Benjamin, it could not find any genuine issues of material fact which would preclude summary judgment. The court determined that Benjamin was asserting his parental rights more than 4 years after the birth of his children and 1 Cesar C. v. Alicia L., 281 Neb. 979 , 800 N.W.2d 249 (2011).  - 737 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 ultimately found that an untimely action to establish paternity under § 43-1411 was a defect in subject matter jurisdiction and dismissed the case. On September 20, 2019, Benjamin filed motions to recon- sider, to vacate the order of dismissal, for new trial, and to reopen evidence. After a hearing, the district court entered an order denying all four motions. Benjamin timely appeals. ASSIGNMENTS OF ERROR Benjamin assigns, restated and consolidated, that the dis- trict court erred (1) by not giving proper legal effect to the acknowledgments of paternity, (2) in finding the notarized acknowledgments of paternity recognized in Neb. Rev. Stat. § 43-1402 (Reissue 2016) are subject to the 4-year statute of limitations for paternity actions set forth in § 43-1411, and (3) by improperly converting Jeri’s motion to dismiss into a motion for summary judgment without proper notice or an opportunity to respond. STANDARD OF REVIEW [1] A district court’s grant of a motion to dismiss for fail- ure to state a claim under Neb. Ct. R. Pldg. § 6-1112(b)(6) is reviewed de novo, accepting all the allegations in the com- plaint as true and drawing all reasonable inferences in favor of the nonmoving party. 2 [2] Statutory interpretation presents a question of law. 3 On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. 4 2 Anderson v. Wells Fargo Fin. Accept., 269 Neb. 595 , 694 N.W.2d 625 (2005). 3 See, State ex rel. Wagner v. Gilbane Bldg. Co., 280 Neb. 223 , 786 N.W.2d 330 (2010); State v. Decker, 261 Neb. 382 , 622 N.W.2d 903 (2002). 4 Ruzicka v. Ruzicka, 262 Neb. 824 , 635 N.W.2d 528 (2001).  - 738 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 ANALYSIS Jurisdiction [3,4] Before reaching the legal issues presented for review, an appellate court must determine whether it has jurisdiction. 5 In its order of dismissal, the district dismissed the case for lack of subject matter jurisdiction for Benjamin’s failure to file his paternity action within 4 years of the birth of the children. Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the gen- eral subject matter involved. 6 We have consistently held that the district court has subject matter jurisdiction of an action to determine paternity of a child. 7 [5-7] A challenge that a pleading is barred by the statute of limitations is a challenge that the pleading fails to allege sufficient facts to constitute a claim upon which relief can be granted. 8 We have previously stated that a statute of limita- tions specifies only that an action must be commenced within a specified time period. 9 Further, a statute of limitations does not operate by its own force as a bar, but, rather, operates as a defense to be pleaded by the party relying upon it and is waived if not pleaded. 10 Parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created 5 McEwen v. Nebraska State College Sys., 303 Neb. 552 , 931 N.W.2d 120 (2019). 6 J.S. v. Grand Island Public Schools, 297 Neb. 347 , 899 N.W.2d 893 (2017). 7 Sherman T. v. Karyn N., 286 Neb. 468 , 837 N.W.2d 746 (2013). See Neb. Rev. Stat. § 43-1411.01 (Cum. Supp. 2018). 8 Anthony K. v. Nebraska Dept. of Health & Human Servs., 289 Neb. 540 , 855 N.W.2d 788 (2014). 9 In re Estate of Hockemeier, 280 Neb. 420 , 786 N.W.2d 680 (2010). 10 Id.  - 739 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 by waiver, estoppel, consent, or conduct of the parties. 11 As such, the failure to comply with a statute of limitations is not an issue of subject matter jurisdiction. Instead, we find that a more appropriate ground for dismissal in this case would have been dismissal for failure to state a claim upon which relief can be granted. 12 However, neither party has raised this issue on appeal, and as such, we proceed with our analysis as if the district court had dismissed this case on the ground of failure to state a claim upon which relief could be granted. Acknowledgments of Paternity Benjamin argues that the district court erred by not giv- ing the acknowledgments of paternity proper legal effect. He further contends that a notarized acknowledgment of paternity which has not been rescinded is not merely a presumption of paternity, but a legal finding of paternity. Jeri counters that any paternity action brought more than 4 years after the birth of the child is barred by § 43-1411. She contends that an acknowledgment of paternity has no effect on the 4-year statute of limitations. [8] The procedure for obtaining a judicial determination of paternity is set forth in Neb. Rev. Stat. §§ 43-1401 to 43-1418 (Reissue 2016 & Cum. Supp. 2018). Section 43-1409 provides as follows: The signing of a notarized acknowledgment, whether under section 43-1408.01 or otherwise, by the alleged father shall create a rebuttable presumption of ­paternity as against the alleged father. The signed, notarized acknowl- edgment is subject to the right of any signatory to rescind the acknowledgment within the earlier of (1) sixty days or (2) the date of an administrative or judicial proceed- ing relating to the child, including a proceeding to estab- lish a support order in which the signatory is a party. 11 J.S., supra note 6 . 12 See Anthony K., supra note 8.  - 740 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 After the rescission period a signed, notarized acknowl- edgment is considered a legal finding which may be challenged only on the basis of fraud, duress, or material mistake of fact with the burden of proof upon the chal- lenger, and the legal responsibilities, including the child support obligation, of any signatory arising from the acknowledgment shall not be suspended during the chal- lenge, except for good cause shown. Such a signed and notarized acknowledgment or a certified copy or certified reproduction thereof shall be admissible in evidence in any proceeding to establish support. We have held that an unrescinded and unchallenged acknowl- edgment of paternity operates as a legal finding of paternity and that the proper legal effect of a signed, notarized acknowl- edgment is a finding that the individual who signed as the father is in fact the legal father. 13 [9] In Cesar C., we considered the legal effect of an acknowledgment of paternity in a custody matter. 14 In that case, Cesar C. and Alicia L. were unmarried, but shared a child, Jaime C., together. A notarized acknowledgment of paternity was executed at Jaime’s birth, and Cesar was listed as Jaime’s father on the birth certificate. Three years later, at a subsequent court proceeding to establish custody and child support, a genetic test ruled out Cesar as a possible biologi- cal father of Jaime. Although the district court received the notarized acknowledgment of paternity into evidence without objection, it awarded custody of Jaime to Alicia and deter- mined Alicia had superior rights to custody as the biological parent of Jaime. On appeal, this court reversed the decision of the district court and concluded that the district court com- mitted plain error when it failed to give proper legal effect to 13 See, Tyler F. v. Sara P., 306 Neb. 397 , 945 N.W.2d 502 (2020); In re Adoption of Jaelyn B., 293 Neb. 917 , 883 N.W.2d 22 (2016); Cesar C., supra note 1 . 14 Cesar C., supra note 1 .  - 741 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 the acknowledgment of paternity, which established Cesar as Jaime’s legal father. We determined that had the court given proper legal effect to the acknowledgment, the court would have viewed both Cesar and Alicia as legal parents to Jaime. We found that the establishment of paternity by acknowledg- ment is the equivalent to the establishment of paternity by judicial proceeding. As a result, we held that based upon the acknowledgment of paternity, the court should have treated the complaint to establish paternity as a complaint to determine custody and support. In In re Adoption of Jaelyn B., 15 we addressed the legal effect of an acknowledgment of paternity in a proceeding for adoption. We held that a father whose paternity is established by a final, voluntary acknowledgment has the same right to seek custody as the child’s biological mother, even if subse- quent genetic testing shows he is not the biological father. Recently, in Tyler F. v. Sara P., 16 we again had the occasion to consider the effect of an acknowledgment of paternity in a custody matter. In Tyler F., the district court ruled that an acknowledgment of paternity established Tyler as the legal father and a subsequent genetic test established another man as the biological father. In doing so, the court granted both men paternal rights. On appeal, we held that the original acknowl- edgment of paternity determined that Tyler was the only father of the minor child and that the subsequent genetic test did not establish paternal rights for the other man without setting aside the acknowledgment of paternity. Additionally, § 43-1402 states that the father of a child whose paternity is established either by judicial proceedings or by acknowledgment shall be liable for the child’s support to the same extent and in the same manner as the father of a child born in lawful wedlock is liable for the child’s support. 15 In re Adoption of Jaelyn B., supra note 13. 16 Tyler F., supra note 13 .  - 742 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 We have explained that this language contained in § 43-1402 contemplates that an establishment of paternity by acknowl- edgment is the equivalent to an establishment of paternity by judicial proceeding. 17 Furthermore, § 43-1412.01 authorizes the setting aside of a final judgment, a court order, an administrative order, an obli- gation to pay child support, or any other legal determination of paternity if a scientifically reliable genetic test performed establishes the exclusion of the individual named as a father in the legal determination. However, the statute precludes the granting of such relief when, among other things, the indi- vidual named as the father completed a notarized acknowledg- ment of paternity. 18 This provision in § 43-1412.01 provides further support for the conclusion that an acknowledgment legally establishes paternity and grants the individual named as father the legal status of a parent to the child regardless of genetic factors. 19 In the instant matter, it is undisputed that the acknowledg- ments of paternity have not been timely rescinded. It is also undisputed that there have been no challenges made to the signed and notarized acknowledgments of paternity based on fraud, duress, or material mistake of fact. 20 Further, neither party disputes that the acknowledgments of paternity oper- ate as a finding that Benjamin is the legal father of F.M. and L.M. In fact, at the hearing on the motion to dismiss, counsel for Jeri stated, “I think what’s interesting about this particular case is that the acknowledgment of paternity establishes that [Benjamin] is, in fact, the father. We’re not actually even con- testing that.” Based upon the clear language of §§ 43-1402 and 43-1409, our cases interpreting these statutes, and the record before 17 Id.; Cesar C., supra note 1 . 18 § 43-1412.01. 19 Cesar C., supra note 1 . 20 See § 43-1409.  - 743 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 us, we find that Benjamin’s acknowledgments of paternity established him as the legal father of the minor children. Statute of Limitations In the present case, the district court did not have the benefit of our decision in Tyler F. 21 However, the court did consider our decision in Cesar C. and determined that its holding was inapplicable to this matter because Jeri’s defense was based on the statute of limitations, rather than on paternity. 22 The 4-year statute of limitations for paternity actions is found in § 43-1411, which states, in relevant part: A civil proceeding to establish the paternity of a child may be instituted, in the court of the district where the child is domiciled or found or, for cases under the Uniform Interstate Family Support Act, where the alleged father is domiciled, by (1) the mother or the alleged father of such child, either during pregnancy or within four years after the child’s birth . . . . In its order, the district court determined that if Benjamin had filed his action within 4 years from the date the chil- dren were born, “[it] would be required to treat the case as one for custody and support as between two legal parents (unless [Jeri] could successfully challenge the acknowledg- ments of paternity).” It is undisputed that Benjamin filed his complaint to estab- lish paternity, custody, and support more than 4 years after the birth of the minor children. However, by the time Benjamin initiated the current proceedings, Benjamin’s paternity of F.M. and L.M. had already been established by the execution of unrescinded and unchallenged acknowledgments of paternity. As such paternity was no longer an issue, the only remaining issues to decide were issues of custody and support. As we have previously stated, when an action to establish paternity, 21 See Tyler F., supra note 13 . 22 See Cesar C., supra note 1 .  - 744 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 custody, and support has been filed after the execution of an acknowledgment of paternity, the court should treat the action as an action solely to determine custody and support. 23 [10] Jeri contends that despite Benjamin’s status as the legal father, there is no statutory authority for Benjamin to bring an action in district court to establish custody and support. We dis- agree. First, it is beyond dispute that under the U.S. Supreme Court’s longstanding precedent, parents have a constitutional right to retain custody and control of their child. 24 Second, the Nebraska Legislature has recognized the critical importance of the parent-child relationship in the welfare and development of the child and that the relationship between the child and each parent should be equally considered unless it is contrary to the best interests of the child. 25 The district courts of Nebraska are courts of general juris- diction and thus have inherent power to do all things neces- sary for the administration of justice within the scope of their jurisdiction. 26 Any power conferred by the constitution cannot be legislatively limited or controlled. 27 The Legislature may, however, grant to the district courts such additional jurisdiction as it may deem proper. 28 [11] We have said that article V, § 9, of the Nebraska Constitution confers equity jurisdiction upon the district courts, and issues of child custody fall within that general 23 See, Tyler F., supra note 13 ; Cesar C., supra note 1 . 24 Amanda C. v. Case, 275 Neb. 757 , 749 N.W.2d 429 (2008). See, Troxel v. Granville, 530 U.S. 57 , 120 S. Ct. 2054 , 147 L. Ed. 2d 49 (2000) (plurality opinion) (citing Prince v. Massachusetts, 321 U.S. 158 , 64 S. Ct. 438 , 88 L. Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510 , 45 S. Ct. 571 , 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390 , 43 S. Ct. 625 , 67 L. Ed. 1042 (1923)). 25 Neb. Rev. Stat. § 43-2921 (Reissue 2016). 26 Charleen J. v. Blake O., 289 Neb. 454 , 855 N.W.2d 587 (2014). 27 Id. 28 Id.  - 745 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 equity jurisdiction. 29 Indeed, since a century ago, Nebraska common law has recognized an action in equity for custody apart from an action for dissolution of marriage or paternity. 30 Even when custody is determined within a dissolution or pater- nity action, it is considered “‘incidental’” to those causes of action. 31 Questions of custody within such actions still derive from the court’s general equity jurisdiction. 32 The paternity statutes therefore cannot circumscribe the district courts’ inher- ent powers in equity to determine child custody. 33 Statutorily, § 43-1402 states that the liability of each parent may be determined, enforced, and discharged in accordance with the methods hereinafter provided. In Cesar C., we held that when reading §§ 43-1402 and 43-1409 together, the provi- sion in § 43-1409 that an acknowledgment is a “legal finding” means that a properly executed acknowledgment legally estab- lishes paternity in the person named in the acknowledgment as the father. 34 A father whose paternity is established by a final, voluntary acknowledgment has the same right to seek custody as the child’s biological mother. 35 As such, Benjamin’s parental rights and responsibilities for the children could be determined and enforced through the filing of an action to establish cus- tody and support. Any inability of Benjamin to enforce his parental rights and obligations would run contrary to his con- stitutional rights as a parent of the children. 36 If the 4-year statute of limitations were to bar an action for custody and support for a father who executed an 29 Id. 30 Id. 31 Id. at 460, 855 N.W.2d at 593. 32 Id. 33 Id. 34 See Cesar C., supra note 1. 35 Tyler F., supra note 13 . 36 See Amanda C., supra note 24.  - 746 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 acknowledgment of paternity, a man could be a legal father with the obligation to support his children, but have no parental rights of custody and parenting time. This would be an unten- able result. Therefore, we conclude that Benjamin’s action can- not be barred by the 4-year statute of limitations. [12,13] We find that when an acknowledgment of paternity has been executed by the parties, the district court has the inherent authority to consider the issue of child custody, and that § 43-1402 authorizes the filing of an action for child cus- tody and child support. We further find that the 4-year statute of limitations on paternity actions does not bar an action for child custody and child support for a father who executed an acknowledgment of paternity. As such, the district court erred in its application of § 43-1411. Remaining Assignment of Error [14] Benjamin’s remaining assignment of error is that the district court erred in improperly converting Jeri’s motion to dismiss into a motion for summary judgment without proper notice or an opportunity to respond. However, because we have already determined the district court erred when it failed to give proper legal effect to the notarized acknowledgments of paternity, we need not address this assignment of error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. 37 CONCLUSION The district court erred in failing to give proper legal effect to the signed, notarized acknowledgments of paternity executed by Benjamin and Jeri days after the births of F.M. and L.M. Additionally, where there is a properly executed and unre- scinded and unchallenged acknowledgment of paternity, an 37 Fales v. County of Stanton, 297 Neb. 41 , 898 N.W.2d 352 (2017).  - 747 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports BENJAMIN M. v. JERI S. Cite as 307 Neb. 733 action for establishment of paternity should be treated solely as an action to determine the issues of custody and support. As such, the statute of limitations governing the time to bring a paternity proceeding is inapplicable in cases where there is a properly executed and unrescinded and unchallenged acknowledgment of paternity. Accordingly, we reverse the dis- trict court’s order of dismissal and remand the cause for further proceedings consistent with this opinion. Reversed and remanded for further proceedings.

2020-12-04 06:08:11.385039+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007454PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 686 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ANDERA Cite as 307 Neb. 686 State of Nebraska, appellee, v. Brandi R. Andera, appellant. ___ N.W.2d ___ Filed October 30, 2020. No. S-19-1205. 1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding histori- cal facts, the appellate court reviews the trial court’s findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that the appellate court reviews indepen- dently of the trial court’s determination. 2. Search and Seizure: Standing. A passenger who has a property interest in a container within the vehicle has standing to challenge the search of that container. 3. Constitutional Law: Search and Seizure. Searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment to the U.S. Constitution, subject only to a few specifically established and well- delineated exceptions. 4. Warrantless Searches. The warrantless search exceptions recognized by the Nebraska Supreme Court include: (1) searches undertaken with con- sent, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest. 5. Warrantless Searches: Police Officers and Sheriffs. A warrantless search is valid when based upon consent of a third party whom the police, at the time of the search, reasonably believed possessed author- ity to consent to a search of the property, even if it is later demonstrated that the individual did not possess such authority. 6. Search and Seizure: Police Officers and Sheriffs. The search of property based on consent by a third party must be judged against  - 687 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ANDERA Cite as 307 Neb. 686 an objective standard: Would the facts available to the officer at the moment warrant a person of reasonable caution in the belief that the consenting party had authority over the property? 7. Warrantless Searches: Police Officers and Sheriffs. A warrantless sei- zure is justified under the plain view doctrine if (1) a law enforcement officer has a legal right to be in the place from which an object subject to seizure could be plainly viewed, (2) the seized object’s incriminating nature is immediately apparent, and (3) the officer has a lawful right of access to the seized object itself. Appeal from the District Court for Douglas County: Marlon A. Polk, Judge. Affirmed. Thomas C. Riley, Douglas County Public Defender, and April M. Lucas for appellant. Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Cassel, J. I. INTRODUCTION Brandi R. Andera appeals her drug possession conviction following a stipulated bench trial. During a traffic stop, a police officer obtained the female driver’s consent to search the vehicle and found methamphetamine in a purse located on the front passenger floorboard. Andera, the front seat passenger, challenges the search, because she owned the purse and did not consent to its search. Because the officer reasonably believed that the driver could have owned the purse and the officer found the contraband in plain view upon opening the wallet that contained Andera’s identification, we affirm. II. BACKGROUND Andera was convicted of one count of possession of a controlled substance after a female police officer found meth- amphetamine during a warrantless search of Andera’s purse  - 688 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ANDERA Cite as 307 Neb. 686 during a traffic stop. The officer initiated the stop because the vehicle did not have license plates. During the traffic stop, the officer requested identification from Andera, the female driver, and the rear seat passenger. Andera and the driver complied, but the rear passenger failed to provide accurate identifying information. The officer testi- fied that the driver provided a driver’s license and the rear passenger gave verbal identification (name and date of birth). However, the officer could not recall whether Andera provided a driver’s license or gave verbal identification. Suspecting illicit activity, the officer obtained consent from the driver to search the vehicle. When the driver gave consent, she was located outside the vehicle near the trunk. At that time, Andera and the rear passenger remained in the vehicle out of earshot, but neither Andera nor the rear passenger objected once they were informed of the impending search. After removing the three vehicle occupants, the officer searched the vehicle’s passenger compartment. The officer discovered a single purse on the front passenger floorboard. It was the only handbag in the vehicle. The officer did not ask the occupants who owned the purse. The officer testified that at the time, she was not certain to whom the purse belonged. But she answered affirmatively when asked: “So in your mind, it could have been the driver’s purse?” The officer searched the purse and immediately discovered a needle. Continuing her search to a wallet located inside the purse, the officer discovered a small bag of methamphetamine and Andera’s Social Security and debit cards. The record does not establish that the identification cards were discovered prior to the methamphetamine. When asked at the scene, Andera claimed the contraband was not hers. Nonetheless, she was charged with possession of a controlled substance. Andera filed a motion to suppress the fruits of the war- rantless search, claiming it violated her Fourth Amendment protections against unlawful searches and seizures because  - 689 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ANDERA Cite as 307 Neb. 686 she did not consent to the search of her purse. At the conclu- sion of the evidentiary hearing, the district court overruled her motion. In overruling the motion, the court made three findings on the record. First, the search was based on “the consent of the driver to search the vehicle.” Second, “it [was] reasonable for [the officer] to believe, [as] she testified, that the purse could have been the driver’s.” Third, “[the officer] located a syringe initially upon searching the purse, prior to discovering any venue information that may give indicia of ownership of the purse to someone [else].” In due course, the matter proceeded to the stipulated bench trial, and shortly thereafter, the court found Andera guilty. After the court imposed a sentence of probation, Andera filed a timely appeal. We moved the appeal to our docket. 1 III. ASSIGNMENT OF ERROR Andera assigns that the district court erred in overruling her motion to suppress. IV. STANDARD OF REVIEW [1] In reviewing a trial court’s ruling on a motion to sup- press based on a claimed violation of the Fourth Amendment, we apply a two-part standard of review. Regarding historical facts, we review the trial court’s findings for clear error. But whether those facts trigger or violate Fourth Amendment pro- tections is a question of law that we review independently of the trial court’s determination. 2 V. ANALYSIS 1. Standing [2] Andera does not challenge the validity of the officer’s stopping the vehicle or the search of the vehicle’s passenger 1 See Neb. Rev. Stat. § 24-1106 (3) (Cum. Supp. 2018). 2 State v. Shiffermiller, 302 Neb. 245 , 922 N.W.2d 763 (2019).  - 690 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ANDERA Cite as 307 Neb. 686 compartment; instead, she challenges the search of her purse. It is well established that a traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle. 3 Additionally, a passenger does not have standing to challenge a vehicle search where she has neither a property nor a posses- sory interest in the automobile. 4 However, a passenger who has a property interest in a container within the vehicle has stand- ing to challenge the search of that container. 5 Because Andera has a property interest in the purse that the officer searched, she has standing to challenge its search. 2. Search of Purse [3,4] Searches conducted outside the judicial process, with- out prior approval by a judge or magistrate, are per se unreason- able under the Fourth Amendment to the U.S. Constitution, sub- ject only to a few specifically established and well-­delineated exceptions. 6 The warrantless search exceptions recognized by the Nebraska Supreme Court include: (1) searches undertaken with consent, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest. 7 The officer who searched Andera’s purse relied on the con- sent of the driver to conduct the warrantless search. However, the driver did not own the purse and Andera never consented to the search. Therefore, we must determine if the consent excep- tion nonetheless applies to the search of the purse. We then address the legality of the discovery of the contraband within the purse. 3 State v. Lee, 265 Neb. 663 , 658 N.W.2d 669 (2003). 4 See Rakas v. Illinois, 439 U.S. 128 , 99 S. Ct. 421 , 58 L. Ed. 2d 387 (1978). 5 See State v. Konfrst, 251 Neb. 214 , 556 N.W.2d 250 (1996). 6 State v. Wells, 290 Neb. 186 , 859 N.W.2d 316 (2015). 7 Id.  - 691 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ANDERA Cite as 307 Neb. 686 (a) Consent to Search Purse The right to be free from unreasonable searches and seizures may be waived by the consent of the citizen. 8 When the pros- ecution seeks to justify a warrantless search by proof of vol- untary consent, it is not limited to proof that the consent was given by the defendant, but may show that the permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. 9 [5,6] Furthermore, a warrantless search is valid when based upon consent of a third party whom the police, at the time of the search, reasonably believed possessed authority to consent to a search of the property, even if it is later demonstrated that the individual did not possess such authority. 10 The search of property based on consent by a third party must “‘be judged against an objective standard: would the facts available to the officer at the moment . . . “warrant a man of reasonable cau- tion in the belief”’ that the consenting party had authority over the [property]?” 11 Although the officer who searched Andera’s purse testified that she was not certain who the purse belonged to when she initiated the search, she reasonably believed that the purse could have belonged to the female driver. Other courts have found that officers can reasonably believe that a bag located on the floorboard of the front passenger seat is the property of the driver because the bag is within easy reach of the driver and drivers do not ordinarily place their bags on the driver’s-side floorboard. 12 8 Konfrst, supra note 5. 9 Id. 10 Id. 11 See Illinois v. Rodriguez, 497 U.S. 177 , 188, 110 S. Ct. 2793 , 111 L. Ed. 2d 148 (1990) (quoting Terry v. Ohio, 392 U.S. 1 , 88 S. Ct. 1868 , 20 L. Ed. 2d 889 (1968)). 12 See, e.g., U.S. v. Barber, 777 F.3d 1303 (11th Cir. 2015).  - 692 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ANDERA Cite as 307 Neb. 686 Andera argues that we should apply State v. Caniglia 13 to determine if the officer reasonably believed that the driver could have owned the purse. There, the Nebraska Court of Appeals ruled that a warrantless search of a makeup purse hid- den under the passenger seat violated the Fourth Amendment, because a male driver could not give consent to the search. 14 The male driver did not have common authority or joint con- trol over a female passenger’s makeup purse. 15 The Court of Appeals reasoned that the officer could not reasonably have believed the female passenger’s makeup purse was the property of the male driver. 16 Andera’s case is distinguishable from Caniglia. Here, the driver and passenger were both female. Moreover, the purse was located on the floorboard of the passenger seat, within the driver’s reach, and not hidden under the passenger seat. We are not persuaded that the reasoning in Caniglia applies here. Thus, Andera’s argument lacks merit. 17 Because the officer reasonably believed the purse could have belonged to the driver, the officer was justified in rely- ing on the driver’s consent to search Andera’s purse. However, the driver’s consent was only a valid justification up until the moment the officer determined that the purse belonged to Andera. Thereafter, the driver’s consent would have been insufficient to extend the search of the purse. The district court seemed to rely upon the officer’s discovery of the needle to justify the seizure of the methamphetamine. But another doctrine supported the officer’s action. (b) Plain View Doctrine [7] It is well established that under certain circumstances, the police may seize evidence in plain view without a 13 State v. Caniglia, 1 Neb. App. 730 , 510 N.W.2d 372 (1993). 14 See id. 15 See id. 16 See id. 17 See id.  - 693 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ANDERA Cite as 307 Neb. 686 warrant. 18 Here, we are not concerned with the situation in which there has been no Fourth Amendment search at all, which encompasses those circumstances in which an obser- vation is made by a police officer without a prior physical intrusion into a constitutionally protected area. 19 The plain view doctrine, which applies here, serves to supplement a prior justification for a search—such as consent—and per- mits the warrantless seizure. 20 Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the plain view doctrine may not be used to extend a general exploratory search from one object to another until some- thing incriminating at last emerges. 21 Therefore, a warrantless seizure is justified under the plain view doctrine if (1) a law enforcement officer has a legal right to be in the place from which an object subject to seizure could be plainly viewed, (2) the seized object’s incriminating nature is immediately apparent, and (3) the officer has a lawful right of access to the seized object itself. 22 Here, the officer lawfully seized the evidence of metham- phetamine from Andera’s purse under the plain view doctrine. The officer’s search was already justified by the consent of the driver, and the officer had a legal right to be looking in the wallet. She did not discover the true ownership of the purse until the wallet was already opened. Once the officer saw the bag of methamphetamine, its contents became imme- diately apparent in correlation with the previously discovered needle and the officer could lawfully access and seize the 18 Coolidge v. New Hampshire, 403 U.S. 443 , 91 S. Ct. 2022 , 29 L. Ed. 2d 564 (1971). 19 See 1 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 2.2(a) at 621 (6th ed. 2020) (discussing “‘open field’ or similar unprotected area”). 20 See 1 LaFave, supra note 19. 21 Id. 22 State v. Shurter, 238 Neb. 54 , 468 N.W.2d 628 (1991).  - 694 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ANDERA Cite as 307 Neb. 686 methamphetamine. Thus, the officer’s seizure was lawful under the plain view doctrine. VI. CONCLUSION The driver’s consent validated the officer’s warrant- less search of Andera’s purse because the officer reasonably believed the purse could have belonged to the driver. The plain view doctrine justified the subsequent seizure of methamphet- amine from Andera’s wallet. Andera’s Fourth Amendment pro- tections against unreasonable searches and seizures were not violated. Because the district court did not err in overruling Andera’s motion to suppress, we affirm the judgment of the district court. Affirmed.

2020-12-04 06:08:23.147754+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007432PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 477 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 Robert H. Cinatl, appellant, v. Karen R. Prososki, Personal Representative of the Estate of Robert R. Prososki, deceased, and Karen R. Prososki, individually and as beneficiary of the Estate of Robert R. Prososki, deceased, appellee. ___ N.W.2d ___ Filed October 16, 2020. No. S-19-972. 1. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. 2. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. 3. Arbitration and Award: Appeal and Error. In reviewing a decision to vacate, modify, or confirm an arbitration award, an appellate court is obligated to reach a conclusion independent of the trial court’s ruling as to questions of law. However, the trial court’s factual findings will not be set aside on appeal unless clearly erroneous. 4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. 5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, the party must be appealing from a final order or a judgment. 6. Judgments: Final Orders: Words and Phrases. A judgment is the final determination of the rights of the parties in an action. 7. Judgments: Words and Phrases. Every direction of the court made or entered in writing and not included in a judgment is an order. 8. Judgments: Final Orders: Statutes: Appeal and Error. While all judgments not incorrectly designated as such are appealable, an order may be appealed only if a statute expressly makes the order appealable or the order falls within the statutory definition of a final order.  - 478 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 9. Arbitration and Award: Final Orders: Appeal and Error. When Neb. Rev. Stat. § 25-2620 (Reissue 2016) is silent regarding the appeal- ability of an arbitration-related order, an appellate court looks to the general final order statute to determine whether the order is final and appealable. 10. Final Orders: Appeal and Error. To be a final order subject to appel- late review, the lower court’s order must (1) affect a substantial right and determine the action and prevent a judgment, (2) affect a substantial right and be made during a special proceeding, (3) affect a substantial right and be made on summary application in an action after a judg- ment is rendered, or (4) deny a motion for summary judgment which was based on the assertion of sovereign immunity or the immunity of a government official. 11. Final Orders. Whether an order affects a substantial right depends on whether it affects with finality the rights of the parties in the subject matter. 12. Arbitration and Award: Motions to Vacate. When arbitration has already occurred and a party seeks to vacate, modify, or confirm an award, an extraordinary level of deference is given to the underlying award itself. 13. Contracts: Rescission: Parties. The purpose of rescission is to place the parties in a status quo, that is, return the parties to their position which existed before the rescinded contract; hence, rescission may be unavailable unless the parties can be placed substantially in the sta- tus quo. 14. Arbitration and Award. The Uniform Arbitration Act does not allow for the exercise of discretion by a court when a request for confirmation is made and there is no pending application for vacation, modification, or correction. 15. Statutes: Words and Phrases. As a general rule, the word “shall” in a statute is considered mandatory and is inconsistent with the idea of discretion. 16. Trial: Evidence: Appeal and Error. In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. Appeal from the District Court for Buffalo County: John H. Marsh, Judge. Affirmed. Michael J. Synek for appellant. Patrick J. Nelson, of Law Office of Patrick J. Nelson, for appellee.  - 479 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Cassel, J. INTRODUCTION An arbitration award rejected Robert H. Cinatl’s fraud-in- the-inducement claim seeking to rescind his contract to pur- chase an orthodontics practice. After the district court declined to vacate the arbitrator’s award, the court confirmed it. Cinatl appeals. Because the refusal to vacate the award remained interlocutory until the award was confirmed, we consider but reject Cinatl’s challenge to the first order. We conclude the court properly confirmed the award. Finding no merit to Cinatl’s other arguments, we affirm the court’s judgment. BACKGROUND In 1989, Robert R. Prososki (Dr. Prososki) began an ortho- dontics practice in Kearney, Nebraska. He ceased practicing in July 2013, upon being diagnosed with cancer. Dr. Prososki hired an agent to broker a sale of the practice. The broker prepared an investor prospectus for the practice and provided a copy to Cinatl, an orthodontist. Relying on representations in the prospectus, Cinatl entered into a written contract in October with Dr. Prososki for the purchase of the practice and entered into a lease with Dr. Prososki and his wife for the office building. On October 29, 2013, Cinatl began operating the practice. Shortly thereafter, he discovered what he considered to be misrepresentations in the investor prospectus. In December, Cinatl notified Dr. Prososki and his wife, via their attorney, that Cinatl wanted to set aside the contract. He received no response. In August 2015, Dr. Prososki died. At the end of October, Cinatl ceased operating at the practice’s location, though he rented space elsewhere for the next 14 months to “complete [his] patients.”  - 480 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 Pleadings In 2016, Cinatl sued Karen R. Prososki (Prososki), both as the personal representative of the estate of Dr. Prososki and individually. He sought rescission of the “Contract of Purchase and Sale of Dental Practice” and lease. Cinatl alleged that fraudulent misrepresentations were made, that he relied upon them, and that he suffered damages as a result of the false representations. Prososki’s answers (filed separately in her respective capacities) alleged that the complaint failed to state a claim upon which relief can be granted. Arbitration Because the contract contained a paragraph specifying man- datory arbitration “pursuant to the applicable arbitration laws of Nebraska,” Cinatl moved for appointment of an arbitrator. The district court found that the action was subject to arbitra- tion and sustained a motion to compel arbitration. The arbitrator conducted a hearing and received extensive evidence. Cinatl testified that by the first week of November 2013, he “knew there was something very wrong, but [he] couldn’t put [his] finger on it.” He later discovered that many files which had been represented to him as active files had “been finished.” Cinatl called the broker in early November and stated that something was “very, very wrong.” Cinatl testi- fied a review of files conducted in December showed that the number of active patients would have been 345 but that the prospectus estimated 700 such patients. In December, Cinatl met with the attorney for Dr. Prososki and his wife to discuss perceived misrepresentations in the prospectus. Cinatl asked that Dr. Prososki and his wife “take the practice back, find somebody else.” In September 2015, Cinatl engaged a forensic accounting firm to review the practice’s records. Justin Frauendorfer, one of the owners of the accounting firm, reviewed the investor prospectus to verify its accuracy for Cinatl. Frauendorfer discovered that there were 311 active patient files on August 5, 2013, but that the prospectus represented  - 481 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 that there were approximately 700 active files. According to Frauendorfer, “[f]or this to be over 50 percent off is why in my professional opinion I would say that it was potentially intentional or reckless.” Frauendorfer could not say that the number of active patients was intentionally misrepresented— partly because he had not spoken with the person who made the representation—but he could say it was reckless. Frauendorfer discovered other discrepancies. The pro- spectus showed 200 patients in recall on August 5, 2013, but Frauendorfer found the number to be 228. The prospec- tus showed 1,400 total files, but Frauendorfer came up with “approximately, 600 plus files.” He believed the statement that 1,400 total files existed showed a reckless disregard for the truth. The investor prospectus indicated that the number of new patients per month was 10, but Frauendorfer found that it was 2. Frauendorfer opined that “this practice summary sheet was materially misstated.” Frauendorfer testified that there were 72 active Medicaid patients on August 5, 2013, representing $73,225 in Medicaid patient liability. He found there were 239 private pay patients on August 5, of which 39 had paid for services in advance, amounting to $34,654.50. According to Frauendorfer, the amount of contracts receivable on August 5 was $322,948.24, which changed to $269,672.64 on the October 28 date of clos- ing, a difference of $53,275.60. Based on Frauendorfer’s expe- rience, he would have expected that adjustment of the amount to be credited to Cinatl as the purchaser. Cinatl testified that “[a]t a minimum,” he was seeking to have the contract to purchase and the lease rescinded. He asked to be put back in the position that he occupied before entering the contract and lease and for Prososki to be restored back to the extent possible. On August 3, 2018, the arbitrator found in favor of Prososki on the issues pertaining to the sale of the practice and the lease. The arbitrator determined that Prososki had no role in the marketing and sale of the practice and made none of the  - 482 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 representations about which Cinatl complained. The arbitrator found that at all times between October 28, 2013, and the end of October 2015, Cinatl operated the orthodontic practice and retained the benefits of all he had acquired under the contract. The arbitrator concluded it was unnecessary to determine whether Prososki committed fraud in inducing Cinatl to enter into the contract. The arbitrator reasoned that Cinatl “did not rescind the contract but elected instead to receive the benefits of it for almost two years after he discovered the facts leading him to believe that he was defrauded.” Paragraph 13 of the arbitrator’s decision stated: During the time he operated the practice, Cinatl’s abil- ity to return Prososki to presale status quo diminished with each passing day. “The princip[al] relief effected by rescission is to place the parties in the same condi- tion as they were in before the making of the contract sought to be rescinded.” Kracl v. Loseke, 236 Neb. 291 , 303, 461 N.W.2d 67 , 76 (1990). “[T]he remedy of rescis- sion involves more than cancellation of a contract, and includes a judicial effort to place the contractual parties in, as nearly as possible, substantially the same condition which existed when the contract was entered. ‘[One] who seeks equity must do equity.’” Id. The arbitrator noted that while Cinatl expressed dissatisfaction in late 2013 with what he considered to be misrepresentations by Dr. Prososki, he did not pursue rescission until January 2016—“over a year and ten months later”—when he filed a statement of claim in the estate of Dr. Prososki. By that time, the status quo at the time of closing of the contract could not be restored, particularly because Dr. Prososki had died and Cinatl had left patients without an orthodontist. The arbitrator determined that “[b]y continuing to operate his orthodontic practice at the office for over a year and ten months after the December 7, 2013, meeting, Cinatl ratified the contract and waived any cause of action he might have had arising from his purchase of the practice.”  - 483 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 District Court Proceedings Within 90 days of the arbitrator’s decision, Cinatl filed an application to vacate the award. He alleged that “[t]he arbitra- tor exceeded his authority by rendering a decision based upon issues and defenses which the parties had not raised in the pleadings, including but not limited to: estoppel, laches, statute of limitations, and waiver.” On January 28, 2019, the court entered an order denying the application to vacate. The court noted that it did not have the bill of exceptions from the arbitrator’s hearing or the writ- ten arguments submitted by the parties to the arbitrator. But in reviewing the arbitrator’s decision, the court did not “find a substantial, if any, reliance by the arbitrator on the equitable defenses alleged.” The court reasoned: Essentially, the arbitrator found that he did not need to address the issues of fraud or misrepresentation because it was impossible, given the passage of time, and circum- stances to provide the remedy of rescission in that both parties could not be placed back in the status quo exist- ing at the time the contracts were entered. This Court specifically refers to paragraph 13 of the arbitrator’s decision. Ten days later, Cinatl filed two motions. One motion, seek- ing a new trial, requested that the court “vacate the judgment and decision set forth in the Court’s Order, filed January 28, 2019.” Cinatl identified four grounds for a new trial under Neb. Rev. Stat. § 25-1142 (Reissue 2016). The other motion, which was later sustained, requested an order for preparation of the record from the arbitration hearing. The next day, Prososki filed a motion to confirm the arbitrator’s award. During a hearing on the motion for new trial, Cinatl’s counsel argued that while the January 2019 order noted the absence of a bill of exceptions from the arbitrator’s hearing, counsel did not believe a transcription was necessary, because he was making a legal argument. Counsel then had the record prepared, but he maintained that the court should not need  - 484 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 the record to rule on the arguments made during the applica- tion to vacate. On August 12, 2019, the court entered an order overruling the motion for new trial. The court reasoned that the arbitra- tor’s decision was “not necessarily grounded in laches or estop- pel, but rather cite[d] an equitable principle that the parties cannot be placed in the same condition as they were before making the contract.” On August 16, 2019, Prososki filed an amended motion to confirm the arbitrator’s award. On September 10, the court entered an order doing so. In confirming the award, the court took judicial notice that no motion to modify or correct the arbitration award was pending. Thirty days later, Cinatl filed a notice of appeal. We moved this case to our docket. 1 ASSIGNMENTS OF ERROR Cinatl assigns, consolidated, restated, and reordered, that the district court erred by (1) failing to vacate the arbitrator’s award and order a rehearing, (2) confirming the arbitrator’s award, (3) depriving Cinatl of his right to procedural due process at the hearing by refusing to review the arbitra- tion record, and (4) failing to rule upon the admissibility of an exhibit. [1] Cinatl also assigns but fails to argue that the court erred by improperly suggesting with regard to Cinatl’s application to vacate that the court needed to review a bill of exceptions from the arbitration hearing in order to consider the legal argu- ments presented by that application. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. 2 Because his brief did not argue this assignment, we do not consider it. 1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018). 2 TNT Cattle Co. v. Fife, 304 Neb. 890 , 937 N.W.2d 811 (2020).  - 485 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 STANDARD OF REVIEW [2] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. 3 [3] In reviewing a decision to vacate, modify, or confirm an arbitration award, an appellate court is obligated to reach a conclusion independent of the trial court’s ruling as to ques- tions of law. However, the trial court’s factual findings will not be set aside on appeal unless clearly erroneous. 4 ANALYSIS Jurisdiction [4-8] 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. 5 For an appellate court to acquire jurisdiction of an appeal, the party must be appealing from a final order or a judgment. 6 A judgment is the final determination of the rights of the parties in an action. 7 Every direction of the court made or entered in writing and not included in a judgment is an order. 8 While all judgments 9 not incorrectly designated as such 10 are appealable, an order may be appealed only if a statute expressly makes the order appealable or the order falls within the statutory definition of a final order. 11 Cinatl’s October 10, 2019, notice of appeal purported to appeal from three orders. He sought to appeal the January 28 3 Picard v. P & C Group 1, 306 Neb. 292 , 945 N.W.2d 183 (2020). 4 Garlock v. 3DS Properties, 303 Neb. 521 , 930 N.W.2d 503 (2019). 5 Cullinane v. Beverly Enters. - Neb., 300 Neb. 210 , 912 N.W.2d 774 (2018). 6 State v. Fredrickson, 306 Neb. 81 , 943 N.W.2d 701 (2020). 7 Neb. Rev. Stat. § 25-1301(1) (Cum. Supp. 2018). 8 State v. Fredrickson, supra note 6. 9 See § 25-1301(1) (defining judgment). 10 See Neb. Rev. Stat. § 25-1315(1) (Reissue 2016). 11 See State v. Fredrickson, supra note 6.  - 486 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 order denying his application to vacate the arbitrator’s award, the August 12 order overruling his motion for new trial (in con- nection with the denial of the application to vacate), and the September 10 order confirming the arbitration award. Prososki challenges our jurisdiction of the first two of those orders. To determine whether the orders are appealable, we first consider whether they are appealable orders under the Uniform Arbitration Act (UAA) 12 and, if not, whether they are final orders under Neb. Rev. Stat. § 25-1902 (Reissue 2016 & Supp. 2019). 13 Both parties base their arguments on the UAA, seem- ingly treating the contract as having agreed to arbitration based upon that law. We see no reason to do otherwise. The UAA contains a statute addressing appeals. Under § 25-2620(a), an appeal may be taken from the following: (1) An order denying an application to compel arbitra- tion made under section 25-2603; (2) An order granting an application to stay arbitration made under subsection (b) of section 25-2603; (3) An order confirming or denying confirmation of an award; (4) An order modifying or correcting an award; (5) An order vacating an award without directing a rehearing; or (6) A judgment or decree entered pursuant to the provi- sions of the [UAA]. Section 25-2620(a)(3) identifies an order confirming an award as an appealable order. Cinatl filed an appeal within 30 days of the September 2019 order confirming the arbitration award, and there is no dispute we have jurisdiction to consider that order. [9] Whether the January 2019 order denying Cinatl’s appli- cation to vacate is appealable is not as clear cut. While the 12 Neb. Rev. Stat. §§ 25-2601 to 25-2622 (Reissue 2016 & Cum. Supp. 2018). 13 See Pearce v. Mutual of Omaha Ins. Co., 293 Neb. 277 , 876 N.W.2d 899 (2016).  - 487 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 UAA explicitly allows an appeal from an order vacating an arbitration award, 14 it is silent as to whether a party may appeal an order denying an application to vacate. We have stated that when § 25-2620 is silent regarding the appealability of an arbitration-related order, we look to the general final order statute to determine whether the order is final and appealable. 15 [10] Under our final order statute, 16 to be a final order sub- ject to appellate review, the lower court’s order must (1) affect a substantial right and determine the action and prevent a judg- ment, (2) affect a substantial right and be made during a special proceeding, (3) affect a substantial right and be made on sum- mary application in an action after a judgment is rendered, or (4) deny a motion for summary judgment which was based on the assertion of sovereign immunity or the immunity of a gov- ernment official. 17 Because this appeal clearly does not involve the last category, we first determine whether the order affected a substantial right of one or more parties. 18 [11] The inquiry of whether a substantial right is affected focuses on whether the right at issue is substantial and whether the court’s order has a substantial impact on that right. 19 Whether an order affects a substantial right depends on whether it affects with finality the rights of the parties in the subject matter. 20 It also depends on whether the right could otherwise effectively be vindicated. 21 An order affects a substantial right when the right would be significantly undermined or irrevoca- bly lost by postponing appellate review. 22 14 § 25-2620(a)(5). 15 See Kremer v. Rural Community Ins. Co., 280 Neb. 591 , 788 N.W.2d 538 (2010). 16 See § 25-1902. 17 See State v. Fredrickson, supra note 6. 18 See id. 19 See id. 20 Id. 21 Id. 22 Id.  - 488 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 Prososki contends that Cinatl needed to file an appeal from the order denying the application to vacate the arbitrator’s award. According to Prososki, the right to challenge the valid- ity of an award through an application to vacate is an essen- tial legal right, because without a possible modification or correction, the only right to challenge an award is to apply for an order vacating the award. But this argument overlooks the unquestionable appealability of an order confirming the award 23 and the intent behind limiting the types of appealable arbitration orders. Appellate review of an arbitrator’s award is necessarily limited, because to allow full scrutiny of such awards would frustrate the purpose of having arbitration at all—the quick resolution of disputes and the avoidance of the expense and delay associated with litigation. Strong deference is due an arbitrative tribunal; when parties agree to arbitration, they agree to accept whatever reasonable uncertainties might arise from the process. 24 Other state courts have determined that no appeal can be taken from an order denying an application to vacate and that such an order may be reviewed upon an appeal from an order confirming the award. 25 The Hawaii Supreme Court instructed that upon the denial of a motion to vacate, the unsuccess- ful movant’s recourse would then be a motion to confirm the award. 26 It explained that because the trial court has already reviewed the award and decided no grounds exist for vacat- ing it, a confirmation should follow. 27 The movant could then 23 See § 25-2620(a)(3). 24 Hartman v. City of Grand Island, 265 Neb. 433 , 657 N.W.2d 641 (2003). 25 See, e.g., Mid-Wilshire Associates v. O’Leary, 7 Cal. App. 4th 1450 , 9 Cal. Rptr. 2d 862 (1992); Salud v. Financial Sec. Ins. Co., Ltd., 69 Haw. 427 , 745 P.2d 290 (1987); Nelson Paving Co., Inc. v. Hjelle, 207 N.W.2d 225 (N.D. 1973). See, also, Ayers v. R.A. Murphy Co., 163 Ohio App. 3d 497 , 839 N.E.2d 80 (2005). 26 See Salud v. Financial Sec. Ins. Co., Ltd., supra note 25. 27 See id. - 489 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 perfect an appeal and obtain appellate review of the order con- firming the award. 28 The purpose of confirming an arbitration award is to provide a judgment that can then be enforced through court proceed- ings. 29 “Upon the granting of an order confirming, modifying, or correcting an award, a judgment or decree shall be entered in conformity therewith and be enforced as any other judg- ment or decree.” 30 Ideally, confirmation should occur swiftly, although the court has 60 days from a party’s application to do so. 31 Thus, though not immediately appealable, an unsuccess- ful movant for judicial vacatur should not have to wait long to obtain appellate review. We conclude the January 2019 order denying the application to vacate the arbitrator’s award did not affect a substantial right of Cinatl. For the same reasons, we conclude the August order overruling the motion for new trial (which asked the court to vacate the January 2019 order and which, because there was no trial in the district court, we treat as a motion to reconsider) did not affect a substantial right and was not a final order. The rights at issue in an interlocutory determination denying judicial vacatur of an arbitration award can be adequately vin- dicated through an appeal of the order confirming the award. Because these prior orders were interlocutory, Cinatl properly waited until entry of an appealable order—the order confirm- ing the arbitration award—to challenge them. Failing to Vacate Award and Order Rehearing [12] Having determined that we have jurisdiction over the order denying Cinatl’s application to vacate, we consider 28 Id. 29 Drummond v. State Farm Mut. Auto. Ins. Co., 280 Neb. 258 , 785 N.W.2d 829 (2010), citing Stewart Title Guar. Co. v. Tilden, 64 P.3d 739 (Wyo. 2003). 30 § 25-2615. 31 See § 25-2612.  - 490 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 Cinatl’s arguments that the district court erred by failing to vacate the award and order a rehearing. When arbitration has already occurred and a party seeks to vacate, modify, or con- firm an award, an extraordinary level of deference is given to the underlying award itself. 32 The UAA sets forth grounds for vacating an award. Section 25-2613 provides in relevant part: (a) Upon application of a party, the court shall vacate an award when: (1) The award was procured by corruption, fraud, or other undue means; (2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitra- tors or misconduct prejudicing the rights of any party; (3) The arbitrators exceeded their powers; (4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor, refused to hear evidence material to the controversy, or otherwise so conducted the hearing, contrary to the provisions of section 25-2606, as to prejudice substantially the rights of a party; (5) There was no arbitration agreement and the issue was not adversely determined in proceedings under sec- tion 25-2603, and the party did not participate in the arbi- tration hearing without raising the objection; or (6) An arbitrator was subject to disqualification pur- suant to section 25-2604.01 and failed, upon receipt of timely demand, to disqualify himself or herself as required by such section. The fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award. Of these enumerated grounds, Cinatl asserted only that the arbitrator exceeded his or her powers. He argues on appeal that 32 Seldin v. Estate of Silverman, 305 Neb. 185 , 939 N.W.2d 768 (2020).  - 491 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 the arbitrator’s decision should be vacated due to the absence of a finding on fraud, but that does not fit under his asserted ground for judicial vacatur. Cinatl contends that the arbitrator exceeded his author- ity by rendering a decision based upon defenses not raised in the pleadings. Cinatl argues that because Prososki never asserted any affirmative defenses, the arbitrator should have rejected suggestions that Cinatl’s cause of action may be time barred or barred by estoppel. Cinatl points to references in the arbitrator’s conclusions of law concerning delay, estoppel, and waiver. [13] The arbitrator’s decision determined that rescission was unavailable due to the nature of the relief requested and the changed circumstances. The purpose of rescission is to place the parties in a status quo, that is, return the parties to their position which existed before the rescinded contract; hence, rescission may be unavailable unless the parties can be placed substantially in the status quo. 33 The arbitrator remarked on the inability to return the parties to the status quo. Its deci- sion stated that “[d]uring the time he operated the practice, Cinatl’s ability to return [Dr.] Prososki to pre-sale status quo diminished with each passing day.” It further stated that Cinatl “took what was a going concern orthodontic practice and ren- dered it difficult if not impossible to return [Dr.] Prososki or his estate to status quo.” The arbitrator observed that “[t]he practice closed, leaving patients without their orthodontist and having to find another—in effect, vanishing the practice” and that Dr. Prososki had passed away. The arbitrator determined that “Cinatl simply cannot restore the status quo at the time of closing of the contract.” We find no merit to Cinatl’s argument that the arbitrator decided the matter based on unpled defenses. Accordingly, even if we were to assume that the arbitrator would have exceeded his power by deciding the matter based on unpled defenses, the court did not err in overruling Cinatl’s application to vacate and not ordering a rehearing. 33 Kracl v. Loseke, 236 Neb. 290 , 461 N.W.2d 67 (1990).  - 492 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 Confirmation of Award As mentioned, Cinatl appealed the court’s confirmation of the award. He contends that the court approved the arbitrator’s errors in failing to properly analyze or consider his fraud claim, failing to grant rescission, and failing to issue a just award. [14,15] But under the circumstances, the district court had no option other than to confirm the award. The UAA does not allow for the exercise of discretion by the court when a request for confirmation is made and there is no pending application for vacation, modification, or correction. 34 Under § 25-2612, “the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modify- ing or correcting the award, in which case the court shall pro- ceed as provided in sections 25-2613 [vacating an award] and 25-2614 [modifying or correcting an award].” (Emphasis sup- plied.) Here, Cinatl sought to vacate the award, but the court denied his request. “If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award.” 35 As a general rule, the word “shall” in a statute is considered mandatory and is inconsistent with the idea of discretion. 36 Under the circumstances, the court properly confirmed the award. Failing to Review Record From Arbitration Hearing Cinatl argues that the court erred and violated his right to procedural due process by failing to review the record from the arbitration hearing, which he first offered during the hearing on Prososki’s motion to confirm the arbitrator’s award. But as discussed above, the court was obligated to confirm the award, because the court had already denied Cinatl’s application to vacate and there was no pending motion to modify or correct 34 See Garlock v. 3DS Properties, supra note 4. 35 § 25-2613(d) (emphasis supplied). 36 Glasson v. Board of Equal. of City of Omaha, 302 Neb. 869 , 925 N.W.2d 672 (2019).  - 493 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 the award. We find no error or due process violation by the district court. Failing to Rule Upon Admissibility of Exhibit 101 Finally, Cinatl argues that the court erred by failing to rule upon the admissibility of an exhibit. During a hearing on the application to vacate, Cinatl offered exhibit 101, his affidavit, in which he swore that the statements in the application to vacate were true to the best of his knowledge. He represented during the hearing that his affidavit was “merely intended to be a verification of the allegations set forth in his application to vacate award.” Cinatl attached two documents to the affidavit: (1) a copy of his application to vacate the arbitrator’s award and (2) a copy of the arbitrator’s decision. Prososki objected to the exhibit. The court took the offer of exhibit 101 under advisement. The record contains no ruling on its admissibility. During a later hearing on the motion for new trial, Cinatl argued that the record was incomplete because it did not show whether the court received exhibit 101. [16] We find no reversible error by the court in failing to rule on the admissibility of the exhibit. In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complain- ing party. 37 Before the court took the offer of the exhibit under advisement, it observed that the court file contained both the arbitrator’s decision and the application to vacate. At one time, every pleading of fact in a civil action had to be verified by the affidavit of the party, his or her agent, or attorney. 38 But such verification has not been required for half a century. 39 Because 37 In re Interest of Vladimir G., 306 Neb. 127 , 944 N.W.2d 309 (2020). 38 See, Neb. Rev. Stat. § 25-824 (1943); AVG Partners I v. Genesis Health Clubs, ante p. 47, 948 N.W.2d 212 (2020). 39 See AVG Partners I v. Genesis Health Clubs, supra note 38, citing 1969 Neb. Laws, L.B. 375.  - 494 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CINATL v. PROSOSKI Cite as 307 Neb. 477 the court’s record contained the documents attached to Cinatl’s affidavit and his verification of the statements in his applica- tion to vacate was unnecessary, he suffered no prejudice by the court’s failure to rule on the exhibit’s admissibility. CONCLUSION We have jurisdiction to consider Cinatl’s challenge to the denial of his application to vacate, but his challenge lacks merit. Because the district court did not err in confirming the arbitration award, we affirm its judgment. Affirmed.

2020-12-04 06:08:16.715653+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007445PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 581 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 State of Nebraska, appellee, v. Miranda M. Collins, appellant. ___ N.W.2d ___ Filed October 23, 2020. No. S-19-959. 1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion. 2. Courts: Appeal and Error. Both the district court and a higher appel- late court generally review appeals from the county court for error appearing on the record. 3. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, an appellate court’s inquiry is whether the deci- sion conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 4. Appeal and Error. An appellate court independently reviews questions of law in appeals from the county court. 5. Criminal Law: Courts: Appeal and Error. When deciding appeals from criminal convictions in county court, an appellate court applies the same standards of review that it applies to decide appeals from criminal convictions in district court. 6. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in con- sidering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. 7. ____: ____. Absent an abuse of discretion by the trial court, an appellate court will not disturb a sentence imposed within the statutory limits. 8. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unrea- sonable or if its action is clearly against justice or conscience, reason, and evidence.  - 582 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 9. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently. 10. Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. 11. Effectiveness of Counsel: Appeal and Error. An appellate court determines as a matter of law whether the record conclusively shows that (1) a defense counsel’s performance was deficient or (2) a defend­ ant was or was not prejudiced by a defense counsel’s alleged defi- cient performance. 12. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in con- sidering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. 13. Sentences. In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant’s (1) age, (2) men- tality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law abiding conduct, and (6) moti- vation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime. 14. ____. The appropriateness of a sentence is necessarily a subjective judg- ment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. 15. Statutes: Legislature: Intent. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, har- monious, and sensible. 16. Statutes. To the extent there is a conflict between two statutes, the spe- cific statute controls over the general statute. 17. Statutes: Legislature: Presumptions: Intent. In enacting a statute, the Legislature must be presumed to have knowledge of all previous legis- lation upon the subject. The Legislature is also presumed to know the language used in a statute, and if a subsequent act on the same or similar subject uses different terms in the same connection, the court must pre- sume that a change in the law was intended. 18. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel, the defendant must show that his or her counsel’s  - 583 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 performance was deficient and that this deficient performance actually prejudiced the defendant’s defense. 19. ____: ____. To show that counsel’s performance was deficient, a defend­ ant must show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. 20. ____: ____. To show prejudice in a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. 21. Words and Phrases. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Appeal from the District Court for Lancaster County, Susan I. Strong, Judge, on appeal thereto from the County Court for Lancaster County, Timothy C. Phillips, Judge. Judgment of District Court affirmed. Stephanie Flynn, of Stephanie Flynn Law, P.C., L.L.O., and Toni Wilson, of Leija Wilson Law, for appellant. Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Miller-Lerman, J. NATURE OF CASE Miranda M. Collins appeals the order of the district court for Lancaster County which affirmed her convictions and sen- tences in the county court for Lancaster County for operating a motor vehicle to avoid arrest and obstructing a police officer. Collins claims on appeal that the district court erred when it affirmed what she asserts was an excessive sentence imposed by the county court and when it affirmed the county court’s order directing that her appearance bond be applied to fines and costs. She also claims that trial counsel provided inef- fective assistance because counsel failed to present sufficient evidence and information at the sentencing hearing. We affirm  - 584 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 the order of the district court which affirmed Collins’ convic- tions and sentences. STATEMENT OF FACTS On March 22, 2019, Collins was arrested, and the State filed a complaint in the county court charging her with operating a motor vehicle to avoid arrest in violation of Neb. Rev. Stat. § 28-905 (Reissue 2016). The State alleged, inter alia, that the offense was committed “in willful reckless operation of the motor vehicle,” and the State therefore charged the offense as a Class IV felony pursuant to § 28-905(3). The factual basis presented by the State indicates that the charge arose from an incident in which, during a traffic stop of a vehicle driven by Collins, the officer detected the odor of marijuana and asked Collins to step out of the vehicle so that the officer could conduct a search. Collins refused to step out of the vehicle, and instead, she rolled up her windows, locked the doors, and sped off in the vehicle. The county court found probable cause to detain Collins and set an appearance bond of “$7,500.00 Ten Percent.” On March 25, Collins filed an appearance bond which stated that $750 had been deposited “in cash 90% of which shall be returned to the defendant upon appearance as required above and 10% of which shall be retained by the Clerk for bond costs.” On April 3, 2019, pursuant to a plea agreement, the State filed an amended complaint in which it reduced the charge of operating a motor vehicle to avoid arrest to a Class I misde- meanor under § 28-905(2) and added a charge of obstructing a peace officer, a Class I misdemeanor, in violation of Neb. Rev. Stat. § 28-906 (Reissue 2016). Collins pled guilty to both charges, and the county court found a factual basis and found Collins guilty of both charges. That same day, after grant- ing Collins a sentencing allocution, the county court ordered Collins to pay a fine of $750 on the conviction for operating a motor vehicle to avoid arrest and to pay a fine of $250 on the conviction for obstructing a peace officer. In connection with the conviction for operating a motor vehicle to avoid  - 585 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 arrest, the county court also ordered that Collins’ driver’s license be revoked for 1 year. The court ordered Collins to pay costs, and the court further ordered that after the $75 (representing 10 percent of the deposit) had been retained by the clerk, the $675 balance held on Collins’ appearance bond be applied to payment of the fines and costs imposed as part of her sentence. On April 5, 2019, Collins’ counsel filed a motion for new trial in which he asserted that subsequent to the April 3 sen- tencing hearing, he had learned new information that, if he had known of it at the time of Collins’ sentencing, he would have offered for the court’s consideration. Counsel characterized such information as “newly discovered evidence,” which he alleged required a new trial. That same day, counsel also filed a motion to reconsider sentence in which counsel alleged that the “newly discovered evidence” required the court to reconsider the sentence imposed. Counsel’s particular objection to the sentence focused on the revocation of Collins’ driver’s license for 1 year. In his affidavit, Collins’ counsel stated that in a separate case, Collins anticipated being bonded into drug court; that she risked losing her housing if she could not demonstrate participation in a drug treatment program; and that a prompt resolution of the present case was necessary to avoid delaying her entry into drug court in the other case. Counsel stated that the urgency to resolve the present case limited the time he had to prepare with Collins for sentencing and that therefore, he did not learn certain relevant information about Collins before the April 3, 2019, plea and sentencing hearing. Counsel asserted the new information was generally that Collins was a single mother and a student who had no family or friends who could help her with transportation and that if her driver’s license were revoked, she would not be able to transport her children to school or transport herself to attend classes. After a hearing, the county court denied both Collins’ motion for new trial and her motion to reconsider sentence. At the hearing on the motions, the county court stated that if  - 586 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 it “had known some of these things beforehand, [it] probably would have likely ruled differently,” but it did not think that it could “go back and change it at this point in time based on these motions the way they’re brought before the Court.” In response to Collins’ query regarding the bond, the county court stated that it did not think it could be returned to her because the bond had “already been applied.” In the order denying the motions, the county court stated that the appear- ance bond was to remain applied to fines and costs and not returned to Collins. Collins appealed her convictions and sentences to the dis- trict court. In her statement of errors, Collins claimed that the county court (1) imposed an excessive sentence when it revoked her driver’s license and (2) erred when it ordered that her bond be applied to fines and costs. After a hearing, the district court entered an order which affirmed Collins’ convictions and sentences. Regarding Collins’ claim of excessive sentence, the district court noted that the sentence of a $750 fine and a 1-year license revocation for operating a motor vehicle to avoid arrest was within the statu- tory limits. The district court noted that Collins had requested that she be sentenced to probation rather than imprisonment to facilitate her participation in drug court in a separate case. Because the county court had declined to impose either impris- onment or probation, which would have been within the statu- tory limits, the district court found the sentence of a fine and revocation to be lenient considering the nature of the offense. The district court determined that the county court’s sentence was not based on reasons that were untenable or clearly against the evidence, and it concluded that the sentence imposed by the county court was not an abuse of discretion. Regarding the county court’s order to apply the bond to fines and costs, Collins argued that the order violated Neb. Rev. Stat. § 29-901 (Cum. Supp. 2018) and case law interpret- ing that statute, which Collins asserted made it mandatory for the court to return 90 percent of the bond deposit to her. The  - 587 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 district court noted, however, that subsequent to the case law cited by Collins, the Legislature had amended Neb. Rev. Stat. § 29-2206 (Reissue 2016) to allow a court to deduct fines or costs from a bond posted by the offender. The district court concluded that the county court appropriately exercised its discretion when it applied the bond deposit to fines and costs imposed in Collins’ sentence. Collins appeals the district court’s order which affirmed her convictions and sentences in the county court. The district court appointed new counsel to represent Collins on appeal. ASSIGNMENTS OF ERROR Collins claims that the district court erred when it rejected her claims that (1) the county court imposed an excessive sentence for operating a motor vehicle to avoid arrest and (2) the county court erred when it ordered that her bond be applied to fines and costs. Collins also claims that she received ineffective assistance of counsel in the county court because “counsel failed to present sufficient evidence and informa- tion for the [county court’s] consideration in determining the proper sentence and thus her right to a fair sentencing hearing was prejudiced.” STANDARDS OF REVIEW [1-5] In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion. State v. Valentino, 305 Neb. 96 , 939 N.W.2d 345 (2020). Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. Id. When reviewing a judg- ment for errors appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is sup- ported by competent evidence, and is neither arbitrary, capri- cious, nor unreasonable. Id. But we independently review questions of law in appeals from the county court. Id. When deciding appeals from criminal convictions in county court,  - 588 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 we apply the same standards of review that we apply to decide appeals from criminal convictions in district court. Id. [6-8] Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. State v. Canaday, ante p. 407, ___ N.W.2d ___ (2020). Absent an abuse of discretion by the trial court, an appellate court will not disturb a sentence imposed within the statutory limits. State v. Martinez, 306 Neb. 516 , 946 N.W.2d 445 (2020). An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreason- able or if its action is clearly against justice or conscience, reason, and evidence. Id. [9] Statutory interpretation presents a question of law, which an appellate court reviews independently. State v. Wilson, 306 Neb. 875 , 947 N.W.2d 704 (2020). [10,11] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. State v. Theisen, 306 Neb. 591 , 946 N.W.2d 677 (2020). We determine as a matter of law whether the record conclusively shows that (1) a defense counsel’s performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel’s alleged deficient performance. Id. ANALYSIS County Court Did Not Abuse Its Discretion When Imposing Sentence. Collins first claims that the district court erred when it rejected her claim that the county court imposed an excessive sentence. Collins’ argument focuses on the sentence imposed for operating a motor vehicle to avoid arrest and specifically  - 589 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 on the county court’s order revoking her license for 1 year. We find no abuse of discretion in the sentencing, and we there- fore affirm the district court’s order rejecting this claim. The county court sentenced Collins to pay a fine of $750 for operating a motor vehicle to avoid arrest and a fine of $250 for obstructing a peace officer. In connection with the conviction for operating a motor vehicle to avoid arrest, the court also ordered that Collins’ driver’s license be revoked for 1 year. Collins’ argument focuses on the sentence for operat- ing a motor vehicle to avoid arrest. She does not appear to take issue with the $250 fine ordered for obstructing a peace officer, and we do not discuss that conviction or sentence fur- ther herein. Operating a motor vehicle to avoid arrest had originally been charged by the State as a Class IV felony pursuant to § 28-905(3), but the State reduced the charge pursuant to the plea agreement and Collins pled guilty to operating a motor vehicle to avoid arrest as a Class I misdemeanor under § 28-905(2). Under Neb. Rev. Stat. § 28-106 (Reissue 2016), a Class I misdemeanor may be punished with imprisonment for up to 1 year, a fine of up to $1,000, or both. In addition, § 28-905(2)(b) provides: The court may, as part of the judgment of conviction under subdivision (a) of this subsection, order that the opera- tor’s license of such person be revoked or impounded for a period of not more than one year and order the person not to drive any motor vehicle for any purpose in the State of Nebraska for a like period. The revocation or impoundment shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked. The county court’s imposition of a fine of $750 in this case was within the statutory limits, and under § 28-905(2)(b), the county court had discretion to revoke Collins’ license for up to 1 year. The district court on appeal from the county court noted that the county court did not impose a sentence of either imprisonment or probation, and the district court concluded  - 590 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 that imposition of only a fine was a lenient sentence in light of the circumstances. We agree that the imposition of a fine of $750 was well within the statutory range and was not an abuse of discretion given the circumstances of this case. On appeal, Collins focuses her argument on the revocation of her license. When, as in this case, the offense of operat- ing a motor vehicle to avoid arrest is a misdemeanor under § 28-905(2)(a), then under § 28-905(2)(b), the court “may” revoke the defendant’s license for not more than 1 year. The use of “may” indicates that license revocation is discretionary when the offense is a misdemeanor. Compare § 28-905(3)(b) (providing that when offense is felony, court “shall” revoke defendant’s license for 2 years). [12-14] Collins argues the county court abused its discretion when it revoked her license because it did not consider relevant factors. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. State v. Price, 306 Neb. 38 , 944 N.W.2d 279 (2020). In determining a sentence to be imposed, relevant factors cus- tomarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime. Id. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. Id. Collins contends that the county court failed to consider the circumstances of her life when it revoked her license. In particular, she notes that a license revocation will affect her ability to participate in drug court and her ability to transport  - 591 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 her children and herself to school. She also directs our attention to the county court’s comment at the hearing on her motions for new trial and to reconsider sentence to the effect that a dif- ferent sentence may have been imposed if the court had known some of the facts of Collins’ life before imposing sentence. With respect to the county court’s alleged failure to consider the facts of Collins’ life, the record shows that after Collins’ counsel had made arguments regarding sentencing, and before it imposed sentence, the county court asked whether there was anything Collins wanted to say and she declined to comment. We view this as the county court’s having given Collins the opportunity to bring relevant information to its attention, and the court did not abuse its discretion when it did not question her regarding unknown matters she now asserts were relevant to her sentencing. Further to her excessiveness claim, Collins contends the county court “gave excessive weight to the facts and circum- stances of the case.” Brief for appellant at 18. We believe this contention tends to minimize the nature of the offense. We note in this regard that the factual basis provided by the State for Collins’ plea indicates that in committing the offense of operating a motor vehicle to avoid arrest, Collins “sped away from the traffic stop at a high rate of speed,” that she was estimated to have driven “about 50 miles an hour through a residential neighborhood,” and that she “violate[d] the traffic sign . . . without slowing down, crossing traffic.” Such circum- stances were relevant to the county court’s decision whether to impose a license revocation. Notwithstanding the hardship a license revocation invariably imposes on an offender, we do not find that the county court abused its discretion when it relied on the facts and circumstances of the case and ordered license revocation. We conclude that the sentence imposed by the county court was not an abuse of discretion and that therefore, the district court did not err when it rejected Collins’ argument that the sentence was excessive.  - 592 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 County Court Was Allowed by Statute to Apply Bond to Fines and Costs. Collins next claims that the district court erred when it rejected her claim that the county court erred when it ordered that her bond be applied to pay the fines and costs imposed as part of her sentence. We conclude that at the time of the sen- tencing, the statutes allowed the county court to so order, and that the district court did not err when it rejected this claim. Collins contends that the county court’s order to deduct fines and costs from the bond deposit violated § 29-901, State v. Zamarron, 19 Neb. Ct. App. 349 , 806 N.W.2d 128 (2011), and State v. McKichan, 219 Neb. 560 , 364 N.W.2d 47 (1985). Section 29-901 provides in part that a deposit of not more than 10 percent of the amount of the bond may be made with the clerk of the court, with “ninety percent of such deposit to be returned to the defendant upon the performance of the appearance or appearances and ten percent to be retained by the clerk as appearance bond costs.” In Zamarron, supra , the Nebraska Court of Appeals concluded that the district court erred when it applied the defendant’s appearance bond to pay court costs that the defendant had been ordered to pay as part of his sentence. The Court of Appeals cited § 29-901 and stated that an “appearance bond must be refunded (less any applicable statutory fee) after full compliance with all court orders to appear.” Zamarron, 19 Neb. Ct. App. at 352 , 806 N.W.2d at 130. The Court of Appeals also cited McKichan, supra . In McKichan, this court had held that “the deposit of cash in lieu of or in support of bail under § 29-901 is for the purpose only of ensuring the defendant’s appearance in court when required; and upon full compliance with any such court orders and release of bail, the statutory refund must be made.” 219 Neb. at 563 , 364 N.W.2d at 49. Collins argues that the use of the word “must” in both McKichan and Zamarron indicates that the appellate courts have interpreted the refund under § 29-901 to be mandatory.  - 593 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 But as the district court noted in its order which affirmed Collins’ convictions and sentences subsequent to the decisions in both McKichan and Zamarron, the Legislature in 2012 amended § 29-2206 by adding subsection (3), which provided that the court “may deduct fines or costs from a bond posted by the offender to the extent that such bond is not otherwise encumbered by a valid lien, levy, execution, or assignment to counsel of record or the person who posted the bond.” Collins maintains that § 29-2206 conflicts with § 29-901 and that read- ing the two statutes in pari materia yields an ambiguity which must be resolved by applying the language of § 29-901, which makes a refund mandatory. [15,16] We disagree with Collins’ reading of the two stat- utes. Components of a series or collection of statutes pertain- ing to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are con- sistent, harmonious, and sensible. State v. Street, 306 Neb. 38 0, 945 N.W.2d 450 (2020). And to the extent there is a conflict between two statutes, the specific statute controls over the gen- eral statute. Id. Both § 29-901 and § 29-2206 address disposi- tion of bonds, and we must read them in a manner such that they are consistent, harmonious, and sensible when considered with one another. Collins proposes that any conflict between the statutes must be resolved by favoring § 29-901, which she asserts is the specific statute regarding return of a bond and controls over § 29-2206. Because Collins’ reading of the statutes does not make the statutes consistent, harmonious, and sensible with one another and under her reading § 29-901 nullifies § 29-2206, we reject Collins’ proposal. [17] Instead, we read § 29-901 as providing that generally, 90 percent of the bond deposit is to be returned to the defend­ ant; however, § 29-2206 provides a specific exception to that general rule in that it allows the court to deduct fines and costs from the bond deposit prior to return of the remainder,  - 594 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 if any. This reading of the statutes is bolstered by the fact that the relevant language in § 29-901 existed at the time the rel- evant language was added to § 29-2206. In enacting a statute, the Legislature must be presumed to have knowledge of all previous legislation upon the subject. In re Estate of Psota, 297 Neb. 570 , 900 N.W.2d 790 (2017). The Legislature is also presumed to know the language used in a statute, and if a subsequent act on the same or similar subject uses different terms in the same connection, the court must presume that a change in the law was intended. Id. See, also, Shipler v. General Motors Corp., 271 Neb. 194 , 216, 710 N.W.2d 807 , 829 (2006) (“last expression of legislative will is the law”). Therefore, we presume that when it amended § 29-2206 in 2012 to allow a court to deduct fines and costs from a bond, the Legislature was aware of the language of § 29-901 requiring the return of 90 percent of the bond deposit to the defendant. We therefore presume the Legislature specifically intended that the deduction of fines and costs was an excep- tion to the general rule that the bond deposit is to be returned to the defendant. We conclude that when the county court entered its order on April 3, 2019, § 29-2206 allowed it to deduct fines and costs from the bond deposit and § 29-901 did not prohibit it from doing so. We therefore conclude that the district court did not err when it affirmed the county court’s order to deduct fines and costs from Collins’ appearance bond deposit. Collins Has Not Shown Ineffective Assistance of Counsel. Collins finally claims that she received ineffective assistance of counsel in the county court because at the sentencing hear- ing, “counsel failed to present sufficient evidence and informa- tion for the [county court’s] consideration in determining the proper sentence and thus her right to a fair sentencing hearing was prejudiced.” We conclude that the record on direct appeal does not show ineffective assistance.  - 595 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal depends upon the suffi- ciency of the record to address the claim to determine whether a defense counsel’s performance was deficient and whether the defendant was prejudiced by the alleged deficient performance. See State v. Theisen, 306 Neb. 591 , 946 N.W.2d 677 (2020). We have said the record is sufficient if it establishes either that trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice, or that trial counsel’s actions could not be justified as a part of any plausible trial strategy. Id. [18-21] To prevail on a claim of ineffective assistance of counsel, the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense. State v. Anderson, 305 Neb. 978 , 943 N.W.2d 690 (2020). To show that counsel’s performance was deficient, a defendant must show that coun- sel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. Id. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceed- ing would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the out- come. Id. We note as an initial matter that in her brief, Collins argues in part that counsel provided ineffective assistance because counsel “failed to ask for [her] bond to be released to her.” Brief for appellant at 28. We do not think this argument is encompassed within Collins’ assignment of error in which she alleges that “counsel failed to present sufficient evidence and information for the [county court’s] consideration in determin- ing the proper sentence.” See State v. Mrza, 302 Neb. 931 , 926 N.W.2d 79 (2019) (providing that assignments of error on direct appeal regarding ineffective assistance of trial coun- sel must specifically allege deficient performance). In any event, this claim is unavailing because as we discussed above, at the time the county court ordered that fines and costs be  - 596 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 deducted from Collins’ bond, the county court had statutory authority to do so whether or not Collins requested return of the bond, and therefore, counsel’s alleged failure to ask that the bond be released to her did not prejudice Collins. As quoted above, Collins primarily asserts that counsel pro- vided ineffective assistance when “counsel failed to present sufficient evidence and information for the [county court’s] consideration in determining the proper sentence.” She spe- cifically argues that at sentencing, counsel failed to present the evidence that counsel later asserted in the motions for new trial or to reconsider sentence all to the effect that newly discov- ered evidence would show that a license revocation would be a hardship for Collins. We determine that the record on direct appeal does not show that counsel’s performance was deficient in this regard and that the record refutes a finding that any such deficiency was prejudicial. Regarding deficient performance, a defendant must show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. Anderson, supra . The record on direct appeal does not contain evidence which would assist this court in assessing what factors a lawyer with ordinary training and skill would have presented at the sentenc- ing, nor does it indicate that Collins’ counsel behaved unrea- sonably when he focused on avoiding a sentence of imprison- ment at the expense of other features of the sentence. In the affidavit of counsel offered in support of the motions for new trial and to reconsider sentence, counsel states that “[d]ue to the urgency” of getting Collins into drug court, coun- sel “had limited time between plea negotiations and plea entry to discuss sentencing with [Collins],” and that counsel “was unaware of certain facts about [Collins] that are material to sentencing.” But rather than declaring that such circumstance showed deficient performance, counsel stated to the contrary that “due to extenuating circumstances, [counsel] could not have with reasonable diligence discovered and produced [such evidence] prior to or during sentencing.” Counsel’s affida- vit, taken as a whole, refutes a determination that counsel’s  - 597 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 failure to present the evidence at sentencing constituted defi- cient performance. Further, we believe that the record also refutes a finding of prejudice. Regarding prejudice, the defendant must demon- strate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been dif- ferent, and a reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Anderson, 305 Neb. 978 , 943 N.W.2d 690 (2020). Collins gains some support for her allegation of prejudice from the county court’s comment at the hearing on the motions for new trial and to reconsider sentence that if it “had known some of these things beforehand, [it] probably would have likely ruled differently.” However, the county court’s comment is vague as to what the court would have done differently and we cannot presume that the court would not have imposed a license revocation. We cannot find that the court’s comment establishes a probability sufficient to undermine confidence in the outcome. We have reviewed the record and find that it refutes a find- ing of prejudice even if counsel had been deficient. At the plea hearing, the State informed Collins of the sentencing range for the amended charges and stated that as to the charge of operat- ing a motor vehicle to avoid arrest, “your driver’s license will also be revoked for up to one year.” Collins stated that she understood the charges and possible penalties just recited. The State’s advisement, such as it was, could only have alerted Collins and her counsel that license revocation could follow. Later, in the plea colloquy, the county court asked Collins whether she had “had enough time to think about [her] plea and discuss it with [counsel],” and Collins replied that she had. After accepting Collins’ plea and before pronouncing sentence, the county court allowed counsel to argue on behalf of Collins. After Collins’ counsel’s argument, the county court asked whether Collins had “anything she wishe[d] to say,” and Collins replied, “No.” The record of the plea and sentencing hearing shows that even if counsel was deficient in failing to inform Collins of  - 598 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COLLINS Cite as 307 Neb. 581 the possibility of a license revocation and to solicit informa- tion from Collins relevant to that possibility, such deficiency did not prejudice Collins. After the State stated “your driver’s license will also be revoked for up to one year,” the court gave Collins the opportunity to say she had not discussed the issue of a license revocation with counsel; instead, she said she had had sufficient time to discuss her plea with counsel. Also, prior to sentencing and after hearing the argument coun- sel had made on her behalf, the court provided Collins the opportunity to inform it of circumstances relevant to sentenc- ing that had not been presented by counsel, but she chose not to say anything. We conclude that the record on direct appeal refutes Collins’ claim of ineffective assistance of counsel. We therefore reject Collins’ claim on direct appeal that counsel provided ineffec- tive assistance at sentencing. CONCLUSION We conclude that the district court did not err when it rejected Collins’ claim that the county court imposed exces- sive sentences and her claim that the county court erred when it ordered that fines and costs be deducted from her bond. We further conclude that Collins’ claim of ineffective assistance of counsel is refuted by the record on direct appeal. We therefore affirm the district court’s order which affirmed Collins’ convic- tions and sentences. Affirmed.

2020-12-04 06:08:15.270783+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007453PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 599 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 Robert Dick, appellee and cross-appellant, v. Koski Professional Group, P.C., third-party plaintiff, appellant and cross-appellee, and Bland & Associates, P.C., third-party defendant, appellee and cross-appellant. ___ N.W.2d ___ Filed October 30, 2020. No. S-19-132. 1. Judgments: Jury Trials: Pretrial Procedure: Appeal and Error. The allocation of peremptory challenges in a multi-party civil suit is left to the discretion of the trial court and will be reviewed for an abuse of discretion. 2. Judgments: Words and Phrases. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substan- tial right or a just result in matters submitted for disposition through a judicial system. 3. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court’s failure to give a requested jury instruction, an appel- lant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court’s failure to give the requested instruction. 4. Jury Instructions: Pleadings: Appeal and Error. A party may not complain of the failure of the trial court to instruct on issues that are outside the scope of the pleadings. 5. Jury Instructions. Jury instructions must be read together; they must be read conjunctively, rather than separately in isolation. 6. Jury Instructions: Appeal and Error. If the jury instructions given, which are taken as a whole, correctly state the law, are not misleading,  - 600 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 and adequately cover the issues submissible to a jury, there is no preju- dicial error concerning the instructions and necessitating a reversal. 7. Directed Verdict: Appeal and Error. When a motion for directed ver- dict made at the close of all the evidence is overruled by the trial court, appellate review is controlled by the rule that a directed verdict is proper only where reasonable minds cannot differ and can draw but one con- clusion from the evidence, and where the issues should be decided as a matter of law. 8. Pleadings: Appeal and Error. Permission to amend a pleading is addressed to the discretion of the trial court, and an appellate court will not disturb the trial court’s decision absent an abuse of discretion. 9. Juries. In Nebraska, the number of peremptory challenges allowable in civil actions is governed by case law and unwritten rules of court. 10. Juries: Parties. A party can exercise the peremptory challenge to remove a potential juror on the basis of that party’s belief that the juror’s status as a member of some cognizable group will prejudice his or her attitude toward that party’s case. 11. ____: ____. Where there are multiple parties on the same side of a lawsuit, each side of the lawsuit is entitled to a total of three peremp- tory challenges, unless the multiple parties’ interests are adverse to each other. 12. ____: ____. Multiple parties on the same side of a civil lawsuit are adverse to each other when a good-faith controversy exists between them over an issue of fact that the jury will decide. 13. Parties. The fact that one party may have to defend against a theory of recovery not asserted against the other does not in itself mean that the two parties’ interests are adverse. 14. ____. Relevant circumstances to determine whether the defendants’ interests are adverse to each other include but are not limited to (1) whether separate acts of misconduct were alleged against the separate defendants, (2) whether comparative negligence principles applied to the case, (3) the type of relationship among the defendants, (4) whether cross-claims or third-party complaints had been filed and the positions taken therein, (5) information disclosed on pretrial discovery, and (6) representations made by the parties. 15. Juries: Parties: Appeal and Error. One who does not exercise all his or her peremptory challenges cannot assign as error the court’s refusal to allow a greater number or a lesser number to the opposing parties. 16. Contracts: Shareholder Agreements. Shareholder agreements are con- strued according to the principles of the law of contracts. 17. Actions: Breach of Contract: Damages. A suit for damages arising from breach of a contract presents an action at law.  - 601 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 18. Contracts: Shareholder Agreements. The meaning of an unambiguous shareholder agreement, like any contract, is a question of law. 19. Contracts. Matters seeking avoidance of a valid contract are affirma- tive defenses. 20. Contracts: Words and Phrases. A condition precedent is a condition that must be performed before the parties’ agreement becomes a binding contract or a condition which must be fulfilled before a duty to perform an existing contract arises. 21. Contracts: Breach of Contract: Damages. A condition precedent is in contrast to a promise in a contract, the nonfulfillment of which is a breach, i.e., the failure to perform that which was required by a legal duty, and the remedy lies in an action for damages. 22. Contracts: Intent: Words and Phrases. Whether language in a con- tract is a condition precedent depends on the parties’ intent as gathered from the language of the contract. 23. ____: ____: ____. Where contracting parties’ intent is not clear, the lan- guage is generally interpreted as promissory rather than conditional. 24. Contracts: Liability: Tender. In a simultaneous exchange, entailing mutual conditions precedent, liability under the contract by the first party is triggered by an offer of tender by the second party, which is conditional upon contemporaneous performance of the first. 25. Contracts: Words and Phrases. Tender is an offer to perform a con- dition or obligation, coupled with the present ability of immediate performance, so that, were it not for the refusal of cooperation by the party to whom tendered, the condition or obligation would be immedi- ately satisfied. 26. Tender: Waiver. Tender before suit is filed is waived where the party entitled to payment, by conduct or declaration, proclaims that if a tender should be made, acceptance would be refused. 27. Contracts: Tender: Proof. Acts which, in themselves, are insufficient to make a complete tender may constitute proof of readiness to perform, so as to protect the rights of a party under a contract, where a proper tender is rendered impossible by circumstances not due to the fault of the tenderer. 28. Actions: Contracts: Pleadings. To constitute a defense to an action based on contract, the matters must generally be germane to the cause of action pleaded, in addition to presenting a legal reason why plaintiff will not recover. 29. Claims: Contracts: Torts. A claim of defense arising out of tort con- cepts is not generally available where the claim of the plaintiff is pre- mised upon contract. 30. Contracts. Fiduciary duties arise from the relationship and not from the terms of the agreement.  - 602 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 31. Contracts: Parties. The implied covenant of good faith and fair dealing exists in every contract and requires that none of the parties to the con- tract do anything which will injure the right of another party to receive the benefit of the contract. 32. Contracts. The scope of conduct prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the contract. 33. ____. The covenant of good faith and fair dealing cannot give rise to new obligations not otherwise contained in a contract’s express terms. 34. Contracts: Breach of Contract. The “prior material breach” doctrine applies when a contract contemplates an exchange of performances between the parties, and the doctrine holds that one party’s failure to perform allows the other party to cease its own performance. 35. ____: ____. A duty under a separate contract is not affected by the doctrine of prior material breach, nor is a duty under the same contract affected if it was not one to render a performance to be exchanged under an exchange of promises; further, only duties to render performance are affected. 36. Actions: Breach of Contract. A prior material breach by the other con- tracting party is an affirmative defense that applies only when the breach- ing party breaches the same contract on which he or she is suing. 37. Shareholder Agreements: Corporations. Shareholder agreements may be freestanding of corporate bylaws. 38. Claims: Juries: Verdicts. Factual issues necessarily determined by a jury’s verdict on one claim in a case are also deemed resolved with respect to other claims in the same case. 39. Judgments. The existence of a fiduciary duty and scope of that duty are questions of law for the court to decide. 40. Corporations: Trusts. The law of trusts forms the basis for fiduciary duties. Fiduciaries in a corporation are not trustees in the strict sense because they do not have title to the estate; they are instead fiduciaries to the extent that they control the corporation’s property. 41. Equity: Courts. The scope of fiduciary duties is flexible, reflecting the historical approach of the courts of equity. 42. Corporations. Minority shareholders do not owe a fiduciary duty to each other or to the corporation. 43. ____. An officer of a corporation occupies a fiduciary relationship toward the corporation and its stockholders. 44. ____. The existence of a fiduciary duty of an officer in a closely held corporation depends on the ability to exercise the status that creates it, and nominal corporate officers with no management authority generally do not owe fiduciary duties to the corporation. 45. Actions: Damages: Proof. The plaintiff in an action for breach of fiduciary duty has the burden to prove that (1) the defendant owed the  - 603 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 plaintiff a fiduciary duty, (2) the defendant breached the duty, (3) the defendant’s breach was the cause of the injury to the plaintiff, and (4) the plaintiff was damaged. 46. Actions: Corporations: Proof. In an action for breach of fiduciary duty toward a corporation, the plaintiff must establish a prima facie case of both the existence of a fiduciary duty and its breach before the burden shifts to the defendant to prove the defendant acted in an open, fair, and honest manner such that no breach of fiduciary duty occurred. 47. Corporations: Proof. Negotiating to leave one’s fiduciary position with a closely held corporation and to enter into competing employment else- where is not a transaction that shifts the burden to the fiduciary to prove the negotiation’s fairness. 48. Employer and Employee. An employer’s right to demand and receive loyalty must be tempered by society’s legitimate interest in encourag- ing competition. 49. Employer and Employee: Trade Secrets. An employee who plans to compete with his or her employer may not (1) appropriate the employ- er’s trade secrets, (2) solicit the employer’s customers while still work- ing for the employer, (3) solicit the departure of other employees while still working for the employer, or (4) carry away confidential informa- tion, such as customer lists. 50. Trial: Evidence: Appeal and Error. Error may not be predicated upon a ruling of a trial court excluding testimony of a witness unless the sub- stance of the evidence to be offered by the testimony was made known to the trial judge by offer or was apparent from the context within which the questions were asked. 51. Corporations: Contracts. Customers without exclusive contractual arrangements with corporations or with whom a corporation has to annually renew contracts are not corporate business opportunities. 52. Equity: Unjust Enrichment: Principal and Agent. Equitable clawback is a restitutionary remedy based on principles of unjust enrichment and the faithless servant doctrine. It establishes a mandate that an agent who engages in activities that breach the agent’s fiduciary duties to the prin- cipal is not entitled to and must forfeit any compensation for services rendered during the period of the breach. 53. Jury Instructions: Appeal and Error. Any jury instruction is subject to the harmless error rule, which requires a reversal only if error adversely affects the substantial rights of the complaining party. 54. Torts: Intent: Proof. To succeed on a claim for tortious interference with a business relationship or expectancy, a plaintiff must prove (1) the existence of a valid business relationship or expectancy, (2) knowledge by the interferer of the relationship or expectancy, (3) an unjustified intentional act of interference on the part of the interferer, (4) proof that  - 604 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 the interference caused the harm sustained, and (5) damage to the party whose relationship or expectancy was disrupted. 55. Torts: Employer and Employee. Factors to consider in determin- ing whether interference with a business relationship was unjustified include: (1) the nature of the actor’s conduct, (2) the actor’s motive, (3) the interests of the other with which the actor’s conduct interferes, (4) the interests sought to be advanced by the actor, (5) the social interests in protecting the freedom of action of the actor and the contractual inter- ests of the other, (6) the proximity or remoteness of the actor’s conduct to the interference, and (7) the relations between the parties. The issue is whether, upon a consideration of the relative significance of the factors involved, the conduct should be permitted without liability, despite its effect of harm to another. 56. Contracts. An individual’s interest in prospective economic advantage receives less protection than his or her enforceable contract rights. 57. Torts: Proof. The party alleging tortious interference has the burden of proving that the conduct did not fall within the competitor’s privilege. 58. Torts: Intent. One is privileged purposely to cause a third person not to enter into or continue a business relation with a competitor of the actor if (1) the relation concerns a matter involved in the competition between the actor and the competitor, (2) the actor does not employ improper means, (3) the actor does not intend thereby to create or continue an illegal restraint of competition, and (4) the actor’s purpose is at least in part to advance his or her interest in the competition with the other. 59. Torts. Improper means of competition has been described as physical violence, fraud, civil suits, and criminal prosecutions—though even these means may not be forbidden, depending upon the relation between the actor and the person induced, and the object sought to be accom- plished by the actor. 60. Evidence: Appeal and Error. In a civil case, the admission or exclu- sion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. Appeal from the District Court for Douglas County: J Russell Derr, Judge. Affirmed. Robert M. Slovek and Dwyer Arce, of Kutak Rock, L.L.P., for appellant. Aaron A. Clark, Ruth A. Horvatich, and Cody E. Brookhouser-Sisney, of McGrath, North, Mullin & Kratz, P.C., L.L.O., for appellee Robert Dick.  - 605 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 Ryan M. Kunhart and Jeffrey J. Blumel, of Dvorak Law Group, L.L.C., for appellee Bland & Associates, P.C. Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. I. NATURE OF CASE An accountant left one firm in order to join another. Several clients followed the accountant to his new firm. The account­ ant, who was a shareholder and officer at his former firm, sued the former firm for failing to perform a mandatory provision in the shareholder agreement to buy out a departing shareholder’s corporate shares at a price that accounted for any lost billings by virtue of clients’ following a departing shareholder. The firm made numerous allegations in defense of the account­ ant’s claim and brought counterclaims against the account­ ant, including breach of fiduciary duty and misappropriation of confidential information. The accountant’s prior firm also brought third-party claims against the accountant’s new firm, which included tortious interference with business expectations and a malicious prosecution claim in relation to a complaint made by the new firm to the Nebraska State Board of Public Accountancy (NSBPA). All claims presented to the jury were determined in favor of the accountant and his new firm. The accountant’s former firm appeals, presenting 15 assignments of error challenging the allocation of peremptory strikes, the denial of its motion for directed verdict, the exclusion of cer- tain evidence, and several of the jury instructions. We affirm the judgment. II. BACKGROUND The underlying action was commenced by Robert Dick, an accountant, against Koski Professional Group, P.C. (KPG), a closely held professional corporation providing accounting services. Dick worked at KPG as an accountant for 22 years and eventually held the corporate office of vice president.  - 606 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 In 2015, Dick moved his practice to Bland & Associates, P.C. (Bland). Bland agreed to pay Dick a base salary plus a percentage commission on his clients’ billings. Although not solicited to do so prior to his departure, many of Dick’s clients transferred their business to Bland after Dick began working there. There was no noncompete agreement between Dick and KPG. Dick had purchased 30 percent of KPG shares during his tenure at KPG, at a total purchase price of approximately $257,000. Some of the funds for the stock purchase were obtained through a loan by Randall Koski (Koski), president of KPG, to Dick. The loan was secured by a promissory note and set forth a payment plan and interest. At the time of his depar- ture, Dick still owed approximately $63,000 on the loan. Dick continued the scheduled payments and paid off the balance in full before trial. When Dick left KPG, he communicated to Koski that he wished for KPG to purchase his shares pursuant to the terms of the controlling shareholder agreement (Shareholder Agreement). The Shareholder Agreement described voluntary termination as an operative event requiring the shareholder to sell and the corporation to purchase all of the disposing share- holder’s stock. The Shareholder Agreement set forth the pur- chase price for an operative event such as a shareholder’s vol- untary departure as 80 percent of the adjusted book value. The adjusted book value in such circumstances was based in part on “[r]etained [a]nnual [b]illings,” described as the difference between KPG’s total professional fees during the most recently completed fiscal year and all professional fees billed to clients who are no longer clients of KPG and were being served by the departing shareholder 1 year subsequent to departure. The repurchase under the Shareholder Agreement was to occur within 60 days of termination. The agreement further speci- fied that KPG was to issue a promissory note to purchase the stock in 120 equal monthly installments with 5 percent per annum interest.  - 607 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 Koski disavowed a buyout obligation at the price set forth under the Shareholder Agreement. Koski believed that Dick’s actions in relation to procuring his new employment had breached his fiduciary duties to KPG and the corporate bylaws and, further, that because of the promissory note, Dick had failed to offer the stock free of all liens. KPG never valued the shares or set a closing date for a repurchase. Dick sued. 1. Amended Complaint Dick alleged breach of contract. Dick also asked for an order granting specific performance of the Shareholder Agreement compelling KPG to calculate the adjusted book value per share, deliver a promissory note secured by the pledge of stock, and pay in full all installment payments to repurchase the stock plus prejudgment interest and other interest provided under the Shareholder Agreement. He asked for an accounting or such other relief necessary to determine the value of his stock. Alternatively, Dick asked for an order accelerating the pay- ment of all amounts due to purchase his stock and the entry of a monetary judgment representing the full adjusted book value owed by reason of KPG’s repudiation and default. Dick also alleged violations of the Nebraska Wage Payment and Collection Act, 1 but dismissed that claim after trial. 2. Amended Answer KPG generally denied the allegations set forth in Dick’s amended complaint and alleged several affirmative defenses, including prior material breach and failure to satisfy a condi- tion precedent. KPG alleged that Dick’s breach of contract claim was barred by his own prior material breach of the Shareholder Agreement and bylaws, thereby excusing KPG’s duty to perform. KPG alleged that Dick failed to satisfy a con- dition precedent of the applicable stockholder agreement by 1 See Neb. Rev. Stat. §§ 48-1228 to 48-1234 (Reissue 2010, Cum. Supp. 2018 & Supp. 2019).  - 608 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 failing to return his stock to KPG free and clear of any security interests or encumbrances. KPG did not allege a prior breach of fiduciary duty or good faith and fair dealing as affirmative defenses to Dick’s breach of contract claim. 3. Counterclaims KPG then set forth seven counterclaims against Dick, some of which mirrored the alleged affirmative defenses. (a) Breach of Fiduciary Duty First, KPG alleged a counterclaim for breach of fiduciary duty. KPG asserted that Dick breached his fiduciary duties of loyalty and care, imposed by virtue of his being an offi- cer and shareholder of a close corporation, by (1) disclosing KPG’s confidential business techniques and commercial data to Bland; (2) failing to send out engagement letters on behalf of KPG to two different KPG clients in order to take those clients to Bland; (3) “‘shopp[ing]’” KPG’s long-term clients to other accounting firms to find the one that would offer him the largest fees for taking those clients to them; (4) engaging with Bland, while still working for KPG, in an agreement in which he would receive a 10-percent commission on all clients he brought to Bland from KPG, in violation of the rules of pro- fessional conduct of the NSBPA; (5) concealing from KPG his efforts to transition to a rival accounting firm; (6) breaking his specific promise to KPG that he would not contact KPG cli- ents during that period of time; (7) mishandling and providing negligent accounting services to KPG clients; and (8) violating KPG’s bylaws by sending KPG’s confidential business tech- niques and commercial data to Bland. While the underlying facts of this stated claim were the same as those referred to in the affirmative defense of unclean hands, KPG sought damages as a result of the alleged breaches, as well as a return of compensation paid to Dick during the period of his breach—under the “equitable claw back” doctrine.  - 609 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 (b) Breach of Shareholder Agreement Second, KPG asserted that Dick breached the explicit terms of the Shareholder Agreement, as well as implied covenants of good faith and fair dealing, by demanding that KPG repurchase his stocks and by initiating litigation to compel the same, when Dick was allegedly unable to return his stock unencumbered. Like in its affirmative defense of prior material breach and failure to satisfy a condition precedent based on similar alle- gations, KPG asserted that it was excused from performing any further obligation under the Shareholder Agreement. KPG asked for damages as a result of Dick’s breach. (c) Breach of KPG’s Bylaws Third, and again repeating one of the allegations stated under breach of fiduciary duty, KPG alleged that Dick breached bylaws providing that officers and employees of KPG maintain and preserve confidentiality as to all business techniques, com- mercial data, formulas, goodwill, operational methods, product identifications, service marks, trademarks, trade names, and trade secrets, by disclosing confidential information to Bland in order to undercut KPG pricing for its clients. KPG alleged it suffered monetary damages as a result of the breach. (d) Misappropriation of Trade Secrets Fourth, KPG alleged that Dick violated Nebraska’s Trade Secrets Act, Neb. Rev. Stat. § 87-501 et seq. (Reissue 2014), by utilizing KPG’s trade secrets for his own benefit in the course of his employment with Bland. KPG asked for dam- ages due to actual losses and unjust enrichment, as provided by § 87-504. (e) Tortious Interference With Contact or Business Relationship or Expectancy KPG’s fifth counterclaim was based in part on the same allegations as those set forth in KPG’s counterclaim alleging breach of fiduciary duties and in part on the additional alleged facts that (1) Dick had encouraged clients who switched from  - 610 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 KPG to Bland not to pay their outstanding balances with KPG and (2) Dick maliciously assisted Bland in filing a false com- plaint against KPG with the NSBPA. KPG sought damages. (f) Civil Conspiracy Sixth, repeating allegations made under its breach of fidu- ciary duty and tortious interference claims concerning Dick’s breach of KPG’s bylaws by sending confidential information to Bland, KPG alleged that Dick conspired with Bland to “wrong- fully co-opt KPG’s niche practice, all while taking concerted steps to prevent KPG from discovering Dick’s wrongful con- duct.” KPG sought damages for this alleged civil conspiracy. (g) Unjust Enrichment Seventh, KPG asked for the return of certain amounts paid to Dick or on his behalf under the theory of unjust enrich- ment. Specifically, KPG sought reimbursement of a $16,000 discretionary bonus paid to Dick on the condition that he stay through an orderly transition process, which Dick allegedly did not do. KPG also sought reimbursement for $3,587.13 paid to cover Dick’s health insurance premium for the fourth quarter of 2015, during which Dick no longer worked for KPG. 4. Third-Party Complaint KPG brought a third-party complaint against Bland stat- ing six claims for which KPG sought monetary damages: (1) tortious interference with an existing contract or business relationship or expectancy; (2) aiding and abetting a breach of fiduciary duty; (3) malicious prosecution based on Bland’s commencement of NSBPA proceedings against KPG, allegedly without probable cause and with malice, “in an effort to bully and intimidate” KPG; (4) misappropriation of trade secrets as defined by KPG’s bylaws and § 87-502(4); (5) civil con- spiracy to willfully and maliciously interfere with KPG’s busi- ness operations, customer relationships, and corporate oppor- tunities; and (6) unjust enrichment through the receipt and  - 611 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 continued use of KPG’s confidential business techniques and commercial data. 5. Pretrial Order Regarding 10-Percent Commission KPG moved for partial summary judgment against Bland on its allegation that Bland’s payment of a 10-percent commission to Dick for prior KPG clients violated the rules of professional conduct of the NSBPA and that this accordingly constituted tortious interference with its business relationships or expec- tations. Bland responded by filing a cross-motion for partial summary judgment against KPG, alleging that as a matter of law, the commission did not create a conflict of interest or vio- late the NSBPA’s regulations, because it was paid directly by Bland to Dick and did not affect the amounts paid by a client or the outcome of an engagement between Bland and a client. Dick filed a separate motion for partial summary judgment for the same reasons as set forth in Bland’s motion. Following a hearing, the court overruled KPG’s motion for partial summary judgment and granted Bland’s motion for par- tial summary judgment on the issue of whether the commission violated NSBPA regulations. The court found as a matter of law that Bland was not violating NSBPA regulations by paying Dick a 10-percent commission on fees paid to Bland for work performed for clients Dick brought to Bland. The NSBPA rule in question, the court explained, prohibited commissions that would create a potential conflict of interest, such as a licensee’s receiving a commission from an outside service provider for referring that provider’s service to that licensee’s client. The court did not rule on whether there was any other basis for concluding that Bland engaged in an unjustified intentional act of interference against KPG. 6. Peremptory Challenges Prior to jury selection, the court issued a written order finding that the interests of Dick and Bland were suffi- ciently adverse such that each should have three peremptory  - 612 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 challenges. The jury selection process is not otherwise reflected in the appellate record. 7. Evidence Presented at Trial The jury trial was held from October 1 through 12, 2018. The following evidence was adduced. (a) Dick Employed by Randall K. Koski, P.C. Dick testified that he was hired at Randall K. Koski, P.C., in 1993. At that time, the firm was Koski’s sole practice, estab- lished in 1986. Koski had as a client a nursing home chain and was looking for someone with health care experience. Dick had experience working with Medicare. Dick testified that at Randall K. Koski, P.C., he specialized in cost reports and other accounting services for long-term health care facilities. He brought in his first client in 1995, at which time there were only three nursing homes being served by KPG. By the time Dick resigned, KPG served around 45 nursing homes. Dick testified that since 1995, he had personally brought in every long-term health care client that Randall K. Koski, P.C., and KPG had served. A shareholder, Michelle Thornburg, described that while “Dick may have been the face of that networking,” KPG resources assisted him in that effort signifi- cantly. Koski also generally disagreed with Dick’s perspective that he was the driving force of KPG’s growth in that area. According to Koski, long-term health care clients have always been between one-third and one-half of KPG’s client base. (b) Shareholder Agreements, Stock Purchases, and Promissory Notes In 1997, Koski filed with the Secretary of State an amend- ment to the articles of incorporation of Randall K. Koski, P.C., to change the corporation’s name to that of KPG. The amend- ment, adopted by Koski as the sole shareholder, provided that “all other terms and conditions of the articles of incorporation  - 613 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 filed January 14, 1991 were reconfirmed and deemed to be in full force and effect.” In 1997, the first KPG shareholder agreement was signed by Koski, Dick, and Thornburg. Shareholder agreements were again signed by all relevant parties in 2005 and 2011. The rel- evant provisions were the same in each of these subsequently executed shareholder agreements. In addition to the “mandatory sales and purchases” provi- sions that took into account any clients that leave with a volun- tarily departing shareholder, the agreements provided for share- holder indebtedness to the corporation or a third-party secured creditor to be offset against the buyout price. The shareholder agreements further had a provision that stated: This Agreement contains the entire understanding among the parties and supersedes any prior understanding among the parties and agreements between them respecting the within subject matter. There are no representations, agreements, arrangements or understandings, oral or writ- ten, between or among the parties hereto relating to the subject matter of this Agreement which are not fully expressed herein. There was no reference in the KPG shareholder agreements to corporate bylaws. At the time of the corporation’s forma- tion, there were three shareholders, a few employees, and gross revenues of close to $500,000. When Dick resigned in 2014, there were four shareholders, over a dozen employees, and $1.8 million in gross revenue. The fourth shareholder, Adrian Lape-Brinkman, joined in 2010, after purchasing a 15-percent interest in KPG for $186,493.08. Dick originally purchased 12.5 shares in KPG from KPG for $52,260.25. In 2000, Dick purchased additional shares in KPG from KPG for $40,356. In 2005, Dick purchased 11.8 shares in KPG from Koski for $90,000, giving Dick a 24-percent ownership interest and reducing Koski’s interest to 52 percent. The 2005 purchase was memorialized by a stock purchase agreement between  - 614 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 Dick and Koski and was financed by Koski on a 10-year repayment term with interest, delineated in a security agree- ment between Dick and Koski. In 2010, Dick again purchased shares in KPG from Koski for $74,597.23, at which point Dick owned 30 percent of KPG. Dick and Koski refinanced the remaining $41,000 unpaid balance of the 2005 loan into a new loan for the 2010 purchase, for a total loan of $115,000 plus interest. Under the promissory note, Dick promised to pay $1,199.67 per month from January 1, 2010, through December 31, 2019. The evidence was uncontroverted that Dick never defaulted on any of the loan payments. It was undisputed that after the underlying lawsuit was filed, Dick continued to make payments and Koski continued to accept those payments until Dick paid off the remaining balance in September 2019. The total amount paid by Dick for all the KPG shares he purchased was $257,998.74, plus $40,181.69 in interest under the loan from Koski. (c) Bylaws KPG entered into evidence the bylaws of Randall K. Koski, P.C., adopted in 1990 when Koski was the sole owner and shareholder. The bylaws provided that “[a]ll officers, agents, and employees of [KPG] shall be required . . . to maintain and preserve confidentiality as to all business techniques, commercial data, formulas, good will, operational methods, product identifications, [etc.]” Koski testified that the Randall K. Koski, P.C., bylaws became the bylaws of KPG when the articles of incorporation for KPG were filed, since “[t]he only change in the corporation was the name . . . .” (d) Shareholder Disagreements Dick testified that in 2014, he became concerned that KPG’s resources were not sufficient to meet the continuing growth of the long-term health care client base. Dick sug- gested hiring more staff or merging with another accounting  - 615 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 firm. Koski and Thornburg, however, were not interested in expanding in that way. Also, Dick and Lape-Brinkman began to feel that it was inequitable that the shareholders’ salaries were not in any man- ner tied to the number of clients they brought to KPG or to the amount of work they did. All shareholders were paid the same base salary no matter how many shares they owned. The share- holders were then each given a yearly distribution of KPG’s profits based on their percentage of shareholder interest and without regard to the amount of revenue they brought to the firm or the amount of work performed. Dick estimated that he oversaw approximately $600,000 of work, while the other shareholders oversaw approximately $400,000 of work each, some of whom were getting paid the same as Dick for doing less work. According to Dick, none of the other shareholders practiced in his specialty. Koski asserted that any extra hours worked by Dick were due to time spent correcting an error that Koski believed Dick’s negligence had created, while Dick and his client testified that the error had occurred previously when the client was doing his own accounting work. One idea that Dick and Lape-Brinkman suggested to the other shareholders was that shareholders be given a commis- sion or bonus for clients they bring to the firm. Dick described this as a “standard practice.” At a shareholder meeting in November 2014, Koski and Thornburg rejected such ideas, but suggested a formal proposal. Soon after the November 2014 meeting, Koski sent an email to the other shareholders stating his belief that “much dam- age has been done to [the] ‘partnership’” as a result of the disagreement about compensation. Koski expressed that he did not believe an agreement could be reached that would make everyone happy. Koski concluded: The great irony here is that if I had always kept owner compensation confidential and none of you knew what  - 616 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 the other was making, everyone would be tickled with this year’s compensation. I have a plan to finalize 2014 compensation. It is predi- cated on the idea that we will remain together as a firm at least for most of 2015. If anyone does not feel that they can remain with the firm for most of 2015, allowing us time for an orderly sale, merger or liquidation, if neces- sary, please be honest with me and tell me that, for I do not wish to make a discretionary allocation to anyone who will not remain here through an orderly process. You might be thinking that we all lose if we liquidate, and you would be correct. Substantially. I have decided that my salary for 2014 will be $160,000 .... At the moment, following are my plans for a discretion- ary reduction in my compensation. I originally planned to allocate this to [Dick], [Thornburg,] and [Lape-Brinkman], as I have made known to you previously. [Thornburg] has very unselfishly asked me to allocate from her share $4,000 to Kelli and $2,000 to Annette and none to herself. The remainder of approximately $30,000 plus would go to [Dick] and [Lape-Brinkman] in whatever proportion you may agree upon. . . . .... For the record, I have enjoyed the camaraderie, whether it was real or imagined, and I hope it may continue into the future. Dick thus received a $16,000 distribution. Dick testified that there was never any discussion of liquidating the firm, either prior to the email or afterward. The firm was never dissolved, and Dick stayed with KPG for the first 9 months of 2015. In January 2015, a formal proposal was submitted, which the majority of the shareholders rejected. At some point after Dick left, the remaining shareholders were able to reach an agree- ment to change their compensation structure.  - 617 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 (e) Employment Negotiations With Bland and Resignation Dick submitted his resignation on September 30, 2015, effective immediately. Dick testified that he made sure all his pending work was completed prior to his departure. Dick did not give KPG notice that he was considering moving his practice elsewhere. Dick explained that he was worried KPG would fire him immediately if it found out he was considering other employment. Dick described that he had originally begun communica- tion with Bland about the possibility of a merger. But when it became clear that neither KPG nor Bland was interested in a merger, on May 28, 2015, Dick began discussing the pos- sibility of moving his practice to Bland. Dick communicated with Bland through his wife’s email account, which Dick testi- fied was the email account he often utilized for his personal email communications. (f) Dick’s “Book of Business” During these negotiations, Bland requested that Dick send information relating to Dick’s “book of business.” Dick sent to Bland (from his wife’s email account) a spreadsheet con- taining information about the volume, general location, price, and type of work Dick performed. It was understood that cli- ents were free to go where they wished and that Dick’s book of business was developed in his employment at KPG, where the clients might choose to remain. Nevertheless, the manag- ing shareholder at Bland testified that Dick’s book of busi- ness was relevant to putting together a compensation package for Dick. The spreadsheet was entered into evidence at trial. It dem- onstrated chunks of hours and the total billings for each chunk (such as 34 hours for a $3,200 fee), with a description of the general type of work (such as “[t]ax” or “Medicaid”). The spreadsheet often indicated the time of year the work was due and sometimes indicated the state in which the work was performed. Clients were identified, if at all, by designations  - 618 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 such as “Owner A.” The document summarized total billings in various categories such as “[a]udit,” “[t]ax,” “Medicaid,” and “[r]etirement [p]lan” and then summarized total billings into date categories of “January - June,” “July - September,” and “October - December.” Dick testified that some of the information in the spread- sheet came from Dick’s estimation of fees and hours, while other parts of the information came from the KPG computer database. According to Thornburg, only shareholders and two paraprofessionals who did billing had access to such fees-and- hours data in their computer system. Dick acknowledged that the database was password protected, but testified that the fees- and-hours information was public information. Thornburg acknowledged that a range of KPG pricing infor- mation was given to potential clients and that clients were obviously aware of what they were being billed. Clients were not asked to keep that information confidential. Koski testified that KPG would share its billing rates with anyone, “because it tells them nothing,” and that pricing information was given to each customer. Both Bland and KPG provided potential clients with cost estimates, which the potential clients were free to share with others. KPG did so through its engagement letters, and Lape- Brinkman testified that there was nothing in the engagement letters that restricted a potential, current, or past client from disclosing to Bland or other firms what KPG charged for the described services. The managing shareholder at Bland testi- fied that he always asked potential clients what fees they were currently paying before putting together a proposal, which the clients ordinarily freely disclosed. He generally sought that information in order to understand whether it would be worth- while to make an offer, since Bland did not “want to undercut” and “take a losing job.” It was undisputed that long-term health care facilities gen- erally must publicly disclose Medicaid cost reports, which include accounting fees. But Koski pointed out that those  - 619 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 fees could be a sum of multiple firms’ work. KPG’s website described the types of tax work KPG performed for its clients. It also listed the states in which it performed services. During his testimony, Koski explained that he primarily took issue with Dick’s sharing with Bland the historical infor- mation about services provided to KPG clients, KPG client locations, and number of hours spent servicing KPG clients. Koski stated, “Standard hourly billing rates are one thing, but what you actually realized on a client engagement is something else . . . .” Koski testified that the latter information was not publicly available. Koski described that such information could be used by a competitor to organize staff and other resources required to serve that client. At no point did Dick relay to Bland any client names. At no point did Dick or anyone at Bland utilize the information in the spreadsheet or any other information to undercut KPG’s rates or solicit new clients. The managing shareholder at Bland testi- fied that he did not attempt to identify KPG clients from the information conveyed in the spreadsheet. The managing share- holder stated that Bland has never utilized the spreadsheet to solicit KPG clients or for any other competitive purpose. Dick testified that after sending the spreadsheet to Bland, he never looked at the information again. (g) Job Offer and 10-Percent Commission By August 2015, Bland had offered Dick a job. At Bland, all accountants receive an extra payment of 10 percent of the billings on the first year of collections for all clients they personally bring to the firm. This has been Bland’s policy for quite some time. In 2015, approximately 50 Bland employees received such a commission. Dick’s position as an accountant at Bland meant he also would receive such a commission. The court excluded expert testimony proffered by KPG that Bland’s 10-percent commission system violated the rules of profes- sional conduct of the NSBPA.  - 620 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 (h) KPG Clients That Left Dick testified that he did not talk to any clients before resigning from KPG about his move to Bland, and there was no evidence contradicting this testimony. After his resignation, Dick did send out emails to some former clients informing them of his new place of employment and stating that he would appreciate having the opportunity to continue providing them services. Ultimately, 23 clients chose to follow Dick to Bland, while 37 clients stayed with KPG. Koski testified that in the 18 months following Dick’s resig- nation, 83 clients were “lost,” while 37 stayed. Of those 83 cli- ents, according to Koski, 38 originally followed Dick but only 23 remained with Dick a year after his departure from KPG. Koski could not strictly account for where the other long- term health care clients went, but opined that their loss was related to the “disruption” and “consternation” ­surrounding Dick’s resignation. The executives of nine of the clients who followed Dick from KPG to Bland testified that Dick did not reach out to them or solicit their business following his departure. Rather, they discovered Dick’s departure from KPG employees, dur- ing a regular bidding process, or by other means. These clients then reached out to Dick directly. In total, the executives of 13 clients who followed Dick testified. They all testified Dick never made any disparaging comments about KPG or offered to undercut KPG’s pricing. Indeed, Dick assured one of those clients that KPG was fully equipped to continue to serve its needs. No evidence was presented that any former KPG client followed Dick to Bland because of better pricing. According to Koski, Dick’s departure resulted in a decline in KPG’s revenue due to the loss of clients as well as the cost of the present litigation. KPG’s expert witness testified that due to lost clients, KPG had experienced approximately $1.8 mil- lion in lost profits over a projected 10-year period and based on a 6.04-percent compounding growth in the clients’ billings. The 10-year period was based on past longevity of KPG’s  - 621 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 long-term health care clients. The expert also testified, over Dick’s objection, that KPG had experienced “clawback” dam- ages in the amount of $48,247. KPG’s expert admitted on cross-examination that he was directed which clients to include in the lost-profits calculation, and he did not investigate why the clients had left. He did not know whether any of those clients were one-time engagements, went to firms other than Bland, or were no longer in business. Furthermore, he included in his lost-profits calculations clients who had remained with KPG but whose billings decreased. KPG’s expert also testified that he had made no judgment in determining clawback damages whether Dick had worked diligently on behalf of KPG during the 4-month period he was negotiating with Bland prior to resigning. During the expert’s examination, KPG’s counsel asked the court to allow the expert to recalculate the lost profits by removing certain clients Dick claimed to have identified during cross-examination that should have been excluded. The court sustained Dick’s objection to such a late revision of the expert’s report, but allowed the expert to testify as to the mathematical formula by which such a calculation could be made. Dick’s expert witness testified that only former clients of KPG that followed Dick to Bland should have been included in KPG’s expert’s calculations of lost profits. Clients who continued to have their work done by KPG and former cli- ents who had contracted with KPG for a onetime project should have been excluded from KPG’s expert’s calculations, but were not. Dick’s expert witness also opined that using 6.04 percent as the predicted growth rate was unreasonable. And she also took issue with the 10-year projection, noting that “to assume that every one of these is going to last ten years would be really overstating the life of that client base.” Finally, Dick’s expert witness opined that the approximately $200,000 for KPG’s legal fees should not have been part of a lost-profits analysis. According to her own analysis, Dick’s expert witness tes- tified that KPG did not suffer any lost profits as a result of  - 622 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 Dick’s resignation. Dick’s expert witness testified that the lost revenue of clients who went to Bland was less than the amount KPG previously had to pay for Dick’s salary. (i) No Closing Under Shareholder Buyout Provision Dick testified that he had been prepared to proceed under the Shareholder Agreement’s buyout provision with a closing date of 60 days from the operative event of his resignation, which would have been November 29, 2015. According to Dick’s calculations under the formulas set forth in the Shareholder Agreement, his shares had a total value of $470,312.51 and, under the Shareholder Agreement, KPG should have paid him approximately $60,000 per year over a 10-year payment plan outlined in the Shareholder Agreement, with the first monthly payment due on November 29. Dick’s expert witness confirmed those calculations, while KPG’s expert calculated the value of the shares at $302,696. Although there was still an outstanding lien under the promis- sory note to Koski, Dick testified that he had been prepared to pay off that balance in connection with closing on the shares. On October 3, 2015, Dick and Koski had a conversation wherein Dick made clear that he wanted his shares to be val- ued and repurchased. Koski asked Dick what he wanted for his shares. Dick responded that he wished for KPG to cal- culate the purchase price as provided under the terms of the Shareholder Agreement—though he might be willing to take a lesser amount in a lump sum “just to move on.” According to Dick, Koski refused to purchase the shares under the terms of the Shareholder Agreement, stating that “there’s too much money at stake; we’re going to fight you.” Thornburg testified that 2014 was the highest-revenue year in the history of the firm, which would result in “a pretty significant payout” for a departing shareholder. According to Koski, he did not say, “We’re going to fight you,” but offered to try to work something out. Nevertheless, Koski believed that the Shareholder Agreement did not control  - 623 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 KPG’s obligations, because Dick had not acted in good faith. Thus, any agreed-upon payout amount would not be com- mensurate to the sum under the formula of the Shareholder Agreement. Koski also testified, “[Dick] never offered to pay and deliver [the shares] free and clear of liens. He never offered it.” Dick testified that since his resignation, he has received no distributions or other income based on his shares and has no control over KPG operations, yet he has had to pay yearly taxes on KPG income by virtue of his continuing status as a share- holder. Dick testified that he has never had possession of any physical shareholder certificate—the shareholder agreements being the only documentation of the same. There was no evi- dence that physical shareholder certificates ever existed. 8. Motion for Directed Verdict Against Dick on Claim for Breach of Contract Near the close of trial, before KPG rested, KPG moved for a directed verdict against Dick on its cause of action under the Shareholder Agreement. Specifically, KPG argued that Dick had failed to rebut, by demonstrating good faith, KPG’s prima facie case for its affirmative defense that Dick had breached his fiduciary duty toward KPG. The court pronounced that it was overruling the motion. The court observed that KPG’s claim appeared primarily to be based on the alleged act of disclosing confidential informa- tion through the email disclosing billings. The court consid- ered it to be a question for the jury whether such information was confidential. While KPG asserted that additionally, Dick’s concealment of his negotiations with Bland was a breach of a fiduciary duty of “utmost honesty with his partners,” the court did not agree. The court noted that the case law did not support the proposition that an officer or shareholder who merely pre- pares to compete upon departure breaches a fiduciary duty. And the court rejected KPG’s premise that Dick had commit- ted a breach of fiduciary duty by soliciting clients after he  - 624 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 resigned at KPG—an act which the court noted was explicitly contemplated by the Shareholder Agreement. With regard to KPG’s argument that Dick had a postresignation fiduciary duty because he was still a shareholder, the court said: Well, that’s kind of a circular argument here, that you won’t buy him back, so he’s still a shareholder. You won’t buy him back ’cause you say, Well, I don’t have to because he breached his fiduciary duty. That’s the posi- tion [KPG’s] taken, so what’s he supposed to do? The court also found little merit to the contention that Dick had “stole[n]” KPG clients, when there was no agreement not to compete. Further, the court believed that postresignation conduct was not alleged as part of KPG’s claim for breach of fiduciary duty. The court expressed the belief that any breach of fiduciary duty or tortious interference could not as a matter of law operate as an affirmative defense to Dick’s claim for breach of contract. The court stated that there was no shifting of the burden of proof without first proving Dick engaged in a breach of fidu- ciary duty, and KPG had not done so. The court overruled renewed motions for a directed verdict against Dick on his breach of contract claim at the close of KPG’s counterclaim and at the close of all the evidence. 9. Suppression of Evidence of Postresignation Acts in Alleged Breach of Fiduciary Duty On the ground that the issue was not presented in the plead- ings, the court later sustained during trial an objection by Dick preventing KPG from offering evidence of Dick’s continuing fiduciary duty toward KPG as a shareholder after his resigna- tion from KPG and becoming employed by Bland. The court reasoned that the issue was not pleaded. The court noted that under the allegation of breach of fiduciary duty, there were numerous specific facts pleaded under “[allegations] A through F,” all of which described acts before resignation. The court explained, “[T]here is no G that includes, By continuing to  - 625 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 compete while continuing to be a shareholder, and that’s a pretty big allegation.” The court also found no merit to a claim based on Dick’s continuing duty as a shareholder when KPG refused to redeem Dick’s shares. Finally, the court noted that there was nothing pleaded regarding any alleged failure to tender the shares. KPG did not make an offer of proof. 10. Motion to Amend Pleadings The court overruled a related motion to amend the pleadings to conform to the evidence. Specifically, the court rejected any attempt by KPG to interject at such a late juncture the theory that Dick had a continuing fiduciary duty toward KPG by virtue of still being a shareholder. The court noted that in the amended pleadings filed 2 years after Dick’s resignation and consisting of 143 paragraphs with numerous specific allega- tions of alleged breaches of fiduciary duty, “[n]owhere does it talk about breaching, continuing to breach his fiduciary duty by virtue of holding on to his shares.” The court also again observed that Dick had wanted to redeem his shares and that KPG “didn’t take the position they’re not worth as much,” but, rather, “took the position I don’t have to pay him anything.” The court found it to be a “circular argu- ment” that “[w]e won’t buy his shares and he can’t compete by virtue he still has fiduciary obligation.” That was “a pretty big issue” that “should have been dealt with, if it needed to be dealt with, it should have been dealt with before.” 11. Motions for Directed Verdict on KPG’s Counterclaim and Cross-Claim After KPG presented its evidence on its counterclaim and third-party claims, KPG moved for a directed verdict on those claims. Dick moved for a directed verdict on his claim against KPG for breach of the Shareholder Agreement and against KPG on its counterclaims. Bland also moved for a directed verdict in its favor on KPG’s third-party claims, including its  - 626 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 claim for malicious prosecution. The court overruled all the motions, and the parties discussed jury instructions. 12. Jury Instructions At the jury instructions conference, KPG proposed numerous instructions and special verdict forms that the court ultimately refused to give and which will be set forth in more detail in the analysis section. Forty-seven instructions were given by the court to the jury. The jury was instructed in instruction No. 2 regarding the theories under which KPG alleged it had not just a defense against Dick’s breach of contract claim but counterclaims against Dick and third-party claims against Bland for damages. It provided in part: [KPG] alleges that it does not have to repurchase the stock because Dick breached his fiduciary duty as an employee and shareholder of [KPG] by disclosing alleged confiden- tial information of [KPG] and by discussing employment possibilities with Third Party Defendant Bland . . . while still an employee and shareholder of [KPG]. [KPG] has asserted claims against Dick for: •  Breach of fiduciary duty •  Breach of Shareholder Agreement •  Breach of [KPG’s] Corporate by-laws •  Misappropriation of [KPG] trade secrets •  Tortious interference with business relationships and/or expectancy •  Civil conspiracy •  Unjust enrichment [KPG] has asserted claims against Bland for: •  Tortious interference with business relationships and/or expectancy •  Aiding and abetting Dick’s alleged breach of fiduciary duty to [KPG] •  Malicious prosecution •  Misappropriation of [KPG’s] trade secrets  - 627 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 •  Civil conspiracy •  Unjust enrichment Further instructions elaborated on the elements of these claims. These included instructions describing the elements of aiding and abetting a breach of fiduciary duty and mali- cious prosecution. Regarding breach of fiduciary duty, instruction No. 5 informed the jury that because Dick was an officer, direc- tor, and shareholder, a fiduciary relationship existed between Dick and KPG. This relationship “imposes the responsibility to disclose any conflicts between Dick’s interests and KPG’s interests that might make him act in his own best interests at the expense or the detriment of [KPG].” Furthermore, “[a]s a fiduciary, Dick must exercise the utmost good faith in all his dealings with the other [KPG] shareholders and must always act for the common benefit of all.” Instruction No. 8 stated that “[s]hareholder employees in a close corporation owe one another substantially the same fidu- ciary duty in the operation of the enterprise that partners owe to one another, to act among themselves in the utmost good faith and loyalty.” But the instruction described that “[a]n indi- vidual’s fiduciary duty ends upon termination of the employ- ment relationship.” “However,” it further explained, while an employee has a duty not to compete with his or her employer during employment, employees, including employees with fiduciary duties, may plan and prepare for their competing business while still employed without breaching the duty of loyalty. Employees, including employees with fiduciary duties, are allowed to discuss job offers, while still employed, to engage in future competition with their employer without incurring liability. While planning and preparing for a competing business is permissible, an employee may not act in direct competi- tion with his or her employer while still employed. Factors showing that an employee acted in direct competition  - 628 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 during his or her employment include the following: use of confidential and trade secret information acquired from the employer to compete; soliciting customers and clients to join the competing business before the end of the employment relationship; or committing some other fraudulent or unlawful act aimed at destroying the employer’s business. To give rise to liability, the alleged disloyal acts must substantially hinder the employer in the continuation of its business. Instruction No. 9 informed the jury that KPG asserted that Dick breached his fiduciary duty to KPG “in one or more of the following ways: . . . Violated [KPG’s] bylaws by disclosing [KPG’s] alleged confidential information to Bland; . . . Failed to send out an Engagement Letter to [two named entities] in an effort to undermine [KPG’s] relationships with clients.” Instructions Nos. 11 through 15 described claims based on misappropriation of “trade secret/confidential information.” Instruction No. 12 set forth: Confidential information and trade secrets are defined as information including, but not limited to, a drawing, formula, pattern, compilation, program, device, method, technique, code, or process that: (a) derives economic value, actual or potential, from not being known to, and not being ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Confidential and trade secret information must have independent economic value. To be considered confiden- tial and trade secret information, possession of the secret information must confer a competitive advantage. Matters of public knowledge or of general knowledge in an industry are not confidential information or trade secrets; confidential information or a trade secret is some- thing known to only a few and not susceptible of general knowledge. Confidential information and trade secrets  - 629 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 must be particular secrets of [KPG] and not the general secrets of the trade in which [KPG] is engaged. If infor- mation is ascertainable at all by any means that are not improper, the information is not confidential information or a trade secret. Instruction No. 13 stated: If an alleged trade secret or confidential information does not have independent economic value, the informa- tion is not entitled to confidential information or trade secret protection under Nebraska law. To be considered confidential and trade secret information, possession of the secret information must confer a competitive advantage. Information disclosed to customers without any confi- dentiality requirement, including pricing information, is not confidential information. Instruction No. 14 set forth the definition of the term “mis- appropriation” under Nebraska’s Trade Secrets Act. In addition to general instructions, the court gave the jury the following 11 special verdict forms: (a) Dick’s Claim for Stock Repurchase (Form 1) The jury was asked in special verdict form 1 to determine Dick’s claims against KPG for stock repurchase pursuant to the Shareholder Agreement. (b) KPG’s Claims Against Dick (Forms 2 Through 4) The jury was asked in special verdict forms 2 through 4 to determine KPG’s claims against Dick for (1) breach of fiduciary duty, (2) tortious interference with a business relationship or expectancy, (3) misappropriation of trade secrets or confidential information, (4) unjust enrichment, and (5) civil conspiracy. (c) KPG’s Conspiracy Claim Against Dick and Bland (Form 5) The jury was asked in special verdict form 5 to determine KPG’s claim of civil conspiracy against Dick and Bland.  - 630 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 (d) KPG’s Claims Against Bland (Forms 6 Through 9) The jury was asked in special verdict forms 6 through 9 to determine KPG’s claims against Bland for (1) tortious interfer- ence with a business relationship or expectancy, (2) misap- propriation of trade secrets or confidential information, and (3) unjust enrichment. (e) KPG’s Damages Calculations (Forms 10 and 11) Special verdict forms 10 and 11 were simple damages forms with blanks for the jury to fill in the amount of damages in the event the jury found for KPG on “any of its claims.” Instruction No. 10 referred generally to claims by KPG against Dick, while instruction No. 11 referred generally to claims by KPG against Bland. 13. Jury Verdict On October 15, 2018, the jury found against KPG on all claims presented by the special verdict forms and in favor of Dick on his claim for stock repurchase, awarding Dick $470,312.51, which the jury determined to be the repur- chase price. KPG timely filed a notice of appeal following entry of the final judgment. Dick and Bland cross-appeal. III. ASSIGNMENTS OF ERROR KPG assigns that the district court erred by (1) granting Dick and Bland twice as many peremptory strikes as KPG; (2) denying KPG’s motion for directed verdict on the ground that Dick had breached his fiduciary duty; (3) denying KPG’s motion for directed verdict on the ground that Dick failed to prove he acted in good faith; (4) excluding evidence of Dick’s breach of fiduciary duty after his resignation as a KPG officer or, alternatively, refusing to allow KPG to amend its pleadings to conform to the evidence; (5) refusing to instruct the jury on KPG’s affirmative defense that Dick’s breach of  - 631 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 fiduciary duty could constitute a prior material breach of the Shareholder Agreement that excused KPG from performance; (6) refusing to instruct the jury on KPG’s affirmative defense that Dick’s breach of KPG’s bylaws could constitute a prior material breach of the Shareholder Agreement that excused KPG from performance; (7) refusing to instruct the jury on KPG’s affirmative defense that Dick’s breach of the covenant of good faith and fair dealing could constitute a prior material breach of the Shareholder Agreement that excused KPG from performance; (8) refusing to instruct the jury that it must find Dick satisfied all conditions precedent in order to find the Shareholder Agreement enforceable; (9) refusing to instruct the jury on the corporate opportunity doctrine; (10) refusing to instruct the jury on equitable clawback damages; (11) instruct- ing the jury that KPG bore the entire burden of proving Dick breached his fiduciary duty to KPG; (12) instructing the jury on the lower duty of loyalty owed by an employee, instead of the fiduciary duty owed by an officer and shareholder in a close corporation; (13) instructing the jury that KPG’s claim for breach of fiduciary duty was based on two grounds only, the violation of KPG’s bylaws and Dick’s failure to send an engagement letter to KPG clients before his resignation, when KPG pled and offered evidence at trial of Dick’s concealment, sharing confidential information with a competitor, and other actions demonstrating a failure to exercise the utmost good faith; (14) instructing the jury that KPG’s confidential infor- mation must satisfy the legal definition of a trade secret to be protected; and (15) holding as a matter of law that Bland’s payment of the commissions to Dick did not violate the rules of professional conduct of the NSBPA and excluding evidence of the improper commissions from trial. Dick and Bland asserted cross-appeals in their briefs. Dick assigned in his brief on cross-appeal that the district court erred by overruling his motion for directed verdict against KPG on its counterclaims against him, because KPG failed to prove that any alleged misconduct by Dick proximately caused KPG damages and also because KPG had failed to establish  - 632 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 damages with reasonable certainty. Bland similarly assigned on cross-appeal in its brief that the district court erred by over- ruling its motion for directed verdict against KPG on its third- party claims against it, because KPG failed to prove that any alleged misconduct by Bland proximately caused damages and failed to establish any damages with reasonable certainty. IV. STANDARD OF REVIEW [1] The allocation of peremptory challenges in a multiparty civil suit is left to the discretion of the trial court and will be reviewed for an abuse of discretion. 2 [2] A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substan- tial right or a just result in matters submitted for disposition through a judicial system. 3 [3] To establish reversible error from a court’s failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court’s failure to give the requested instruction. 4 [4] A party may not complain of the failure of the trial court to instruct on issues that are outside the scope of the pleadings. 5 2 See, Tidemann v. Nadler Golf Car Sales, Inc., 224 F.3d 719 (7th Cir. 2000); Blount v. Plovidba, 567 F.2d 583 (3d Cir. 1977); Globe Indemnity Co. v. Stringer, 190 F.2d 1017 (5th Cir. 1951); Sommerkamp v. Linton, 114 S.W.3d 811 (Ky. 2003); Premier Therapy, LLC v. Childs, 75 N.E.3d 692 (Ohio App. 2016); Gallegos v. Southwest Com. Health Services, 117 N.M. 481 , 872 P.2d 899 (N.M. App. 1994). 3 Krejci v. Krejci, 304 Neb. 302 , 934 N.W.2d 179 (2019). 4 Foundation One Bank v. Svoboda, 303 Neb. 624 , 931 N.W.2d 431 (2019). 5 Deck v. Sherlock, 162 Neb. 86 , 75 N.W.2d 99 (1956).  - 633 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 [5] Jury instructions must be read together; they must be read conjunctively, rather than separately in isolation. 6 [6] If the jury instructions given, which are taken as a whole, correctly state the law, are not misleading, and adequately cover the issues submissible to a jury, there is no prejudicial error concerning the instructions and necessitating a reversal. 7 [7] When a motion for directed verdict made at the close of all the evidence is overruled by the trial court, appellate review is controlled by the rule that a directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, and where the issues should be decided as a matter of law. 8 [8] Permission to amend a pleading is addressed to the dis- cretion of the trial court, and an appellate court will not disturb the trial court’s decision absent an abuse of discretion. 9 V. ANALYSIS KPG argues that the jury’s verdict in Dick’s breach of con- tract claim should be reversed because KPG was deprived of a fair trial by virtue of the district court’s allocation of three peremptory strikes each to Dick and Bland, rather than three shared peremptory strikes. In the event we are unpersuaded that the allocation of peremptory challenges requires a new trial, KPG asserts that a new trial on Dick’s breach of contract claim is necessary because KPG was prejudiced by the district court’s failure to instruct the jury that prior material breaches by Dick of his fiduciary duty, corporate bylaws, or his obli- gations of good faith and fair dealing would excuse KPG’s performance under the Shareholder Agreement and that there 6 Malone v. American Bus. Info., 264 Neb. 127 , 647 N.W.2d 569 (2002). 7 InterCall, Inc. v. Egenera, Inc., 284 Neb. 801 , 824 N.W.2d 12 (2012). 8 See United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006 , 858 N.W.2d 196 (2015). 9 Id. - 634 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 can be no breach of a promise until all conditions precedent have been performed. KPG argues that the judgments against it on its counterclaims for breach of fiduciary duty and for breach of corporate bylaws should also be reversed. On KPG’s counterclaim for breach of fiduciary duty, KPG asserts that the court should have granted its motion for a directed verdict. Alternatively, KPG asserts that a new trial is required on its counterclaim for breach of fiduciary duty because the court (1) instructed that Dick’s fidu- ciary duty ended upon his resignation and excluded evidence of Dick’s postresignation conduct; (2) failed to instruct that Dick’s conduct presumptively breached his fiduciary duty and that therefore, the burden shifted to Dick to prove his actions were in good faith; (3) failed to instruct on the corporate oppor- tunity doctrine; and (4) failed to instruct on equitable clawback damages. On KPG’s counterclaim for breach of the corporate bylaws, KPG argues that it was prejudiced by jury instructions that defined a trade secret and confidential information the same way. Lastly, KPG argues that we should reverse the judgment against it on its cross-claim against Bland for tortious interfer- ence. KPG argues it was prejudiced by the court’s exclusion of expert testimony that the 10-percent commission paid to Dick by Bland on all new clients was unethical under the NSBPA. 1. Peremptory Challenges (Assignment of Error No. 1) We first address KPG’s assertion that the judgment in favor of Dick on his breach of contract claim must be reversed and that the cause must be remanded for a new trial due to the unwarranted allowance of peremptory challenges. KPG argues that Dick and Bland were on the “same side” of the lawsuit, that their interests were not adverse to each other, and that thus, both error and prejudice must be presumed by their six- to-three advantage in peremptory challenges.  - 635 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 [9-11] In Nebraska, the number of peremptory chal- lenges allowable in civil actions is governed by case law and “‘“unwritten rules of court.”’” 10 A party can exercise the peremptory challenge to remove a potential juror on the basis of that party’s belief that the juror’s status as a member of some cognizable group will prejudice his or her attitude toward that party’s case. 11 We have said that under these rules, where there are multiple parties on the same side of a lawsuit, each side of the lawsuit is entitled to a total of three peremptory challenges, unless the multiple parties’ interests are adverse to each other. 12 [12,13] In Gestring v. Mary Lanning Memorial Hosp., 13 we reversed the judgment obtained after the trial court granted three peremptory challenges to the plaintiff, who was a deceased patient’s personal representative, while also grant- ing three peremptory challenges each to multiple defendants involved in the deceased’s care. We explained that additional peremptory challenges should be granted to multiple parties on the same side of a civil lawsuit only after the trial court has considered all of the circumstances of the case and determined that the interests of those multiple parties are adverse to each other. We elaborated that multiple parties on the same side of a civil lawsuit are adverse to each other when a good-faith controversy exists between them over an issue of fact that the jury will decide. 14 The fact that one party may have to defend against a theory of recovery not asserted against the other does not in itself mean that the two parties’ interests are adverse. 15 10 Gestring v. Mary Lanning Memorial Hosp., 259 Neb. 905 , 912, 613 N.W.2d 440 , 448 (2000). 11 See Swain v. Alabama, 380 U.S. 202 , 85 S. Ct. 824 , 13 L. Ed. 2d 759 (1965). 12 Gestring v. Mary Lanning Memorial Hosp., supra note 10. 13 See id. 14 See id. 15 See id. - 636 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 [14] Focusing on multiple defendants who are on the same side of a civil lawsuit, we held in Gestring that relevant cir- cumstances to determine whether the defendants’ interests are adverse to each other include but are not limited to (1) whether separate acts of misconduct were alleged against the sepa- rate defendants, (2) whether comparative negligence principles applied to the case, (3) the type of relationship among the defendants, (4) whether cross-claims or third-party complaints had been filed and the positions taken therein, (5) informa- tion disclosed on pretrial discovery, and (6) representations made by the parties. 16 Other jurisdictions allow additional peremptory challenges to multiple parties whose interests are “‘diverse,’” considering similar factors and including whether the parties’ interests are antagonistic as one of the factors to be considered. 17 We have never directly addressed a circumstance such as that presented here where the parties that were each granted three peremptory strikes are a plaintiff and a third-party defend­ant who are on the “same side” of the defendant’s counterclaims and third-party claims. The lawsuit was brought by Dick against KPG, alleging breach of contract and violations of the Nebraska Wage Payment and Collection Act (a claim that was later dismissed). Bland had no interest in those claims and was brought into the action by KPG, which asserted jointly against Bland and Dick tortious interference, conspiracy to commit tortious interference, misappropriation of trade secrets, and unjust enrichment. KPG also asserted a claim for tortious inter- ference against Dick and asserted a claim against Bland for aiding and abetting that breach. But KPG asserted third-party claims of malicious prosecution and unlawful commissions against Bland, which KPG did not assert against Dick. Further, KPG asserted counterclaims of breach of the Shareholder 16 See id. 17 See Carraro v. Wells Fargo Mortg. & Equity, 106 N.M. 442 , 443, 744 P.2d 915 , 916 (N.M. App. 1987).  - 637 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 Agreement and breach of corporate bylaws, which were not asserted against Bland. To summarize, separate acts of miscon- duct were alleged against Dick and Bland. Nevertheless, in support of its assertion that the court erred in its allocation of peremptory challenges, KPG points out that Dick and Bland had a joint defense agreement whereby the attorneys could share information. This is not disputed. At issue is its import in an inquiry regarding allocation of peremp- tory challenges. We do not decide that question here, however, because KPG has failed to preserve in the record evidence that it exhausted all its peremptory challenges, thereby leaving the record insuf- ficient to support its assignment of error even if we found merit to KPG’s legal premise. In Steele v. Encore Mfg. Co., 18 the Nebraska Court of Appeals held that because there was no record concerning the number of peremptory challenges that the plaintiff had actually utilized, it could not address the plain- tiff’s allegation that the trial court erred by refusing his request to give him the same number of peremptory strikes as each of the codefendants. Similarly, in Petsch & McDonald v. Hines, 19 we held that we could not address a defendant’s argument that the trial court erred by failing to grant it and its codefendant each the full number of three peremptory challenges, because the record did not demonstrate the extent to which either defend­ant exercised the peremptory challenges allotted. It is true that in Gestring, we held that prejudice was pre- sumed when the court granted the codefendants three peremp- tory strikes each despite their not adverse interests. 20 We reasoned that when no good-faith controversy exists between multiparty defendants and they are awarded extra peremptory challenges, the defendants can pool their challenges against the plaintiff, affording them undue influence over the composition 18 Steele v. Encore Mfg. Co., 7 Neb. Ct. App. 1 , 579 N.W.2d 563 (1998). 19 Petsch & McDonald v. Hines, 110 Neb. 1 , 192 N.W. 963 (1923). 20 Gestring v. Mary Lanning Memorial Hosp., supra note 10.  - 638 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 of the jury and placing the single-party plaintiff at a distinct tactical disadvantage that implicates the plaintiff’s right to a fair trial. 21 And when additional challenges are granted to a party absent a showing that his or her interests are adverse to other parties on the same side of a civil lawsuit, prejudice will be presumed and the judgment must be reversed. 22 We explained that the proper allocation of peremptory challenges is a substantial right pervading the trial process and that it would be impossible for a complaining litigant to prove preju- dice by reconstructing what might have been had the jury been properly constituted. 23 [15] But we did not discuss in Gestring whether the record reflected if the plaintiff actually utilized all the peremp- tory strikes allocated. To the contrary, our opinion appears to reflect an understanding that the parties utilized all their peremptory challenges. We do not read Gestring as calling into question the longstanding rule in Nebraska that a party raising on appeal a denial of due process based on a disparate number of peremptory challenges must demonstrate through the record that the objecting party utilized the allotted peremp- tory challenges. This rule is supported by other jurisdictions that hold that in order to establish reversible error in the allocation of peremptory challenges, a “minimal showing” of prejudice must be made by demonstrating on the record that the appellant exercised the peremptory challenges allotted. 24 It is well established in the case law that one who does not exer- cise all of his or her peremptory challenges cannot assign as error the court’s refusal to allow a greater number or a lesser number to the opposing parties. 25 The assignment of error is 21 See id. 22 See id. 23 See id. 24 See Goldstein v. Kelleher, 728 F.2d 32 , 37 (1st Cir. 1984). Accord State v. Greer, 39 Ohio St. 3d 236 , 530 N.E.2d 382 (1988). 25 See, Conn. Mut. Life Ins. Co. v. Hillmon, 188 U.S. 208 , 23 S. Ct. 294 , 47 L. Ed. 446 (1903); Kloss v. United States, 77 F.2d 462 (8th Cir. 1935).  - 639 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 based on the inequality of the challenges, but if the appellant has failed to exhaust the challenges allotted, then the inequal- ity was the appellant’s choice. We find no merit to KPG’s contention that the allocation of peremptory challenges requires a new trial. 2. Dick’s Breach of Contract Claim (Assignments of Error Nos. 5 Through 8) We turn next to KPG’s arguments that we should reverse the judgment in favor of Dick on his breach of contract claim due to the court’s refusal to give KPG’s requested jury instruc- tions on prior material breach and failure to satisfy a condition precedent. KPG argues that it was prejudiced by the court’s refusal to instruct the jury on KPG’s affirmative defenses of prior material breach based on either Dick’s prior breach of fiduciary duty, Dick’s prior breach of KPG’s bylaws, or Dick’s prior breach of the covenant of good faith and fair dealing. Further, based on Dick’s failure to deliver written shares free and clear of all liens, KPG asserts that the district court erred by refusing to instruct the jury that it must find that Dick satis- fied all conditions precedent in order to find the Shareholder Agreement enforceable. To establish reversible error from a court’s failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court’s failure to give the requested instruction. 26 Furthermore, a party may not complain of the failure of the trial court to instruct on issues that are outside the scope of the pleadings. 27 On appel- late review, jury instructions must be read together; they must be read conjunctively, rather than separately in isolation. 28 If the instructions given, which are taken as a whole, correctly 26 Foundation One Bank v. Svoboda, supra note 4. 27 Deck v. Sherlock, supra note 5. 28 Malone v. American Bus. Info., supra note 6.  - 640 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 state the law, are not misleading, and adequately cover the issues submissible to a jury, there is no prejudicial error con- cerning the instructions and necessitating a reversal. 29 [16-19] Shareholder agreements are construed according to the principles of the law of contracts. 30 A suit for damages aris- ing from breach of a contract presents an action at law. 31 The meaning of an unambiguous shareholder agreement, like any contract, is a question of law. 32 Matters seeking avoidance of a valid contract are affirmative defenses. 33 (a) Failure to Satisfy All Conditions Precedent The alleged condition precedent KPG wished the jury to con- sider was Dick’s obligation under the Shareholder Agreement to deliver, in exchange for payment of the purchase price, the certificates of any shares of the stock purchased, free and clear of all liens, claims, security interests, and encumbrances, duly endorsed. KPG tendered the following instruction: To recover for breach of contract, . . . Dick must prove that KPG made a promise, breached the promise, and caused him damage and that any conditions precedent were satisfied. Generally[,] there can be no breach of a promise until all the conditions qualifying it have hap- pened or been performed. Further, KPG tendered a special verdict form for the jury to state whether Dick had met his burden to show by a greater weight of the evidence that he had satisfied a condition prec- edent to enforcement of the Shareholder Agreement. We agree 29 InterCall, Inc. v. Egenera, Inc., supra note 7. 30 18A Am. Jur. 2d Corporations § 567 (2015). 31 Goes v. Vogler, 304 Neb. 848 , 937 N.W.2d 190 (2020). 32 See, Brozek v. Brozek, 292 Neb. 681 , 874 N.W.2d 17 (2016); Davenport Ltd. Partnership v. 75th & Dodge I, L.P., 279 Neb. 615 , 780 N.W.2d 416 (2010); Pennfield Oil Co. v. Winstrom, 272 Neb. 219 , 720 N.W.2d 886 (2006). 33 17B C.J.S. Contracts § 891 (2011).  - 641 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 with the district court that KPG’s tendered instruction on failure to satisfy conditions precedent was not warranted by the evidence. Dick’s claim against KPG was based on the provision of the Shareholder Agreement entitled “Mandatory Sales and Purchases,” found in article III. Under that provision, read together with the definition of “Operative Event” in article I and that of “Determination of Purchase Price on Account of Other Operative Events” in article V, “[u]pon the occurrence of” the “Operative Event” of “termination of a Shareholder’s status as an employee of [KPG] occurring by reason of . . . such Shareholder’s voluntary act,” the shareholder “shall be required to sell and [KPG] shall be required to purchase all of the Disposing Shareholder’s Stock of [KPG]” at “80% of the adjusted book value per share of Stock as of the end of [KPG’s] most recently completed fiscal year.” “Adjusted Book Value” was defined as the sum of the book value per share of stock of [KPG], computed exclusive of goodwill, and the difference, divided by the number of outstanding shares, between the retained annual billings and deferred tax liability. “Retained Annual Billings” were defined as “the total pro- fessional fees billed by [KPG] during [its] most recently com- pleted fiscal year less all professional fees billed to clients who are no longer clients of [KPG] and are now being served by the Disposing Shareholder one year subsequent to the Operative Event.” Under article V of the Shareholder Agreement, the estimated purchase price shall be paid by the delivery of a promissory note, in negotiable form, to the order of the Disposing Shareholder, in which [KPG] engages to pay the balance of such purchase price in one hundred twenty (120) equal monthly installments, with interest on the unpaid balance at the rate of five percent (5%) per annum as of the closing date. Further under article V, “The promissory note shall be secured by the pledge of stock purchased thereby, with [KPG]  - 642 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 agreeing to execute security instruments covering such pledged stock, unless such pledge arrangement is waived by the dispos- ing shareholder.” The condition precedent KPG alleged had not been satisfied is contained under “Closing Date” in article VI. The provision states in full: Section 6.1. Delivery Of Written Documents; Closing Date. Upon the closing of any purchase and sale pursuant to this Agreement, the Disposing Shareholder, or his legal representative, shall deliver to [KPG] or the Nondisposing Shareholders, or both, as the case may be, in exchange for payment of the purchase price, the certificate(s) of shares of the Stock being purchased, free and clear of all liens, claims, security interests and encumbrances, duly endorsed for transfer and bearing any necessary docu- mentary stamps, and such assignments, certificates of authority, tax releases, consents to transfer by a fiduciary or representative of the Disposing Shareholder, and any instruments in evidence of the title of the Shareholder and of the parties’ compliance with this Agreement, the Federal and State securities laws, and any other agree- ments or regulations, as may be recommended by legal counsel for [KPG]. The closing date shall be within sixty (60) days after the Operative Event giving rise to the transaction but oth- erwise to be determined by [KPG] on ten (10) days prior written notice to the Disposing Shareholder. (Emphasis supplied.) A provision for “General Compliance” under article VII, “Shareholder Compliance and Consent,” states: The parties hereto shall not hinder or interfere with, or cause to be interfered with in any manner whatsoever, the purchase or sale of the Stock of a deceased or Disposing Shareholder pursuant to this Agreement, or the carrying out of any of the terms of this Agreement to the prejudice of any Disposing Shareholder or his estate as the case may be.  - 643 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 A provision for “Shareholder Indebtedness to be Offset,” also under “Shareholder Compliance and Consent,” states: Notwithstanding anything appearing to the contrary in this Agreement, the purchase price payable to the Disposing Shareholder may be paid, partly or wholly, at [KPG’s] option, by cancellation or offset of all or any portion of any then outstanding indebtedness of such Disposing Shareholder to [KPG]. Notwithstanding anything appear- ing to the contrary in this agreement, the purchase price payable to the Disposing Shareholder may be paid partly or wholly, at [KPG’s] option, by payment to any third party secured creditor of all or any portion of any then outstanding indebtedness of such Disposing Shareholder which is secured by the pledge of stock of [KPG] and any payment to the third party secured creditor shall reduce the amount of the purchase price herein. [20,21] Courts have struggled for centuries with differentiat- ing between conditions and promises. 34 A condition precedent is a condition that must be performed before the parties’ agree- ment becomes a binding contract or a condition which must be fulfilled before a duty to perform an existing contract arises. 35 This is in contrast to a promise in a contract, the nonfulfillment of which is a breach, i.e., the failure to perform that which was required by a legal duty, and the remedy lies in an action for damages. 36 [22,23] Whether language in a contract is a condition prec- edent depends on the parties’ intent as gathered from the lan- guage of the contract. 37 The words “as a condition for” are 34 Harmon Cable Communications v. Scope Cable Television, 237 Neb. 871 , 468 N.W.2d 350 (1991). 35 Cimino v. FirsTier Bank, 247 Neb. 797 , 530 N.W.2d 606 (1995). 36 See Harmon Cable Communications v. Scope Cable Television, supra note 34. 37 Weber v. North Loup River Pub. Power, 288 Neb. 959 , 854 N.W.2d 263 (2014).  - 644 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 clearly language intended to create a condition precedent. 38 Terms such as “if,” “provided that,” “when,” “after,” “as soon as,” “subject to,” “on condition that,” or some similar phrase are evidence that performance of a contractual provision is a condition; however, an intention to make a duty conditional may be manifested by the general nature of an agreement, as well as by specific language. 39 Where the parties’ intent is not clear, the language is generally interpreted as promissory rather than conditional. 40 There is nothing in the Shareholder Agreement suggesting that delivery of certificates of shares of KPG stock, free and clear of all liens, claims, security interests, and encumbrances, was a condition precedent to KPG’s duty to purchase the shares of the disposing shareholder, which is the general duty upon which Dick’s breach of contract claim rests. Rather, KPG’s duty to purchase was expressly triggered under the Shareholder Agreement by “any Operative Event,” which expressly included a shareholder employee’s voluntary departure. Focusing on KPG’s more specific obligation to deliver a promissory note, described under “Payment,” such obligation is “at the closing of such purchase.” And the delivery of writ- ten shareholder documents, upon which KPG’s affirmative defense of failing to satisfy a condition precedent rests, is trig- gered under the Shareholder Agreement “[u]pon the closing of any purchase and sale pursuant to this Agreement” and “in exchange for payment of the purchase price.” [24,25] This is, at best, a description of a simultaneous exchange, entailing mutual conditions precedent. 41 In such a situation, liability under the contract by the first party is 38 Lee Sapp Leasing v. Catholic Archbishop of Omaha, 248 Neb. 829 , 540 N.W.2d 101 (1995). 39 See id. 40 Weber v. North Loup River Pub. Power, supra note 37. 41 13 Richard A. Lord, A Treatise on the Law of Contracts by Samuel Williston § 38:8 (4th ed. 2003 & Supp. 2020).  - 645 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 triggered by an offer of tender by the second party, which is conditional upon contemporaneous performance of the first. 42 Tender is an offer to perform a condition or obligation, cou- pled with the present ability of immediate performance, so that, were it not for the refusal of cooperation by the party to whom tendered, the condition or obligation would be immedi- ately satisfied. 43 [26,27] Thus we have noted that a formal tender of shares is not necessary in order to fix liability on a purchaser for the breach of the purchaser’s contract when the contract provides that the seller is to hold the stock and deliver it when called upon. 44 We have also noted that a formal tender of shares is not required when the buyer declares his intention not to perform; in such cases, it is sufficient that the seller is ready, willing, and able to deliver the stock. 45 Tender before suit is filed is waived where the party entitled to payment, by conduct or dec- laration, proclaims that if a tender should be made, acceptance would be refused. 46 Furthermore, acts which, in themselves, are insufficient to make a complete tender may constitute proof of readiness to perform, so as to protect the rights of a party under a contract, where a proper tender is rendered impossible by circumstances not due to the fault of the tenderer. 47 The evidence was undisputed that there were no written certificates of shares Dick could have tendered. Additionally, Koski clearly communicated his opinion that KPG had no duty to purchase under the Shareholder Agreement because Dick had stolen KPG’s clients—not because Dick had failed to satisfy any condition precedent under the Shareholder 42 See id., §§ 38:8 and 47:1. 43 Caha v. Nelson, 195 Neb. 333 , 237 N.W.2d 870 (1976). 44 See Cox v. Cox, 124 Neb. 706 , 247 N.W. 898 (1933). 45 See id. 46 See Canaday v. Krueger, 156 Neb. 287 , 56 N.W.2d 123 (1952). 47 Cox v. Cox, supra note 44.  - 646 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 Agreement. Koski’s blanket refusal to acknowledge any duty to purchase under the Shareholder Agreement clearly com- municated that any tender by Dick would be futile. To the extent Koski spoke for KPG, this proclamation was a waiver of tender. 48 Regardless, Dick was obligated only to make an offer of tender that was conditional upon KPG’s contemporaneous per- formance. Undisputed facts in the record demonstrate that Dick made such an offer of tender to Koski as a representative of KPG, but KPG never performed. Dick manifested that he was ready and willing to perform his obligations under the buyout provisions of the Shareholder Agreement. At that time, some of Dick’s shares were encumbered by a debt to Koski, but there is no evidence that Dick was unable to pay the remainder owed on the loan. Further, until KPG communicated whether KPG would be reducing the purchase price by offsetting Dick’s indebtedness to Koski under the provision for “Shareholder Indebtedness to be Offset,” Dick could not know whether he was required to pay the balance of the loan directly to Koski before closing. There was no basis under these facts to instruct the jury on the affirmative defense of failure to satisfy a condition precedent. (b) Prior Material Breaches of Covenant of Good Faith and Fair Dealing and Fiduciary Duty We also find no reversible error based on the court’s refusal to instruct the jury on affirmative defenses of prior material breaches of fiduciary duty or breaches of the covenant of good faith and fair dealing. First, KPG did not allege that a prior breach of fiduciary duty or good faith and fair dealing operated as an affirmative defense to Dick’s breach of contract claim. And a party may not complain of the failure of the trial court to instruct on 48 See Canaday v. Krueger, supra note 46.  - 647 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 issues that are outside the scope of the pleadings. 49 The court’s refusal to instruct on these matters can be affirmed for that reason alone. [28,29] We also note that the instructions were not war- ranted. To constitute a defense to an action based on contract, the matters must generally be germane to the cause of action pleaded, in addition to presenting a legal reason why the plain- tiff will not recover. 50 A claim of defense arising out of tort concepts is not generally available where the claim of plaintiff is premised upon contract. 51 As the district court noted in denying instructions on prior material breach of fiduciary duty or good faith and fair dealing, “the object of the agreement is what has [been] breached” in the case law excusing performance. Here, there was no rela- tion between the duties set forth in the Shareholder Agreement regarding the repurchase of stock and the acts KPG alleged constituted breaches of fiduciary duty and good faith and fair dealing. [30] Fiduciary duties arise from the relationship and not from the terms of the agreement. 52 Thus, while a breach of fiduciary duty may form the basis of a counterclaim, it is not ordinarily an affirmative defense to a claim for a breach of contract. 53 It is true that breaches of fiduciary duty can, in certain cir- cumstances, be grounds for alleging that a contract is void. 54 For example, a corporate officer’s or director’s right to com- pensation can be forfeited through a breach of fiduciary duty to the corporation, and thus provide a defense to an action by 49 Deck v. Sherlock, supra note 5. 50 17A C.J.S. Contracts § 859 (2011). 51 See id. 52 See Top of Iowa Co-op. v. Schewe, 149 F. Supp. 2d 709 (N.D. Iowa 2001). 53 See Anderson v. Burton Associates, Ltd., 218 Ill. App. 3d 261 , 578 N.E.2d 199 , 161 Ill. Dec. 72 (1991). 54 17B C.J.S., supra note 33.  - 648 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 the agent against the principal for compensation for services. 55 But we can find no support for the proposition that a breach of an officer and shareholder’s general fiduciary duty to a corpora- tion is an affirmative defense to a claim for breach of perform­ ance of a buyout provision in a shareholder agreement. The case of Anderson v. Burton Associates, Ltd., 56 is instruc- tive. The plaintiff in Anderson brought suit to have his stock redeemed under a shareholder agreement for an accounting firm, and the court rejected the alleged affirmative defense of breach of fiduciary duty. The court noted that the defendant did not challenge the existence of sufficient consideration or assert that the plaintiff did not pay for his shares. The court held that whether the plaintiff had breached a fiduciary duty to the cor- poration by soliciting clients would not defeat his right to his money under the stock redemption provision of the shareholder agreement. 57 The court in the instant case correctly concluded that an instruction on the affirmative defense of breach of fidu- ciary duty was not warranted, because Dick’s acts that KPG takes issue with bore no relation to the buyout provisions under which Dick brought suit against KPG. [31,32] As for the implied covenant of good faith and fair dealing, KPG is correct that it exists in every contract and 55 See, e.g., Wadsworth v. Adams, 138 U.S. 380 , 11 S. Ct. 303 , 34 L. Ed. 984 (1891); Wilshire Oil Company of Texas v. Riffe, 406 F.2d 1061 (10th Cir. 1969); Flint River Pecan Co. v. Fry, 29 F.2d 457 (5th Cir. 1928); Backus v. Finkelstein, 23 F.2d 357 (D. Minn. 1927); T.A. Pelsue Co. v. Grand Enterprises, Inc., 782 F. Supp. 1476 (D. Colo. 1991); Kassab v. Ragnar Benson, Inc., 254 F. Supp. 830 (W.D. Pa. 1966); Chelsea Industries, Inc. v. Gaffney, 389 Mass. 1 , 449 N.E.2d 320 (1983); Toy v. Lapeer Farmers Mut. Fire Ins. Ass’n, 297 Mich. 188 , 297 N.W. 230 (1941); Venie v. Harriet State Bank of Minneapolis, 146 Minn. 142 , 178 N.W. 170 (1920); American Timber & Trading Co. v. Niedermeyer, 276 Or. 1135 , 558 P.2d 1211 (1976); Ranch Hand Foods v. Polar Pak Foods, Inc., 690 S.W.2d 437 (Mo. App. 1985) (applying Kansas law). See, also, 2 Restatement (Second) of Agency § 469 (1958). 56 Anderson v. Burton Associates, Ltd., supra note 53. 57 See id. - 649 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 requires that none of the parties to the contract do anything which will injure the right of another party to receive the benefit of the contract. 58 However, KPG overlooks the fact that the scope of conduct prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the contract. [33] “The law does not allow the implied covenant of good faith and fair dealing to be an everflowing cornucopia of wished-for legal duties; indeed, the covenant cannot give rise to new obligations not otherwise contained in a contract’s express terms.” 59 Instead, a violation of the covenant of good faith and fair dealing occurs only when a party violates, nul- lifies, or significantly impairs any benefit of the contract. 60 Similarly to the alleged breach of fiduciary duty, KPG failed to identify any express terms of the Shareholder Agreement tied to the alleged breach of an implied covenant of good faith and fair dealing. An instruction on the affirmative defense of breach of the implied covenant of good faith and fair dealing was not warranted by the evidence. We find no merit to KPG’s arguments that the trial court erred by refusing to instruct on the affirmative defense of breach of either a fiduciary duty or the implied covenant of good faith and fair dealing. (c) Prior Material Breach of Bylaws KPG tendered the instruction that a breach of the bylaws in force at the time of purchase of stock in a corporation can constitute a material breach excusing the nonbreaching party from performance under the Shareholder Agreement. A mate- rial breach was defined in the tendered instruction as “some- thing that is so fundamental to a contract that the failure to 58 Coffey v. Planet Group, 287 Neb. 834 , 845 N.W.2d 255 (2014). 59 Comprehensive Care Corp. v. RehabCare, 98 F.3d 1063 , 1066 (8th Cir. 1996). 60 Coffey v. Planet Group, supra note 58.  - 650 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 perform that obligation defeats the essential purpose of the contract or makes it impossible for the other party to per- form under the contract.” The tendered instruction directed that if the jury found a material breach of the contract, it “must find that KPG is excused from performance under the Shareholder Agreement.” Additionally, KPG tendered the following instruction: The management and internal affairs of a voluntary asso- ciation are governed by its constitution and bylaws, which constitute a contract between the members of the associa- tion. The members of a corporation are as a general rule conclusively presumed to have knowledge of its bylaws and cannot escape a liability arising thereunder, or oth- erwise avoid their operation, on a plea of ignorance of them. This is also true of directors and other officers of the corporation. Bylaws ordinarily are binding on the shareholders or members whether they expressly consent to them or not. Bylaws in force at the time of a pur- chase of stock in a corporation form part of the contract between the corporation and its shareholders. The corpo- rate articles, bylaws, and the shareholder agreement must be read together. KPG then tendered a special verdict form for the jury to set forth whether, in regard to Dick’s complaint against KPG, KPG had met its burden to show by the greater weight of the evidence that Dick “committed a prior material breach of the Shareholder Agreement.” KPG’s theory for these instructions was that Dick had breached the provision of the bylaws stating that “[a]ll officers, agents, and employees of [KPG] shall be required . . . to main- tain and preserve confidentiality as to all business techniques, commercial data, formulas, good will, operational methods, product identifications, [etc.]” KPG asserted that the disclosure of the information on the spreadsheet emailed to Bland vio- lated this provision—though KPG has never made its theory entirely clear as to which of the specified items Dick failed  - 651 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 to maintain and preserve the confidentiality of. KPG believed that such a breach of the bylaws excused its failure to perform under the buyout provisions of the Shareholder Agreement. [34] The “prior material breach” doctrine upon which KPG relies applies when a contract contemplates an exchange of performances between the parties, and the doctrine holds that one party’s failure to perform allows the other party to cease its own performance. In order to constitute a possible prior material breach, the obligation upon which a plaintiff has sued in the breach of contract claim must have been dependent upon the other thing that the plaintiff was to do and failed to do. 61 In other words, prior material breach is based on the principle that where performances are to be exchanged under an exchange of promises, each party is entitled to the assurance that he will not be called upon to perform his remaining duties . . . if there has already been an uncured material failure of performance by the other party. 62 [35,36] “A duty under a separate contract is not affected . . . , nor is a duty under the same contract affected if it was not one to render a performance to be exchanged under an exchange of promises . . . . Furthermore, only duties to ren- der performance are affected.” 63 And the contention that a party to a contract is excused from performance because of a prior material breach by the other contracting party is an affirmative defense that applies only when the breaching party breaches the same contract on which he or she is suing. 64 KPG provides law in support of the idea that corporate bylaws constitute a contract between the shareholders. We agree that, broadly speaking, bylaws are also shareholders’ 61 Eager v. Berke, 11 Ill. 2d 50 , 142 N.E.2d 36 (1957). 62 2 Restatement (Second) of Contracts § 237 comment b. at 217 (1981). 63 See id., comment e. at 221. 64 Blackstone Medical v. Phoenix Surgicals, 470 S.W.3d 636 (Tex. App. 2015).  - 652 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 agreements. 65 And we agree with KPG that the Randall K. Koski, P.C., bylaws appear to be the bylaws of KPG, as the amendment to the articles of incorporation effected a name change for the corporation. We thus deny as moot KPG’s motion for this court to take judicial notice of allegations made by Dick in a separate suit, in which Dick allegedly acknowl- edged that the Randall K. Koski, P.C., bylaws governed KPG. KPG fails, though, to support its assertion that the Randall K. Koski, P.C., bylaws are part of the Shareholder Agreement under which Dick brought his breach of contract claim. We disagree with KPG’s claim that the bylaws and Shareholder Agreement should be read together for purposes of determining the applicability of the doctrine of prior material breach. [37] Shareholder agreements may be freestanding of cor- porate bylaws. 66 The Randall K. Koski, P.C., bylaws did not purport to incorporate the Shareholder Agreement. Nor did the Shareholder Agreement incorporate the Randall K. Koski, P.C., bylaws. To the contrary, the Shareholder Agreement provided that it “contains the entire understanding among the parties and supersedes any prior understanding among the parties and agreements between them respecting the within subject mat- ter.” The Shareholder Agreement stated further that there were “no representations, agreements, arrangements or understand- ings, oral or written, between or among the parties hereto relat- ing to the subject matter of this Agreement which are not fully expressed herein.” Under the express terms of the Shareholder Agreement, it was freestanding. The promise in the bylaws relating to main- taining confidentiality of items such as “commercial data” and “good will” was an independent promise that bore no relationship to the mutual promises of the buyout provisions of the Shareholder Agreement. Thus, the prior material breach 65 18A Am. Jur. 2d Corporations § 254 (2015). 66 1 F. Hodge O’Neal & Robert B. Thompson, O’Neal’s Close Corporation and LLCs: Law and Practice § 4:33 (rev. 3d ed. 2018).  - 653 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 doctrine, based on Dick’s alleged breach of the confidential- ity provision of the bylaws, was inapplicable as an affirmative defense to Dick’s claim that KPG breached the buyout provi- sions of the Shareholder Agreement. [38] We also note that the jury found against KPG in its counterclaim for breach of the bylaws. Factual issues necessar- ily determined by a jury’s verdict on one claim in a case are also deemed resolved with respect to other claims in the same case. 67 And, as we will explain, we find no merit to KPG’s contention that the jury rejected its breach of bylaws claim because it was improperly instructed on the definition of con- fidential information. KPG was not prejudiced by the district court’s refusal to instruct on prior material breach as an affirmative defense to Dick’s breach of contract claim. 3. KPG’s Counterclaim Against Dick for Breach of Fiduciary Duty (Assignments of Error Nos. 2 Through 4 and 9 Through 15) We turn next to KPG’s assignments of error relating to the jury’s verdict against KPG in its counterclaim for breach of fiduciary duty. KPG asserts that the court erred by failing to grant its motion for directed verdict on this counterclaim. KPG asserts that the undisputed evidence of Dick’s (1) use of his wife’s email to communicate with Bland to avoid KPG’s discovering his negotiations with Bland, (2) meeting with Bland without informing KPG, (3) sharing with Bland certain billing infor- mation, and (4) accepting from Bland a 10-percent commis- sion on new clients brought to Bland by Dick were all trans- actions that shifted the burden to Dick to demonstrate good faith. KPG then asserts that there was no evidence presented 67 See Lindsay Internat. Sales & Serv. v. Wegener, 301 Neb. 1 , 917 N.W.2d 133 (2018). See, also, e.g., Zakibe v. Ahrens & McCarron, Inc., 28 S.W.3d 373 (Mo. App. 2000).  - 654 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 by Dick that he acted in good faith and that thus, as a matter of law, before his resignation, Dick breached his fiduciary duties as both a vice president and a shareholder of KPG and the district court erred in failing to grant KPG’s motion for directed verdict. In the event we disagree with KPG’s contention that the dis- trict court should have granted its motion for a directed verdict on its counterclaim against Dick for breach of fiduciary duty, KPG asserts that we should reverse the decision and remand the cause for a new trial because of several alleged trial errors. First, KPG asserts that the district court erred by failing to instruct the jury on the same burden shifting that KPG believes justified a directed verdict. Second, KPG asserts it was prejudiced by the trial court’s instructions that the breach of fiduciary duty claim was based only on the purported breach of bylaws and Dick’s failure to send engagement letters to KPG clients before resigning. Third, KPG asserts that it was prejudiced by the court’s exclusion of Dick’s breach of an allegedly ongoing, postresig- nation fiduciary duty by virtue of Dick’s continuing status as a shareholder, and, relatedly, by instructing that the fiduciary duty ends upon the termination of the employment relationship. To the extent the court precluded KPG from litigating a claim based on postresignation conduct because it was not pleaded, KPG argues that the court erred in its reading of the operative pleading and, alternatively, that the court abused its discretion in denying KPG’s motion to amend. Finally, KPG argues it was prejudiced by the court’s refusal to instruct the jury on the corporate opportunity doctrine and equitable clawback damages. [39-41] The existence of a fiduciary duty and scope of that duty are questions of law for the court to decide. 68 The law of trusts forms the basis for fiduciary duties. Fiduciaries in 68 Strohmyer v. Papillion Family Medicine, 296 Neb. 884 , 896 N.W.2d 612 (2017).  - 655 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 a corporation are not trustees in the strict sense because they do not have title to the estate; they are instead fiduciaries to the extent that they control the corporation’s property. 69 The scope of fiduciary duties is flexible, reflecting the historical approach of the courts of equity. 70 [42-44] The traditional rule has been that corporate share- holders do not owe one another a fiduciary duty; rather, corporate officers and directors owe shareholders such a duty. 71 Exceptions have been found for majority sharehold- ers of closely held corporations. 72 Minority shareholders do not generally owe a fiduciary duty to each other or to the corporation, 73 but some cases have imposed a fiduciary duty on a minority shareholder in a close corporation who has control over corporate actions. 74 An officer of a corporation occupies a fiduciary relationship toward the corporation and its stock- holders. 75 The existence of a fiduciary duty of an officer in a closely held corporation depends on the ability to exercise the status that creates it, and nominal corporate officers with no management authority generally do not owe fiduciary duties to the corporation. 76 Dick does not dispute that he was more 69 See John R. Van Winkle & Gary R. Welsh, Origin, Development, and Current Status of Fiduciary Duties in Close Corporations: Has Indiana Adopted a Strict Good Faith Standard?, 26 Ind. L . Rev. 1215 (1993). 70 See 2 Robert B. Thompson, O’Neal and Thompson’s Oppression of Minority Shareholders and LLC Members § 7:3 (2009 & Supp. 2020). 71 Annot., 39 A.L.R. 6th 1 (2008). 72 Id.; 3 William Wilson Cook, Treatise on the Law of Corporations Having a Capital Stock § 14:16 (3d ed. 2010 & Supp. 2019). 73 See N.C. Corp. Law and Prac. § 18:27 (West 4th ed. 2019). 74 See 3 Cook, supra note 72. 75 See Rettinger v. Pierpont, 145 Neb. 161 , 15 N.W.2d 393 (1944). See, also, e.g., 2 Thompson, supra note 70. 76 Aon Consulting v. Midlands Fin. Benefits, 275 Neb. 642 , 748 N.W.2d 626 (2008); Edwin W. Hecker, Jr., Fiduciary Duties in Business Entities Revisited, 61 U. Kan. L. Rev. 923 (2013).  - 656 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 than a nominal corporate officer, though the extent to which he controlled KPG was unclear. Dick concedes he owed KPG a fiduciary duty prior to his resignation. (a) Burden Shifting: Directed Verdict and Instructions [45] The plaintiff in an action for breach of fiduciary duty has the burden to prove that (1) the defendant owed the plaintiff a fiduciary duty, (2) the defendant breached the duty, (3) the defendant’s breach was the cause of the injury to the plaintiff, and (4) the plaintiff was damaged. 77 In the law of trusts, while the beneficiary has the initial burden of proving the existence of the fiduciary duty and the trustee’s failure to perform it, once the trust beneficiary has established a prima facie case by demonstrating the trustee’s breach of fiduciary duty, the burden of explanation or justification shifts to the fiduciaries. 78 [46] In an action for breach of fiduciary duty toward a cor- poration, the plaintiff must establish a prima facie case of both the existence of a fiduciary duty and its breach before the bur- den shifts to the defendant to prove the defendant acted in an open, fair, and honest manner such that no breach of fiduciary duty occurred. 79 Only once a plaintiff demonstrates a breach of the duty of care does the burden shift to the fiduciary to prove that, notwithstanding the breach, the challenged transaction was entirely fair. 80 It has been described that only the burden of production shifts, not the burden of proof, otherwise known as the burden 77 See McFadden Ranch v. McFadden, 19 Neb. Ct. App. 366 , 807 N.W.2d 785 (2011). 78 76 Am. Jur. 2d Trusts § 618 (2016 & Supp. 2020). 79 See, e.g., Norlin Corp. v. Rooney, Pace Inc., 744 F.2d 255 (2d Cir. 1984); Collier v. Bryant, 216 N.C. App. 419 , 719 S.E.2d 70 (2011). 80 Cede & Co. v. Technicolor, Inc., 634 A.2d 345 (Del. 1993).  - 657 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 of persuasion. 81 In any event, there is with certain transac- tions, once proved, a presumption that the fiduciary acted in self-interest, which shifts the burden to the fiduciary to show that he or she did not obtain secret profits and that the trans- action was conducted fairly, honestly, and openly. 82 However, for the burden to be placed on the fiduciary, the plaintiff must prove that the fiduciary engaged in a transaction with the principal that gives rise to the presumption of unfairness. 83 Contrary to KPG’s assertion, the mere allegation of such a transaction is not enough. 84 KPG points out that we have said the burden of proof is upon a party holding a confidential or fiduciary relation to establish the perfect fairness, adequacy, and equity of a trans- action with the party with whom he holds such relation. 85 Thus, for instance, we have held that it is the burden of an officer, who sets his or her own salary, to prove that such salary is rea- sonable. 86 But that is a transaction with the party with whom the officer holds a fiduciary relationship. 87 Here, the “transac- tion” at issue was not with KPG, but with Bland. Typically, a transaction with a third party that shifts the bur- den to the fiduciary is one of self-dealing—a factual situation in which a corporate fiduciary appears on both sides of a con- tract or transaction with the fiduciary’s corporation. 88 Because 81 See Charles M. Yablon, On the Allocation of Burdens of Proof in Corporate Law: An Essay on Fairness and Fuzzy Sets, 13 Cardozo L. Rev. 497 (1991). 82 Simpson v. Spellman, 522 S.W.2d 615 (Mo. App. 1975). 83 Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277 (5th Cir. 2007). 84 1 Roger J. Magnuson, Shareholder Litigation § 10:20 (2012 & Supp. 2020). 85 See Evans v. Engelhardt, 246 Neb. 323 , 518 N.W.2d 648 (1994). See, also, e.g., Rettinger v. Pierpont, supra note 75. 86 Evans v. Engelhardt, supra note 85. 87 See id. See, also, e.g., Rettinger v. Pierpont, supra note 75. 88 See Sinclair Oil Corporation v. Levien, 280 A.2d 717 (Del. 1971).  - 658 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 the business judgment rule is a rebuttable presumption, it places an initial burden on the party challenging a corporate decision to demonstrate the decisionmaker’s self-dealing or other disabling factor; and if a challenger sustains that initial burden, then the presumption of the rule is rebutted, and the burden of proof shifts to the defendants to show that the trans- action was, in fact, fair to the company. 89 For example, in Anderson v. Clemens Mobile Homes, 90 the plaintiff proved that an officer had realized a personal profit on the sale of land and business ventures financed with cor- porate funds, and we held it was the officer’s burden to prove by a preponderance of the evidence that he did so in good faith and did not act in such a manner as to cause or contrib- ute to the injury or damage of the corporation, or deprive it of business. 91 Likewise, in Sadler v. Jorad, Inc., 92 we shifted the burden to the defendant majority shareholders to establish fairness and reasonableness where the plaintiff had proved that they had withdrawn excess salaries and distributions from the corporation. In these cases applying burden shifting, which were accounting actions, we noted that ordinarily the burden would be entirely on the plaintiff, but that it would be unfair to impose such a burden when the defendants had control of the books and managed the business. 93 [47] As the district court noted, negotiating to leave one’s fiduciary position with a closely held corporation and to enter into competing employment elsewhere is not a transaction that shifts the burden to the fiduciary to prove the ­negotiation’s fairness. It is not, standing alone, a violation of fiduciary 89 19 Am. Jur. 2d Corporations § 2104 (2015). 90 Anderson v. Clemens Mobile Homes, 214 Neb. 283 , 333 N.W.2d 900 (1983). 91 See, also, e.g., Qualsett v. Abrahams, 23 Neb. Ct. App. 958 , 879 N.W.2d 392 (2016). 92 Sadler v . Jorad, Inc., 268 Neb. 60 , 680 N.W.2d 165 (2004). 93 See, id.; Anderson v. Clemens Mobile Homes, supra note 90.  - 659 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 duty. 94 This is true regardless of whether the fiduciary in ­question was a shareholder and officer. 95 Indeed, KPG does not challenge the court’s instruction that employees, including employees with fiduciary duties, may plan and prepare for their competing business while still employed without breaching the duty of loyalty and that employees are allowed to discuss job offers that would involve engaging in future competition with their current employer without incurring liability. [48] It is well settled that “‘[a]n employer’s right to demand and receive loyalty must be tempered by society’s legitimate interest in encouraging competition.’” 96 An at-will employee with a fiduciary relationship with his or her employer may properly plan to go into competition with the employer and may take active steps to do so while still employed, and such an employee has no general duty to disclose such plans to the employer. 97 According to the Restatement (Third) of Agency: In general, an employee or other agent who plans to compete with the principal does not have a duty to dis- close this fact to the principal. To be sure, the fact that an agent has such a plan is information that a principal would find useful, but the agent’s fiduciary duty to the principal does not oblige the agent to make such disclo- sure. . . . In this respect, the social benefits of furthering competition outweigh the principal’s interest in full dis- closure by its agents. 98 94 2 Restatement (Third) of Agency § 8.04, comment c. (2006). 95 See, e.g., Bancroft-Whitney Co. v. Glen, 64 Cal. 2d 327 , 411 P.2d 921 , 49 Cal. Rptr. 825 (1966); 2 Restatement (Third), supra note 94; 3 William Meade Fletcher, Fletcher Cyclopedia of the Law of Corporations § 856 (2008); 8 Illinois Practice Series, Business Organizations § 14:17 (2d ed. 2010); Christopher Lyle McIlwain, Backstab: Competing With the Departing Employee, 29 Cumb. L. Rev. 615 (1999). 96 Navigant Consulting, Inc. v. Wilkinson, supra note 83, 508 F.3d at 284 . Accord Augat, Inc. v. Aegis, Inc., 409 Mass. 165 , 565 N.E.2d 415 (1991). 97 Id. 98 2 Restatement (Third), supra note 94 at 306.  - 660 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 Thus, the fact that Dick used his wife’s email to communicate with Bland and met with other Bland shareholders without telling anyone at KPG was not, as KPG contends, a breach of Dick’s fiduciary duty as a matter of law. KPG relies on statements made in Bode v. Prettyman 99 and I. P. Homeowners v. Radtke 100 that partners must not “take advantage” of one another “by the slightest concealment or misrepresentation of any kind.” 101 This statement is taken out of context and ignores that part of the proposition refer- ring to taking advantage of one another. Certainly, there were many things that Dick may have “concealed” from KPG but which KPG had no right to know. Dick’s intention to leave his employment at KPG was one such thing, and Dick did not “take advantage” of KPG by concealing those plans. As the district court noted in relation to its instructions, “even a fiduciary . . . has the right to do certain things. He isn’t blindly loyal, and he doesn’t have to disclose everything in the world to his partners . . . .” [49] There are, of course, limitations on the conduct of an employee who plans to compete with an employer: The employee may not (1) appropriate the employer’s trade secrets, (2) solicit the employer’s customers while still working for the employer, (3) solicit the departure of other employees while still working for the employer, or (4) carry away confidential information, such as customer lists. 102 The district court cor- rectly instructed: While planning and preparing for a competing business is permissible, an employee may not act in direct competi- tion with his or her employer while still employed. Factors showing that an employee acted in direct competition 99 Bode v. Prettyman, 149 Neb. 179 , 30 N.W.2d 627 (1948), modified 149 Neb. 469 , 31 N.W.2d 429 . 100 I. P. Homeowners v. Radtke, 5 Neb. Ct. App. 271 , 558 N.W.2d 582 (1997). 101 Bode v. Prettyman, supra note 99, 149 Neb. at 188 , 30 N.W.2d at 632. 102 See Navigant Consulting, Inc. v. Wilkinson, supra note 83.  - 661 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 during his or her employment include the following: use of confidential and trade secret information acquired from the employer to compete; soliciting customers and clients to join the competing business before the end of the employment relationship; or committing some other fraudulent or unlawful act aimed at destroying the employer’s business. To give rise to liability, the alleged disloyal acts must substantially hinder the employer in the continuation of its business. Neither party takes issue with this instruction. But such improper conduct in the pursuit of new employ- ment is not the kind of “transaction” that results in burden shifting. Indeed, in such circumstances, there would be no need to shift the burden to show that the “transaction” complied with the business judgment rule or was otherwise fair to the corpo- ration. They are acts that, if proved, are inherently against the corporation’s interests. The jury was presented with evidence that Dick shared with Bland certain billing information and then profited from that by being offered and accepting from Bland employment that included a 10-percent commission on new clients. The jury could have found that such acts constituted breaches of Dick’s fiduciary duty. It ultimately determined that they did not. However, these acts did not shift the burden to Dick to show they were done fairly. There is no merit to KPG’s argument that the court should have granted KPG’s motion for directed verdict based on Dick’s alleged failure to satisfy his alleged burden to prove good faith in his (1) use of his wife’s email to communi- cate with Bland to avoid KPG’s discovering his negotiations with Bland, (2) meeting with Bland without informing KPG, (3) sharing with Bland certain billing information, and (4) accepting from Bland a 10-percent commission on new clients brought to Bland by Dick. Likewise, the jury’s verdict is not called into question because the court refused to give KPG’s proposed instruction  - 662 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 on burden shifting in relation to these acts. KPG’s proposed instruction stated in relevant part: Once evidence was presented by KPG that certain transactions existed that allegedly breached . . . Dick’s fiduciary duty, the burden shifted to . . . Dick to prove the fairness of the transactions. . . . Dick therefore must prove by a preponderance of the evidence that his actions were taken in good faith and he did not act in such a manner as to cause or contribute to the injury or damage of KPG, or deprive it of business. This instruction was not warranted by the evidence, because there was no evidence of a burden-shifting transaction, as already discussed. Furthermore, the proposed instruction is overly broad and is misleading. It fails to define what the “certain transactions” could be. The prior paragraphs of the instruction do not tie directly to the “certain transactions” and are themselves overly broad by stating that the fiduciary “must at all times act for the common benefit of all” and “must not take advantage of a part- ner by the slightest concealment or misrepresentation of any kind”—again, a point already discussed. Lastly, KPG’s pro- posed instruction portrays as a foregone conclusion that Dick engaged in those “certain transactions” inasmuch as it stated, without condition, that Dick “must prove” that his actions were taken in good faith. We find no merit to KPG’s assertion that the district court either should have granted its motion for directed verdict on its claim for breach of fiduciary duty or should have given its proposed instructions on burden shifting. (b) Instruction That Breach Was Based on Two Grounds Only KPG assigned as error the court’s instruction that KPG’s claim for breach of fiduciary duty was based on two grounds only, the violation of KPG’s bylaws and Dick’s failure to send engagement letters to KPG clients before his resignation.  - 663 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 Instruction No. 9 informed the jury that KPG asserted that Dick breached his fiduciary duty to KPG “in one or more of the fol- lowing ways: . . . Violat[ing] [KPG’s] bylaws by disclosing [KPG’s] alleged confidential information to Bland; . . . Fail[ing] to send out an Engagement Letter to [two named entities] in an effort to undermine [KPG’s] relationships with clients.” KPG asserts that it was prejudiced by this instruction because it had pleaded and offered evidence at trial of Dick’s conceal- ment, sharing confidential information with a competitor, and other actions demonstrating a failure to exercise the utmost good faith. KPG did not argue this assignment of error in the argument section of its brief. Errors that are assigned but not argued will not be addressed by an appellate court. 103 For the sake of completeness, however, we also point out that we have concluded that the concealment of negotiations for new employment, upon which KPG based its claims, was not actionable. And there were many instructions that touched upon other aspects of KPG’s claim for breach of fiduciary duty. These instructions included that Dick had a duty to “always act for the common benefit of all,” “deal fairly and honestly with [KPG],” “disclose any conflicts between Dick’s interests and [KPG’s] interests that might make him act in his own best interests at the expense or [to] the detriment of [KPG],” and not “use . . . confidential [or] trade secret information acquired from [KPG] to compete” during the employment relationship. If the instructions given, which are taken as a whole, correctly state the law, are not misleading, and adequately cover the issues submissible to a jury, there is no prejudicial error con- cerning the instructions and necessitating a reversal. 104 KPG was not prejudiced by the court’s instruction No. 9. 103 Livingston v. Metropolitan Util. Dist., 269 Neb. 301 , 692 N.W.2d 475 (2005). 104 InterCall, Inc. v. Egenera, Inc., supra note 7.  - 664 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 (c) Conduct After Departure Next, KPG asserts that it was prejudiced by the district court’s order excluding evidence of Dick’s postresignation breach. Relatedly, KPG asserts that the court erred by instruct- ing on what KPG describes as “the lesser duty of loyalty, not fiduciary duty,” 105 which was an instruction stating that “fiduciary duty ends upon termination of the employment relationship.” KPG argues we should remand the cause for a new trial wherein it can offer evidence and argument related to Dick’s alleged breach of fiduciary duty to KPG through Dick’s postresignation conduct. KPG presumes that because KPG did not buy back Dick’s shares, Dick never stopped owing KPG a fiduciary duty as a shareholder, despite his resignation. KPG also asserts that because the “closing date” of a buyout under the Shareholder Agreement was 60 days after the operative event of Dick’s departure, Dick would owe a postresignation fiduciary duty “for up to 60 days after resignation,” even if KPG had bought back Dick’s shares. 106 We find no merit to KPG’s assignments of error relating to Dick’s postresigna- tion conduct. The court excluded evidence of Dick’s postresignation con- duct on the ground that KPG did not plead such conduct suf- ficiently to put Dick on notice that it would be the subject of litigation. KPG points out that in the “Introduction” section of its amended counterclaim, KPG referred to how “immedi- ately after Dick’s departure,” Dick “used KPG’s confidential business techniques and commercial data to raid KPG’s cli- ent base and take over KPG’s niche practice.” KPG had also alleged under the “Background Facts” section of its counter- claim that “Dick has solicited current KPG clients by using his knowledge of KPG’s confidential business techniques and commercial data to attempt to underbid KPG’s services for KPG’s existing clients and co-opt the niche developed by 105 Brief for appellant at 31. 106 Id. at 28. - 665 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 KPG.” Finally, KPG further alleged under the “Background Facts” section of its amended third-party complaint that Dick “instructed former KPG clients not to pay outstanding invoices issued by KPG,” after Dick’s departure. But, as the district court noted, while KPG carefully set forth in its amended counterclaim numerous specific allegations as to how Dick had breached his fiduciary duty, KPG did not therein allege any postresignation conduct. Under the circumstances, we find no error in the court’s conclusion that KPG had not given Dick notice that its claim of breach of fiduciary duty was based on postresignation conduct. We also find that the district court did not abuse its discre- tion in denying KPG’s request for leave to amend the plead- ings. KPG did not move to amend until well into trial. Moreover, the specific allegations of postresignation conduct that KPG relies on in its amended counterclaim relate to the alleged use of confidential information and tortious interfer- ence with a business relationship. And these claims were pre- sented to and rejected by the jury. They are in effect the same acts presented to the jury with regard to Dick’s preresignation conduct. We cannot conclude that the jury would have viewed these allegations differently if presented with the fact that Dick continued these acts after his resignation. [50] To the extent any other acts would have been presented to the jury but for the court’s order excluding postresignation conduct, the substance of such evidence was not presented through an offer of proof and it is not apparent from the con- text. Neb. Rev. Stat. § 27-103(1) (Reissue 2016) provides in relevant part that “[e]rror may not be predicated upon a rul- ing which admits or excludes evidence unless a substantial right of the party is affected,” and that “[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked.” Error may not be predicated upon a ruling of a trial court excluding testimony of a witness unless the substance of the evidence to be offered  - 666 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 by the testimony was made known to the trial judge by offer or was apparent from the context within which the questions were asked. 107 Having found no merit to the contention that the court erred in excluding postresignation conduct, we also conclude that the evidence failed to warrant an instruction on postresigna- tion conduct. Furthermore, we find the jury instruction given by the court correctly stated the law and was not misleading, while KPG’s proposed instruction would have been misleading. KPG takes issue with that portion of instruction No. 8 stating “[a]n indi- vidual’s fiduciary duty ends upon termination of the employ- ment relationship.” Instruction No. 8 provided in full: Shareholder employees in a close corporation owe one another substantially the same fiduciary duty in the operation of the enterprise that partners owe to one another, to act among themselves in the utmost good faith and loyalty. An individual’s fiduciary duty ends upon termina- tion of the employment relationship. Under Nebraska law, every employee, including employees with fidu- ciary duties, owes his or her employer a duty of loyalty until the employment relationship is terminated. During employment, an employee has a duty not to compete with his employer concerning the subject matter of the employment. However, employees, including employees with fiduciary duties, may plan and prepare for their com- peting business while still employed without breaching the duty of loyalty. Employees, including employees with fiduciary duties, are allowed to discuss job offers, while still employed, to engage in future competition with their employer without incurring liability. 107 Anderson/Couvillon v. Nebraska Dept. of Soc. Servs., 253 Neb. 813 , 572 N.W.2d 362 (1998). See, also, Intercall, Inc. v. Egenera, Inc., supra note 7; Sherman County Bank v. Kallhoff, 205 Neb. 392 , 288 N.W.2d 24 (1980).  - 667 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 While planning and preparing for a competing business is permissible, an employee may not act in direct com- petition with his or her employer while still employed. Factors showing that an employee acted in direct compe- tition during his or her employment include the following: use of confidential and trade secret information acquired from the employer to compete; soliciting customers and clients to join the competing business before the end of the employment relationship; or committing some other fraudulent or unlawful act aimed at destroying the employer’s business. To give rise to liability, the alleged disloyal acts must substantially hinder the employer in the continuation of its business. The court refused to give the jury KPG’s proposed instruction, which stated: Generally, a shareholder’s fiduciary duty continues after he resigns as an officer, director, or employee of a close corporation. Resignation by a shareholder from the position of officer and director does not relieve that per- son of a fiduciary duty to the fellow shareholders because the resignation does not change that person’s status as a shareholder in the close corporation. In arguing that it was prejudiced by instruction No. 8 and the court’s refusal to give its proposed instruction on postresignation duty, KPG relies on Neb. Rev. Stat. § 67-424 (Reissue 2018) of the Uniform Partnership Act of 1998, 108 which sets forth a duty to refrain from competing with the partnership until final dissolution. 109 KPG connects this to our case law in which we have said that shareholders in a close corporation owe one another the same fiduciary duty as that owed by one partner to another in a partnership. 110 KPG then extrapolates that Dick still owes to this day a fiduciary duty to 108 Neb. Rev. Stat. §§ 67-401 to 67-467 (Reissue 2018). 109 See Bellino v. McGrath North, 274 Neb. 130 , 738 N.W.2d 434 (2007). 110 See id. See, also, Anderson v. Bellino, 265 Neb. 577 , 658 N.W.2d 645 (2003).  - 668 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 KPG by virtue of the facts that Dick is still a shareholder and that KPG has not dissolved. Again, the cases upon which KPG relies are inapplicable to the facts of the case at bar. Bellino v. McGrath North 111 was a professional negligence action against a law firm based on advice given in connec- tion with the severance of a business relationship. The client was the president, director, and 50-percent shareholder in a closely held corporation that operated a keno parlor under a lottery operation contract with the city. On his counsel’s advice, the president tendered his resignation as officer and director effective upon termination of the city contract. Then, before such termination, and thus before the effective date of his resignation, the president formed a new corporation by himself, through which he won the contract that had been put up for public bidding. In a separate action, we had affirmed a verdict in favor of the closely held corporation for breach of fiduciary duty, noting that although there was no noncompete agreement, a corporate director may not compete with the corporation if the director’s competition causes or contributes to the injury or damage of the corporation, or deprives it of business. 112 In Bellino v. McGrath North, we subsequently affirmed a judg- ment in favor of the corporation’s president against the law firm on the ground that it was malpractice to advise the former president that he could avoid liability for usurping a corporate opportunity simply by being up front and honest about it. In the course of so concluding, we said that shareholders in a close corporation owe one another the same fiduciary duty as owed by one partner to another in a partnership and that a part- ner has a duty to refrain from competing with the partnership in the conduct of the partnership business before the dissolu- tion of the partnership. 113 111 Bellino v. McGrath North, supra note 109. 112 See Anderson v. Bellino, supra note 110. 113 See Bellino v. McGrath North, supra note 109.  - 669 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 In the Seventh Circuit case relied on by KPG, Rexford Rand Corp. v. Ancel, 114 the court held that a minority shareholder violated his fiduciary duty to a closely held corporation by secretly reserving the corporation’s trade names when they became available, after an unintentional administrative dis- solution of the corporation and a “freeze out” deprived the minority shareholder of his position and the benefit of stock ownership. The court reasoned that the minority shareholder had taken it upon himself to retaliate, which violated his continuing fiduciary duty—as he was technically still a share- holder—to refrain from conduct intended to be detrimental to the enterprise. 115 The court found it to be bad policy for frozen- out shareholders to attempt to resolve disputes in this manner rather than seek a judicial remedy. 116 Finally, KPG relies on a case from the appellate court of Illinois, Hagshenas v. Gaylord. 117 In Hagshenas, a director, vice president, and 50-percent shareholder of a closely held corporation operating a travel agency resigned as vice presi- dent and secretary and, the following day, opened a new travel agency and began competing with the corporation, soliciting the corporation’s customers, and hiring several travel agents who had been working for the corporation. At the same time, the former vice president did not give up his 50-percent control over the corporation and continued to express an interest as a shareholder in its ongoing affairs. When the other shareholders and the former vice president could not reach an agreement as to the corporation’s ongoing operations, the former vice presi- dent sued for dissolution, and the other shareholders counter- claimed for breach of fiduciary duty. 114 See Rexford Rand Corp. v. Ancel, 58 F.3d 1215 , 1220 (7th Cir. 1995). 115 See id. 116 See id. 117 Hagshenas v. Gaylord, 199 Ill. App. 3d 60 , 557 N.E.2d 316 , 145 Ill. Dec. 546 (1990).  - 670 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 The court in Hagshenas rejected the former vice president’s argument that he had ceased to owe a fiduciary duty after his resignation. The court acknowledged that ordinarily an officer or director owes no fiduciary duty to the corporation after resignation and that a mere owner of stock in a company does not owe a fiduciary duty to that company. But the court held that 50-percent shareholders owe a fiduciary duty to each other similar to that of partners. And the former vice president had purposefully maintained his 50-percent shareholder status and control. The court explained that if there were problems that could not be resolved, then the proper course of action would have been to negotiate a sale or buyout of the shares or file for dissolution, and that until a final sale or order of dis- solution, the former vice president owed a fiduciary duty to the corporation. 118 None of these cases involve shareholder agreements with buyout provisions in the express event of a shareholder’s departure, much less buyout provisions that contemplate a pur- chase price dependent upon the number of clients who decide to continue with the departing shareholder at the new place of employment. And none of these cases involve continuing shareholder status by virtue of the corporation’s refusal to buy out the shares. Unlike the shareholder in Hagshenas, Dick tes- tified that he had no control over KPG’s operations after his resignation, and there was no testimony refuting that statement. Unlike the shareholder in Rexford Rand Corp., Dick was not trying to circumvent legal avenues of relief through retalia- tory action. 119 He simply changed his place of employment and solicited the clients he had served while at KPG. We find applicable cases holding that upon termination of employment, a shareholder who is subject to a mandatory buyout is divested of shareholder status immediately, and that any reciprocal fiduciary obligations of the shareholders 118 Id. 119 See Rexford Rand Corp. v. Ancel, supra note 114.  - 671 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 no longer exist even if the corporation has not yet redeemed the employee’s stock. 120 This is distinct from cases holding in the context of the fiduciary duty of the majority shareholders toward a terminated employee shareholder that the corpora- tion still owes certain duties to the shareholder during the course of an expressly contemplated delay of the buyout or when terminating shareholder status would “unfairly strip a minority shareholder of all sharehholder rights while he [or she] remains the legal owner of the shares.” 121 We can find no authority for the proposition that a voluntarily departing shareholder is bound by a general fiduciary duty not to com- pete with a closely held corporation until the closing date of a mandatory buyout provision—much less that such shareholder is bound by virtue of the corporation’s unjustified refusal to perform its buyout obligations until the matter can be resolved through litigation. While it may be true, as KPG points out, that the departing shareholder can eventually recover or force specific perform­ ance through legal action, it would be against public policy to allow the corporation to deprive the departing shareholder of competing employment until such legal actions can be taken. As stated, even corporate officers and directors, who have fiduciary duties to the corporation, are free to resign and go into competition as long as they remain loyal prior to resigning. 122 We find no reversible error based on either the exclusion of postresignation conduct or the court’s refusal to instruct on a postresignation fiduciary duty. 120 See, Riesett v. W.B. Doner & Co., 293 F.3d 164 (4th Cir. 2002); Gallagher v. Lambert, 74 N.Y.2d 562 , 549 N.E.2d 136 , 549 N.Y.S.2d 945 (1989). But see Jenkins v. Haworth, Inc., 572 F. Supp. 591 (W.D. Mich. 1983). 121 See Drewitz v. Motorwerks, Inc., 706 N.W.2d 773 , 785 (Minn. App. 2005), reversed in part on other grounds 728 N.W.2d 231 (2007). Accord Stephenson v. Drever, 16 Cal. 4th 1167 , 947 P.2d 1301 , 69 Cal. Rptr. 2d 764 (1997). 122 Stuart C. Irby Co., Inc. v. Tipton, 796 F.3d 918 (8th Cir. 2015).  - 672 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 (d) Corporate Opportunity Doctrine Next, KPG argues that it was prejudiced by the district court’s refusal to give its proposed instruction on the corporate opportunity doctrine. KPG asserts that the clients Dick served while at KPG were KPG’s corporate opportunities. KPG had proposed that the court instruct: A business opportunity may “belong” to a corporation. If a director of the corporation breaches his fiduciary duty to the corporation to usurp that opportunity, the corpora- tion is entitled to recover for that loss. The fact that the proceeds from the usurpation may have ended up in the hands of an innocent party does not defeat the corpora- tion’s right to recover from those whose breaches of fidu- ciary duty occasioned the loss. This statement is derived from Trieweiler v. Sears, 123 in which we considered the defendant directors’ formation of a new corporation to open a new location for the bar business the closely held corporation was in the business of operating and which was financed and operated through an intertwining of corporate affairs with the closely held corporation the plaintiff was a shareholder of. We affirmed the district court’s find- ing that the newly formed corporation had usurped a corpo- rate opportunity. 124 We described that the doctrine of corporate opportunity pro- hibits one who occupies a fiduciary relationship to a corpora- tion from acquiring, in opposition to the corporation, property in which the corporation has an interest or tangible expectancy or which is essential to its existence. 125 The traditional remedy imposed by courts upon a finding of a misappropriation of a corporate opportunity is the equitable impression of a con- structive trust in favor of the corporation upon the property. We explained that a party seeking to establish the trust must 123 Trieweiler v. Sears, 268 Neb. 952 , 689 N.W.2d 807 (2004). 124 See id. 125 See id. - 673 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 prove by clear and convincing evidence that the individual holding the property obtained title to it by fraud, misrepresen- tation, or an abuse of an influential or confidential relationship and that under the circumstances, such individual should not, according to the rules of equity and good conscience, hold and enjoy the property so obtained. 126 We rejected the argument that the percentage of the proceeds of the corporate opportu- nity distributed to an innocent investor defeated the corpora- tion’s right to recover from those whose breaches of fiduciary duty occasioned the loss, holding that the fact that a director stole valuable assets from a cor- poration and gave those assets to a presumably innocent third party does not change the fact that the assets prop- erly belonged to the corporation in the first place and that the corporation should be compensated for the theft by the wrongdoer. 127 [51] It was undisputed that Dick did not solicit any clients until after his resignation, and we have already addressed that such postresignation conduct does not breach a fiduciary duty. More specifically to the doctrine of misappropriation of a cor- porate opportunity with regard to postresignation conduct, at least one jurisdiction has explained that whether the opportu- nity rightfully belonged to the corporation is evaluated under an interest or expectancy test. 128 And a past relationship with customers alone is insufficient to create a reasonable expect­ ancy absent a continuing contractual agreement. 129 Customers without exclusive contractual arrangements with corporations or with whom a corporation has to annually renew contracts are not corporate business opportunities. 130 Like with a law 126 See id. 127 Id. at 986, 689 N.W.2d at 839. 128 See, In re Pervis, 512 B.R. 348 (N.D. Georgia 2014); Ins. Industry Consultants, LLC v. Alford, 294 Ga. App. 747 , 669 S.E.2d 724 (2008). 129 See id. 130 See id. - 674 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 firm, absent a contract stating otherwise, an accountant’s cli- ents have a right to select who will be their accountant; they are not the accountancy firm’s property. 131 We agree with this reasoning. The evidence was undis- puted that KPG clients had, at most, annually renewable con- tracts. They were not KPG’s property. Thus, they could not be misappropriated. The facts did not warrant KPG’s requested instruction on the corporate opportunity doctrine. (e) Equitable Clawback KPG also asserts that it was prejudiced by the district court’s refusal to instruct the jury on equitable clawback damages in relation to its counterclaim for breach of fiduciary duty. KPG’s proposed instruction stated: “If you find KPG has proven that . . . Dick breached his fiduciary duty to KPG, you may also consider whether KPG is entitled to recover the compensation it paid to . . . Dick during any periods of his breach of fidu- ciary duty.” KPG derived this instruction from Neece v. Severa. 132 The plaintiff in Neece was a psychiatrist who had worked as an independent contractor in the office she later left and sued for an accounting, alleging billing failures under their contract. The Court of Appeals quoted the “Restatement” rule on depriv- ing an agent of compensation: “An agent is entitled to no compensation for conduct which is disobedient or which is a breach of his duty of loyalty; if such conduct constitutes a wilful and deliber- ate breach of his contract of service, he is not entitled to compensation even for properly performed services for which no compensation is apportioned.” 133 131 See Karen J. Dilibert, Fifty Ways to Leave Your Law Firm, 89 Ill. B.J. 323 (2001). 132 Neece v. Severa, 5 Neb. Ct. App. 556 , 560 N.W.2d 868 (1997). 133 Id. at 563, 560 N.W.2d at 873, quoting 2 Restatement (Second) of Agency, supra note 55.  - 675 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 The Court of Appeals did not apply this principle, however, because the plaintiff did not allege the office had willfully breached its contract with her. [52] Our appellate courts have not otherwise addressed the concept of equitable clawback. Equitable clawback is a res- titutionary remedy based on principles of unjust enrichment and the faithless servant doctrine. 134 The doctrine establishes a mandate that an agent who engages in activities that breach the agent’s fiduciary duties to the principal is not entitled to and must forfeit any compensation for services rendered during the period of the breach. 135 The majority of the juris- dictions adopt a bright-line rule that the agent must forfeit all compensation paid or payable over the entire period of the agent’s disloyalty, presuming, in effect, that the agent’s misconduct tainted or otherwise permeated his or her entire relationship with the principal from the original point of the breach going forward. 136 Again, the jury was presented with the question of whether Dick breached his fiduciary duty, which the court explained he could do by: act[ing] in direct competition with his or her employer while still employed. Factors showing that an employee acted in direct competition during his or her employ- ment include the following: use of confidential and trade secret information acquired from the employer to com- pete; soliciting customers and clients to join the compet- ing business before the end of the employment relation- ship; or committing some other fraudulent or unlawful act aimed at destroying the employer’s business. To give rise to liability, the alleged disloyal acts must substantially hinder the employer in the continuation of its business. 134 See Manning Gilbert Warren III, Equitable Clawback: An Essay on Restoration of Executive Compensation, 12 U. Pa. J. Bus. L. 1135 (2010). 135 See id. 136 See id. - 676 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 KPG has not challenged on appeal this portion of the instruction. While the jury was not specifically instructed on equitable clawback damages, KPG’s expert witness testified as to the amount of such damages and the jury was given a general ver- dict form for damages. There was no instruction that negated the possibility of equitable clawback damages. [53] Any jury instruction is subject to the harmless error rule, which requires a reversal only if error adversely affects the substantial rights of the complaining party. 137 The appel- lant has the burden of establishing the prejudicial effect. 138 We conclude that KPG has failed to establish it was prejudiced by the district court’s refusal to instruct the jury on equi- table clawback. 4. Breach of Bylaws and Definition of Confidential Information Turning to its claim against Dick for breach of bylaws, KPG argues it was prejudiced by the court’s jury instructions that conflated “trade secret” with “confidential information.” Instruction No. 12 set forth: Confidential information and trade secrets are defined as information including, but not limited to, a drawing, formula, pattern, compilation, program, device, method, technique, code, or process that: (a) derives economic value, actual or potential, from not being known to, and not being ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Confidential 137 See Plambeck v. Union Pacific RR. Co., 232 Neb. 590 , 441 N.W.2d 614 (1989). 138 See id. - 677 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 and trade secret information must have independent eco- nomic value. To be considered confidential and trade secret information, possession of the secret information must confer a competitive advantage. Matters of public knowledge or of general knowledge in an industry are not confidential information or trade secrets; confidential information or a trade secret is some- thing known to only a few and not susceptible of general knowledge. Confidential information and trade secrets must be particular secrets of [KPG] and not the general secrets of the trade in which [KPG] is engaged. If infor- mation is ascertainable at all by any means that are not improper, the information is not confidential information or a trade secret. Instruction No. 13 stated: If an alleged trade secret or confidential information does not have independent economic value, the informa- tion is not entitled to confidential information or trade secret protection under Nebraska law. To be considered confidential and trade secret information, possession of the secret information must confer a competitive advantage. Information disclosed to customers without any confi- dentiality requirement, including pricing information, is not confidential information. KPG fails to delineate what parts of these descriptions of con- fidential information were inaccurate and misleading. KPG merely insists that not all confidential information constitutes a trade secret and that the bylaws somehow presented some- thing broader. The “Bylaws of Randall K. Koski, P.C.” stated that it shall be required to “maintain and preserve confidentiality as to all business techniques, commercial data, formulas, good will, operational methods, product identifications, service marks, trademarks, trade names, and trade secrets.” It does not define those terms. KPG does not identify how these specific concepts relate to its allegations against Dick.  - 678 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 Most notably, the bylaws do not define “confidential infor- mation” or “confidentiality.” They merely state that the “con- fidentiality” of the items in the list shall be “preserve[d]” and “maintain[ed].” Logically, to preserve and maintain confiden- tiality, the information must have been confidential in the first instance. And, on their face, the bylaws do not set forth any new, broader definition of “confidential information” or confidentiality. As Dick points out, our case law reflects that we have often treated “confidential information” and “trade secrets” inter- changeably. 139 There is nothing in the bylaws that convinces us that the court should have presented a different definition than that set forth in jury instructions Nos. 12 and 13. No conceivable definition of “confidential information” changes the requirement in a breach of contract action that the claimant prove both proximate causation and foreseeable damages of a “kind which naturally follow a breach.” 140 Dick argued at trial that the spreadsheet containing the summary of Dick’s billings and fees, the types of services he provided, and the states in which he worked was not confidential information because it could be obtained through proper means. The jury either so found or found that it did not confer a competitive advantage or that KPG was not harmed by the disclosure of the information. We find no merit to KPG’s assertion that the verdict in its counterclaim for breach of bylaws should be reversed because of jury instructions that addressed trade secrets and confiden- tial information interchangeably. 139 See, Gaver v. Schneider’s O.K. Tire Co., 289 Neb. 491 , 856 N.W.2d 121 (2014); Brockley v. Lozier Corp., 241 Neb. 449 , 488 N.W.2d 556 (1992); Chambers-Dobson, Inc. v. Squier, 238 Neb. 748 , 472 N.W.2d 391 (1991); Boisen v. Petersen Flying Serv., 222 Neb. 239 , 383 N.W.2d 29 (1986); Securities Acceptance Corp. v. Brown, 171 Neb. 701 , 107 N.W.2d 540 (1961). 140 Birkel v. Hassebrook Farm Serv., 219 Neb. 286 , 290, 363 N.W.2d 148 , 152 (1985).  - 679 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 5. KPG’s Counterclaim Against Bland for Tortious Interference As for its counterclaim against Bland for tortious interfer- ence, KPG asserts that the district court erred in holding as a matter of law that Bland’s payment of commissions to Dick did not violate the rules of professional conduct of the NSBPA and thus excluding KPG’s proffered expert opinion that the commissions violated the NSBPA. There was no evidence submitted that the NSBPA itself has determined Bland’s com- mission structure violates its rules of professional conduct or that Bland is under investigation for the same. The jury was presented with the theory that through the 10-percent commis- sion, among other things, Bland had tortiously inferred with KPG’s business expectations. Nevertheless, KPG claims it was prejudiced by the exclusion of expert testimony on the alleged NSBPA violation, because, without such testimony, KPG was “required to prove that Dick and Bland committed ‘an unjus- tified intentional act of interference’ with KPG’s business relationships to prove its claim for tortious interference with a business relationship.” 141 [54] To succeed on a claim for tortious interference with a business relationship or expectancy, a plaintiff must prove (1) the existence of a valid business relationship or expectancy, (2) knowledge by the interferer of the relationship or expectancy, (3) an unjustified intentional act of interference on the part of the interferer, (4) proof that the interference caused the harm sustained, and (5) damage to the party whose relationship or expectancy was disrupted. 142 In order to be actionable, inter- ference with a business relationship must be both intentional and unjustified. 143 [55] Factors to consider in determining whether interference with a business relationship was unjustified include: (1) the 141 Brief for appellant at 41. 142 Aon Consulting v. Midlands Fin. Benefits, supra note 76. 143 See Recio v. Evers, 278 Neb. 405 , 771 N.W.2d 121 (2009).  - 680 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 nature of the actor’s conduct, (2) the actor’s motive, (3) the interests of the other with which the actor’s conduct interferes, (4) the interests sought to be advanced by the actor, (5) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (6) the proximity or remoteness of the actor’s conduct to the interference, and (7) the relations between the parties. 144 The issue is whether, upon a consideration of the relative significance of the factors involved, the conduct should be permitted without liability, despite its effect of harm to another. 145 [56] This determination depends upon a judgment and choice of values in each situation. 146 An individual’s interest in prospective economic advantage receives less protection than his or her enforceable contract rights. 147 The rationale for the distinction is that an individual with a prospective business relationship has a mere expectancy of future economic gain, whereas a party to a contract has a certain and enforceable expectation of receiving the benefits of his contract. 148 Furthermore, in the context of claims of tortious interfer- ence with a business relationship or expectancy, we have recognized the privilege of a competitor as described in the Restatement of Torts. 149 “[V]alid competition,” including inducement of third persons to do their business with one- self rather than with a particular competitor, “cannot be the 144 Id. 145 Aon Consulting v. Midlands Fin. Benefits, supra note 76. 146 Id. 147 12 Robert L. Haig, Business and Commercial Litigation in Federal Courts § 121:39 (4th ed. 2016). 148 Lamar Co. v. City of Fremont, 278 Neb. 485 , 771 N.W.2d 894 (2009). See, also, Miller Chemical Co., Inc. v. Tams, 211 Neb. 837 , 320 N.W.2d 759 (1982), disapproved on other grounds, Matheson v. Stork, 239 Neb. 547 , 477 N.W.2d 156 (1991); Restatement of Torts § 768 (1939). 149 Restatement of Torts, supra note 148.  - 681 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 basis for a tortious interference claim,” because such conduct is justified. 150 [57,58] The party alleging tortious interference has the bur- den of proving that the conduct did not fall within the competi- tor’s privilege. 151 One is privileged purposely to cause a third person not to enter into or continue a business relation with a competitor of the actor if (1) the relation concerns a matter involved in the competition between the actor and the com- petitor, (2) the actor does not employ improper means, (3) the actor does not intend thereby to create or continue an illegal restraint of competition, and (4) the actor’s purpose is at least in part to advance his or her interest in the competition with the other. 152 [59] KPG argues that offering a commission allegedly in violation of the rules of professional conduct of the NSBPA constitutes improper means of competition; therefore, Bland’s interference was unjustified. Improper means of competition has been described as physical violence, fraud, civil suits, and criminal prosecutions—though even these means may not be forbidden, depending upon the relation between the actor and the person induced, and the object sought to be accomplished by the actor. 153 KPG’s only support for the contention that a violation of the rules of professional conduct of the NSBPA constituted improper means is a comment to the Restatement (Second) of Torts dealing with intentional interference with a contract or prospective contractual relation of another: Business ethics and customs. Violation of recognized ethical codes for a particular area of business activity 150 Lamar Co. v. City of Fremont, supra note 148, 278 Neb. at 498 , 771 N.W.2d at 906. 151 See Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483 (8th Cir. 1992). 152 Miller Chemical Co., Inc. v. Tams, supra note 148. 153 See, 4 Restatement (Second) of Torts § 767, comment on clause (a) (1979); Restatement of Torts, supra note 148, comment on clause (b).  - 682 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 or of established customs or practices regarding disap- proved actions or methods may also be significant in evaluating the nature of the actor’s conduct as a factor in determining whether his interference with the plaintiff’s contractual relations was improper or not. 154 This comment was not directly made in relation to the privilege to compete. We addressed professional ethics in the context of a claim for tortious interference with a business expectancy in Macke v. Pierce. 155 We explained that the uncontroverted evidence of the defendant’s breach of his physician’s duty of confidentiality toward his patient did not, standing alone, establish that such unauthorized disclosure of his patient’s medical condition to her employer constituted tortious interference with a business expectancy. 156 The physician testified that he had breached the duty of confidentiality out of concern for the patient’s well- being. We said that this testimony was sufficient to support the jury’s conclusion that the physician had not tortiously inter- fered with the plaintiff’s business expectancy. 157 In this case, we agree with the district court that the evi- dence does not support the possible conclusion that Bland violated the rules of professional conduct of the NSBPA by offering the 10-percent commission compensation structure to its employees. Leaving aside whether the compensation struc- ture at issue constituted a prohibited “commission” under the NSBPA rules, their plain language prohibits a certified public accountant from “accepting” certain commissions, which Bland clearly did not do. Section 007 of the rules of professional conduct of the NSBPA provides: 154 4 Restatement (Second) of Torts, supra note 153 at 32. 155 Macke v. Pierce, 266 Neb. 9 , 661 N.W.3d 313 (2003). 156 Id. 157 Id.  - 683 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 007.01 Acts discreditable. A licensee shall not commit an act that reflects adversely on his fitness to engage in the practice of public accountancy. 007.02 Commissions and referral fees. 007.02A Prohibited Commissions. A licensee in public practice shall not for a commission recommend or refer to a client any product or service, or for a commission recommend or refer any product or service to be supplied by a client, or receive a commission, when the licensee or the licensee’s firm also performs for that client: 007.02A1 an audit or review of a financial state- ment; or 007.02A2 a compilation of a financial statement when the licensee expects, or reasonably might expect, that a third party will use the financial statement and the licensee’s compilation report does not disclose a lack of independence; or 007.02A3 an examination of prospective financial information. This prohibition applies during the period in which the licensee is engaged to perform any of the services listed above and the period covered by any historical financial statements involved in such listed services. 007.02B Disclosure of Permitted Commissions. A licensee in public practice who is not prohibited by this rule from performing services for or receiving a commis- sion and who is paid or expects to be paid a commission shall provide written disclosure of that fact and the basis for determining such commission to any person or entity to whom the licensee recommends or refers a product or service to which the commission relates. 007.02C Referral Fees. Any licensee who accepts a referral fee for recommending or referring any service of a CPA to any person or entity or who pays a referral fee to obtain a client shall provide written disclosure of  - 684 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 such acceptance or payment and the basis for determin- ing such fee to the client. 007.02D Written Disclosure Statements. Written dis- closure statements, as set forth by Attachment 1 to this Chapter, are to be executed in duplicate, with a receipt acknowledgement signed and dated by the client, and maintained by the licensee for a period of five years. Licensees are subject to a random audit by the [NSBPA] or its designee for compliance with the written disclosure provisions of this rule. 007.02E Disclosure Form for commission, contin- gent fee, or referral fee. (Emphasis supplied.) The rules do not anywhere define the term “commission.” The rules then set forth a disclosure form which “is required by the [NSBPA] for use by duly licensed Certified Public Accountants (CPA’s) who intend to accept from any client compensation in the form of a commission, a contingent fee or a referral fee.” The rules explain that “CPA’s are prohibited from accepting a commission or contingent fee as compensa- tion from a client for whom the CPA or the CPA’s firm also performs” the specified financial services. Nothing prohibits offering a “commission.” The evidence was uncontroverted that Bland did not accept a commission; it offered one to Dick. Also, any wrong committed under the NSBPA rules was against the client and concerned an accountant’s potential conflict of interest vis-a-vis a client’s interests. And the com- mission structure at Bland that KPG takes issue with was not directed toward KPG; it was the bonus offered to all account­ ants for bringing in clients. The object sought was to reward accountants for networking efforts that resulted in expanding Bland’s client base. It was not dependent upon whether the clients were previously being served by another account- ing firm. Again, improper means depends upon the relation  - 685 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports DICK v. KOSKI PROF. GROUP Cite as 307 Neb. 599 between the actor and the person induced and upon the object sought to be accomplished by the actor. 158 [60] As a matter of law, the excluded evidence would not have been sufficient for KPG to satisfy its burden of proving that the conduct did not fall within the competitor’s privilege. In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. 159 We find that KPG was not unfairly prejudiced by the exclusions of expert opinion that Bland had violated the NSBPA rules. 6. Dick’s and Bland’s Cross-Appeals Dick assigns on cross-appeal that the district court erred by denying his motion for a directed verdict against KPG on KPG’s counterclaims, because KPG failed to present sufficient evidence for the trier of fact either to find damages with rea- sonable certainty or to find that any damages were proximately caused by Dick’s wrongful conduct. Bland makes similar assignments of error in its cross-appeal regarding KPG’s third- party claims against it. Because we find no merit to KPG’s appeal and affirm the judgment for that reason, it is unneces- sary to address the cross-claims presenting alternative grounds for affirming the judgment. VI. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court. Affirmed. Miller-Lerman, J., not participating. 158 See, Restatement (Second) of Torts, supra note 153, comment on clause (a); Restatement of Torts, supra note 148, comment on clause (b). 159 O’Brien v. Cessna Aircraft Co., 298 Neb. 109 , 903 N.W.2d 432 (2017).

2020-12-04 06:08:20.601845+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007442PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 529 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 In re Interest of Leyton C. and Landyn C., children under 18 years of age. State of Nebraska, appellee, v. Madison C., appellant. ___ N.W.2d ___ Filed October 23, 2020. No. S-19-423. 1. Juvenile Courts: Appeal and Error. An appellate court reviews juve- nile cases de novo on the record and reaches its conclusions indepen- dently of the juvenile court’s findings. When the evidence is in conflict, however, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other. 2. Parental Rights: Proof. In order to terminate an individual’s parental rights, the State must prove by clear and convincing evidence that one of the statutory grounds enumerated in Neb. Rev. Stat. § 43-292 (Reissue 2016) exists and that termination is in the children’s best interests. 3. Juvenile Courts: Minors. The foremost purpose and objective of the Nebraska Juvenile Code is to promote and protect the juvenile’s best interests, and the juvenile code must be construed to assure the rights of all juveniles to care and protection. 4. Parental Rights: Presumptions: Proof. A child’s best interests are pre- sumed to be served by having a relationship with his or her parent. This presumption is overcome only when the State has proved that the parent is unfit. 5. Parental Rights: Parent and Child. In proceedings to terminate paren- tal rights, the law does not require perfection of a parent; instead, courts should look for the parent’s continued improvement in parenting skills and a beneficial relationship between parent and child. 6. Parental Rights. Last-minute attempts by parents to comply with the rehabilitation plan do not prevent termination of parental rights.  - 530 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 7. ____. When a parent is unable or unwilling to rehabilitate himself or herself within a reasonable period of time, the child’s best interests require termination of parental rights. 8. Parental Rights: Time. The 15-month condition contained in Neb. Rev. Stat. § 43-292(7) (Reissue 2016) provides a reasonable timetable for parents to rehabilitate themselves. 9. Courts: Appeal and Error. Upon reversing a decision of the Nebraska Court of Appeals, the Nebraska Supreme Court may consider, as it deems appropriate, some or all of the assignments of error the Court of Appeals did not reach. 10. Parental Rights. One need not have physical possession of a child to demonstrate the existence of neglect contemplated by Neb. Rev. Stat. § 43-292(2) (Reissue 2016). 11. Parent and Child: Child Custody. A parent’s failure to provide an environment to which his or her children can return can establish sub- stantial, continual, and repeated neglect. 12. Parental Rights: Proof. Any one of the bases for termination of paren- tal rights codified by Neb. Rev. Stat. § 43-292 (Reissue 2016) can serve as the basis for the termination of parental rights when coupled with evidence that termination is in the best interests of the child. Petition for further review from the Court of Appeals, Pirtle, Riedmann, and Welch, Judges, on appeal thereto from the Separate Juvenile Court of Lancaster County, Linda S. Porter, Judge. Judgment of Court of Appeals reversed, and cause remanded with direction. Melanie A. Kirk, of Johnson, Flodman, Guenzel & Widger, for appellant. Patrick F. Condon, Lancaster County Attorney, Maureen Lamski, and Thomas Gage, Senior Certified Law Student, for appellee. Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., guardian ad litem. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.  - 531 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 Cassel, J. INTRODUCTION The juvenile court terminated a mother’s parental rights to her children. The Nebraska Court of Appeals reversed, concluding that the State failed to prove that termination was in the children’s best interests. 1 We granted the petitions for further review of the children’s guardian ad litem (GAL) and the State. Because clear and convincing evidence supported termination of parental rights, we reverse the Court of Appeals’ decision and remand the cause with direction. BACKGROUND Madison C. is the mother of Leyton C., born in August 2015, and Landyn C., born in February 2017. The children’s father has relinquished his parental rights and is not involved in this appeal. Procedural Background In July 2016, the State filed a petition seeking to adjudicate Leyton. 2 The petition alleged that Madison left Leyton in the care of Madison’s mother in November 2015 without making proper provisions for his care, that Madison tested positive for methamphetamine in June 2016, that Madison failed to con- sistently provide a safe and stable home for Leyton, and that Leyton was at risk of harm. In September 2016, the juvenile court adjudicated Leyton following Madison’s plea of no contest to the allegations in the petition. The court ordered Madison not to remove Leyton from his maternal grandparents’ home, where Madison and Leyton were residing. It further ordered Madison to refrain from using or possessing controlled substances and to submit to random drug testing. 1 In re Interest of Leyton C. & Landyn C., 28 Neb. Ct. App. 95 , 940 N.W.2d 288 (2020). 2 See Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015).  - 532 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 In a December 1, 2016, dispositional order, the court removed Leyton from Madison’s care. The court placed Leyton’s physi- cal custody with Madison’s mother and allowed Madison to reside with them. The court noted that Madison failed to enter outpatient substance abuse treatment. In January 2017, the court prohibited any contact between Leyton and Madison’s boyfriend, Jaden R. In February, the State moved for an emergency placement change because Madison’s mother, while accompanied by Leyton, gave Jaden a ride. The court subsequently placed Leyton with Madison’s sister. In March 2017, the State filed a supplemental petition, seeking to adjudicate Landyn, Madison’s newborn baby, as a juvenile under § 43-247(3)(a) (Reissue 2016). The petition alleged that Landyn was in a situation dangerous to life or limb or injurious to his health or morals because his meconium tested positive for amphetamines, Madison tested positive for methamphetamine, and Madison failed to comply with orders to correct the adjudicated issues regarding Leyton. In April 2017, the court adjudicated Landyn after Madison pled no contest to the allegations of the supplemental petition. The court placed Landyn in a nonrelative foster home. Leyton joined Landyn at that foster home in July. In November 2017, after Madison began cooperating with services, the court ordered that she have monitored parent- ing time with the children. The State later moved for an order approving a change in placement. On January 3, 2018, the court approved placing the children with Madison. On July 3, 2018, the court entered an order directing place- ment of the children outside Madison’s home. It referenced Madison’s “failure to participate in virtually all court ordered serv­ices over the last three months, including individual ­counseling/treatment, random drug testing, and family support.” On October 11, 2018, the State filed a motion for termina- tion of Madison’s parental rights. It alleged that termination of such rights was in the children’s best interests, and it set forth several statutory grounds for termination under Neb. Rev.  - 533 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 Stat. § 43-292(2), (4), and (6) (Reissue 2016). As to Leyton only, it alleged the ground enumerated in § 43-292(7). Termination Hearing The juvenile court conducted a hearing over several dates beginning on December 14, 2018, and concluding on February 26, 2019. The evidence established that at the time of Leyton’s birth, Madison was 181⁄2 years old and living with her parents. Approximately 1 month later, in September 2015, Madison met Jaden. Their relationship moved quickly. In November, Madison accompanied Jaden to South Dakota for 3 days. Upon her return, she was cited for child abandonment and unlawful use of a motor vehicle. At trial, Madison did not recall admit- ting to a police officer that she had left Leyton for approxi- mately 18 days. Jaden became controlling. Madison testified that he would not let her return home to see Leyton or call her family. When she was allowed to see her family, it was usually for “30 min- utes at max” and in Jaden’s presence. Madison testified that starting in 2016, she would be “lucky [to] see [Leyton] at all during the week.” Because remarks by Jaden caused Madison to be concerned for Leyton’s safety, she left Leyton with her family. In January 2016, Jaden began physically abusing Madison. He punched and kicked her and used other implements to hurt her. He threatened her life at knifepoint. One witness charac- terized Jaden’s abuse of Madison as “horrific” and “severe.” Madison testified that Jaden hurt her several times a week until May 2017, when he became incarcerated. According to Madison, Jaden made her use methamphet- amine starting in 2016. But she admitted that not all of the methamphetamine she used with Jaden was against her will. After she tested positive for methamphetamine in June, she claimed that she had been forced to use the drug. When both Madison and Landyn tested positive for methamphetamine in approximately March 2017, Madison maintained that a  - 534 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 friend had put something in her drink. Madison’s case man- ager from July 2016 to May 2017 testified that Madison never admitted to “knowingly” using methamphetamine. In June 2016, Madison completed a substance abuse eval­ uation which recommended “Level One Outpatient Therapy.” Madison did not engage in the recommended outpatient treat- ment or in individual therapy. According to Madison’s case manager, Madison “wanted to get through the pregnancy and ensure that Landyn would be born safely before engaging in services.” Her cooperation with drug testing was inconsistent. Madison’s case manager testified that she missed many tests between November 2016 and April 2017. Emily Goodman, a licensed independent mental health prac- titioner, initially met with Madison in March 2017 to engage in outpatient drug and alcohol treatment. Goodman set up recur- ring appointments to meet with Madison twice per week, but Madison did not attend between March 10 and June 20. As of July 14, when weekly therapy was recommended, Madison maintained regular attendance, not missing an appointment until September 29. Goodman believed Madison had one of the most severe cases of post-traumatic stress disorder (PTSD) that Goodman had seen. Goodman last met with Madison in March 2018. Madison agreed that she did not engage in any services until the fall of 2017. She explained that “Jaden was still around so, I mean, it was kind of difficult and I didn’t know what was going on.” After Madison’s parenting time was reduced to once per week in August 2017, Madison’s participation improved and she began attending visits. Her parenting time was then increased to twice per week. In November, the Department of Health and Human Services recommended monitored parenting time because of Madison’s compliance with services. After placement of the children with Madison in January 2018, Madison’s participation in services waned. She met with Goodman once in January, even though it was recommended that they meet weekly. She ceased regularly submitting to  - 535 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 drug testing and attending team meetings. When Goodman brought up Madison’s noncompliance with drug testing, Madison replied that she was tired of others being involved in her life and “just wanted to be done with all of it.” Madison relapsed using methamphetamine in approximately March, explaining that she feared losing her children and wanted to “numb [her] feelings.” In approximately April 2018, Madison began a relationship with Riley S. She was not honest with her caseworker or her treatment team about the relationship. At trial, she admitted using drugs with him. Because Riley “had a warrant out for assault, . . . he was not allowed to be around the [children].” Madison admitted that Riley was in her apartment during a visit. Gay Malone, a child and family service specialist with the Department of Health and Human Services, began work- ing on Madison’s case in May 2017. At that time, services implemented for Madison included random drug screening, supervised visitation, and individual therapy. Madison did not consistently participate in those services. Malone testified that Madison either was unavailable for visits or was emotionally upset at such visits about trying to pay rent and having the case ongoing. In May 2018, “drop-ins” were implemented in an effort to ensure the children’s safety, but Madison did not cooperate with the drop-ins. On July 2, 2018, the children were removed from Madison’s care. Hair follicle testing on the children completed on July 6 revealed that Leyton tested positive for exposure to metham- phetamine and marijuana and Landyn tested positive for expo- sure to marijuana. Madison denied using methamphetamine, but stated that her friends had used the drug in her apart- ment. At the termination trial, however, Madison admitted that Leyton tested positive for methamphetamine because she used the drug in her residence. In July 2018, Sarah Worley began providing individual therapy to Madison, focusing on PTSD and substance use.  - 536 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 Madison initially missed four sessions in July and August and did not attend on a consistent basis. Madison began drug test- ing on July 24, but she participated infrequently in August. Worley completed an updated substance abuse evaluation, which recommended residential treatment. Upon Madison’s arrival for residential treatment in August, she tested positive for methamphetamine, amphetamines, marijuana, and opiates. Madison ultimately left residential treatment after a few days, because someone she knew at the time of her abuse was at the program. Worley believed that having such a person present would have made treatment more difficult. At trial, Madison also testified that she left that treatment because it “wasn’t [her] niche,” explaining that residential treatment “was too much.” Worley helped Madison find an alternative way to address her substance abuse needs. Approximately a week after Madison left residential treatment, she began intensive outpa- tient treatment. The record is unclear whether she began that treatment in August or September. The court received recordings of September 2018 telephone calls between Madison and Riley while he was in jail and of a jail visit with Riley. At the time of the telephone calls, Madison had told Worley that she was no longer dating Riley. In the recordings, Madison and Riley expressed their love for one another and their desire to move out of state and be together forever. The conversations between Madison and Riley concerned Malone. One telephone call occurred during a visit, and Malone believed she could hear Leyton’s voice. Malone was disturbed that Madison’s mother—who had supported Madison’s rela- tionship with Jaden—was aware that Madison accepted a jail telephone call from Riley. Malone noted that Madison and Riley talked as though he had stayed in Madison’s apartment since the spring of 2018. Malone was troubled that Madison would not sign a release to allow her most recent evaluator to talk to Madison’s parents—with whom Madison was report- edly living at the time. Malone questioned whether Madison  - 537 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 was truly living with her parents because Madison said during one of the calls that she needed to get her belongings from Riley’s grandmother’s house. Malone testified that when she viewed the jail video between Riley and Madison, she “d[id] not see a stress — [PTSD] reaction” when Madison was telling Riley about Jaden’s claims of being violent in prison. In September 2018, Madison tested positive for metham- phetamine. In October, Madison twice tested positive for clo­ nazepam, a medication for which she did not have a prescription. Worley was troubled that Madison did not take responsibility for the clonazepam result. At trial, Madison attributed testing positive for clonazepam to taking one of Riley’s medications. She explained that although she “broke up with him after he got outta jail,” she “hung out with him” in October. Worley testified that Madison told her in September that she had bro- ken up with Riley “because of his drug use and [because] he wasn’t a good influence in her life.” Madison tested positive for morphine in December. Worley believed that the low level of drug detected was consistent with Madison’s report of having eaten poppyseeds. Worley testified that Madison had made excellent progress in the 3 months prior to trial. Worley explained that Madison had been “continuously attending treatment,” had been partici- pating fully, and had been honest about what had happened to her. Worley noted that Madison had completed intensive out- patient treatment and that Madison continued to engage with relapse prevention services. Worley felt that Madison’s progno- sis was “good.” Although Madison had made progress during individual therapy, Worley testified that Madison still had work to do with regard to her PTSD. A registered nurse who has worked extensively in the area of domestic violence offered general testimony. She testified that victims of domestic violence sometimes deny or minimize what is occurring or want to disbelieve that someone could do such things to them. Recovery takes time, and substance abuse is often seen along with domestic violence because drug  - 538 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 usage is a coping mechanism. According to the registered nurse, if there are coexisting issues of domestic violence and substance abuse, it is expected that the recovery time would be longer. Recovery from domestic violence can be manifested in different ways, including the ability to function on a daily basis, obtaining employment, managing emotional or psycho- logical symptoms from the violence, or managing substance abuse. The registered nurse was not familiar with Madison aside from “very limited information” and had no knowledge whether any of her testimony applied to Madison. Obtaining employment had long been a goal set for Madison. A November 2017 order directed her to work with family sup- port services regarding gaining employment. But Madison did not take advantage of the services offered. Malone was unaware of Madison’s having any job prior to the filing of the motion to terminate parental rights in October 2018. That month, Madison obtained a job, working 2 days a week. She was unemployed at the time of the February 2019 hearing. The evidence regarding Madison’s parenting of the children was positive. Goodman testified that Madison was able to adequately and appropriately parent her children, and she did not observe anything leading her to believe that Madison was a safety concern or a risk to the children. A family support worker similarly testified that she never had to intervene due to safety concerns. About the only concern expressed by any witness was that Madison “wasn’t fully parenting the children” because her family often attended visits and interacted with the children. Madison believed that she had changed and that she would no longer endanger her children. Madison testified that she knows how to ask for help and that she does not use drugs. She recognized that Riley was not a good influence and should not be around her children. Malone believed termination of Madison’s parental rights was in the children’s best interests. She explained that the children deserve the stability that comes from permanency and  - 539 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 that both children had been out of Madison’s care for 16 months of the most recent 22 months. Malone testified that Madison had been unable to demonstrate the sustained change that was necessary for her to provide a stable and permanent home for the children. Malone recognized that Madison demonstrated a change from August 2017 through February 2018, but that Madison then stopped participating in services, resulting in the children’s removal from her care. Malone did not believe that survivors of domestic violence should be given extra time to reunify with their children. She explained that “children don’t understand that the reason that they’re not reunified . . . is because their mother was a survivor of domestic violence, or used substances to delay her recovery.” Other witnesses provided insight on the children’s interests. Goodman testified that “the more removals from a primary caregiver[,] the increase of traumatic response for children.” Worley testified that being in foster care for an extended period can damage a child’s “sense of self and . . . belonging.” Leyton’s therapist testified that it was “especially harmful for younger children to move back and forth between home envi- ronments because . . . the time of attachment and significant development for most children occurs between those ages of zero and five.” Disruption may cause a young child to believe that he or she is unsafe or that the world is unsafe. She testi- fied that Leyton needed permanency “as immediately as pos- sible,” noting that he had been removed twice and that he was very young. Juvenile Court’s Decision In April 2019, the court entered an order terminating Madison’s parental rights. The court observed that Madison “has struggled with honesty when it comes to her own use of controlled substances and her relationships with violent partners” throughout this case. It stated that the testimony of Madison and Riley that they had ended their relationship “did not appear credible and appeared to be situationally moti- vated by the pending termination of parental rights rather than  - 540 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 any honest recognition by [Madison] that he was an unhealthy influence for her or for her children.” The court found that the State proved by clear and convinc- ing evidence that termination of Madison’s parental rights was warranted. It found the State proved grounds for termination under § 43-292(2), (4), and (6) as to both children and under § 43-292(7) as to Leyton. The court also found that termination of parental rights was in the children’s best interests. Court of Appeals’ Decision Upon Madison’s appeal, a majority of the Court of Appeals determined that the juvenile court erred in concluding that termination of Madison’s parental rights was in the children’s best interests. Because the majority’s resolution on that issue was dispositive, it did not consider whether the State proved a statutory ground for termination. The majority found that Madison demonstrated a continued improvement in her parenting skills and had established a beneficial relationship with her children. The majority recog- nized that it would have been in the children’s best interests for Madison to end her relationship with Jaden and engage in services, but stated that “her inability or unwillingness to do so must be viewed in consideration of her young age and the abusive relationship in which she was transfixed.” 3 After evaluating Madison’s progress “in the context of the situation in which the parent exists,” the majority found that termina- tion of Madison’s parental rights “came too quickly.” 4 The majority reasoned that “[g]iven Madison’s young age and trauma experience, we cannot find that the timeline of this case provides her with a ‘reasonable time’ in which to reha- bilitate herself.” 5 3 In re Interest of Leyton C. & Landyn C., supra note 1, 28 Neb. Ct. App. at 107 , 940 N.W.2d at 296. 4 Id. at 109, 940 N.W.2d at 297. 5 Id. at 110, 940 N.W.2d at 298.  - 541 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 The dissenting judge noted that the juvenile court specifically recognized Madison had struggled with honesty throughout the case. The judge found “particularly concerning . . . Madison’s inability to separate herself from the type of unhealthy relation- ships that precipitated many of her problems.” 6 We granted the petitions for further review of the GAL and the State. ASSIGNMENTS OF ERROR The GAL assigns that the Court of Appeals erred in (1) find- ing that Madison had made “‘continued progress’” in correct- ing the conditions that led to the adjudication, (2) finding that the State failed to prove by clear and convincing evidence that Madison was unable or unwilling to rehabilitate herself within a reasonable time, and (3) finding that the State failed to prove by clear and convincing evidence that the children’s best inter- ests were served by terminating Madison’s parental rights. The State assigns that the Court of Appeals erred in (1) fail- ing to follow the long line of cases establishing that juveniles should not have to wait for uncertain parental maturity 7 and (2) failing to give deference to the trial judge’s assessment of cred- ibility and relying heavily on the testimony of Madison. STANDARD OF REVIEW [1] An appellate court reviews juve­nile cases de novo on the record and reaches its conclusions indepen­dently of the juvenile court’s findings. When the evidence is in conflict, however, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other. 8 6 Id. at 115, 940 N.W.2d at 301 (Pirtle, Judge, dissenting). 7 In re Interest of Alec S., 294 Neb. 784 , 884 N.W.2d 701 (2016); In re Interest of Jahon S., 291 Neb. 97 , 864 N.W.2d 228 (2015); In re Interest of Octavio B. et al., 290 Neb. 589 , 861 N.W.2d 415 (2015). 8 In re Interest of Vladimir G., 306 Neb. 127 , 944 N.W.2d 309 (2020).  - 542 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 ANALYSIS [2] In order to terminate an individual’s parental rights, the State must prove by clear and convincing evidence that one of the statutory grounds enumerated in § 43-292 exists and that termination is in the children’s best interests. 9 The Court of Appeals began with the best interests component, finding it to be dispositive. We likewise begin our analysis by considering the children’s best interests. Best Interests [3] The GAL and the State collectively assign five errors which essentially challenge the Court of Appeals’ determi- nation that the juvenile court erred in finding that the State proved by clear and convincing evidence that terminating Madison’s parental rights was in the children’s best interests. We are mindful that the foremost purpose and objective of the Nebraska Juvenile Code is to promote and protect the juve- nile’s best interests, and the juvenile code must be construed to assure the rights of all juveniles to care and protection. 10 [4] A child’s best interests are presumed to be served by having a relationship with his or her parent. This presumption is overcome only when the State has proved that the parent is unfit. 11 In the context of the constitutionally protected relation- ship between a parent and a child, parental unfitness means a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child’s well-being. 12 The best interests analysis and the parental fitness analysis are separate 9 In re Interest of Donald B. & Devin B., 304 Neb. 239 , 933 N.W.2d 864 (2019). 10 In re Interest of Veronica H., 272 Neb. 370 , 721 N.W.2d 651 (2006). 11 In re Interest of Alec S., supra note 7. 12 Id. - 543 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 inquiries, but each examines essentially the same underlying facts as the other. 13 The children’s best interests and Madison’s fitness to parent them were affected by her drug use and her choice of inti- mate partners. There is no dispute that Madison began using methamphetamine in 2016, that Landyn’s meconium tested positive for amphetamines, and that hair follicle testing of the children in July 2018 showed that Leyton had been exposed to methamphetamine and marijuana and that Landyn had been exposed to marijuana. Goodman testified that parents who are actively under the influence of methamphetamine typically show difficulty providing a safe environment for their children. At the termination trial, evidence was adduced regarding three of Madison’s relationships with men. All three men had used drugs and had spent time in jail. Such relationships put the children’s safety at risk. [5] We have stated that in proceedings to terminate parental rights, the law does not require perfection of a parent; instead, courts should look for the parent’s continued improvement in parenting skills and a beneficial relationship between parent and child. 14 The GAL assigns that the Court of Appeals erred in finding that “Madison has made continued progress” 15 and that “the State has failed to prove by clear and convincing evidence that Madison is unable or unwilling to rehabilitate herself within a reasonable time.” 16 We agree. [6] Madison had been formally under the juvenile court’s jurisdiction since Leyton’s adjudication in September 2016. It was not until approximately a year later that she began complying with services implemented to correct the condi- tions leading to the adjudication. Her compliance lasted for 13 Id. 14 In re Interest of Joseph S. et al., 291 Neb. 953 , 870 N.W.2d 141 (2015). 15 In re Interest of Leyton C. & Landyn C., supra note 1, 28 Neb. Ct. App. at 111 , 940 N.W.2d at 298. 16 Id. at 112, 940 N.W.2d at 299.  - 544 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 roughly 5 months and resulted in the return of her children to her care. Madison then independently cared for the children for approximately 6 months—from January to July 2018— and became overwhelmed after 2 months. Her progress and participation following the children’s return was short lived, and the children were removed in July. The Court of Appeals focused on Madison’s progress from September, when she began substance abuse treatment, through the termination hear- ing that concluded in February 2019. But Madison began that substance abuse treatment 1 month before the filing of the termination motion. Since at least February 1, 2017, she had been ordered by the court to complete outpatient treatment for substance abuse. Last-minute attempts by parents to com- ply with the rehabilitation plan do not prevent termination of parental rights. 17 The Court of Appeals excused Madison’s initial inability to progress due in part to her abusive relationship with Jaden. The court stated that Madison made “overall progress” after ending that relationship. 18 But it took Madison several months after ending her relationship with Jaden to begin participating with services. And, as we noted above, shortly after the chil- dren were placed with Madison, her progress went downhill. She used methamphetamine. She stopped cooperating with drug tests and other services. She avoided communication with her caseworker. Rather than showing continued progress, Madison’s involvement in services has fluctuated. At the time of trial, she was on an upward trend, but her history makes it difficult to believe she is committed to make sustained prog- ress. While we are sensitive to the abuse suffered by Madison, our focus is on the children’s best interests. The Court of Appeals also downplayed Madison’s “ques- tionable choices,” stating that “most of these choices occurred 17 In re Interest of Alec S., supra note 7. 18 In re Interest of Leyton C. & Landyn C., supra note 1, 28 Neb. Ct. App. at 108 , 940 N.W.2d at 297.  - 545 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 before she engaged in mental health and substance abuse treatment.” 19 We have trouble reconciling that statement with the evidence that Madison tested positive for methamphet- amine in September 2018, tested positive for a nonprescribed medication twice in October, and was still spending time with Riley in October following his release from jail. The State contends that the Court of Appeals erred by taking Madison’s testimony at face value and failing to consider the juvenile court’s assessment of credibility. The juvenile court specifically stated that Madison had “struggled with honesty” regarding her drug use and intimate partners. Even so, the Court of Appeals expressed reluctance to “discredit” Madison’s denial of any drug use after early September 2018. 20 The evidence warrants deferring to the juvenile court’s assessment of Madison’s credibility. According to Goodman, honesty is pivotal to having a positive outcome in a therapeu- tic relationship. It appears that after Madison told Goodman that she “wanted to find somebody who wasn’t involved in any criminal activity, that did not use any drugs,” Madison became involved with Riley—somebody involved in crimi- nal activity who used drugs. At trial, Madison admitted that she was not honest with her caseworker or her treatment team about her relationship with Riley. Worley discussed the importance of being honest in treatment. Although there was evidence that Madison and Riley discussed living together and exchanging rings, Madison had not shared that information in therapy with Worley. Madison lied about Riley’s being in her apartment during a visit with the children. She admitted lying to the court about using drugs with Riley and lying to her family about her drug use. Worley believed that Madison was honest with her as far as drug use. Thus, Worley did not think that Madison voluntarily used drugs prior to March 2018. But at trial, Madison admitted that some of her drug use with Jaden was voluntary. And Madison told an evaluator in 19 Id. at 109, 940 N.W.2d at 297. 20 Id. at 110, 940 N.W.2d at 298.  - 546 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 November that she relapsed on methamphetamine in August, but the evidence showed that she used in March, April, and May. Although the Court of Appeals highlighted Madison’s youth and expressed awareness that “children should not be sus- pended in foster care awaiting uncertain parental maturity,” 21 we agree with the State that this is not a case where the chil- dren should be forced to forgo permanency and linger in foster care. Leyton has been placed with Madison’s mother, then with Madison’s sister, then with a nonrelative foster family, then with Madison, and then back to the foster family. Landyn has been placed with the nonrelative foster family, then with Madison, and then back to the foster family. Goodman testi- fied that “the more removals from a primary caregiver[,] the increase of traumatic response for children.” Leyton’s therapist testified that Leyton was experiencing anxiety and had a his- tory of nightmares and night terrors. [7,8] We have stated that when a parent is unable or unwill- ing to rehabilitate himself or herself within a reasonable period of time, the child’s best interests require termination of paren- tal rights. 22 The 15-month condition contained in § 43-292(7) provides a reasonable timetable for parents to rehabilitate themselves. 23 Madison has failed to do so. Upon our de novo review of the record, we conclude that the Court of Appeals erred in finding that the State failed to prove by clear and convincing evidence that the termination of Madison’s parental rights was in the children’s best interests. We reverse the Court of Appeals’ decision in that regard. 21 Id. at 112, 940 N.W.2d at 299. 22 See, e.g., In re Interest of Walter W., 274 Neb. 859 , 744 N.W.2d 55 (2008); In re Interest of Destiny A. et al., 274 Neb. 713 , 742 N.W.2d 758 (2007); In re Interest of Phoenix L., 270 Neb. 870 , 708 N.W.2d 786 (2006), disapproved on other grounds, In re Interest of Destiny A. et al., supra note 22. 23 See In re Interest of Alec S., supra note 7.  - 547 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 Statutory Grounds [9] Upon reversing a decision of the Court of Appeals, we may consider, as we deem appropriate, some or all of the assignments of error the Court of Appeals did not reach. 24 Due to its conclusion that the State failed to prove termination was not in the children’s best interests, the Court of Appeals did not address whether statutory grounds for termination existed. The juvenile court determined that the State proved grounds as to both children under § 43-292(2), (4), and (6), and as to Leyton under § 43-292(7). We begin with consideration of whether the State proved by clear and convincing evidence that Madison “substantially and continuously or repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and protection.” 25 [10] The evidence presented at the termination hearing dem- onstrated that Madison failed to provide her young children with necessary parental care and protection for a prolonged period of time. We recognize that one need not have physical possession of a child to demonstrate the existence of neglect contemplated by § 43-292(2). 26 During Madison’s relationship with Jaden, which lasted over 11⁄2 years, she left Leyton with her parents, visiting him infrequently. Landyn was placed out of Madison’s care for nearly the first year of his life. He has spent a mere 6 months in Madison’s care. [11] A parent’s failure to provide an environment to which his or her children can return can establish substantial, con- tinual, and repeated neglect. 27 Madison’s drug use has impeded the ability to return the children to her care. She began using methamphetamine prior to Leyton’s adjudication and contin- ued using the drug up until the month prior to the filing of the motion to terminate parental rights. She continued using 24 McEwen v. Nebraska State College Sys., 303 Neb. 552 , 931 N.W.2d 120 (2019). 25 See § 43-292(2). 26 See In re Interest of Joseph S. et al., supra note 14. 27 Id. - 548 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF LEYTON C. & LANDYN C. Cite as 307 Neb. 529 this drug even though services were offered to help her and even after beginning substance abuse treatment. Further, she exposed the children to drugs as evidenced by Landyn’s meco- nium testing positive and by the results of their hair follicle tests. She also subjected the children to individuals who posed a danger and who used methamphetamine and other drugs. Madison failed to consistently participate in family services offered to help her reunite with her children. [12] The State proved by clear and convincing evidence that Madison neglected to provide necessary parental care and protection for her children. Any one of the bases for termina- tion of parental rights codified by § 43-292 can serve as the basis for the termination of parental rights when coupled with evidence that termination is in the best interests of the child. 28 Having determined that the State proved a statutory ground enumerated in § 43-292, we need not consider the sufficiency of the evidence concerning the other statutory grounds for ter- mination identified by the juvenile court. 29 Because the State proved both that a statutory ground existed for termination of Madison’s parental rights and that termination of such rights was in the children’s best interests, the Court of Appeals erred by reversing the juvenile court’s judgment. CONCLUSION Upon our de novo review of the record, we conclude that the State adduced clear and convincing evidence that termina- tion of Madison’s parental rights was in the children’s best interests. Because we also determine that the State proved a statutory ground for termination, we reverse the decision of the Court of Appeals and remand the cause with direction to affirm the judgment of the juvenile court. Reversed and remanded with direction. 28 In re Interest of Noah C., 306 Neb. 359 , 945 N.W.2d 143 (2020). 29 See id.

2020-12-04 06:08:24.392716+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007434PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 512 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 Brian Chaney, appellant, v. Robert B. Evnen, in his official capacity as Nebraska Secretary of State, et al., appellees. ___ N.W.2d ___ Filed October 16, 2020. No. S-20-660. 1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews a district court’s order granting a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all rea- sonable inferences in favor of the nonmoving party. 2. Rules of the Supreme Court: Pleadings: Appeal and Error. An appel- late court reviews the district court’s denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an appellate court reviews de novo any underlying legal conclusion that the proposed amendments would be futile. 3. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. 4. Moot Question: Jurisdiction: Appeal and Error. Although mootness does not prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts from exercising jurisdiction. 5. Moot Question. Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the dispute’s resolution that existed at the beginning of the litigation. 6. Actions: Moot Question. An action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action. 7. Moot Question: Words and Phrases. A moot case is one which seeks to determine a question that no longer rests upon existing facts or rights—i.e., a case in which the issues presented are no longer alive.  - 513 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 8. Moot Question. The central question in a mootness analysis is whether changes in circumstances have forestalled any occasion for meaning- ful relief. 9. Pleadings: Equity. A prayer for general equitable relief is to be con- strued liberally and will often justify granting relief in addition to that contained in the specific prayer, provided it fairly conforms to the case made by the petition and the evidence. 10. ____: ____. The prayer for general relief in an equity action is as broad as the pleadings and the equitable powers of the court sufficient to authorize any judgment to which the party is entitled under the plead- ings and the evidence. 11. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts to state a claim to relief that is plausible on its face. In cases in which a plaintiff does not or cannot allege specific facts showing a neces- sary element, the factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a rea- sonable expectation that discovery will reveal evidence of the element or claim. 12. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an order dismissing a complaint, an appellate court accepts as true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff’s conclusion. 13. Constitutional Law: Initiative and Referendum. The right of initia- tive is precious to the people and is one which courts are zealous to preserve to the fullest tenable measure of spirit as well as letter. 14. Pleadings: Words and Phrases. Pleading facts with particularity means the who, what, when, where, and how: the first paragraph of any news- paper story. Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Affirmed. Scott A. Lautenbaugh, of Law Offices of Scott Lautenbaugh, for appellant. Douglas J. Peterson, Attorney General, and Ryan S. Post for appellee. Mark C. Laughlin and Daniel J. Gutman, of Fraser Stryker, P.C., L.L.O., for appellees Albert Davis III et al.  - 514 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Fruedenberg, JJ. Per Curiam. Brian Chaney filed a lawsuit in which he sought to prevent Nebraska voters from amending provisions of the Delayed Deposit Services Licensing Act, Neb. Rev. Stat §§ 45-901 to 45-931 (Reissue 2016 & Cum. Supp. 2018), through a ballot initiative measure. Chaney alleged that some individuals who signed the initiative petition wished to withdraw their signa- tures. He also asserted that certain petition circulators did not comply with a Nebraska statute and committed fraud during the petition process. The district court dismissed Chaney’s lawsuit, and Chaney appeals. Finding no error in the district court’s decision, we affirm. I. BACKGROUND 1. Initiative This case concerns an initiative measure which, if adopted, would establish a statutory cap on the annual percentage rate that delayed deposit services licensees may charge. We recently decided another case involving this initiative petition. See Thomas v. Peterson, ante p. 89, ___ N.W.2d ___ (2020). In Thomas, we held that the ballot title prepared by the Nebraska Attorney General which referred to delayed deposit service licensees as “payday lenders” was not insufficient or unfair. See id. This case concerns the same initiative petition, but raises different legal arguments. 2. Chaney’s Complaint On August 31, 2020, Chaney filed a lawsuit naming Secretary of State Robert B. Evnen (the Secretary); Albert Davis III; Thomas A. Wagoner, Jr.; and Fr. Damian Zuerlein as defendants. Davis, Wagoner, and Zuerlein are the sponsors of the initiative petition at issue. Chaney identified the action as one to enjoin the Secretary from including the petition on the  - 515 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 November 3, 2020, general election ballot, pursuant to Neb. Rev. Stat. § 32-1412(2) (Cum. Supp. 2016). In the complaint, Chaney alleged that in June 2020, the sponsors submitted signatures in support of the initiative peti- tion to the Secretary. According to the complaint, each signa- ture page included a sworn and notarized statement from the petition circulator asserting, among other things, that the circu- lator “‘stated to each signer the object of the petition as printed on the petition before he or she affixed his or her signature to the petition.’” After those signatures were verified by county election officials, the Secretary certified on July 31, 2020, that all statutory requirements were met to place the initiative meas­ure on the November 3 general election ballot. Chaney’s complaint did not contest the Secretary’s determi- nation that the sponsors submitted sufficient signatures from the requisite number of counties as required by article III, § 2, of the Nebraska Constitution. Rather, he asserted that 188 of the signatories wished to withdraw their signatures or that their signatures were otherwise invalid. Chaney alleged that when those individuals signed the petition, the petition circulators did not read the object of the petition to them. He also alleged that each of those individuals would not have signed the peti- tion if the object had been read to them. Chaney attached to his complaint 188 affidavits. The affida- vits are substantially identical, with limited handwritten details relevant to each individual affiant including the county in which the affiant resided. Each affiant swore that the “circula- tor did not read to me the statement regarding the object of the petition that I now know was printed on the petition page” and that “I would not have signed the petition had the object statement been stated to me before the circulator asked for my signature.” Based on these allegations, Chaney asserted that the signa- tures were procured in violation of Neb. Rev. Stat. § 32-628 (Reissue 2016) and that the circulators committed fraud. He also alleged that the 188 affiants wished to withdraw their  - 516 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 signatures. The complaint claimed that without the signatures of the affiants, the petition was no longer supported by signa- tures from the requisite 5 percent of the registered voters in 38 counties. In his prayer for relief, Chaney requested the “issuance of a temporary and permanent injunction enjoining the Secretary from placing the legally insufficient Petition on the November 3, 2020 general election ballot.” He also prayed “[f]or such other further relief as the Court may deem just and equitable.” 3. Motions Hearing After the filing of the complaint, Chaney filed a motion for a temporary injunction. The sponsors filed a motion to dismiss for failure to state a claim upon which relief could be granted or, in the alternative, a motion for summary judgment. The sponsors also filed a motion to continue Chaney’s motion for temporary injunction. The district court held a hearing concerning the foregoing motions on September 8, 2020. At that hearing, counsel for Chaney, the Secretary, and the sponsors offered evidence and argument concerning the motions. 4. Dismissal Order On September 9, 2020, the district court issued an order sustaining the sponsors’ motion to dismiss and overruling Chaney’s motion for temporary injunction. The district court held that Chaney’s signature withdrawals were untimely and that he failed to allege fraud with particularity. In the course of concluding that Chaney had not adequately alleged fraud, the court reasoned that § 32-628(3) “does not require petition cir- culators to read the object statement ‘verbatim to each person beforehand.’ . . . Rather, ‘it is sufficient that circulators sum- marize, generally, the object or purpose of the petition in a way that is not misleading.’” In ordering dismissal, the district court further stated that Chaney “is not given leave to amend because the amendment  - 517 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 to his Complaint would not change the allegations in the affi- davits attached therein.” II. ASSIGNMENTS OF ERROR Chaney assigns, condensed and restated, that the district court erred (1) by granting the motion to dismiss and (2) by not giving him the opportunity to amend his complaint. III. STANDARD OF REVIEW [1] An appellate court reviews a district court’s order grant- ing a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. Chafin v. Wisconsin Province of Society of Jesus, 301 Neb. 94 , 917 N.W.2d 821 (2018). [2] An appellate court reviews the district court’s denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, we review de novo any under- lying legal conclusion that the proposed amendments would be futile. Kelly v. Saint Francis Med. Ctr., 295 Neb. 650 , 889 N.W.2d 613 (2017). [3] Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an indepen- dent conclusion irrespective of the decision made by the court below. J.S. v. Grand Island Public Schools, 297 Neb. 347 , 899 N.W.2d 893 (2017). IV. ANALYSIS 1. Mootness [4] The Secretary and sponsors contend that we should not reach the merits of this appeal because it is now moot. They argue that the specific relief Chaney sought in this case pursuant to § 32-1412(2)—an order enjoining the Secretary from certifying or printing the initiative petition on the bal- lot—is no ­longer available because the official ballot has been certified and copies of the ballot have been printed. Although mootness does not prevent appellate jurisdiction, it  - 518 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 is a justiciability doctrine that can prevent courts from exercis- ing jurisdiction. Nesbitt v. Frakes, 300 Neb. 1 , 911 N.W.2d 598 (2018). Accordingly, our analysis in this case begins not with Chaney’s assignments of error, but with the question of whether this case is moot. [5-8] Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the dispute’s resolution that existed at the beginning of the litiga- tion. State ex rel. Peterson v. Ebke, 303 Neb. 637 , 930 N.W.2d 551 (2019). An action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action. Id. A moot case is one which seeks to determine a question that no longer rests upon existing facts or rights—i.e., a case in which the issues presented are no longer alive. Id. The central question in a mootness analysis is whether changes in circum- stances have forestalled any occasion for meaningful relief. See id. [9,10] As noted, the Secretary and the sponsors contend this case is moot because the specific relief Chaney requested pursuant to § 32-1412(2) can no longer be ordered. But even if that relief cannot be granted, it is not the only relief Chaney requested. Chaney also requested “such other further relief as the Court may deem just and equitable.” We understand this language to be a prayer for general equitable relief. Such a prayer is to be construed liberally and will often justify grant- ing relief in addition to that contained in the specific prayer, provided it fairly conforms to the case made by the petition and the evidence. Daugherty v. Ashton Feed and Grain Co., Inc., 208 Neb. 159 , 303 N.W.2d 64 (1981). The prayer for general relief in an equity action is as broad as the pleadings and the equitable powers of the court sufficient to authorize any judgment to which the party is entitled under the pleadings and the evidence. Sullivan v. General United Life Ins. Co., 209 Neb. 872 , 312 N.W.2d 277 (1981). The relevant question in the mootness analysis in this case is thus whether any meaningful  - 519 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 relief could be provided in the event Chaney were to prevail. We believe the answer to this question is yes. The Secretary decides disputed points of election law, but those decisions only retain the force of law until changed by the courts. See Neb. Rev. Stat. § 32-201 (Reissue 2016). This court has previously entertained requests for relief after the certification of a ballot initiative but before the election. See, Stewart v. Advanced Gaming Tech., 272 Neb. 471 , 723 N.W.2d 65 (2006); State ex rel. Wieland v. Beermann, 246 Neb. 808 , 523 N.W.2d 518 (1994). See, also, Neb. Rev. Stat. §§ 32-801 (Reissue 2016) and 32-402.01 (Reissue 1993) (Secretary shall certify issues at least 50 days before general election). And in one such case, State ex rel. Wieland v. Beermann, supra , we provided relief. There, a citizen sought a writ of manda- mus compelling the Secretary to remove proposed legisla- tive resolutions from the general election ballot because the required explanatory statements had been filed after the statu- tory deadline. We granted the writ and then directed removal of the measures from the general election ballot just days before the election. It is safe to presume that at the time of our decision in State ex rel. Weiland, printing of the ballots had already begun. Although the relief in State ex rel. Wieland arose out of our mandamus jurisdiction rather than our appellate jurisdiction, it suggests that we could direct the legal removal of the peti- tion from the ballot even if we could not direct its physical removal. We see no reason why, if Chaney were entitled to prevail, we could not do the same here. Based on our holding in State ex rel. Wieland, circumstances as they now stand have not forestalled any occasion for the meaningful relief requested by Chaney. Therefore, dismissal on mootness grounds is inappropriate. 2. Failure to State Claim Turning now to the merits of Chaney’s appeal, we begin with his various arguments concerning the district court’s  - 520 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 dismissal of his complaint for failure to state a claim. On this topic, we note that although the parties submitted evidence at the hearing on the motion to dismiss, the district court did not convert the motion to dismiss to a motion for summary judg- ment or consider the evidence submitted by the parties. See Neb. Ct. R. Pldg. § 6-1112(b) (if, on motion to dismiss for failure to state claim, matters outside pleading are presented to and not excluded by court, motion shall be treated as one for summary judgment). Chaney, however, does not assign error to the district court’s decision to decide the motion to dismiss on the pleadings alone, and all of the parties’ argu- ments on appeal focus on whether Chaney’s complaint stated a claim upon which relief could be granted, rather than whether he could withstand summary judgment. We thus confine our analysis to the issue of whether Chaney adequately stated a claim as well. [11,12] In considering whether Chaney stated a claim, we apply well-known principles. To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts to state a claim to relief that is plausible on its face. Schaeffer v. Frakes, 306 Neb. 904 , 947 N.W.2d 714 (2020). In cases in which a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allega- tions, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that discovery will reveal evidence of the element or claim. Id. When reviewing an order dismissing a complaint, an appel- late court accepts as true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff’s conclusion. Holloway v. State, 293 Neb. 12 , 875 N.W.2d 435 (2016). For purposes of a motion to dismiss, a court is not obliged to accept as true a legal conclusion couched as a factual allegation, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. - 521 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 As noted in the background section above, Chaney identi- fied three different theories in his complaint why certain peti- tion signatures should not be given effect. He claimed that sig- natories wished to withdraw their signatures, that circulators did not comply with § 32-628(3), and that circulators engaged in fraud. We will take up each of these theories, beginning with Chaney’s claim that the individuals who signed affi- davits attached to his complaint wished to withdraw their signatures. (a) Signature Withdrawal Although not mentioned in Chaney’s complaint, a Nebraska statute, Neb. Rev. Stat. § 32-632 (Reissue 2016), allows peti- tion signatories to withdraw their signatures by following cer- tain steps. Section 32-632 provides: Any person may remove his or her name from a peti- tion by an affidavit signed and sworn to by such person before the election commissioner, the county clerk, or a notary public. The affidavit shall be presented to the Secretary of State, election commissioner, or county clerk prior to or on the day the petition is filed for verification with the election commissioner or county clerk. Relying on this statute, the district court concluded that Chaney’s signature withdrawals were untimely. It reasoned that Chaney had alleged that the Secretary certified the petition for the general election ballot on July 31, 2020, and that the dead- line for removing signatures under § 32-632 was thus some- time before that date. None of Chaney’s affidavits, however, were signed before August 20. Section 32-632 allows petition signatories to withdraw their signatures and provides no indication that a signatory must provide any particular reason in order to effectuate the with- drawal of his or her signature. To the extent petition signatories wish to have their signature withdrawn simply because they no longer wish to support an initiative petition, we conclude that they must do so in compliance with § 32-632. If such signature  - 522 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 withdrawals could be effectuated outside of § 32-632, the restrictions of that section would have no force. There is no indication that the 188 individuals who signed affidavits attached to Chaney’s complaint complied with § 32-632. As the district court observed, those affidavits were signed weeks after the Secretary certified the petition for the ballot. In addition, Chaney’s complaint also provides no indi- cation that those ballots were presented to any of the officials specified by § 32-632. Accordingly, we find that the district court did not err to the extent it concluded that Chaney did not state a claim upon which relief could be granted merely by alleging that the individuals who signed affidavits attached to his complaint wished to withdraw their signatures. In response to the district court’s finding that the signature withdrawals were not timely, Chaney argues that the Secretary did not make the signed petitions available to him until after the petition had been certified for the ballot. He argues that the deadline to seek the court’s involvement cannot be before the identities of petition signers are made available by the Secretary. While the availability of the identities of the peti- tion signers may have made it close to impossible for Chaney to contact petition signers to inquire about whether they were interested in withdrawing their signature, there is nothing in our record that suggests signatories were precluded from seeking signature withdrawal in compliance with § 32-632. In short, Chaney argues that challengers to an initiative petition must have the opportunity to obtain the identities of petition signers and contact them before the time to withdraw their signatures expires. We view this as a policy argument properly directed to the Legislature. At oral argument, counsel for the Secretary argued that § 32-632 is the sole means by which signatures can be with- drawn or declared invalid and thus that the signatures in sup- port of this initiative petition are not open to challenge even if Chaney could show that circulators did not comply with § 32-628(3) or engaged in fraud. Chaney argues to the contrary.  - 523 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 We find, however, that we need not resolve the parties’ compet- ing positions on this issue, because, as we will explain, Chaney did not adequately allege that circulators failed to comply with § 32-628(3) or engaged in fraud. (b) Compliance With § 32-628(3) Chaney also contends that circulators failed to comply with § 32-628(3). In support of this theory, Chaney alleged that peti- tion circulators did not read the object statement of the petition to his supporting affiants. He argues petition circulators were required to do so by § 32-628(3). As we will explain, however, we disagree. Section 32-628(3) requires that every sheet of a petition which contains signatures be accompanied by an affidavit from the circulator. The statute provides that the affidavit shall be in “substantially the following form” and goes on to list various items, including that the circulator “stated to each signer the object of the petition as printed on the petition before he or she affixed his or her signature to the petition.” § 32-628(3). Chaney argues that this language requires the circulator to read the object statement of the petition to the signatory verbatim. The Secretary and the sponsors counter that a ver- batim reading is not required. While they concede that the circulator cannot say anything false or misleading, they argue this language allows the circulator to summarize the object statement. In our view, both Chaney on the one hand and the Secretary and the sponsors on the other have made plausible arguments based on the statutory text. In the end, however, we side with the Secretary and the sponsors and conclude that a verbatim reading of the object statement is not required. In support of this conclusion, we note that the affidavit described in § 32-628(3) need not include the exact language of the stat- ute but must only be in “substantially the following form.” (Emphasis supplied.)  - 524 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 [13] While we find that the Secretary and the sponsors have the better textual argument, our reading of § 32-628(3) is largely informed by the fact that we are interpreting a statute pertaining to the exercise of the people’s power of initiative. As we have often said, the right of initiative is precious to the people and is one which courts are zealous to preserve to the fullest tenable measure of spirit as well as letter. See, e.g., Christensen v. Gale, 301 Neb. 19 , 917 N.W.2d 145 (2018). To that end, we have also emphasized that statutory provisions authorizing initiative petitions should be construed in such a manner that the legislative power reserved in the people is effectual and should not be circumscribed by restrictive legisla- tion or narrow and strict interpretation of the statutes pertaining to its exercise. Id. We find those principles applicable here and conclude that requiring petition circulators to read the object statement of the petition to each signatory verbatim would be a narrow and strict interpretation of § 32-628(3) that could unduly restrict the power of initiative. We find confirmation of our conclusion from a recent case in which we relied on the same principles to resolve a question of statutory interpretation related to the initiative and refer- endum process. In Hargesheimer v. Gale, 294 Neb. 123 , 881 N.W.2d 589 (2016), the plaintiffs alleged that a referendum petition should be removed from the ballot because the statu- torily required list of sponsors did not include Governor Pete Ricketts. The plaintiffs alleged that Governor Ricketts qualified as a sponsor because he contributed money to the referendum campaign and supported it publicly. We rejected this argument, holding that only those who agreed to assume responsibility for the initiative and referendum petition process qualified as sponsors. In support of our conclusion, we noted that the argument urged by the plaintiffs would “tend to restrict the powers of initiative and referendum by making compliance with the statute more precarious.” Id. at 134, 881 N.W.2d at 597-98. We reasoned that if we were to adopt plaintiffs’ reading of  - 525 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 “‘sponsoring the petition’” to include individuals who par- ticipated in or supported the petition process, we would “inject ambiguity and make adherence difficult” and “expose the peti- tion process to procedural challenges and the risk of defects unrelated to the substance of the petition.” Id. at 134, 881 N.W.2d at 598. Much like the reading urged by the plaintiffs in Hargesheimer, we believe that the reading advanced by Chaney would “mak[e] compliance with the statute more pre- carious” and “expose the petition process to procedural chal- lenges and the risk of defects unrelated to the substance of the petition.” See 294 Neb. at 134, 881 N.W.2d at 598 . Having concluded that petition circulators were not required to read the object statement of the petition to signatories, we find Chaney’s claim for relief based on a violation of § 32-628(3) crumbles. The only way in which Chaney alleges that circulators did not comply with § 32-628(3) is by failing to read the object statement to signatories. (c) Fraud [14] This leaves only Chaney’s argument that petition sig- natures were subject to invalidation because circulators com- mitted fraud and that he adequately alleged the details of such fraud. As we evaluate this theory, we must do so under a dif- ferent pleading standard. Under our pleading rules, claims of fraud are subject to a heightened pleading standard. Our rules of pleading provide that “[i]n all averments of fraud, . . . the circumstances constituting fraud . . . shall be stated with par- ticularity.” Neb. Ct. R. Pldg. § 6-1109(b) (rev. 2008). Pleading facts with particularity means the who, what, when, where, and how: the first paragraph of any newspaper story. Chafin v. Wisconsin Province Society of Jesus, 301 Neb. 94 , 917 N.W.2d 821 (2018). With this standard in mind, we take up Chaney’s allegations of fraud. The complaint did not make any factual allegations suggest- ing that circulators committed fraud on petition signatories, let alone plead such details with particularity. The complaint does  - 526 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 not allege, for example, any of the “who, what, when, where, and how” details concerning the provision of misleading infor- mation to signatories. The only factual allegations that even approach the neces- sary level of particularity are Chaney’s assertions that circula- tors defrauded the Secretary by asserting that “they stated to each signer the object of the petition as printed on the peti- tion.” But Chaney claims this was fraudulent solely because circulators did not read the object statement as printed on the petition. Chaney’s fraud allegation thus collapses back into his argument that a circulator can only “‘state[] to each signer the object of the petition as printed on the petition’” by reading that statement verbatim. We have concluded that is not the case and thus conclude that Chaney has not adequately alleged that circulators defrauded the Secretary. Boiled to its essence, Chaney’s complaint alleged only that certain petition circulators did not read the object state- ment of the petition to certain signatories and that signatories decided that they wished to withdraw their signatures. As we have explained, those allegations, even if true, do not estab- lish that the circulators failed to comply with § 32-628(3) or that they committed fraud. And, to the extent that individual signatories simply decided that they wanted to withdraw their signatures, they could do so only through the means set forth by the Legislature, not via this lawsuit. Because Chaney’s factual allegations, even if true, do not establish a right to the relief he seeks, the district court did not err in finding that the complaint failed to state a claim upon which relief could be granted. 3. Leave to Amend Not Required Finally, Chaney claims that the district court erred in not allowing him the opportunity to amend his complaint. Chaney acknowledges, however, that he never asked that the district court grant him leave to amend his complaint. The Secretary  - 527 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 and the sponsors argue that the district court could not abuse its discretion by declining to grant leave to amend when it was not asked to do so. A number of federal circuit courts have concluded that a trial court cannot abuse its discretion by denying leave to amend when it was not requested. See, e.g., U.S. ex rel. Shara Ambrosecchia v. Paddock Labs., 855 F.3d 949 (8th Cir. 2017); Fletcher-Harlee v. Pote Concrete Contractors, 482 F.3d 247 (3d Cir. 2007); Sinay v. Lamson & Sessions Co., 948 F.2d 1037 (6th Cir. 1991); Coates v. Illinois State Bd. of Ed., 559 F.2d 445 (7th Cir. 1977). We, however, do not appear to have ever specifically adopted that rule. And, we have said that “[a]s a general rule, when a court grants a motion to dismiss for fail- ure to state a claim, a party should be given leave to amend absent undue delay, bad faith, unfair prejudice or futility.” Eadie v. Leise Properties, 300 Neb. 1 41, 150, 912 N.W.2d 715 , 722 (2018). But even if we have left open the possibility that a trial court could abuse its discretion by dismissing a complaint without allowing for amendment in the absence of a request for leave to amend, it remains true that, as a practical matter, it will be more difficult for a plaintiff to show that the district court has abused its discretion by doing so. Without such a request, the trial and appellate courts will likely be left to guess at what amendments plaintiff might seek to make and thus have no way to know whether the problems with the dismissed complaint can be cured. Hargesheimer v. Gale, 294 Neb. 123 , 881 N.W.2d 589 (2016), illustrates the difficulty of showing that a district court erred by not allowing leave to amend when the plaintiffs made no request to do so. In that case, the plaintiffs argued that the district court should not have dismissed their complaint with prejudice, but granted them leave to amend. We noted, how- ever, that they did not make a request to amend the complaint and that they did not show how an amendment could cure the problems with the dismissed complaint.  - 528 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 Like the plaintiffs in Hargesheimer, Chaney has not shown how an amendment could have cured his failure to state a claim upon which relief could be granted. Chaney pled that 188 petition signatories wished to withdraw their signatures because they were procured by fraud and that the object state- ments were not read to signatories. However, we have con- cluded that the withdrawals were untimely submitted and that Chaney’s allegations of fraud, even if they could render the withdrawals timely, were based on an incorrect understanding and application of § 36-328(3). Upon our review of the record, we conclude that Chaney has made no showing how amend- ment could have cured these defects. Because Chaney neither moved for leave to amend nor showed how the defects in his complaint could have been cured, the district court did not err by declining to grant him leave to amend. V. CONCLUSION For the reasons we have explained, the district court did not err by dismissing Chaney’s complaint or by not providing him with the opportunity to amend his complaint. Accordingly, we affirm. Affirmed.

2020-12-04 06:08:21.905505+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007433PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 495 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 State of Nebraska, appellee, v. Jeremiah L. Connelly, appellant. ___ N.W.2d ___ Filed October 16, 2020. No. S-19-1139. 1. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights: Appeal and Error. In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that law enforcement procured it by violating the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966), an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear error. Whether those facts meet constitutional standards, however, is a question of law, which an appellate court reviews independently of the trial court’s determination. 2. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966), prohibits the use of statements derived during custodial interrogation unless the prosecution demonstrates the use of procedural safeguards that are effective to secure the privilege against self-incrimination. 3. Miranda Rights: Police Officers and Sheriffs: Words and Phrases. Under the Miranda rule, a “custodial interrogation” takes place when questioning is initiated by law enforcement after a person has been taken into custody or is otherwise deprived of his or her freedom of action in any significant way. 4. ____: ____: ____. The term “interrogation” under Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966), refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminat- ing response from the suspect.  - 496 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 5. ____: ____: ____. A police officer’s course of inquiry related to and responsive to a volunteered remark by the accused is not “interrogation” for purposes of Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966). 6. Confessions: Appeal and Error. In making the determination of whether a statement is voluntary, a totality of the circumstances test is applied, and the determination reached by the trial court will not be disturbed on appeal unless clearly wrong. 7. Confessions: Evidence: Proof. To meet the requirement that a defend­ ant’s statement, admission, or confession was made freely and volun- tarily, the evidence must show that such statement, admission, or confes- sion was not the product of any promise or inducement—direct, indirect, or implied—no matter how slight. 8. Confessions: Mental Competency. Mental illness, like age, education, and intelligence, is a relevant factor in the totality test when evaluating the voluntariness of a statement. 9. ____: ____. No per se rule invalidates the volunteered statement of a mentally ill defendant. Instead, such statement is subject to the general rule that a statement freely and voluntarily given without any compel- ling influences is admissible. Appeal from the District Court for Douglas County: Shelly R. Stratman, Judge. Affirmed. Thomas C. Riley, Douglas County Public Defender, and Leslie E. Cavanaugh for appellant. Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Funke, J. NATURE OF CASE The appellant, Jeremiah L. Connelly, filed a motion to sup- press in the district court for Douglas County, Nebraska, seek- ing to have statements he made to law enforcement suppressed in violation of his Miranda rights. The district court denied Connelly’s motion, finding Connelly’s pre-Miranda statements  - 497 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 were not made in response to an interrogation and his post- Miranda statements were made voluntarily. We affirm. BACKGROUND Initial Arrest On September 21, 2018, Omaha police officers Kirk Weidner and Mark Pruett were on routine patrol in the area of 90th Street and Bedford Avenue in Omaha, Nebraska. While patrol- ling the area, Weidner and Pruett observed a car exit a parking lot, cross two lanes of traffic, and run a stoplight. Upon pursu- ing the car, the officers observed the car parked in an alleyway and saw the driver exit the vehicle and head north. As Weidner and Pruett approached the vehicle, they received information from Omaha police dispatch of a report of a stolen car match- ing the description of the car they were observing. The officers gave chase on foot and apprehended the fleeing driver, later identified as Connelly. Sgt. Tammy Mitchell, with the Omaha police’s auto theft unit, instructed Weidner and Pruett to transport Connelly to the police station for an interview. Connelly was placed in hand- cuffs and put in the back of the cruiser, but was not read his Miranda rights. Once Weidner, Pruett, and Connelly arrived at the police station, they waited in the lobby because all of the interview rooms were occupied. In the lobby, Connelly voluntarily pro- vided the officers with information about the auto theft. He told Weidner, “You guys are worried about this petty auto theft when you should be worried about her life.” When Weidner asked, “Whose life?” Connelly responded with a name that Weidner did not recognize. Connelly was then turned over to Mitchell for an interview. Mitchell Interview Mitchell and a detective entered the interview room where Connelly was seated. Mitchell noticed that Connelly had his jeans rolled up to his knees and that his legs were red and swollen. The interview proceeded as follows:  - 498 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 5:43:19 P.M. Mitchell: Are you having an allergic reaction, you think? Connelly: I don’t know. It started Monday. Pruett: He said it was from a sunburn, being outside all day yesterday, and then he said he had (inaudible) in the knees from running, so. Connelly: No, it’s not from running. Mitchell: Okay, what happened? 5:43:34 P.M. Connelly: It’s from dumping her body in Fremont, that’s what it’s fucking from. “Mister-I-nearly-record- everything,” piece of shit (referring to Pruett, one of the arresting officers). Hero of the fucking day out there, he don’t listen to a damn word. Mitchell: Well, tell me, I’ll listen. Connelly: He wants to give a shit about fucking cars all day dude, who cares about fucking cars? Mitchell: Nobody does. Connelly: Jeanna Wilcoxen. J-E-A-N-N-A, dude. Mitchell: How do you know her? Connelly: She’s in Fremont, that’s how I know her. Mitchell: Okay, what’s she doing in Fremont? Is she in danger? Connelly: You can’t help her no more. Mitchell: What do you mean? Connelly: She’s laying out there. You can fly over and find . . . (interrupted by Mitchell). Mitchell: What do you mean? She—how do you spell “Jeanna?” J-E-A-N-N-A? Is that right? Connelly: Wilcoxen. Mitchell: Is she missing? Do we need to go help somebody— Connelly: Don’t nobody even know dude? Mitchell: Nobody knows she’s missing?  - 499 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 Connelly: That’s the fucked up part. . . . They don’t even know she’s fucking gone. Mitchell: What do you mean by gone? Connelly: Like I ain’t never getting out of here and just want this shit to stop. I don’t know . . . I’ll tell you whatever you want to know. Mitchell: I gotta know if she’s safe. Connelly: I’ll tell you whatever you want to know. .... Connelly: No, it ain’t what he said, dude. It’s her, dude. It’s what I did to her. Mitchell: Alright, it looks like it. What did you do to her? Connelly: It’s coming back threefold. Mitchell: What happened? Connelly: Sunday night. From the laundromat on Q .... Mitchell: Yeah. Tell me. Connelly: She just wouldn’t listen man. Connelly: Whatever I do comes back on me three times. (Connelly looks at his swollen legs and says, “Dude, look at that. You ever seen that shit?”) Mitchell: Tell me about Jeanna. Connelly: She’s in Fremont. She’s laying there at the end of the road. I don’t do drugs. Mitchell: Alright. .... Connelly: Half, bunch of her stuff is in Columbus. Mitchell: Half of her stuff is in Columbus? Connelly: Just laying out in the truckstop. Some more of it is in South Omaha. Laying in an alley. Mitchell: So you mean she was moving out? You were helping her move out? Connelly: That’s where I threw it. Mitchell: Oh, that’s where you threw it. Why’d you throw her stuff in an alley?  - 500 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 Connelly: Why’d I burn the van up the other day? Mitchell: I don’t know. I don’t know anything about a van. Tell me about that. Connelly: My ’87 G20 van. Mitchell: Yeah. Connelly: That they found (inaudible) torched over there in South Omaha. Mitchell: Yeah. Connelly: They seen me running from it with whatever I could carry. Mitchell: Why did that happen? Connelly: Because it had her in it. It had her in it. .... Mitchell: What do you mean you had her? You gave her a ride? Connelly: I had her in it for 3 or 4 hours. Gave her a ride to Fremont. Dumped her in the fucking ditch. Don’t nobody care about that girl, dude? Mitchell: Is she alive? Connelly: No, she’s not. At about 51⁄2 minutes into the interview, Mitchell sent the detective out of the interview room. Connelly then stated that his legs were sunburned because he was outside for 2 hours the day before, contemplating jumping off a bridge to his death. The following exchange occurred: Mitchell: Why’s that? Why would you do that? Connelly: . . . If I smothered her . . . if I smothered her and told her that’s the best way to go out of all the ways to get killed, I oughta be able to man up and do it to myself right after. Mitchell: So is that what happened to her? Connelly: She got a duct-taped mask and she’s laying in Fremont at the end of a road in a ditch. .... Mitchell: What? Do you know what road you were driving on?  - 501 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 Connelly: It ain’t covered. She’s not covered up . . . that’s the fucked up part. Mitchell: What is she wearing? Connelly: Duct tape. Connelly starts to cry as he recounts how he “duct-taped” her, told her he was not going to rape her, and explained he just wanted to take “her money and her dope,” but that things got out of hand. Approximately 45 minutes into the interview, a homicide unit detective, David Preston, took over and led the remainder of the interview. Preston Interview Preston obtained Connelly’s date of birth and address, and for the first time, he read Connelly his Miranda rights and asked if, having been informed of his rights, he would still be willing to speak with him. Connelly answered yes, and Preston filled out a rights advisory form, which Connelly did not sign. Preston showed Connelly a map of Fremont, Nebraska, to assist in finding Jeanna Wilcoxen’s location. Preston then asked Connelly to “start back from the beginning” and to explain “what happened actually.” While recounting his story, Connelly made reference to a “beast” and hearing voices: 6:49:18 P.M. Connelly: All this shit she’s been through. It was just perfect . . . I told her either way, the beast gets her or I get her, this is perfect (inaudible) right here. Preston: A beast, what are you referring to? Connelly: Just like, I don’t know, the beast, the hunger. Preston: Your hunger? Connelly: Doesn’t feel like me. It doesn’t feel like me at all. It feels like two or three versions of people (inau- dible) that I pissed off somehow. I don’t really realize how I pissed them off but it felt like them when the actual incident happened, when I’m giving verbal directions and telling her all this shit, being aggressive to maintain con- trol of the situation but staying calm. The staying calm  - 502 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 part was me, that was like, so it was like one, two, three . . . three driving forces, dude, just like dominating. Preston: It wasn’t emotionally you, it physically was you? Connelly: It was me, emotionally, I’m not trying to make it deeper than it is. It was my buddy Chicken Bone and my buddy Kona, are floating around in my head, every time I spoke, I sounded like them. It was distinc- tive. It’s like knowing the names to the voices you hear. Not crazy people who don’t know the names. I wronged both these guys and I don’t remember how or why they got so mad at me when we were such good buds in the beginning and what they’re doing here and now involved in this and then my stay calmness on top of that was the end of her, it’s what destroyed her. It’s simple. I’m not trying to get all psychological and shit. Connelly then went on to explain how he killed Wilcoxen. At the conclusion of Connelly’s interview, because the location of Wilcoxen’s body still could not be determined, Weidner, Pruett, and Preston took Connelly to Fremont in an attempt to locate Wilcoxen. Wilcoxen’s body was eventually discovered in an area very close to what Connelly had described. Connelly also directed the officers to 53rd & Y Streets in Omaha, advis- ing that was the location where the murder had occurred. He then took them to an alley at 34th & K in Omaha where they found a tablet computer belonging to Wilcoxen that Connelly had discarded. Connelly then led Preston to Council Bluffs, Iowa, and to Columbus, Nebraska, to look for Wilcoxen’s cell phone and his cell phone, but attempts to locate the cell phones were unsuccessful. The State later charged Connelly with first degree murder and tampering with physical evidence. Motion to Suppress Connelly filed a motion to suppress the statements he made to law enforcement. Connelly argued in support of his motion that (1) the statements were obtained without Connelly’s  - 503 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 being properly advised of his right to counsel and his right against compulsory self-incrimination; (2) the statements were obtained without a knowing, intelligent, and voluntary waiver of his right to counsel and his right against compulsory self- incrimination; (3) the statements were not voluntary in that they were the product of threats, coercion, or inducements of leniency practiced upon him by law enforcement; and (4) the statements were the fruit of an unlawful arrest. In a written order, the district court denied Connelly’s motion to suppress. First, the district court found that prob- able cause existed to support a warrantless arrest of Connelly. Second, the district court found Connelly’s pre-Miranda state- ments made to law enforcement were voluntary and not the result of an interrogation. The court determined the overall demeanor of Connelly’s interview indicated that Connelly was voluntarily providing information to law enforcement and that thus, Mitchell was not interrogating Connelly. Further, the court pointed out that when Mitchell inquired about Connelly’s swollen legs, he responded that he had sustained the injuries from “‘dumping her body in Fremont.’” The court noted there was no reason that Mitchell should have reasonably expected that her question would likely elicit an incriminating response. The district court further found that Connelly’s pre-Miranda statements were admissible under the public safety excep- tion, also referred to as the “rescue doctrine,” to the Miranda requirements. 1 Third, for the sake of completeness, the district court found that even if Mitchell’s pre-Miranda interview amounted to an interrogation, Connelly’s post-Miranda interview would still be admissible because it did not rise to the level of a two-step interrogation. Fourth, the district court found that under the totality of the circumstances, Connelly knowingly and volun- tarily waived his Miranda rights. Fifth, the district court found 1 See New York v. Quarles, 467 U.S. 649 , 104 S. Ct. 2626 , 81 L. Ed. 2d 550 (1984).  - 504 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 that the State met its burden in proving, by a preponderance of the evidence, that Connelly’s confession was voluntary. The court determined there was no evidence presented to suggest Connelly’s confession was the product of threats, coercion, or inducements of leniency. The court noted that instead, Connelly was cooperative with law enforcement and often vol- unteered information beyond what was requested. Trial and Sentencing A jury found Connelly guilty of first degree murder and tam- pering with physical evidence. The court sentenced Connelly to consecutive terms of life imprisonment without the possibility of parole for the first degree murder conviction and of 2 to 2 years’ imprisonment for the tampering with physical evidence conviction. Connelly appeals. ASSIGNMENTS OF ERROR Connelly assigns, consolidated and restated, that (1) the district court erred in overruling the motion to suppress both his pre-Miranda and post-Miranda statements and (2) there was insufficient evidence to prove, beyond a reasonable doubt, Connelly’s statements were made voluntarily. STANDARD OF REVIEW [1] In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that law enforce- ment procured it by violating the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 2 an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear error. Whether those facts meet constitutional standards, however, is a question of law, which an appellate court reviews independently of the trial court’s determination. 3 2 Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966). 3 State v. Guzman, 305 Neb. 376 , 940 N.W.2d 552 (2020). See State v. Bormann, 279 Neb. 320 , 777 N.W.2d 829 (2010).  - 505 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 ANALYSIS No Custodial Interrogation Connelly argues his confession to Mitchell was a “non- Mirandized” statement made during a custodial interrogation because Mitchell’s questions were designed to elicit an incrimi- nating response from him. Neither party contests that Connelly was in custody during each interview. As such, we focus on whether Connelly was subject to an interrogation by law enforcement. For the reasons set forth below, we affirm the trial court’s denial of Connelly’s motion to suppress his pre- Miranda statements, because we find Connelly volunteered those statements and was not subject to an interrogation. [2] Miranda prohibits the use of statements derived during custodial interrogations unless the prosecution demonstrates the use of procedural safeguards that are effective to secure the privilege against self-incrimination. 4 The safeguards provided by Miranda “‘come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.’” 5 [3,4] This court, in State v. Rodriguez, 6 stated that under the Miranda rule, a “custodial interrogation” takes place when questioning is initiated by law enforcement after a person has been taken into custody or is otherwise deprived of his or her freedom of action in any significant way. We have also stated that the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. 7 An 4 State v. Rodriguez, 272 Neb. 930 , 726 N.W.2d 157 (2007). See Miranda, supra note 2. 5 Bormann, supra note 3, 279 Neb. at 326 , 777 N.W.2d at 835. 6 See Rodriguez, supra note 4. 7 Id.; State v. Buckman, 259 Neb. 924 , 613 N.W.2d 463 (2000). See Rhode Island v. Innis, 446 U.S. 291 , 100 S. Ct. 1682 , 64 L. Ed. 2d 297 (1980).  - 506 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 objective standard is applied to determine whether there is an interrogation within the meaning of Miranda. 8 [5] The relevant question to be asked is, “‘Would a reason- able and disinterested person conclude that police conduct, directed to a suspect or defendant in custody, would likely elicit an incriminating response from that suspect or defendant?’” 9 If the answer is yes, then there is interrogation requiring the recitation of Miranda warnings. 10 However, we have excluded from the definition of interrogation a police officer’s course of inquiry related to and responsive to a volunteered remark by the accused. 11 In Rodriguez, while in custody, the defendant made incrimi- nating statements to a police officer before the officer could finish advising him of his Miranda rights. 12 The defendant’s remarks were made in an abrupt, rambling manner and not in response to any questioning by the officer. We determined, after a review of the interview tape, that the officer made sev- eral remarks that seemed focused toward calming the defend­ ant rather than eliciting information, including telling him that he believed him. 13 We held that “[s]tatements made in a conversation initiated by the accused or spontaneously volun- teered by the accused are not the result of interrogation and are admissible.” 14 We affirmed the trial court’s admittance of the defendant’s statements because the statements were spontaneous, excited remarks, which were not the result of police compulsion. 15 8 Bormann, supra note 3. 9 Id. at 327, 777 N.W.2d at 836 (quoting State v. Gibson, 228 Neb. 455 , 422 N.W.2d 570 (1988)). 10 Bormann, supra note 3. 11 Buckman, supra note 7. See, also, State v. Lamb, 213 Neb. 498 , 330 N.W.2d 462 (1983). 12 Rodriguez, supra note 4. 13 Id. 14 Id. at 944, 726 N.W.2d at 171. 15 Rodriguez, supra note 4.  - 507 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 In State v. Lamb, 16 after being placed in a holding cell and before any Miranda warnings had been given to him, the defendant told the police officer that he shot his wife. The defendant then asked the officer, “‘How would you like it?’” to which the officer replied, “‘What do you mean by that?’” 17 The defendant then replied, “‘I got tired of seeing her suffer so I shot her.’” 18 The officer later testified that at the time he asked the question, he was concerned about whether the defend­ant was uncomfortable, ill, or angry about being placed in the holding cell. We agreed with the trial court in the case that the officer’s question was a neutral and spontaneous one, not one calculated to obtain a confession. We also determined the officer’s question did not place the defendant under a compulsion to speak because the defendant was the one who initiated the conversation and the officer simply requested clarification of the defendant’s statement. 19 The facts concerning Connelly’s statements to Mitchell are substantially the same as the statements made in both Rodriguez and Lamb. 20 A review of the interview tape shows an agitated Connelly volunteering incriminating statements before his Miranda warnings could be read to him. Mitchell’s first question to Connelly concerned his red and swollen legs. Connelly responded that it was from “dump- ing [Wilcoxen’s] body.” Mitchell’s question was a neutral and spontaneous question not intended to elicit a confession, and Connelly’s statement was spontaneously volunteered. The interview tape also shows that Connelly appeared frustrated that the officers only cared about cars, rather than about a missing woman. This is evident when Connelly tells Mitchell that Pruett would not “listen to a damn word,” to which 16 Lamb, supra note 11. 17 Id. at 501, 330 N.W.2d at 465. 18 Id. 19 See id. 20 See, Rodriguez, supra note 4; Lamb, supra note 11.  - 508 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 Mitchell simply tells him that she will listen to him. Mitchell’s limited inquiry cannot be characterized as a knowing attempt to elicit an incriminating statement from Connelly. When Mitchell did ask Connelly clarifying questions, they were often related to and responsive to Connelly’s volunteered statements. At the time of these questions, law enforcement was not yet aware of the murder. There is no evidence in the record that Connelly was under any compulsion to speak about the murder. Accordingly, although Connelly was in custody and his Miranda rights had not yet been read to him, his statements to Mitchell were not made in response to a custodial interro- gation. Therefore, the district court did not err in finding that no custodial interrogation took place prior to the recitation of Connelly’s Miranda rights. Public Safety Exception The district court found the public safety exception, also referred to as the “rescue doctrine,” which has been adopted by the U.S. Supreme Court, to be an appropriate exception to admit Connelly’s pre-Miranda statements. 21 However, neither the rescue doctrine nor the public safety exception has yet been adopted by Nebraska appellate courts. In New York v. Quarles, 22 the U.S. Supreme Court held that a public safety exception to the Miranda requirements applies when police ask a subject questions necessary to protect the public or police from immediate danger. Because we deter- mine that Connelly’s statements were not the result of police questioning, we need not address the applicability of the public safety exception. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. 23 21 See Quarles, supra note 1. 22 Id. 23 State v. Goynes, 303 Neb. 129 , 927 N.W.2d 346 (2019), cert. denied ___ U.S. ___, 140 S. Ct. 545 , 205 L. Ed. 2d 345 (2019).  - 509 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 Post-Miranda Statements Connelly argues his post-Miranda statements made to Preston should be suppressed because detectives deployed an “ask first, warn later” tactic disapproved of by the U.S. Supreme Court in Missouri v. Seibert, 24 and because the Miranda warnings he received did not cure the damage that was done. In Seibert, the U.S. Supreme Court considered a police protocol in which a suspect was interrogated without Miranda warnings until the suspect confessed, at which point, the offi- cer would give Miranda warnings, ask for a waiver, and get the suspect to repeat the pre-Miranda confession. 25 The Court explained that the underlying assumption with the “question- first” tactic was that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with tri- fling additional trouble. Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a gen­ uine right to remain silent, let alone persist in so believ- ing once the police began to lead him over the same ground again. 26 The plurality opinion held that such tactic effectively threat- ens to thwart the purpose of Miranda by reducing the risk that a coerced confession would be admitted. 27 However, as we have already determined, there was no pre- Miranda interrogation by Mitchell, and as such, there was no “question-first” tactic here. Therefore, the district court did not err in determining Connelly’s post-Miranda interview was admissible because it did not rise to the level of a two-step interrogation. 24 Missouri v. Seibert, 542 U.S. 600 , 124 S. Ct. 2601 , 159 L. Ed. 2d 643 (2004). 25 Id. 26 Id., 542 U.S. at 613. 27 Seibert, supra note 24. See, also, Miranda, supra note 2.  - 510 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 Voluntariness of Statements Connelly’s final assignment of error is that there was insuf- ficient evidence presented to the jury to support its conclusion that his statements were voluntary. [6] The especially damning nature of a confession requires the State to prove that an accused’s statement was voluntary before it is admissible. 28 In making this determination, a total- ity of the circumstances test is applied, and the determination reached by the trial court will not be disturbed on appeal unless clearly wrong. 29 [7] To meet the requirement that a defendant’s statement, admission, or confession was made freely and voluntarily, the evidence must show that such statement, admission, or con- fession was not the product of any promise or inducement— direct, indirect, or implied—no matter how slight. However, this rule is not to be applied on a strict, per se basis. Rather, determinations of voluntariness are based upon an assessment of all of the circumstances and factors surrounding the occur- rence when the statement is made. 30 [8,9] Connelly relies on our decision in State v. Dickson, 31 where we cited to the Supreme Court’s decision in Rhode Island v. Innis 32 and stated that mental illness, like age, educa- tion, and intelligence, is a relevant factor in the totality test when evaluating the voluntariness of a statement. However, we also stated that no per se rule invalidates the volunteered state- ment of a mentally ill defendant. 33 We held that such statement is subject to the general rule that a statement freely and volun- tarily given without any compelling influences is admissible. 34 28 See State v. Walker, 242 Neb. 99 , 493 N.W.2d 329 (1992). 29 State v. Garner, 260 Neb. 41 , 614 N.W.2d 319 (2000). 30 Walker, supra note 28. 31 State v. Dickson, 223 Neb. 397 , 389 N.W.2d 785 (1986). 32 Innis, supra note 7. 33 Dickson, supra note 31. 34 See id. - 511 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CONNELLY Cite as 307 Neb. 495 Connelly argues that his statements about hearing voices, his uncorroborated statements about discarding his cell phone in Columbus and disposing of evidence in Council Bluffs, his confusion while searching for Wilcoxen’s body near Fremont, and his erratic jumping from one subject to another indicated a mental illness sufficient to make his incriminating statements involuntary. However, a review of the interview tape indicates that Connelly described his crimes in detail, that his state- ments tracked chronologically, and that he understood what he was saying. Additionally, no evidence was offered to indicate that Connelly suffered from a mental illness or that he was under the influence of drugs or alcohol at the time the state- ments were given. Neither was there evidence that Connelly’s confession was the product of threats, coercion, or induce- ments of leniency. Furthermore, the district court instructed the jury that it must disregard any statement from Connelly if it found that the State did not prove beyond a reasonable doubt that Connelly under- stood what he was saying and freely and voluntarily made the statement under all surrounding circumstances. An appellate court does not resolve conflicts in the evidence, pass on cred- ibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. 35 Connelly’s argument that his statements were not made voluntarily is without merit. CONCLUSION For the foregoing reasons, we affirm the order of the district court denying Connelly’s motion to suppress. We conclude that Connelly’s pre-Miranda statements were made voluntarily and not in response to a custodial interrogation. We further con- clude there was sufficient evidence for a jury to find Connelly made his post-Miranda statements voluntarily. Affirmed. 35 State v. Ferrin, 305 Neb. 762 , 942 N.W.2d 404 (2020).

2020-12-04 06:08:19.243069+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007444PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 562 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 Jeremy Kaiser, appellant, v. Allstate Indemnity Company, appellee. ___ N.W.2d ___ Filed October 23, 2020. No. S-19-858. 1. Insurance: Contracts. Interpretation of an insurance policy is a ques- tion of law. 2. Judgments: Appeal and Error. In reviewing questions of law, an appellate court must reach its own conclusions independent of the lower court’s conclusions. 3. Summary Judgment: Appeal and Error. An appellate court reviews a district court’s grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all rea- sonable inferences in that party’s favor. 4. Insurance: Contracts: Presumptions: Proof. In assessing which party in an insurance dispute bears the burden of proving or disproving cover- age, a court must first determine whether the insurance policy presump- tively extends coverage to all, or only to specific, perils. 5. Insurance: Contracts. A specific perils policy covers limited risks and, by implication, excludes all other risks. 6. ____: ____. An all perils policy impliedly covers all risks except those expressly addressed in the policy’s exclusion paragraphs. 7. Insurance: Contracts: Presumptions: Proof. Under a specific perils policy, the insured carries the initial burden of proving that a provi- sion in the insurance policy requires the insurer to provide coverage for a specific type of loss. But that initial burden is presumed met in an all perils policy, provided the insured can show that covered property was damaged. 8. Insurance: Contracts: Proof. Once the insured’s initial burden of prov- ing coverage is met, the insurer bears the burden of proving the applica- bility of an exclusion under the policy as an affirmative defense. 9. Insurance: Contracts: Appeal and Error. An insurance policy is a contract, and an appellate court construes it like any other contract, according to the meaning of the terms that the parties have used.  - 563 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 10. ____: ____: ____. An appellate court gives terms in an insurance policy that are clear their plain and ordinary meaning as a reasonable person in the insured’s position would understand them. 11. Insurance: Contracts. Terms in an insurance policy that are reasonably susceptible to multiple conflicting meanings are ambiguous and con- strued in favor of the insured. 12. Words and Phrases. Contamination is the act of contaminating, the condition of being contaminated, defilement, pollution, or infection. 13. Insurance: Contracts. Simply because multiple provisions in an insur- ance policy individually exclude coverage for a single peril does not mean that those terms are necessarily ambiguous. 14. ____: ____. Whether terms in an insurance policy are individually ambiguous will depend on the susceptibility of their language to multiple reasonable meanings, not on whether they overlap with each other. 15. Insurance: Contracts: Proof. If the insurer meets its burden of prov- ing the applicability of any exclusions under the policy as affirmative defenses, then the burden returns to the insured to prove the applicabil- ity of an exception to any exclusions. 16. Words and Phrases. Because the phrase “sudden and accidental” is expressed in the conjunctive, it requires both sudden and accidental to be shown. 17. Insurance: Courts. When an insured’s claim to his or her insurer is for one whole property loss, courts must frame the property loss accord- ingly, and not by its component parts. 18. Time: Words and Phrases. An event occurring over a period of time is not sudden. 19. Summary Judgment. Summary judgment is proper when the plead- ings and the 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. 20. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admit- ted evidence show that there is no genuine issue as to any material facts 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. Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge. Affirmed. Matthew P. Saathoff and Donald E. Loudner III, of Saathoff Law Group, P.C., L.L.O., for appellant.  - 564 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 Leslie S. Stryker Viehman and Brian D. Nolan, of Nolan, Olson & Stryker, P.C., L.L.O., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Heavican, C.J. I. INTRODUCTION Jeremy Kaiser filed an insurance claim alleging that his tenants damaged his rental house by producing or using meth- amphetamine indoors. Allstate Indemnity Company (Allstate) denied the claim. The district court granted summary judgment for Allstate, holding that the loss was excluded from coverage under Allstate’s insurance policy with Kaiser. Kaiser appeals. We moved Kaiser’s appeal to our docket to decide whether property loss from his tenants’ producing or using methamphet- amine indoors was a covered peril. We conclude that it is not and affirm the decision of the district court. II. FACTUAL BACKGROUND Kaiser owned real property in Omaha, Nebraska, that he maintained as a rental house. He carried a rental insurance policy for the property through Allstate. According to the policy, Allstate agreed to cover most direct physical loss to the property. However, as relevant here, paragraphs 12, 13(e) and (f), 18, and 19(d) excluded from coverage any property loss “consist- ing of or caused by” the following perils: 12. Any type of vapors, fumes, acids, toxic chemicals, toxic gasses, toxic liquids, toxic solids, waste materials, [i]rritants, contaminants, or pollutants, [i]ncluding, but not limited to: a) lead in any form; b) asbestos in any form; c) radon in any form; or  - 565 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 d) oil, fuel oil, kerosene, liquid propane or gasoline intended for, or from, a storage tank located at the resi- dence premises. 13. . . . .... e) Contamination, including, but not limited to, the presence of toxic, noxious, or hazardous gasses, chemi- cals, liquids, solids or other substances at the residence premises or in the air, land or water serving the resi- dence premises; f) Smog, smoke from the manufacturing of any con- trolled substance, agricultural smudging and industrial operations[.] .... 18. Vandalism. However, we do cover sudden and acci- dental direct physical loss caused by fire resulting from vandalism unless your dwelling has been vacant or unoc- cupied for more than 90 consecutive days immediately prior to the vandalism. 19. Any act of a tenant, or guests of a tenant, unless the act results in sudden and accidental direct physical loss caused by: .... d) [S]moke. However, we do not cover loss caused by smoke from the manufacturing of controlled substances, agricultural smudging or industrial operations[.] (Emphasis omitted.) The Allstate insurance policy further pro- vided that when property loss resulted from multiple causes, the loss was wholly excluded from coverage if “the predomi- nant cause(s) of loss is (are) excluded.” Kaiser did not make regular inspections of his rental house. Beginning in February 2013, he received reports from persons living near the property that the house was being used for drug- related activity. After his tenants voluntarily surrendered the property on May 1, 2013, Kaiser inspected the house and found evidence  - 566 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 of methamphetamine. Kaiser retained Absolute Bio Recovery Service to conduct preliminary tests of the house. Absolute Bio Recovery Service discovered methamphetamine vapor and residue throughout the house and recommended that the house be decontaminated before it could be safely rented to new tenants. On May 7, 2013, Kaiser submitted a claim to Allstate for the cleanup costs. On May 8, Allstate denied the claim. Despite the denial of coverage, Kaiser worked to remedi- ate and decontaminate the house throughout May 2013. He removed flooring, HVAC equipment, and light fixtures from the house, all of which had absorbed methamphetamine vapor and residue. He also hired Meth Lab Cleanup LLC, a com- pany that specialized in restorations of this kind. On May 26, Meth Lab Cleanup certified that the house was again fit for human habitation. On February 11, 2014, Kaiser filed a complaint against Allstate in the district court for Douglas County. Kaiser asserted two claims: breach of contract and bad faith. According to Kaiser, “[a]t sometime [sic] after April 15, 2012, the Tenants converted the Property into a methamphetamine lab and started producing methamphetamine.” According to the complaint, this claim should have been covered by Allstate as “vandalism and malicious mischief,” but it was wrongfully denied. Kaiser sought $38,361.80 for remediation costs, lost rent, and com- pensation from serving as the general contractor overseeing the house’s restoration. Allstate timely filed an answer disputing Kaiser’s claims. After some discovery, the parties filed cross-motions for summary judgment. Stating that it lacked “competent evidence of how the damage was actually caused,” the district court entered an order denying both motions. Kaiser filed an amended complaint alleging that he lacked sufficient knowledge as to whether the property loss was caused by his tenants’ using or manufacturing methamphet- amine. Allstate filed an amended answer in which it specifically  - 567 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 cited, as affirmative defenses, exclusions in paragraphs 9, 12, 13(e) and (f), 18, and 19(d) of its insurance policy. Kaiser and Allstate both filed renewed cross-motions for summary judg- ment. Kaiser also filed a motion to file a second amended complaint, which the district court denied. On January 26, 2017, the district court issued an order granting Allstate’s motion for summary judgment and deny- ing Kaiser’s competing motion. The district court found that Kaiser’s tenants had manufactured methamphetamine in the house. Additionally, based on an affidavit from Allstate’s expert, a professor of chemistry at the University of Nebraska at Omaha, the district court found that methamphetamine dam- aged Kaiser’s property in two ways: first, “methamphetamine vapor is a toxic chemical, gas or liquid, depending upon the assumed physical state at a particular point in time,” and sec- ond, “[m]ethamphetamine residue is a contaminant, chemical residue and pollutant.” Accordingly, the district court agreed with Allstate that Kaiser’s property loss was excluded from coverage under paragraphs 12 and 13(e) and (f) of Allstate’s insurance policy. The district court also found that Kaiser’s property loss was not covered under paragraph 18 or para- graph 19(d). Kaiser appealed the district court’s summary judgment. This court summarily dismissed the appeal pursuant to Neb. Ct. R. App. P. § 2-107(A)(2) (rev. 2017) because we could not find that the district court had entered a final, appealable order. On remand, the district court issued an order clarifying that its previous order was intended to dismiss both Kaiser’s contract cause of action and his bad faith cause of action. Kaiser then filed the current notice of appeal. III. ASSIGNMENTS OF ERROR Kaiser assigns, consolidated and restated, that the district court erred in finding that (1) Kaiser’s property loss was excluded from coverage under paragraphs 12 and 13(e) and (f) of the Allstate insurance policy, (2) Kaiser’s property loss  - 568 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 was not covered under paragraph 18 or paragraph 19(d) of the Allstate insurance policy, and (3) summary judgment was improper because a genuine issue of material fact remained as to whether Kaiser’s property loss was caused by metham- phetamine production or use. IV. STANDARD OF REVIEW [1,2] Interpretation of an insurance policy is a question of law. 1 In reviewing questions of law, an appellate court must reach its own conclusions independent of the lower court’s conclusions. 2 [3] An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reason- able inferences in that party’s favor. 3 V. ANALYSIS 1. Allstate Insurance Policy The issue presented on appeal is whether the district court erred in finding that under the Allstate insurance policy, Kaiser’s property loss was excluded from coverage. [4-6] In assessing which party in an insurance dispute bears the burden of proving or disproving coverage, a court must first determine whether the insurance policy presumptively extends coverage to all, or only to specific, perils. 4 A specific perils policy covers limited risks and, by implication, excludes all other risks. 5 In contrast, an all perils policy impliedly 1 See Henn v. American Family Mut. Ins. Co., 295 Neb. 859 , 894 N.W.2d 179 (2017). 2 See In re Estate of Adelung, 306 Neb. 646 , 947 N.W.2d 269 (2020). 3 Russell v. Franklin County, 306 Neb. 546 , 946 N.W.2d 648 (2020). 4 See Poulton v. State Farm Fire & Cas. Cos., 267 Neb. 569 , 675 N.W.2d 665 (2004) (citing 7 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 101:7 (1997), and Annot., 30 A.L.R. 170 (1995)). 5 See Poulton, supra note 4.  - 569 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 c­ overs all risks except those expressly addressed in the policy’s exclusion paragraphs. 6 [7,8] Under a specific perils policy, the insured carries the initial burden of proving that a provision in the insurance policy requires the insurer to provide coverage for a specific type of loss. 7 But that initial burden is presumed met in an all perils policy, provided the insured can show that covered property was damaged. 8 Once the initial burden of proving coverage is met, the insurer bears the burden of proving the applicability of an exclusion under the policy as an affirma- tive defense. 9 Here, Kaiser characterizes his Allstate policy as an all per- ils policy. Allstate did not dispute that characterization in its brief or at oral argument. Thus, assuming that Kaiser’s char- acterization is accurate, Kaiser met his initial burden when the parties stipulated that at the relevant time, the damaged property was covered under the Allstate insurance policy. It is, in turn, Allstate’s burden to prove that the property loss from Kaiser’s tenants’ producing or using methamphetamine in the house was specifically excluded from coverage by its policy. (a) Paragraphs 12 and 13(e) and (f) The district court found that Allstate met its burden of proof by showing that Kaiser’s property loss was caused by the pres- ence of “methamphetamine vapor” and “[m]ethamphetamine residue” in the house. According to the district court, this meant that the property loss was excluded under paragraphs 6 See id. 7 See id. 8 See Gage County v. Employers Mut. Cas. Co., 304 Neb. 926 , 937 N.W.2d 863 (2020). 9 See id. - 570 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 12 and 13(e) and (f) of the Allstate insurance policy because methamphetamine vapor is “a toxic chemical, gas or liquid, depending upon the assumed physical state at a particular point in time,” and methamphetamine residue is “a contaminant, chemical residue and pollutant.” Kaiser assigns first that this characterization was in error because the terms in paragraphs 12 and 13(e) and (f) are ambiguous. [9-11] An insurance policy is a contract, and an appellate court construes it like any other contract, according to the meaning of the terms that the parties have used. 10 An appel- late court gives terms in an insurance policy that are clear their plain and ordinary meaning as a reasonable person in the insured’s position would understand them. 11 But terms that are reasonably susceptible to multiple conflicting meanings are ambiguous and construed in favor of the insured. 12 We disagree with Kaiser that the terms in paragraphs 12 and 13(e) and (f) are ambiguous. Paragraph 12 specifically excludes coverage for any property loss caused by or consist- ing of “vapors, fumes, acids, toxic chemicals, toxic gasses, toxic liquids, toxic solids, waste materials, [i]rritants, contami- nants, or pollutants.” And paragraph 13(e) and (f) uses similar language, excluding coverage for any property loss caused by or consisting of “[s]mog” or “[c]ontamination, including, but not limited to, the presence of toxic, noxious, or hazardous gasses, chemicals, liquids, solids or other substances at the residence premises . . . .” (Emphasis omitted.) [12] Although they are not defined in the insurance pol- icy itself, the relevant terms are contained in standard dic- tionaries. Contamination is “[t]he action of contaminating, or condition of being contaminated; defilement, pollution, 10 Van Kleek v. Farmers Ins. Exch., 289 Neb. 730 , 857 N.W.2d 297 (2014). 11 Id. 12 See id. - 571 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 infection.” 13 The terms in paragraphs 12 and 13(f) are also defined. 14 Throughout his brief, Kaiser himself repeatedly referred to the property damage as “contamination” and his restoration efforts as “decontamination.” In corresponding with Kaiser, the contractors he hired to restore the house also identified the damage they encountered as contamination. In its work plan for the house, Absolute Bio Recovery Service described using a variety of techniques “to address contamination,” and in its “Final Report Methamphetamine Decontamination,” Meth Lab Cleanup identified the scope of its work as involv- ing a “decontamination and post remedial assessment.” At the time, Kaiser did not object to these characterizations of the property loss as contamination. This evidence goes to show that Kaiser, as the insured, reasonably interpreted the term “contamination” as encompassing the type of property damage he experienced. [13,14] As Kaiser now suggests, definitions of the terms in paragraphs 12 and 13(e) and (f) indicate that several of these terms are synonymous. But his conclusion that the terms are 13 “Contamination,” Oxford English Dictionary Online, http://www.oed.com/ view/Entry/40057 (last visited Oct. 10, 2020). 14 See, e.g., “Vapor,” Oxford English Dictionary Online, http://www.oed.com/ view/Entry/221469 (last visited Oct. 10, 2020); “Fume,” Oxford English Dictionary Online, http://www.oed.com/view/Entry/75429 (last visited Oct. 10, 2020); “Acid,” Oxford English Dictionary Online, http://www. oed.com/view/Entry/1547 (last visited Oct. 10, 2020); “Toxic,” Oxford English Dictionary Online, http://www.oed.com/view/Entry/204104 (last visited Oct. 10, 2020); “Waste,” Oxford English Dictionary Online, http:// www.oed.com/view/Entry/226027 (last visited Oct. 10, 2020); “Irritant,” Oxford English Dictionary Online, http://www.oed.com/view/Entry/99857 (last visited Oct. 10, 2020); “Contaminant,” Oxford English Dictionary Online, http://www.oed.com/view/Entry/40053 (last visited Oct. 10, 2020); “Pollutant,” Oxford English Dictionary Online, http://www.oed.com/ view/Entry/146987 (last visited Oct. 10, 2020); “Smog,” Oxford English Dictionary Online, http://www.oed.com/view/Entry/182692 (last visited Oct. 10, 2020).  - 572 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 inherently ambiguous does not follow. Simply because mul- tiple provisions in an insurance policy individually exclude coverage for a single peril does not mean that those terms are necessarily ambiguous. 15 Instead, a well-written insurance policy will likely have terms that overlap, which might sup- port the denial of coverage on several grounds in an appropri- ate case. 16 Whether those terms are individually ambiguous will depend on the susceptibility of their language to multiple reasonable meanings, not on whether the terms overlap with each other. 17 Kaiser has failed to specifically identify any sec- ond meanings to which the terms are reasonably susceptible in context. Accordingly, Kaiser’s argument that the terms in paragraphs 12 and 13(e) and (f) are ambiguous and so should be construed with different meanings than the district court assigned to them is without merit. Like the rest of these terms, “contamination” is readily defined in standard dictionaries, and Kaiser himself used and accepted the term in describing the restoration of his house. The district court did not err in finding that Kaiser’s property loss was excluded from coverage as “contamination,” among other perils, under paragraphs 12 and 13(e) and (f) of the Allstate insurance policy. Kaiser’s first assignment of error is without merit. (b) Paragraphs 18 and 19(d) Kaiser next assigns that even if the district court did not err in finding his property loss was excluded under paragraphs 12 and 13(e) and (f), the district court still erred in not grant- ing him relief under two other paragraphs of the Allstate insurance policy. Specifically, Kaiser points to paragraphs 18 and 19(d). Although paragraph 18 generally excludes from 15 See, e.g., American Fam. Mut. Ins. Co. v. Wheeler, 287 Neb. 250 , 842 N.W.2d 100 (2014). 16 See id. 17 See Henn, supra note 1.  - 573 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 coverage “vandalism,” it provides an exception for “sudden and accidental direct physical loss caused by fire resulting from vandalism.” (Emphasis omitted.) Likewise, although paragraph 19 excludes from coverage property loss result- ing from most “act[s] of a tenant,” paragraph 19 provides an exception for “[a]ny act of a tenant [that] results in sudden and accidental direct physical loss caused by . . . d) smoke.” (Emphasis omitted.) According to Kaiser, his property loss was predominantly caused in accordance with these exceptions. And the insur- ance policy provides that when there are two or more causes of loss to the covered property, coverage is only excluded if the predominant cause of loss is excluded. Therefore, Kaiser contends that even if his property loss was excluded from coverage under paragraphs 12 and 13(e) and (f) of the Allstate insurance policy, the language regarding two or more causes of loss should provide relief because the perils described in paragraphs 18 and 19(d) were the predominant causes of loss. We disagree. [15] If the insurer meets its burden of proving the applicabil- ity of any exclusions under the policy as affirmative defenses, then the burden returns to the insured to prove the applicability of an exception to any exclusions. 18 Here, as discussed above, paragraphs 18 and 19 contain exceptions to the exclusions for “vandalism” and “act[s] of a tenant.” (Emphasis omitted.) In order for the exceptions to those exclusions to apply, Kaiser has the burden to show that the harm was the “sudden and accidental” result of fire or smoke. In support of his argument that he comes within these exceptions, Kaiser cites to insurance law cases from other jurisdictions in which vandalism has been inferred by ten- ants’ using and manufacturing illegal substances that resulted 18 See Dutton-Lainson Co. v. Continental Ins. Co., 271 Neb. 810 , 716 N.W.2d 87 (2006).  - 574 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 in property damage. 19 We need not decide here whether to follow those other jurisdictions because we conclude that Kaiser has failed to show that his property loss was “sudden and accidental.” We have previously construed the phrase “sudden and accidental” in an insurance policy. In Dutton-Lainson Co. v. Continental Ins. Co., 20 we construed the phrase in the con- text of an exception to a pollution exclusion. After incurring costs from an environmental cleanup of pollutants used in its manufacturing operations over some 37 years, Dutton-Lainson Company (Dutton-Lainson) filed a claim for indemnification with its insurer. Continental Insurance Company (Continental Insurance) denied the claim, however, under an exclusion for losses caused by pollution. In response, Dutton-Lainson claimed that a sudden and accidental exception to the pollution exclusion applied. The parties presented these arguments in district court, and thereafter, the district court granted summary judgment to Continental Insurance. Dutton-Lainson appealed, renewing its argument that the sudden and accidental exception to the pollution exclusion applied. 21 We rejected Dutton-Lainson’s argument. First, we found that “[s]ince the ‘sudden and accidental’ exception to the pollution exclusion clause [was] expressed in the conjunc- tive, both requirements must be met for the exception to become operative.” 22 We then reviewed how other courts had interpreted the term “sudden” as a necessary component of the phrase: Courts have disagreed as to whether “sudden” refers to something temporally abrupt from an objective 19 See, e.g., Livaditis v. American Casualty Co. of Reading, Pa., 117 Ga. App. 297, 160 S.E.2d 449 (1968); Bowers v. Farmers Ins. Exchange, 99 Wash. App. 41 , 991 P.2d 734 (2000); Graff v. Allstate Ins. Co., 113 Wash. App. 799, 54 P.3d 1266 (2002). 20 Dutton-Lainson Co., supra note 18. 21 See id. 22 Id. at 821, 716 N.W.2d at 97.  - 575 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 standpoint, something unexpected from the subjective standpoint of the insured, or whether the term is ambig­ uous. In considering the meaning of the term “sudden,” several courts have noted that recognized dictionaries dif- fer as to its meaning. 23 For example, we noted that definitions of the term “sudden” varied in recognized dictionaries between having primarily to do with a lack of notice and with a rate of occurrence. 24 In any event, however, we found that under the terms of the policy, pollution that occurred over a significant period of time was not covered as “sudden.” 25 “[A] reasonable person in the position of the insured would understand the term ‘sudden,’ as found in the context of the qualified pollution exclusion, to refer to the objectively temporally abrupt release of pollutants into the environment.” 26 Thus, we affirmed the district court’s grant of Continental Insurance’s motion for summary judg- ment. Dutton-Lainson’s loss from pollution that occurred over a period of 37 years was not sudden. 27 23 Id. 24 See id. at 821-22, 716 N.W.2d at 97-98 (comparing term “sudden” as defined in “Webster’s Third New International Dictionary of the English Language, Unabridged 2284 (1993), [as] ‘happening without previous notice or with very brief notice; coming or occurring unexpectedly; not foreseen or prepared for’”; with term “sudden” as defined in “Black’s Law Dictionary 1432 (6th ed. 1990) [as] ‘[h]appening without previous notice or with very brief notice; coming or occurring unexpectedly; unforeseen; unprepared for’”; and with term “sudden” as defined in “Random House Dictionary of the English Language 1900 (2d ed. 1987) . . . as ‘happening, coming, made, or done quickly’”). See, also, “Sudden,” Oxford English Dictionary Online, http://www.oed.com./view/Entry/193468 (last visited Oct. 10, 2020) (“[h]appening or coming without warning or premonition; taking place or appearing all at once”). 25 See Dutton-Lainson Co., supra note 18. 26 Id. at 823-24, 716 N.W.2d at 99. 27 See id. Accord, Mapes Indus. v. United States F. & G. Co., 252 Neb. 154 , 560 N.W.2d 814 (1997); Bituminous Cas. Corp. v. Aaron Ferer and Sons Co., No. 4:06CV3128, 2007 WL 2066452 (D. Neb. July 16, 2007).  - 576 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 [16] Our analysis here is similar. As in Dutton-Lainson, the Allstate insurance policy expresses the phrase “sudden and accidental” in the conjunctive. Therefore, to carry his burden of proving coverage under paragraph 18 or paragraph 19(d), Kaiser must show that his property loss resulted in direct physical loss that was both “sudden and accidental.” Because we conclude that Kaiser has failed to show that his property loss was sudden, we need not determine whether it was accidental. Kaiser’s argument that the property loss was sudden rests on his assertion that as a result of his tenants’ producing or using methamphetamine indoors, methamphetamine vapor and residue “quickly bonded to most surfaces throughout the rental house.” 28 Because this bonding occurred “quickly,” Kaiser would have us infer that the resulting property loss as a whole was sudden. But this argument wrongly frames the issue. In Dutton-Lainson, we could also have framed the property loss as the result of numerous sudden discharges of pollutants over 37 years. 29 Likely, some amount of the pollutants at issue had escaped quickly every day, each time contributing to the ultimate loss for which Dutton-Lainson sought indemnification from Continental Insurance. But we opted against framing the property loss in terms of its smallest components. 30 Instead, because Dutton-Lainson sought indemnification for one prop- erty loss—that is, the cleanup from one pollution—we framed it accordingly. And because that one property loss occurred over a period of 37 years, it was not sudden. 31 28 Brief for appellant at 29. 29 See Dutton-Lainson Co., supra note 18. 30 See id. 31 See id. - 577 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 [17] Here, too, Kaiser’s claim to Allstate is for one whole property loss, not its component parts. Kaiser leased the whole property to tenants. Allstate insured the whole property from certain perils. The tenants produced or used methamphetamine in the house and thereby rendered the house uninhabitable as a whole. Kaiser filed a claim to Allstate demanding payment for the whole loss. Thus, we frame the property loss at issue not by each release of methamphetamine vapor and residue, but by the loss that resulted from their many releases and for which Kaiser sought indemnification. We decline to embrace Kaiser’s logic of death by a thousand paper cuts. Viewed through a proper frame, then, the evidence in the record indicates that Kaiser’s property loss as a whole occurred over time, not suddenly. Kaiser himself testified that his tenants resided at the property for more than a year, from April 15, 2012, until May 1, 2013. He received reports throughout the year from persons living near the house that the house was being used for suspicious drug-related activi- ties. On at least one occasion, in April 2013, Kaiser learned that someone living there had “got[ten] in trouble for doing meth last night.” Although he did not know specifically when during that year the tenants began producing or using methamphetamine in the house, Kaiser indicated in his amended complaint that such producing or using could have occurred as soon as April 15, 2012, the day the tenants took possession of the house. Kaiser specifically stated that to the best of his knowledge, the use or production of methamphetamine was ongoing throughout the tenancy: “the Tenants who were occupying the Property had been using methamphetamine in the Property and/or operat- ing an illegal methamphetamine lab on the Property, unbe- knownst to [Kaiser].” (Emphases supplied.) The phrases “had been using” and “[had been] operating” imply that the tenants’ use of methamphetamine or operation of a methamphetamine  - 578 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 laboratory in the house occurred in the past but on a contin­ uous, ongoing basis. 32 It was Kaiser’s burden to prove that his property loss occurred “suddenly and accidentally.” But Kaiser did not put forth any evidence that his property loss occurred in this way. To the contrary, the evidence that Kaiser himself offered indi- cates that the loss actually occurred as the result of his tenants’ smoking or producing methamphetamine in the house on an ongoing basis over a significant period of time, perhaps up to a year. [18] But “an event occurring over a period of time is not sudden.” 33 Thus, just as we held in Dutton-Lainson that pol- lution occurring over 37 years was not sudden, 34 we now also hold that a property loss from methamphetamine vapor and res- idue occurring by indoor methamphetamine use or production over a period of months or more is not sudden. A reasonable person in Kaiser’s position would not understand “sudden” to refer to a property loss occurring over a period of months. Kaiser has failed to carry his burden of proving otherwise. Because Kaiser has failed to carry his burden of proving that his property loss was sudden and accidental, he has also failed to carry his burden of proving that his property loss was covered as predominantly caused in accordance with para- graphs 18 and 19(d). The district court did not err in finding Kaiser’s property loss was excluded from coverage under para- graphs 12 and 13(e) and (f) of the Allstate insurance policy and 32 See The Chicago Manual of Style ¶ 5.120 (15th ed. 2003); “Past perfect continuous,” Cambridge Dictionary Online, http://www.dictionary.cam­ bridge.org/us/grammar/british-grammar/past-perfect-continuous (last vis­ ited Oct. 10, 2020) (as defined in grammar section: “[W]e use the past perfect continuous to talk about actions or events which started before a particular time in the past and were still in progress up to that time in the past”). 33 Dutton-Lainson Co., supra note 18, 271 Neb. at 823 , 716 N.W.2d at 99. 34 Id. - 579 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 not covered under paragraph 18 or paragraph 19(d). Kaiser’s second assignment of error is without merit. 2. Summary Judgment Kaiser next assigns that the district court erred in grant- ing Allstate’s motion for summary judgment because a gen­ uine issue of material fact remained as to whether Kaiser’s property loss was caused by the tenants’ producing or using methamphetamine. In its order, the district court concluded that the evidence from Allstate’s expert indicated that the tenants’ metham- phetamine production, not use, caused Kaiser’s property loss. Kaiser disputes this factual finding. He contends that although in his initial complaint he claimed his property loss was the result of methamphetamine production, he did not have a basis for that conclusion and now believes it could have been meth- amphetamine use instead. Kaiser accordingly assigns that sum- mary judgment was not proper. We disagree. [19,20] Summary judgment is proper when the pleadings and the evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ulti- mate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. 35 An appellate court will affirm a lower court’s grant of sum- mary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. 36 Here, it is immaterial whether Kaiser’s tenants damaged the house by producing or using methamphetamine indoors. As both parties and both parties’ experts testified, the cause of loss was “methamphetamine vapor” and “methamphetamine 35 Arnold v. Walz, 306 Neb. 179 , 944 N.W.2d 747 (2020). 36 Id. - 580 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports KAISER v. ALLSTATE INDEMNITY CO. Cite as 307 Neb. 562 residue.” Based on that evidence, the district court correctly concluded that the property loss was excluded from coverage under paragraphs 12 and 13(e) and (f) of the Allstate insurance policy and was not covered under paragraphs 18 and 19(d). Even if, as Kaiser urges, we were to find that a genuine factual dispute remained, the dispositive fact remains that metham- phetamine vapor and methamphetamine residue are excluded causes of loss under the Allstate insurance policy. Therefore, whether the methamphetamine vapor and methamphetamine residue were released inside the house through production or through use is immaterial to this court’s ultimate conclusions of law. We concur with the district court’s grant of summary judg- ment. Kaiser’s third assignment of error is without merit. VI. CONCLUSION The district court’s order granting Allstate’s motion for sum- mary judgment is affirmed. Affirmed.

2020-12-04 06:08:17.881496+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007443PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 549 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. MALONE v. BALDONADO-BELLAMY Cite as 307 Neb. 549 State of Nebraska ex rel. Kevin W. Malone, appellant, v. Megan Baldonado-Bellamy, in her official capacity as official court reporter, District Court for Douglas County, Nebraska, and John Friend, in his official capacity as clerk of the District Court for Douglas County, Nebraska, appellees. ___ N.W.2d ___ Filed October 23, 2020. No. S-19-856. 1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court’s decision. 2. Jurisdiction: Appeal and Error. Before reaching the legal issues pre- sented for review, it is an appellate court’s duty to determine whether it has jurisdiction to decide them. 3. Mandamus. A person choosing to seek speedy relief by a writ of man- damus pursuant to Neb. Rev. Stat. § 84-712.03(1)(a) (Cum. Supp. 2018) must follow the procedural requirements set forth in Neb. Rev. Stat. §§ 25-2156 through 25-2169 (Reissue 2016). 4. ____. An action to procure the issuance of a writ of mandamus is not begun until a motion and affidavit, or a petition verified positively, is filed in the district court. 5. Mandamus: Jurisdiction. The filing of a motion and affidavit or a veri- fied petition is a jurisdictional requirement before a district court may issue a writ of mandamus, and until such filing is made, the court does not have jurisdiction over an action for writ of mandamus. 6. Jurisdiction: Appeal and Error. When a trial court lacks jurisdiction to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or ques- tion presented to the lower court.  - 550 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. MALONE v. BALDONADO-BELLAMY Cite as 307 Neb. 549 Appeal from the District Court for Douglas County: Timothy P. Burns, Judge. Appeal dismissed. Bradley H. Supernaw and Richard L. Boucher, of Boucher Law Firm, for appellant. Douglas J. Peterson, Attorney General, and Danielle Rowley for appellee Megan Baldonado-Bellamy. Donald W. Kleine, Douglas County Attorney, Joshua R. Woolf, Tess M. Moyer, and Timothy Coffey, Senior Certified Law Student, for appellee John Friend. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ. Miller-Lerman, J. NATURE OF CASE Kevin W. Malone appeals the order of the district court for Douglas County which declined to issue a writ of mandamus which he sought pursuant to Neb. Rev. Stat. §§ 84-712 et seq. (Reissue 2014 & Cum. Supp. 2018) (public records statutes) in order to obtain an audio recording of his criminal trial. The district court determined that the public records statutes were inapplicable to Malone’s request for the audio recording and that access to the record of court proceedings was governed by court rules rather than the public records statutes. Malone claims that the court erred when it determined that the pub- lic records statutes did not entitle him to a copy of the audio recording of his trial. The court reporter and the clerk of the district court from whom Malone sought to obtain the audio recording argue on appeal that in addition to the basis upon which the district court denied mandamus, denial was proper for other reasons, including the contention that the district court lacked juris- diction because Malone failed to file a verified petition or a motion and affidavit in support of his request for a writ of mandamus. We agree that the district court lacked jurisdiction  - 551 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. MALONE v. BALDONADO-BELLAMY Cite as 307 Neb. 549 of this action for writ of mandamus, and as a result, we lack jurisdiction of this appeal. We therefore dismiss this appeal for lack of jurisdiction. STATEMENT OF FACTS Following a jury trial in 2017, Malone was convicted of motor vehicle homicide, manslaughter, leaving the scene of a personal injury accident resulting in serious bodily injury or death, and driving without an ignition interlock device. On appeal, the Nebraska Court of Appeals rejected Malone’s claims of insufficient evidence and excessive sentences and affirmed his convictions and sentences. State v. Malone, 26 Neb. Ct. App. 121 , 917 N.W.2d 164 (2018). During the direct appeal of his convictions, Malone reviewed the bill of exceptions from his trial. Following his review, Malone believed that the trial record was incomplete. Malone had testified in his defense at the trial, and he believed that an exchange between himself and the prosecutor on cross- examination had been omitted. Malone thereafter made efforts to confirm his suspicion that the exchange had been omitted and to correct the record. In April 2018, Malone sent a letter to Megan Baldonado- Bellamy, the court reporter who had been assigned to his trial. In the letter, Malone stated his belief that the exchange was missing. He asked Baldonado-Bellamy to check the audio recording of the trial and to provide documentation that the exchange had been made part of the record. Baldonado-Bellamy replied to Malone’s letter with a letter in which she stated that she had listened to the audio recording and that the transcript that had been provided was accurate. In June 2018, Malone sent a second letter to Baldonado- Bellamy and he sent a request to the district court; in both documents, Malone requested that Baldonado-Bellamy pro- vide him copies of the audio recording made of his trial. The judge in Malone’s criminal trial replied with a letter in which she stated that she had “reviewed the record” and that Malone’s “claim that there is testimony missing from the  - 552 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. MALONE v. BALDONADO-BELLAMY Cite as 307 Neb. 549 official record/Bill of Exceptions is unfounded.” The judge concluded that Malone had been “provided with the bill of exceptions as requested.” In July 2018, Malone filed a document in his criminal case in which he requested that the clerk of the district court pro- vide an audio recording of his trial. Malone also sent a letter to John Friend, the clerk of the district court for Douglas County, in which he described the letter as a “follow up” to the court filing and requested, inter alia, copies of the audio recording of his trial. Also in July 2018, Malone sought assistance from the Nebraska Attorney General’s office in obtaining the audio recording of his trial. An assistant attorney general responded to Malone’s request with a letter stating the Attorney General’s office had considered Malone’s request in accordance with the public records statutes and had concluded that the request for an audio recording of his trial was not covered by the public records statutes and that therefore, his request required no further action. Malone sent a letter to the assistant attorney general expressing his disagreement with her conclusions; the assistant attorney general responded with a letter confirm- ing her earlier conclusions but informing Malone he had “the option under Neb. Rev. Stat. § 84-712.03 to pursue this matter in a court of law.” On January 17, 2019, Malone filed a “Complaint for Writ of Mandamus” in the district court. He asserted that the action was authorized pursuant to § 84-712.03(1)(a), which provides that “[a]ny person denied any rights granted by sec- tions 84-712 to 84-712.03 may elect to . . . [f]ile for speedy relief by a writ of mandamus in the district court within whose jurisdiction the state, county, or political subdivision officer who has custody of the public record can be served[.]” Malone named Baldonado-Bellamy and Friend as respond­ ents. Malone alleged that he was “entitled to a p[er]emptory writ of mandamus” requiring Baldonado-Bellamy and Friend to provide copies or allow inspection of certain records he had requested in accordance with the public records statutes.  - 553 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. MALONE v. BALDONADO-BELLAMY Cite as 307 Neb. 549 Malone attached copies of his April 2018 letter to Baldonado- Bellamy and his July 2018 letter to Friend to support his assertion that both had “a clear duty to provide the requested documents pursuant to the Nebraska Public Records Act.” Malone also attached a copy of the July 2018 letter from the Attorney General’s office, as well as affidavits of four persons who each stated that he or she had been present at Malone’s trial and had recalled the exchange between Malone and the prosecutor that Malone asserted was omitted from the bill of exceptions. Malone’s “Complaint for Writ of Mandamus” did not include a notarized verification. On July 15, 2019, Baldonado-Bellamy filed a suggestion of mootness and motion to dismiss. She alleged in the motion and stated in an affidavit that she had resigned her employment as an official court reporter for the district court in December 2017 and that at that time, she retained possession of all shorthand notes and tape recordings she had used to make the records for cases in which she had served as the official court reporter. Baldonado-Bellamy stated that prior to July 9, 2019, she was unaware of a court rule that provided that upon termination of her employment, she was required to transfer materials used to make records to the clerk of the district court. Baldonado- Bellamy stated that after learning of the rule, she delivered to the clerk of the district court all shorthand notes and tape recordings she had used to make the records for all cases in which she had served as official court reporter. She asserted that because she had relinquished control of all shorthand notes and tape recordings related to Malone’s criminal trial, Malone’s “Complaint for Writ of Mandamus” was moot as to her because she was no longer the custodian of the records sought. Malone objected to Baldonado-Bellamy’s suggestion of mootness and motion to dismiss, and after a hearing, the court overruled the motion without prejudice. Baldonado-Bellamy filed an amended answer in which she generally denied that she had a duty under the public records statutes to provide the audio recordings to Malone. She  - 554 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. MALONE v. BALDONADO-BELLAMY Cite as 307 Neb. 549 asserted additional defenses, including, inter alia, an assertion that Malone’s “Complaint is not made upon affidavit or veri- fied petition as required by Neb. Rev. Stat. § 25-2160.” Friend also filed an answer in which he generally denied that he had a duty under the public records statutes and in which he asserted various defenses. Trial was held and included testimony by Malone, Baldonado-Bellamy, and Friend. Following the trial, the district court entered an order in which it denied and dismissed Malone’s action for writ of mandamus. The court stated that although § 84-712(1) pro- vides that a person may seek a public record, the statute clearly provides that a person may do so “[e]xcept as otherwise expressly provided by statute . . . .” The court then cited Neb. Rev. Stat. § 24-1003 (Reissue 2016), which states in part that “[t]he [Nebraska] Supreme Court shall provide by rule for the recording and preservation of evidence in all cases in the dis- trict . . . courts and for the preparation of transcripts and bills of exceptions.” The court also cited Neb. Rev. Stat. § 25-1140 (Reissue 2016), which provides in part that the “procedure for preparation, settlement, signature, allowance, certification, fil- ing, and amendment of the bill of exceptions shall be regulated and governed by rules of practice prescribed by the Supreme Court.” The court noted that pursuant to such statutory author- ity, this court had adopted a detailed set of rules dealing with court reporting personnel and the recording, preparation, and preservation of court records made in district courts. The court stated that such rules included a uniform set of procedures for the judge, counsel, parties, and nonparties to request the court reporter to prepare a transcript of any proceeding or, for purposes of an appeal, a bill of exceptions. The court noted in particular that Neb. Ct. R. App. P. § 2-105(B)(5) (rev. 2018) provided a procedure for counsel or parties to follow if they believed the bill of exceptions was incorrect or needed to be amended. The district court concluded that the public records statutes were inapplicable to Malone’s request for the audio recording  - 555 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. MALONE v. BALDONADO-BELLAMY Cite as 307 Neb. 549 of his trial, because the rules promulgated by this court pursu- ant to statutory authority have “expressly provided” the proce- dure by which one can obtain a record, transcript, or a bill of exceptions from a trial from the court reporter in the district court, as well as the procedure to amend a bill of exceptions a party believes to be incorrect. The court further reasoned that if a person could request an audio recording of a trial pursuant to the public records statutes, it would circumvent the detailed rules adopted by this court. The court concluded that because the public records statutes were inapplicable to Malone’s request for an audio recording of his trial, Malone’s petition for a writ of mandamus should be denied and dismissed and that it need not consider other issues raised by the parties. Malone appeals the district court’s order which denied his petition for a writ of mandamus. ASSIGNMENTS OF ERROR Malone claims that the district court erred when it found that the court reporter’s notes and audio recordings from his trial were not public records under § 84-712.01(1) and when it found that the court rules providing for the production and amendment of bills of exceptions “expressly provide” that audio recordings and court reporter’s notes are to be excepted from the public records statutes. Baldonado-Bellamy argues in her brief, inter alia, that the district court lacked jurisdiction to consider Malone’s request for writ of mandamus, because he failed to file either a verified petition or a motion and affidavit to support issuance of a writ of mandamus. STANDARD OF REVIEW [1] A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion inde- pendent of the lower court’s decision. In re App. No. C-4973 of Skrdlant, 305 Neb. 635 , 942 N.W.2d 196 (2020).  - 556 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. MALONE v. BALDONADO-BELLAMY Cite as 307 Neb. 549 ANALYSIS [2] Before reaching the legal issues presented for review, it is our duty to determine whether we have jurisdiction to decide them. Id. In this case, Baldonado-Bellamy asserts that we lack jurisdiction over this appeal, because the district court lacked jurisdiction over Malone’s action for writ of mandamus for the reason that Malone failed to file either a motion and affidavit or a verified petition as required by governing mandamus law. We agree. Baldonado-Bellamy cites Neb. Rev. Stat. § 25-2160 (Reissue 2016), which provides in part that “[t]he motion for the writ [of mandamus] must be made upon affidavit.” She also cites State ex rel. Van Cleave v. City of No. Platte, 213 Neb. 426 , 430, 329 N.W.2d 358 , 361 (1983), in which we held that when “neither a motion and affidavit nor a petition positively verified has been filed, the trial court was without authority to issue the peremp- tory writ of mandamus.” Baldonado-Bellamy argues that to the extent Malone’s “Complaint for Writ of Mandamus” may be considered a petition, it was not positively verified, and that to the extent it may be considered a motion, it was not accompa- nied by a supporting affidavit sworn to by Malone. She notes that Malone’s pleading attached affidavits of fact witnesses but that Malone did not swear to or file an affidavit setting forth facts to establish his right to the writ of mandamus. Malone does not dispute that he did not file either a verified petition or a motion and affidavit as required by § 25-2160. Instead, he argues that he filed for mandamus under the public records statutes, which do not contain the same requirement. He further argues that any jurisdictional defect was cured because the court held a hearing at which he provided sworn testimony to support his request. [3] Malone filed his petition pursuant to § 84-712.03(1)(a), which provides that “[a]ny person denied any rights granted by sections 84-712 to 84-712.03 may elect to . . . [f]ile for speedy relief by a writ of mandamus in the district court within whose jurisdiction the state, county, or political subdivision  - 557 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. MALONE v. BALDONADO-BELLAMY Cite as 307 Neb. 549 officer who has custody of the public record can be served[.]” We have said, “In the context of a public records denial, a district court’s jurisdiction over a writ of mandamus is gov- erned by § 84-712.03, and such jurisdiction does not turn on whether the claim advanced by the relator has merit.” State ex rel. BH Media Group v. Frakes, 305 Neb. 780 , 789, 943 N.W.2d 231 , 241 (2020). Although jurisdiction does not turn on the merits of the claim advanced, § 84-712.03(1)(a) pro- vides that a person denied rights under the public records statutes may seek relief by a writ of mandamus in a district court. The procedure for a writ of mandamus in district courts is governed by Neb. Rev. Stat. §§ 25-2156 through 25-2169 (Reissue 2016), and we read the reference to “writ of manda- mus in the district court” in § 84-712.03(1)(a) as incorporating such statutes to govern the procedure for obtaining the relief authorized by § 84-712.03(1)(a). Therefore, a person choos- ing to seek speedy relief by a writ of mandamus pursuant to § 84-712.03(1)(a) must follow the procedural requirements set forth in §§ 25-2156 through 25-2169. In State ex rel. Krieger v. Board of Supervisors, 171 Neb. 117 , 120-21, 105 N.W.2d 721 , 724-25 (1960), we summarized the statutory procedure in a mandamus action as follows: The regular procedure in mandamus, after a petition therefor has been filed, is to make an application for a writ by motion supported by affidavit, whereupon the court may grant the writ without notice, may require notice to be given, or may grant an order to show cause why the writ should not be allowed. See § 25-2160 . . . . When the right to the writ is clear, and it is apparent that no valid excuse can be given for failure to perform the duty, a peremptory writ should be issued. In all other cases, when a writ is issued, it should be in the alterna- tive and contain an order to show cause. See §§ 25-2158 and 25-2159 . . . . The alternative writ and the answer thereto constitute the pleadings in any case wherein an alternative writ has been issued and no other pleadings  - 558 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. MALONE v. BALDONADO-BELLAMY Cite as 307 Neb. 549 are permitted. See §§ 25-2162 and 25-2164 . . . . If no answer is filed to an alternative writ then a peremptory writ must be allowed. § 25-2163 . . . . Generally, when a hearing on an application is ordered and notice thereof given or an order to show cause has been issued and served and a return in either situation presents an issue or issues of fact, the court should not try such issue or issues at that stage of the proceedings but, in such case, issue a writ. However, such writ should be an alternative writ and issues should be made up thereon by the filing of an answer thereto and then tried on the issue or issues raised thereby. . . . However, under our holdings, if no writ has been issued the case may be heard on the petition and response thereto when a hearing or order to show cause has been ordered under section 25-2160 . . . and notice thereof given. [4] Our case law has long recognized that the “motion . . . upon affidavit” requirement of § 25-2160 may be fulfilled by a verified petition, and we have also long stressed the impor- tance of the motion and affidavit or verified petition, stating, “‘An action to procure the issuance of a writ of mandamus is not begun until a motion and affidavit, or a petition verified positively, is filed in the district court . . . .’” Little v. Board of County Commissioners, 179 Neb. 655 , 660, 140 N.W.2d 1 , 5 (1966) (quoting State v. Harrington, 78 Neb. 395 , 110 N.W. 1016 (1907)). See, also, State ex rel. Van Cleave v. City of No. Platte, 213 Neb. 426 , 429, 329 N.W.2d 358 , 360 (1983) (not- ing in part that verification “upon which a writ of mandamus is sought must be positively verified, and a verification based upon mere belief is inadequate”). [5] We have characterized the foregoing requirements as jurisdictional. In State v. Harrington, this court stated that “a court has no power or jurisdiction to issue a peremptory writ without, first, the filing of the application in the court,” 78 Neb. at 400 , 110 N.W. at 1017-18, and that “a notice that at some future time the relator would apply [for a writ of  - 559 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. MALONE v. BALDONADO-BELLAMY Cite as 307 Neb. 549 mandamus] has no substantial basis and . . . such a notice served at such a time was insufficient to confer jurisdiction upon the district court,” 78 Neb. at 399 , 110 N.W. at 1017. Based on this precedent, the filing of a motion and affidavit or a verified petition is a jurisdictional requirement before a dis- trict court may issue a writ of mandamus, and until such filing is made, the court does not have jurisdiction over an action for writ of mandamus. Malone does not dispute that he did not file a verified peti- tion or a motion and affidavit. Instead, he argues that the statu- tory requirement for a motion and affidavit was met when the court ordered a trial and took sworn testimony. He notes that this court stated that the purpose of the holding in State ex rel. Van Cleave v. City of No. Platte was so that “the trial court is assured that there is someone who represents to the court that the facts presented are true and who may be subject to perjury if it later proves otherwise.” 213 Neb. at 430 , 329 N.W.2d at 361. Malone argues that in this case, the district court heard sworn testimony by three witnesses, including Malone, and the court therefore based its decision on sworn statements. We have not held that sworn testimony is an acceptable substitute for the “motion . . . upon affidavit” under § 25-2160, and the only alternative that our case law has recognized is a petition verified positively. See, State ex rel. Van Cleave v. City of No. Platte, supra; Little v. Board of County Commissioners, supra . We note that the section of State ex rel. Krieger v. Board of Supervisors, 171 Neb. 117 , 121, 105 N.W.2d 721 , 725 (1960), quoted above with regard to the regular procedure in mandamus indicates that there is case law to the effect that under appropriate circumstances, “if no writ has been issued the case may be heard on the petition and response thereto.” However, we do not read State ex rel. Krieger to excuse fail- ure to meet the “motion . . . upon affidavit” requirement of § 25-2160; it instead addresses a court’s failure to issue an alternative writ as required under § 25-2159.  - 560 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. MALONE v. BALDONADO-BELLAMY Cite as 307 Neb. 549 Malone’s argument might appear to have some support from other jurisdictions. In Austin v. City of San Antonio, 630 S.W.2d 391 , 393 (Tex. App. 1982), the court stated: While a petition for writ of mandamus should be verified, that requirement has been relaxed where, as here, there has been a full evidentiary hearing. . . . And that defect may be waived, as it was in this case when the agency failed to raise the issue before the trial court. . . . We find, therefore, that any defects in the respective parties’ plead- ings were waived, and that the issues raised by the parties were tried by consent. We note that unlike the agency in Austin v. City of San Antonio, supra , Baldonado-Bellamy in this case raised Malone’s failure to comply with § 25-2160. Therefore, there was no waiver or consent in this case. Furthermore, as noted above, our prec- edent treats § 25-2160 as imposing a jurisdictional require- ment, and parties cannot waive a jurisdictional requirement. See DeLima v. Tsevi, 301 Neb. 933 , 921 N.W.2d 89 (2018) (parties cannot confer subject matter jurisdiction upon judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of parties). We reject Malone’s argument that the sworn testimony at trial satisfied the jurisdictional requirement of § 25-2160. We conclude that because Malone did not file a motion and affi- davit or a properly verified petition, the mandamus action was not begun and the district court did not have jurisdiction to order such trial. [6] In this case, the district court dismissed Malone’s action for writ of mandamus based on the merits. However, the court should not have reached the merits, because the action had not been begun in the manner required by law, and the court therefore should have dismissed for lack of jurisdiction. Because the district court lacked jurisdiction over the manda- mus action, we lack jurisdiction of this appeal. When a trial court lacks jurisdiction to adjudicate the merits of a claim,  - 561 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. MALONE v. BALDONADO-BELLAMY Cite as 307 Neb. 549 issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question pre- sented to the lower court. State v. McGuire, 301 Neb. 895 , 921 N.W.2d 77 (2018). Therefore, we must dismiss this appeal for lack of jurisdiction. CONCLUSION We conclude that because Malone did not file a motion and affidavit or a verified petition, the district court lacked jurisdic- tion of this proceeding for mandamus. Consequently, we lack jurisdiction of this appeal, and we therefore dismiss this appeal for lack of jurisdiction. Appeal dismissed. Freudenberg, J., not participating.

2013-10-30 07:36:22.33512+00

829 So.2d 1261 (2002) FRED'S STORES OF TENNESSEE, INC., Appellant, v. Erica Louise BROWN, A Minor, By and Through her Parents, William Thomas BROWN and Tammy Marie Brown, Appellee. No. 2001-CA-01127-COA. Court of Appeals of Mississippi. November 5, 2002. *1262 James H. Colmer, Pascagoula, attorney for appellant. Ben F. Galloway, Gulfport, attorney for Appellee. Before McMILLIN, C.J., MYERS and CHANDLER, JJ. McMILLIN, C.J., for the court. ¶ 1. Ten-year-old Erica Louise Brown was injured while riding a bicycle purchased from and assembled by Fred's Stores of Tennessee, Inc. Her claim was that Fred's had negligently assembled the bicycle. A county judge after a bench trial awarded $35,000 in damages. That was affirmed after Fred's appealed to circuit court. Fred's before this Court asserts that the judgment of $35,000 was not supported by the evidence. We disagree and affirm. I. Facts ¶ 2. On February 28, 1997, Erica Brown's parents purchased a Huffy bicycle from a store owned and operated by Fred's Stores of Tennessee, Inc. The bicycle had been assembled at Fred's. After what was said to be only a few uses of the bicycle, Erica was injured as result of the handlebars becoming loose and causing her to lose control. Erica suffered a broken leg. ¶ 3. During trial, Erica testified that in the three years since the event of her accident, she still experienced pain and discomfort. Her father testified that she has a tendency to limp and to drag her foot if she over-exerted herself. No physicians testified in person or by deposition, but there were medical records. One of Erica's doctors, Dr. Dudley Burwell, Jr., in his written report of March 1998 cautioned Erica's parents that the results of the injury created "a slight possibility of over-growth of the lateral side of the ankle," which, if it occurred to a significant degree, might require surgery. The same doctor reported five months later that Erica had no complaints during that examination, and no evidence of overgrowth had appeared. At the time of the August 2000 trial, Erica had not seen a doctor regarding her injuries since August 1998. Actual medical expenses totaled $1,121. II. Discussion ¶ 4. Fred's does not seek to reverse the finding of liability. Its complaint on appeal is that there was significant and compelling evidence that Erica had completely healed. What evidence of continuing problems *1263 there might have been were, in Fred's view, rather minor problems asserted by Erica and her father, and speculations from what the two non-testifying doctors might have meant with some of their medical terminology. In sum, Fred's argues that there is nothing to support a $35,000 award. ¶ 5. The argument made is divided into two parts. Firstly, Fred's states that professional testimony was needed and the case could not just be made from the records. Secondly and more generally, Fred's alleges that the $35,000 award was against the great weight of the evidence. The allegations flow into each other, and thus we consider them together. ¶ 6. Fred's actual terminology as to the records issue is that Erica failed to provide the "best evidence" of her injuries at trial. What were presented were medical records, but the doctors themselves were not called to explain any of the information. Insofar as the label of the "Best Evidence Rule" is concerned, that applies to written documents and provides that original documents should be offered at trial, absent some applicable exception. M.R.E. 1002. Our present issue does not concern whether the originals or copies of these records were offered. Still, Fred's point is clear: it is not valid to present unexplained medical records and allow the confusing medical terms to mislead the fact-finder. ¶ 7. The medical records were introduced without objection at the beginning of trial. If Fred's believed that the expert testimony in the documents might require expert explanation, the time to make the objection was then. Therefore we find that the records could be used by the trial judge, subject to a reasonable layperson's limits on what may be gleaned from such records. ¶ 8. Fred's concerns about the records focus on Dr. Burwell's references to potential but unlikely future surgery. This last entry by him, two years before trial, was that no indications had yet arisen that there would be a need for the surgery; there was "no evidence of overgrowth" at that time. ¶ 9. We find that though the physician's appearance at trial might have led to some elaboration on this point, the effect of his absence was to leave the evidence of the need for surgery because of overgrowth quite weak. If that was the only possible justification for the $35,000 award, then there would be a significant question about evidentiary support. What the unexplained records do sufficiently support is that the medical bills were because of the injury, that her injury was a broken leg, and certain other potential problems might but not likely would occur in the future. ¶ 10. Examining the evidence in the record, we determine whether the monetary damages awarded were proved to a reasonable certainty and not based merely on speculation or conjecture. Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1164 (Miss.1992). There is at times some necessary measure of speculation when a fact-finder sets an amount of damages to award. TXG Intrastate Pipeline Co. v. Grossnickle, 716 So.2d 991 (¶ 86) (Miss.1997). In such cases, it is the plaintiff's duty to lay enough of a foundation in evidence to assist the trier of fact to make a fair and reasonable decision. Id. When a trial judge sits without a jury, an appellate court must review the record and accept all evidence that would reasonably support the judgment, together with any reasonable inferences that could be drawn from them. Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994). ¶ 11. There were no findings of fact entered by the trial judge. What the judge had to consider was testimony from Erica and her father, and the exhibits that included the medical reports. Erica broke *1264 her leg during the fall, and suffered the normal pain from such an incident. A year of doctors' visits and associated pain followed during the healing process. There was testimony that Erica continued to suffer pain and that she limped and dragged that foot after some exertion. The fact that she was ten years old at the time of the injury meant that any long-term effects, even if minor, would likely be long-term indeed. The age of the injured party is one of the considerations in awarding damages. Woods v. Nichols, 416 So.2d 659, 671 (Miss.1982). From Fred's perspective, of course, there was very little reliable evidence that any effects would be long-term. ¶ 12. This review of the evidence reveals that there was not much on which the trial judge could support an award for significant future effects of the injury. However, there was some evidence primarily from Erica and her father about her continuing pain and other effects. The last medical information stated that the particular future problem that slightly concerned the doctor had not appeared as yet, but there was no indication that he was now confident that the risk had passed. It is on this that the court had to base its award. ¶ 13. As to damage awards made by a jury, we affirm unless its amount "shocks the conscience" after examining the evidence in support of it. Wal-Mart Stores, Inc. v. Frierson, 818 So.2d 1135 (¶ 22) (Miss.2002). A trial judge's rulings on evidence receive similar deference on appeal, and we will uphold the judgment when substantial evidence supports those findings, and we do not find them clearly erroneous. Crowe v. Smith, 603 So.2d 301, 305 (Miss.1992). Though we find that the range of acceptable damage awards based on this evidence extended much lower than $35,000 and perhaps did not extend much higher, there is sufficient evidence to affirm. ¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.

2020-03-06 17:00:47.455625+00

http://www.ca10.uscourts.gov/opinions/19/19-3057.pdf

FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS March 6, 2020 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 19-3057 JOSE VINCENTE LIRA-RAMIREZ, a/k/a Vicente Lira-Ramirez, Defendant - Appellant. _________________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS ( D.C. No. 6:18-CR-10102-JWB-1 ) ______________________________ Melody Brannon, Federal Public Defender, Topeka, Kansas, for Defendant- Appellant. Jared S. Maag, Assistant United States Attorney, Topeka, Kansas (Stephen R. McAllister, United States Attorney, and James A. Brown, Assistant United States Attorney, Chief, Appellate Division, with him on the briefs), for Plaintiff-Appellee. _________________________________ Before HOLMES, MATHESON, and BACHARACH, Circuit Judges. _________________________________ BACHARACH, Circuit Judge. _________________________________  This appeal is brought by Mr. Jose Vincente Lira-Ramirez, who was indicted on a charge of illegally reentering the United States. See 8 U.S.C. § 1326 (a). An element of illegal reentry is the existence of a prior removal order. United States v. Adame-Orozco, 607 F.3d 647 , 650–51 (10th Cir. 2010). 1 Though Mr. Lira-Ramirez had been removed in earlier proceedings, he moved to dismiss the indictment, arguing that the immigration judge lacked jurisdiction over the earlier proceedings because the notice to appear was defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018). The district court denied the motion to dismiss the indictment, and Mr. Lira-Ramirez appeals. We affirm, concluding that our precedents foreclose Mr. Lira- Ramirez’s jurisdictional challenge. Though Mr. Lira-Ramirez raises a new argument, it does not cast doubt on our precedents. We thus affirm the denial of Mr. Lira-Ramirez’s motion to dismiss the indictment. 1. Mr. Lira-Ramirez challenged the immigration judge’s jurisdiction over the prior removal proceedings. 1 According to Mr. Lira-Ramirez, the government must prove not only the existence but also the validity of a prior removal order. See United States v. Vasquez-Gonzalez, 901 F.3d 1060 , 1064 (9th Cir. 2018) (“A valid removal order is a predicate element of a conviction for illegal reentry under § 1326.”); United States v. Rea-Beltran, 457 F.3d 695 , 702 (7th Cir. 2006) (stating that an element of illegal reentry under § 1326(a) is the existence of “a valid deportation order”). We need not decide whether the validity of the prior removal order is an element of the offense. 2  Mr. Lira-Ramirez’s removal proceedings began with service of a document entitled “Notice to Appear.” Under federal law, a notice to appear must state the date and time of the removal hearing. 8 U.S.C. § 1229 (a)(1)(G)(i). But this information was missing from the document sent to Mr. Lira-Ramirez. Despite the omission, Mr. Lira-Ramirez appeared at the removal hearing and was deported. Mr. Lira-Ramirez was later charged with illegally reentering the United States. He challenged the validity of his prior removal order, arguing that the immigration judge had lacked jurisdiction because of the omission of the date and time in the notice to appear. The district court acknowledged that the notice to appear had been defective, but did not conclude that immigration judge had lacked jurisdiction. The district court instead rejected Mr. Lira-Ramirez’s argument on procedural grounds. 2 2 Under federal law, a noncitizen can challenge a prior removal order only when three conditions have been met: 1. Administrative remedies have been exhausted. 2. Judicial review has been denied. 3. Entry of the removal order had been fundamentally unfair. 8 U.S.C. § 1326 (d). The district court ruled that Mr. Lira-Ramirez had failed to satisfy these requirements. Mr. Lira-Ramirez argues that he need not satisfy these requirements because he is collaterally challenging the immigration judge’s jurisdiction. Our circuit has rejected this argument in unpublished opinions. United 3 2. Our review is de novo. Because this appeal presents a question of law, we engage in de novo review. United States v. Pauler, 857 F.3d 1073 , 1075 (10th Cir. 2017). 3. Mr. Lira-Ramirez’s argument is foreclosed by our precedents. Mr. Lira-Ramirez argues that the immigration judge lacked jurisdiction because of an omission of the date and time in his notice to appear. But we have held in two precedential opinions that this omission does not create a jurisdictional defect. 3 The first precedential opinion was Lopez-Munoz v. Barr, 941 F.3d 1013 (10th Cir. 2019). Challenging the validity of a removal order, the petitioner in Lopez-Munoz argued that the omission of the date and time had rendered the notice to appear defective, precluding jurisdiction over the removal proceedings. 941 F.3d at 1015. We assumed that the petitioner’s notice to appear was defective and held that an omission of the date and time in the notice to appear would not affect jurisdiction. Id. at 1015–18. We reaffirmed Lopez-Munoz in Martinez-Perez v. Barr, No. 18-9573, ___ F.3d ___, 2020 WL 253553 (10th Cir. Jan. 17, 2020). Again considering States v. Zuniga-Guerrero, 772 F. App’x 736, 737 (10th Cir. 2019); United States v. Garcia-Galvan, 777 F. App’x 921, 924 (10th Cir. 2019). But we need not address this argument here. 3 We assume for the sake of argument that the notice to appear was defective. But we conclude that the alleged defect would not have been jurisdictional. See pp. 7–10, below. 4 an omission of the date and time in a notice to appear, we held that the omission did not preclude jurisdiction. 2020 WL 253553 at *3. Lopez-Munoz and Martinez-Perez foreclose Mr. Lira-Ramirez’s argument. We must generally follow our precedents absent en banc consideration. United States v. Brooks, 751 F.3d 1204 , 1209 (10th Cir. 2014). An exception exists for intervening changes in our precedents, id., but Mr. Lira-Ramirez does not identify any. We are thus bound to follow our two precedential opinions. See United States v. Fagatele, 944 F.3d 1230 , 1235–36 (10th Cir. 2019). Mr. Lira-Ramirez suggests that Lopez-Munoz is not binding because the panel did not analyze a new argument regarding a transitional provision in the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 2009 (1996). See Part 4, below. 4 We disagree. At oral argument, Mr. Lira-Ramirez contended that in Yousuf v. Cohlmia, 741 F.3d 31 (10th Cir. 2014), doubts about a precedent led a panel of our court to buck precedent. But reliance on Yousuf is misplaced. The panel in Yousuf did overrule a point of law established by a previous panel, but did so with approval from the en banc court. 741 F.3d at 47 n.6. 4 In his reply brief, Mr. Lira-Ramirez also argued that we should reconsider Lopez-Munoz because the deadline for a petition for rehearing in that case had not yet passed. But the petitioner in Lopez-Munoz did not seek rehearing, and the deadline has now expired. 5  In his briefs, Mr. Lira-Ramirez points to out-of-circuit opinions in which panels have sidestepped precedents. These opinions do not allow us to abandon our precedents. For example, Mr. Lira-Ramirez refers to a First Circuit opinion stating that a panel can overturn another panel’s decision when “newly emergent authority, although not directly controlling, nevertheless offers a convincing reason for believing that the earlier panel, in light of the neoteric developments, would change its course.” Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct & Sewer Auth., 945 F.2d 10 , 12 (1st Cir. 1991), rev’d on other grounds, 506 U.S. 139 (1993). But our circuit has never endorsed abandonment of a precedent on these grounds. Mr. Lira-Ramirez also cites a Fifth Circuit opinion, which allowed one panel to overrule another panel that had unknowingly contradicted an earlier Supreme Court decision. Wilson v. Taylor, 658 F.2d 1021 , 1034–35 (5th Cir. 1981). But the Fifth Circuit opinion does not apply. There the Fifth Circuit overruled its precedent because it conflicted with a prior Supreme Court opinion, which also bound the Fifth Circuit. Mr. Lira- Ramirez’s new argument does not involve a Supreme Court opinion, so the Fifth Circuit opinion cannot justify deviation from our precedent. Because Mr. Lira-Ramirez identifies no intervening change in our precedents, we are bound by Lopez-Munoz and Martinez-Perez. Under 6 these opinions, the alleged defect in the notice to appear would not be jurisdictional. 4. Mr. Lira-Ramirez’s new argument does not cast doubt on our precedents holding that the alleged defect would not be jurisdictional. Mr. Lira-Ramirez’s argument treats the statutory requirements for a notice to appear as jurisdictional based on a transitional provision that had applied between the adoption and effective date of 8 U.S.C. § 1229 . We would reject this argument even if we were not bound by Lopez-Munoz and Martinez-Perez. Before the adoption of § 1229, removal proceedings could begin with two documents: (1) an order to show cause and (2) a notice of hearing. 8 U.S.C. § 1252b (1995). 5 In 1996, however, Congress replaced the two documents with a single notice to appear. 8 U.S.C. § 1229 (a); see Report of the Committee on the Judiciary, House of Representatives, H.R. Rep. 104-469(I) (1996), 1996 WL 168955 at *159 (discussing the statutory change). But the 1996 law did not immediately go into effect. So Congress provided a transitional provision to govern removal proceedings that had begun before the new law took effect. Illegal Immigration Reform and 5 The Attorney General could also start proceedings with only an Order to Show Cause if it listed the date and time of the removal hearing. 8 U.S.C. § 1252b(a)(2)(A) (1995). But using a single document was not required. 7 Immigrant Responsibility Act, § 309(c)(4), Pub. L. No. 104-208, 110 Stat. 3009 -546, 3009-626. This provision temporarily allowed the Attorney General to start removal proceedings under either the old procedure (with an order to show cause and a notice of hearing) or the new procedure (with a single notice to appear). The transitional provision stated that if the Attorney General started removal proceedings under the old procedure, “the notice of hearing provided to the alien under [§ 1252b] shall be valid as if provided under [§ 1229(a)](as amended by this subtitle) to confer jurisdiction on the immigration judge.” Id. (emphasis added). Relying on this sentence, Mr. Lira-Ramirez argues that the transitional provision shows that § 1229(a) is jurisdictional. We disagree for two reasons. First, we must decide whether § 1229 is jurisdictional, not whether the transitional provision would have been jurisdictional. We can consider § 1229 jurisdictional only if Congress clearly stated that it intended to restrict immigration judges’ jurisdiction. United States v. McGaughy, 670 F.3d 1149 , 1156 (10th Cir. 2012). Congress did not clearly make such a statement in § 1229, which says nothing about jurisdiction or an immigration judge’s power to act. Lopez-Munoz v. Barr, 941 F.3d 1013 , 1017 (10th Cir. 2019). And the language of a separate transitional provision couldn’t provide the clear statement necessary to render § 1229 jurisdictional. See United States v. Green, 886 F.3d 1300 , 1305–06 (10th 8 Cir. 2018) (explaining that classification of one provision as jurisdictional bears little relevance to whether a nearby provision is jurisdictional). But let’s assume for the sake of argument that the transitional provision could show that another provision (§ 1229) is jurisdictional. Even then, we’d conclude that the transitional provision does not clearly show that a notice to appear is jurisdictional. Mr. Lira-Ramirez relies on a sentence in the transitional provision stating that a notice of hearing shall be valid to confer jurisdiction. As Mr. Lira-Ramirez concedes, however, the transitional provision addresses the impact of a “notice of hearing” rather than a “notice to appear.” Oral Arg. at 5:04–:11; see also Appellant’s Reply Br. at 2 (stating that “[t]he statutory notice of the hearing,” rather than the notice to appear, is what “‘confers jurisdiction on the immigration[] judge’” (citation omitted)). So the sentence does not say that a notice to appear confers jurisdiction on an immigration judge. Recognizing that the transitional provision applies only to a “notice of hearing,” Mr. Lira-Ramirez argues that a notice to appear must implicitly be jurisdictional. But we cannot read between the lines to infer jurisdictional limits; the jurisdictional language must be apparent from the face of the statute itself. See United States v. Green, 886 F.3d 1300 , 1305– 06 (10th Cir. 2018) (rejecting an argument that the jurisdictional nature of a statute could be inferred). 9  Mr. Lira-Ramirez also emphasizes the use of the word “jurisdiction” in the transitional provision. But this word is often used colloquially, so its inclusion in the transitional provision does not mean that Congress meant to limit an immigration judge’s power to act. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 , 90 (1998) (holding that a statute referring to “jurisdiction” was not jurisdictional because the word “jurisdiction” bears numerous meanings). Given the frequency of this colloquial usage, Congress’s reference to “jurisdiction” in the transitional provision does not mean that a defect in the notice to appear is jurisdictional. 6 5. Conclusion Mr. Lira-Ramirez argues that a defect in the notice to appear prevented the immigration judge from obtaining jurisdiction. But our precedents foreclose this argument. Even absent these precedents, the transitional provision does not clearly show that § 1229 is jurisdictional. We thus affirm Mr. Lira-Ramirez’s conviction. 6 Only two district courts (and no circuit courts) have addressed the transitional provision. Both district courts held that the transitional provision does not restrict an immigration judge’s jurisdiction. See United States v. Torres Zuniga, 390 F. Supp. 3d 653 , 663–64 (E.D. Va. 2019) (concluding that the transitional provision’s use of the term “jurisdiction” does not show that Congress intended the statutory requirements for notices to appear to be jurisdictional); United States v. Hernandez-Mendez, 387 F. Supp. 3d 1264 , 1270 (D. Kan. 2019) (stating that the defendant “hasn’t persuaded the court that the transitional [provision’s] reference to the immigration court’s ‘jurisdiction’ suffices to confer subject matter jurisdiction on immigration courts through notices to appear”). 10

2020-12-04 06:08:25.668163+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007422PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 465 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DALTON Cite as 307 Neb. 465 State of Nebraska, appellee, v. John W. Dalton, Jr., appellant. ___ N.W.2d ___ Filed October 9, 2020. No. S-19-1192. 1. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. With regard to the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court’s decision. 2. Postconviction: Evidence. In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves con- flicts in the evidence and questions of fact. 3. Postconviction: Constitutional Law. Postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitu- tional violations that render the judgment void or voidable. 4. Postconviction: Effectiveness of Counsel: Appeal and Error. To establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984), to show that counsel’s performance was deficient; that is, counsel’s performance did not equal that of a lawyer with ordinary train- ing and skill in criminal law. Next, the defendant must show that coun- sel’s deficient performance prejudiced the defense in his or her case. 5. Postconviction: Effectiveness of Counsel: Presumptions: Appeal and Error. After a trial, conviction, and sentencing, if counsel deficiently fails to file or perfect an appeal after being so directed by the criminal defendant, prejudice will be presumed and counsel will be deemed inef- fective, thus entitling the defendant to postconviction relief.  - 466 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DALTON Cite as 307 Neb. 465 6. Effectiveness of Counsel: Appeal and Error. Failing to directly appeal when the defendant is silent after being informed of the right to appeal and the manner to communicate the desire to appeal is not ­analogous to the situation where counsel ignores an express directive by the client to file a direct appeal. 7. Postconviction: Effectiveness of Counsel: New Trial: Appeal and Error. When a postconviction motion alleges a claim of ineffective assistance based on counsel’s failure to file a direct appeal, which has as its relief a new direct appeal, alongside other claims of ineffec- tive assist­ance of counsel that request as relief a new trial, the district court must first address the claim that counsel was ineffective for fail- ing to file a direct appeal, including holding an evidentiary hearing, if required. 8. Effectiveness of Counsel: Final Orders: Appeal and Error. Upon reaching its decision on a claim of ineffective assistance based on coun- sel’s failure to file a direct appeal, the district court should enter a final order on that claim only; only after the resolution of an appeal from the order, or, alternatively, the expiration of the defendant’s time to appeal, should the district court proceed to consider the remaining claims. 9. Postconviction: Effectiveness of Counsel: Final Orders: Appeal and Error. Addressing and waiting for a final mandate on any claims of ineffective assistance of counsel for failing to file a direct appeal before addressing other postconviction claims of ineffective assistance of counsel serve the interests of judicial economy by preventing the district court’s determination of the nondirect appeal claims from being rendered meaningless. 10. Postconviction: Final Orders: Appeal and Error. When a district court disposes of other postconviction claims before there has been a final mandate on a disposition of the postconviction claim requesting a new direct appeal, the proper disposition in an appeal from the district court’s order is to vacate the district court’s disposition of the additional claims and remand the cause for further proceedings. 11. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and which were or could have been litigated on direct appeal. Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge. Affirmed in part, and in part vacated and remanded for further proceedings. Jerry M. Hug for appellant.  - 467 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DALTON Cite as 307 Neb. 465 Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. NATURE OF CASE John W. Dalton, Jr., appeals from an order denying his motion for postconviction relief following an evidentiary hear- ing on his claim that trial counsel was ineffective for failing to file a direct appeal. In the same order, the district court denied without an evidentiary hearing Dalton’s separate claim of inef- fective assistance of trial counsel, challenging the voluntariness of his pleas. For the reasons set forth below, we affirm in part, and in part vacate and remand for further proceedings. BACKGROUND On January 31, 2018, Dalton was charged with seven felo- nies relating to the deaths of three people. On December 10, Dalton accepted a plea agreement whereby in exchange for the State’s agreeing to not seek the death penalty, he pled guilty to three counts of first degree murder; three counts of using a firearm to commit a felony; and one count of possession of a ­firearm by a prohibited person, second offense. Dalton entered his pleas of guilty. He then waived his right to a presentence investigation and requested immediate sentencing. The court granted Dalton’s request and sentenced him to three life sen- tences for the three counts of first degree murder; three terms of 49 to 50 years’ imprisonment for the three counts of an illegal use of a firearm; and a term of 50 to 80 years’ impris- onment for one count of possession of a firearm by a prohib- ited person, second offense. Each sentence was ordered to be served consecutively. No direct appeal was filed. On April 8, 2019, Dalton filed a timely verified motion for postconviction relief in the district court. In his motion, Dalton alleged that counsel was ineffective for failing to file a  - 468 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DALTON Cite as 307 Neb. 465 direct appeal when Dalton requested that counsel do so follow- ing the imposition of his sentences. Dalton also made a claim of ineffective assistance of counsel based on trial counsel’s failure to investigate the case. Dalton asserts that he would not have entered into the plea agreement if his attorney would have properly investigated his case. Dalton claimed that coun- sel failed to depose the lone eyewitness and failed to secure a mental health evaluation for the purposes of establishing a defense or mitigating evidence to be used in plea negotia- tions. In addition to the ineffective assistance of counsel claim, Dalton claimed in his postconviction motion that his sentences were excessive and constituted cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. The court ordered an evidentiary hearing on the first claim, regarding the failure to file a direct appeal. The court ordered that all other postconviction claims were to remain pending until after the evidentiary hearing. Depositions from Dalton and Cindy Tate, Dalton’s trial counsel who was employed by the Douglas County public defender’s office, were admitted into evidence at the evidentiary hearing. Tate indicated in her deposition that during the 11 months between when Dalton was charged and his plea hearing, Dalton was very interested in the case and made multiple requests to pursue a plea agreement with the State. Tate testified that after the plea agreement was reached and Dalton was convicted and sentenced, she verbally advised Dalton of the opportunity to appeal. Tate testified that after the sentencing on December 10, 2018, Dalton did not request that a direct appeal be filed. She also sent him a standard form letter, which advised him of his right to appeal and how to contact her. This letter was admitted at the postconviction evidentiary hearing. Tate testified that she did not receive any written com- munication from Dalton indicating a desire to appeal. Tate also testified that Dalton did not request a direct appeal dur- ing any of the conversations she had with him. Tate testified that 2 days after the sentencing, Dalton left a voicemail at the  - 469 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DALTON Cite as 307 Neb. 465 public defender’s office. In the voicemail, Dalton complained about what the prosecutor’s office had said when talking pub- licly about his convictions, but he did not indicate a desire to appeal. Dalton testified in his deposition that he wrote a letter to Tate requesting a direct appeal. Dalton claims this letter was given to a guard to be placed in the mail at the Douglas County jail on the evening of December 12, 2018. Dalton did not proffer the alleged letter or the guard’s testimony. Dalton indicated in his deposition that Tate had made him aware that if he entered pleas of guilty, he would be giving up many of the issues that could be raised on appeal. He also admitted that when verbally discussing the plea agreement with Tate, he did not indicate to her that he wanted to appeal. Following the hearing, the district court entered an order denying Dalton’s motion as to the direct appeal claim. In the same order, the court denied without an evidentiary hear- ing “any remaining issues in the postconviction.” The court explained in this regard that “the motion fails to state suf- ficient facts regarding counsel being deficient or showing prejudice, which would require facts showing [Dalton] would have insisted on going to trial and not accept the plea offer.” Dalton appeals. ASSIGNMENTS OF ERROR Dalton assigns that the district court erred in (1) determin- ing that Dalton was not entitled to reinstatement of his direct appeal due to trial counsel’s ineffective assistance and (2) fail- ing to grant an evidentiary hearing on Dalton’s claim that his pleas were not knowingly and voluntarily made where counsel was ineffective for failing to fully investigate the case prior to advising him to enter pleas of guilty. STANDARD OF REVIEW [1] Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. When review- ing a claim of ineffective assistance of counsel, an appellate  - 470 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DALTON Cite as 307 Neb. 465 court reviews the factual findings of the lower court for clear error. With regard to the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 1 an appellate court reviews such legal determinations independently of the lower court’s decision. 2 [2] In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact. 3 ANALYSIS The district court determined that Dalton was entitled to an evidentiary hearing on his posconviction claim that counsel was ineffective for failing to file a direct appeal. 4 The court ultimately found that trial counsel was not deficient in failing to file a direct appeal that was not requested, and we hold that those findings were not clearly erroneous. However, the district court in the same order also addressed and disposed of the remaining postconviction claims on the ground that the motion alleged insufficient facts. In State v. Determan, 5 we held that there must be a final mandate on the court’s disposition of a postconviction claim of ineffective assistance for failing to file a direct appeal before the court addresses other postconviction ineffective assistance of counsel claims. In accordance with Determan, we vacate the part of the order denying Dalton’s second ineffective assistance claim and remand the cause for further proceedings. We affirm the court’s ruling as to Dalton’s claim of excessive sentences for the reason that such claim, which was stated apart from any claim of ineffective assist­ ance, is procedurally barred. 1 Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984). 2 State v. Sierra, 305 Neb. 249 , 939 N.W.2d 808 (2020). 3 State v. Beehn, 303 Neb. 172 , 927 N.W.2d 793 (2019). 4 See Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016). 5 State v. Determan, 292 Neb. 557 , 873 N.W.2d 390 (2016).  - 471 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DALTON Cite as 307 Neb. 465 [3-5] Postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional viola- tions that render the judgment void or voidable. 6 To establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accord­ ance with Strickland, 7 to show that counsel’s performance was deficient; that is, counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or her case. 8 After a trial, conviction, and sentencing, if counsel deficiently fails to file or perfect an appeal after being so directed by the crimi- nal defendant, prejudice will be presumed and counsel will be deemed ineffective, thus entitling the defendant to postconvic- tion relief. 9 The evidentiary hearing provided Dalton with the opportu- nity to present evidence that he directed Tate to file an appeal. The court found that Dalton was informed of his right to appeal and had not directed Tate to file an appeal. Upon review of the record, we cannot say that the district court clearly erred in these findings. Dalton testified in his deposition that he wrote a letter approximately 2 days after his sentencing and left it with a guard to be mailed to Tate. But Dalton was unable to provide any details or other evidence to corroborate that a letter was sent to Tate. Tate testified that no one at the public defender’s office received a letter from Dalton. Tate testified further that she was never instructed by Dalton to file an appeal, despite the fact that she clearly explained his opportunity to appeal and sent him a formal letter explain- ing that right and how to contact her. The letter was entered 6 State v. Beehn, supra note 3. 7 Strickland v. Washington, supra note 1. 8 State v. Beehn, supra note 3. 9 State v. Hessler, 295 Neb. 70 , 886 N.W.2d 280 (2016); State v. Dunkin, 283 Neb. 30 , 807 N.W.2d 744 (2012).  - 472 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DALTON Cite as 307 Neb. 465 as an exhibit at the evidentiary hearing. Dalton claims that he had limited access to communicate with Tate, but he does not contest that he sent a voicemail to Tate approximately 2 days after sentencing and did not therein request a direct appeal. Dalton did not deny he had been informed by Tate of his right to appeal. The district court indicated in its order that it found Tate to be the more credible witness. In an evidentiary hearing for postconviction relief, the postconviction trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and the weight to be given a wit- ness’ testimony. 10 We agree with the district court that Tate was not inef- fective for failing to file an appeal that was not requested. Dalton argues that it is deficient conduct for trial counsel to fail to obtain from the client an explicit directive as to the desire to pursue or not pursue a direct appeal and that under such circumstances, prejudice should be presumed and a new direct appeal ordered. According to Dalton, such a rule is appropriate in light of the often limited access of defendants to their counsel. [6] We decline to place such a burden on counsel. It is simply not under defense counsel’s power to force a client to provide an explicit response to inquiries regarding the cli- ent’s right to appeal. Furthermore, we disagree that prejudice should be presumed in the same manner that it is presumed when counsel has been directed to file an appeal. 11 Failing to directly appeal when the defendant is silent after being informed of the right to appeal and the manner to communi- cate the desire to appeal is not analogous to the situation where counsel ignores an express directive by the client to file a direct appeal. 12 10 State v. Benzel, 269 Neb. 1 , 689 N.W.2d 852 (2004). 11 See State v. Hessler, supra note 9. 12 See, id; State v. Wagner, 271 Neb. 253 , 710 N.W.2d 627 (2006).  - 473 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DALTON Cite as 307 Neb. 465 The Sixth Amendment to the U.S. Constitution provides that in all criminal proceedings, the accused shall have the right to the assistance of counsel in his or her defense. 13 The U.S. Supreme Court has also determined that a defendant has a fundamental due process right to access the courts and to communicate with his or her legal counsel. 14 But Dalton did not make a postconviction claim based on an alleged depriva- tion of his right to access the court or to communicate with counsel. As found by the district court, Dalton had several opportunities after sentencing to communicate to Tate that he wanted an appeal, including a telephone call to the public defender’s office. We agree with the district court that Tate’s failure to elicit an explicit directive from Dalton one way or the other was not ineffective assistance of counsel. We are unwilling to place an increased burden on trial counsel to go beyond informing a defendant of the right to appeal and how counsel may be con- tacted to request that an appeal be filed. The responsibility for requesting an appeal remains with the defendant. On Dalton’s claim of ineffective assistance of counsel for failure to file a direct appeal, we affirm the district court’s denial of postcon- viction relief. [7,8] However, precedent requires we vacate that part of the district court’s order disposing of Dalton’s postconvic- tion ineffective assistance claim that Tate provided ineffective assistance of counsel by failing to depose the lone eyewit- ness or secure a mental health evaluation for the purposes of establishing a defense or mitigating evidence to be used in plea negotiations. When a postconviction motion alleges a claim of ineffective assistance based on counsel’s failure to file a direct appeal, which has as its relief a new direct appeal, alongside other claims of ineffective assistance of counsel 13 See State v. Bjorklund, 258 Neb. 432 , 604 N.W.2d 169 (2000), abrogated on other grounds, State v. Mata, 275 Neb. 1 , 745 N.W.2d 229 (2008). 14 See, Lewis v. Casey, 518 U.S. 343 , 116 S. Ct. 2174 , 135 L. Ed. 2d 606 (1996); Ex parte Hull, 312 U.S. 546 , 61 S. Ct. 640 , 85 L. Ed. 1034 (1941).  - 474 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DALTON Cite as 307 Neb. 465 that request as relief a new trial, the district court must first address the claim that counsel was ineffective for failing to file a direct appeal, including holding an evidentiary hearing, if required. 15 Upon reaching its decision, the district court should enter a final order on that claim only. 16 If the claim for a new direct appeal is denied, a defendant should be permit- ted to appeal that denial. 17 Only after the resolution of that appeal, or, alternatively, the expiration of the defendant’s time to appeal, should the district court proceed to consider the remaining claims. 18 [9] As we explained in Determan, addressing and waiting for a final mandate on any claims of ineffective assistance of counsel for failing to file a direct appeal before addressing other postconviction claims of ineffective assistance of coun- sel serve the interests of judicial economy by preventing the district court’s determination of the nondirect appeal claims from being rendered meaningless. 19 For, if a new direct appeal were ultimately granted on the postconviction claims related to counsel’s failure to timely file a direct appeal, then any other claims of ineffective assistance of counsel could be raised in the new direct appeal rather than through a postconvic- tion procedure. 20 [10] We held in Determan that when a district court fails to follow this directive and disposes of other postconviction claims before there has been a final mandate on a disposition of the postconviction claim requesting a new direct appeal, the proper disposition in an appeal from the district court’s order is to vacate the district court’s disposition of the additional 15 See State v. Determan, supra note 5. 16 Id. 17 Id. 18 Id. 19 See id. 20 See id. - 475 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DALTON Cite as 307 Neb. 465 claims and remand the cause for further proceedings. 21 Thus we do so here. Dalton’s assignment of error regarding his sec- ond postconviction claim is thereby rendered moot. We do not address whether the trial court correctly found that Dalton had failed to allege sufficient facts to warrant an evidentiary hear- ing on this second claim. Dalton does not assign as error the court’s denial of his post- conviction claim based on an alleged violation of the Eighth Amendment prohibition against cruel and unusual punishment, but we note for the sake of completeness that the court’s order disposing of this claim does not fall under Determan. Thus, we do not vacate the court’s order insofar as it denied the Eighth Amendment claim without an evidentiary hearing. Dalton did not make such a claim as part of an allegation of ineffective assistance of counsel. Determan addresses only claims of ineffective assistance of counsel. Such claims, by virtue of the absence of a direct appeal with new counsel, are not procedurally barred. In such circumstances, it serves judicial economy to require that these claims be addressed in a new direct appeal if such a direct appeal is ultimately ordered. Vacating the order and remanding the cause for fur- ther proceedings on such ineffective assistance claims, to be held only if a final mandate denies a new direct appeal, serve judicial economy. [11] A postconviction claim that the sentence was uncon- stitutionally excessive, however, is procedurally barred by the failure to directly appeal. A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and which were or could have been litigated on direct appeal. 22 And while an excessive sentence claim could be raised in any new direct appeal ordered on an inef- fective assistance claim based on a failure to appeal, this does not change the fact that as a stand-alone postconviction claim 21 See id. 22 State v. Moore, 272 Neb. 71 , 718 N.W.2d 537 (2006).  - 476 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DALTON Cite as 307 Neb. 465 where there has been no original direct appeal, an excessive sentence claim is procedurally barred. It would therefore not serve the interests of judicial economy to vacate the court’s denial of such excessive sentence claim and remand the cause for further proceedings. CONCLUSION We affirm the district court’s denial of Dalton’s ineffective assistance claim concerning his direct appeal. The portion of the district court’s order denying Dalton’s claim of ineffec- tive assistance of counsel related to ineffective assistance for failure to investigate is vacated and the cause is remanded for further proceedings. Affirmed in part, and in part vacated and remanded for further proceedings.

2020-12-04 06:08:26.812248+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007420PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 443 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CHAPMAN Cite as 307 Neb. 443 State of Nebraska, appellee, v. Ellis Chapman, appellant. ___ N.W.2d ___ Filed October 9, 2020. No. S-19-1065. 1. Judgments: Speedy Trial: Appeal and Error. Generally, a trial court’s determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. 2. Speedy Trial: Final Orders: Appeal and Error. An order denying an accused criminal’s nonfrivolous motion for absolute discharge on statu- tory speedy trial grounds is a ruling affecting a substantial right in a special proceeding and is therefore final and appealable under Neb. Rev. Stat. § 25-1902(1)(b) (Supp. 2019). 3. Speedy Trial: Indictments and Informations: Complaints. Although Nebraska’s speedy trial statutes, Neb. Rev. Stat. § 29-1201 et seq. (Reissue 2016), expressly refer to indictments and informations, they also apply to prosecutions commenced by the filing of a complaint in county court. 4. Speedy Trial. To calculate the time for speedy trial purposes, a court must exclude the day the complaint was filed, count forward 6 months, back up 1 day, and then add any time excluded under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016) to determine the last day the defendant can be tried. 5. Speedy Trial: Proof. The burden of proof is upon the State to show that one or more of the excluded time periods under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016) are applicable when the defendant is not tried within 6 months. 6. ____: ____. To overcome a defendant’s motion for discharge on speedy trial grounds, the State must prove the existence of excluded time by a preponderance of the evidence. 7. Speedy Trial. Under Neb. Rev. Stat. § 29-1208 (Reissue 2016), if a defendant is not brought to trial before the running of the time for trial as provided for in Neb. Rev. Stat. § 29-1207 (Reissue 2016), as  - 444 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CHAPMAN Cite as 307 Neb. 443 extended by any excluded periods, he or she is entitled to absolute dis- charge from the offense charged and for any other offense required by law to be joined with that offense. Appeal from the District Court for Hall County, John H. Marsh, Judge, on appeal thereto from the County Court for Hall County, Arthur S. Wetzel, Judge. Judgment of District Court reversed and remanded with directions. Jerrod P. Jaeger, Deputy Hall County Public Defender, for appellant. Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ. Papik, J. On March 29, 2017, the State filed theft charges against Ellis Chapman. Chapman did not appear for a scheduled arraignment approximately 2 weeks later, and the county court for Hall County issued a warrant for his arrest. Chapman was eventu- ally arrested over 2 years later on April 24, 2019. Chapman later moved for absolute discharge under Nebraska’s speedy trial statutes. The county court overruled Chapman’s motion, finding that the time during which the arrest warrant was pend- ing was excluded under the speedy trial statutes. The district court affirmed. Chapman now appeals to us, and we reverse, and remand. Because Chapman was not brought to trial within 6 months of the filing of charges and the State failed to carry its burden to show that any time was excluded for speedy trial purposes, Chapman was entitled to absolute discharge under the speedy trial statutes. BACKGROUND Charge and Arrest. On March 29, 2017, Chapman was charged by complaint in Hall County Court with one count of theft by unlawful  - 445 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CHAPMAN Cite as 307 Neb. 443 taking, $500 or less, second offense, a Class I misdemeanor. An arraignment was scheduled for April 12. On the day of the scheduled arraignment, Chapman did not appear. During proceedings on the record, the State requested that the county court issue a warrant for his arrest. After find- ing probable cause that Chapman committed the offense, the county court issued an arrest warrant. Chapman was eventually arrested, but not until April 24, 2019. One day later, he was brought before the county court where he pleaded not guilty to the pending charge. Then on July 1, Chapman filed a motion for absolute discharge. In it, Chapman asserted he was entitled to absolute discharge, because he had been denied his statutory right to a speedy trial guaranteed by Neb. Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016). Speedy Trial Proceedings. At the hearing on Chapman’s motion for absolute discharge, the State offered the arrest warrant and subsequent orders extending it. The State did not present any evidence regard- ing efforts to serve the arrest warrant. The State also offered and the county court received a copy of a letter from the Hall County Attorney addressed to Chapman at an address in Omaha, Nebraska. The letter was dated March 28, 2017, and directed Chapman to appear in the county court on April 12, 2017, to answer for the theft charge. The letter was introduced without any accompanying testimony. At the April 25, 2019, hearing, during an exchange with the county court regard- ing his failure to appear for the April 12, 2017, arraignment, Chapman stated that he lived at a different Omaha address. The county court overruled Chapman’s motion for abso- lute discharge from the bench and characterized it as “frivo- lous.” The county court stated that the period of time during which the arrest warrant was pending was excluded under the speedy trial statutes. With that time excluded, it concluded that Chapman’s speedy trial rights had not been denied when he filed his motion for absolute discharge.  - 446 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CHAPMAN Cite as 307 Neb. 443 Chapman appealed the denial of his motion for absolute dis- charge to the district court. In his statement of errors, Chapman asserted that the county court erred by finding that the time during which the arrest warrant was pending did not count toward the statutory speedy trial deadline. He also asserted that the county court denied him a fair hearing and demonstrated bias and prejudice by finding his motion was frivolous. Although the district court disagreed with the county court’s finding that Chapman’s motion was frivolous, it affirmed the denial of the motion for absolute discharge. The district court concluded that the county court did not demonstrate bias or prejudice and that it properly found that the time during which the arrest warrant was pending was excluded for speedy trial purposes. Chapman now appeals the ruling of the district court. ASSIGNMENTS OF ERROR Chapman assigns two errors on appeal. He contends that the district court erred by (1) finding that the county court cor- rectly determined that the time during which the arrest warrant was pending was excluded for statutory speedy trial purposes and (2) finding that the county court had not denied Chapman a fair hearing. STANDARD OF REVIEW [1] Generally, a trial court’s determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. State v. Lovvorn, 303 Neb. 844 , 932 N.W.2d 64 (2019). ANALYSIS Jurisdiction. [2] We begin by briefly addressing our jurisdiction to hear this appeal. We have held on a number of occasions that an order denying an accused criminal’s nonfrivolous motion for absolute discharge on statutory speedy trial grounds is  - 447 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CHAPMAN Cite as 307 Neb. 443 a ruling affecting a substantial right in a special proceeding and is therefore final and appealable under Neb. Rev. Stat. § 25-1902(1)(b) (Supp. 2019). See, e.g., State v. Gill, 297 Neb. 852 , 901 N.W.2d 679 (2017). Here, the county court concluded that Chapman’s motion for absolute discharge was frivolous. If that were the case, we would lack jurisdiction and would be required to dismiss the appeal. We will not, however, dismiss the appeal, because, as we will explain, Chapman’s motion was not only not frivolous, it was meritorious. Speedy Trial Background. The statutory right to a speedy trial is set forth in §§ 29-1207 and 29-1208. State v. Vela-Montes, 287 Neb. 679 , 844 N.W.2d 286 (2014). Section 29-1207(1) expressly refers to indictments and informations, requiring that those “indicted or informed against for any offense shall be brought to trial within six months,” adding that “such time shall be computed as provided in this section.” In this case, charges were commenced against Chapman not by indictment or information, but by the filing of a complaint in county court. [3] Although the speedy trial statutes expressly refer to indictments and informations, in State v. Stevens, 189 Neb. 487 , 203 N.W.2d 499 (1973), this court held that they also apply to prosecutions commenced by the filing of a complaint in county court. We have subsequently observed that Stevens did so based on “questionable reasoning,” but, in light of sub- sequent case law and the Legislature’s apparent acquiescence in our construction, we have continued to apply the speedy trial statutes to cases commenced by the filing of a complaint in county court. See State v. Schanaman, 286 Neb. 125 , 133, 835 N.W.2d 66 , 71 (2013). See, also, State v. Lebeau, 280 Neb. 238 , 241, 784 N.W.2d 921 , 925 (2010) (“it is well settled that the [speedy trial statutes] also appl[y] to prosecutions on com- plaint in county court”). As noted above, the speedy trial statutes set a 6-month deadline in which a defendant must be brought to trial, but also provide that such time “shall be computed as provided  - 448 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CHAPMAN Cite as 307 Neb. 443 in this section.” § 29-1207(1). Section 29-1207(4) goes on to provide a number of circumstances in which the 6-month clock to bring a defendant to trial is essentially stopped. See State v. Liming, 306 Neb. 475 , 945 N.W.2d 882 (2020). [4-7] To calculate the time for speedy trial purposes, a court must exclude the day the complaint was filed, count forward 6 months, back up 1 day, and then add any time excluded under § 29-1207(4) to determine the last day the defendant can be tried. Lebeau, supra . The burden of proof is upon the State to show that one or more of the excluded time periods under § 29-1207(4) are applicable when the defendant is not tried within 6 months. State v. Williams, 277 Neb. 133 , 761 N.W.2d 514 (2009). The State must prove the existence of excluded time by a preponderance of the evidence. See id. Under § 29-1208, if a defendant is not brought to trial before the 6-month deadline, as extended by any excluded periods, expires, he or she is entitled to absolute discharge from the offense charged and for any other offense required by law to be joined with that offense. See Liming, supra . Speedy Trial Analysis. Applying the speedy trial calculations in this case, the State had until September 29, 2017, to bring Chapman to trial unless it carried its burden to show the existence of excluded time. Section 29-1207(4)(d) does provide that a “period of delay resulting from the absence or unavailability of the defendant” is excluded. The county court and district court apparently believed that any time in which a defendant fails to appear and an arrest warrant is issued, the defendant is considered absent or unavailable under § 29-1207(4)(d) for all of the time dur- ing which the arrest warrant was pending. As we will explain, and as the State concedes, this conclusion is not supported by our precedent. In State v. Richter, 240 Neb. 223 , 481 N.W.2d 200 (1992), we addressed the circumstances under which the pendency of an arrest warrant may result in excluded time under § 29-1207(4)(d). In Richter, we explained that, generally, no  - 449 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CHAPMAN Cite as 307 Neb. 443 excluded time arises under § 29-1207(4)(d) if the defendant fails to appear at a court proceeding of which he or she was not provided notice. We recognized a possible exception to this rule, however, suggesting that the pendency of a warrant alone may result in excluded time if the State can prove that “dili- gent efforts to secure [the defendant’s] presence by the service of an arrest warrant have been tried and failed.” Richter, 240 Neb. at 230 , 481 N.W.2d at 206. The State acknowledges that under Richter, the pendency of an arrest warrant can result in excluded time under § 29-1207(4)(d) only if the State also proves it used diligent efforts to serve that warrant. It also admits that it introduced no such proof in this case. Although the State concedes that the county court and dis- trict court erred by finding that the pending warrant resulted in excluded time, it contends that this case should be remanded to the county court because it made incomplete factual findings. Specifically, the State asserts that we should direct the county court to make a finding as to whether Chapman received notice of the April 12, 2017, scheduled arraignment at which he did not appear. The State’s position regarding the need for an additional factual finding apparently arises out of its understanding that Richter holds that if a defendant fails to appear at a proceeding of which he or she had actual notice, the defendant is absent or unavailable under § 29-1207(4)(d) and excluded time results. Chapman disputes this reading of Richter, contending that the case holds that a defendant is absent or unavailable under § 29-1207(4)(d) only if he or she fails to appear at a proceed- ing for which he or she was provided notice through a means of service prescribed by statute. He contends there is no proof of such service here. In the end, it is not necessary for us to resolve the parties’ competing interpretations of Richter. Even if the State is cor- rect that a defendant’s failure to appear at a proceeding of which he or she had actual notice results in excluded time, the State did not introduce any evidence that Chapman received actual notice of the April 12, 2017, scheduled arraignment.  - 450 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CHAPMAN Cite as 307 Neb. 443 The county court did receive into evidence a copy of the letter from the county attorney addressed to Chapman referencing the arraignment scheduled for April 12. But the State introduced no evidence that would allow a reasonable finder of fact to conclude that Chapman, in fact, received this letter. There was no testimony or other evidence about how, when, or by whom the letter was sent; how the address listed on the letter was obtained; why Chapman could be expected to receive the letter at that address; or whether the State had any other reason to believe that Chapman received the letter. The State admitted at oral argument that it failed to introduce evidence by which the county court could have concluded that Chapman received notice of the arraignment scheduled for April 12. Despite its concession at oral argument that there was no evidence in the record that would permit a finding that Chapman received notice of the arraignment scheduled for April 12, 2017, the State continued to maintain that the case should be remanded to the county court for additional fac- tual findings. This was required, the State suggested, by our cases holding that appellate review of speedy trial calculations requires complete factual findings. See, e.g., State v. Lintz, 298 Neb. 103 , 902 N.W.2d 683 (2017). We disagree that our cases compel that result. While we have said that we cannot review a trial court’s factual determinations for clear error if no such determinations have been made, see Lintz, supra , that principle would justify remand for additional factual findings only when there is competent evidence in the record that would allow the trial court to reach more than one factual conclusion without committing clear error. In a case like this one, however, where all agree that there is no competent evidence that would allow the county court to reasonably conclude that Chapman received notice of the arraignment scheduled for April 12, remand would serve no purpose. Because the State did not carry its burden to show that any time was excluded from the speedy trial calculation and because it did not bring Chapman to trial within 6 months of the filing of charges, Chapman was entitled to absolute  - 451 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CHAPMAN Cite as 307 Neb. 443 discharge. Given our conclusion that Chapman was entitled to absolute discharge, there is no reason to address his second assignment of error, contending that he was denied a fair hear- ing in the county court. CONCLUSION The county court and district court erred by finding that the pendency of the warrant resulted in excluded time. And the State did not introduce sufficient evidence at the speedy trial hearing that could support any other basis for excluded time. Because there was no evidence that would support a finding of excluded time and because Chapman was not brought to trial within 6 months of the filing of charges, he was entitled to absolute discharge under the speedy trial statutes. We thus reverse the district court’s order and remand the cause with directions for that court to reverse the county court’s order and remand the cause with directions to grant Chapman absolute discharge and dismiss the complaint against him. Reversed and remanded with directions. Freudenberg, J., not participating.

2020-12-04 06:08:46.745385+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007378PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 172 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 Omaha Exposition and Racing, Inc., appellee, v. Nebraska State Racing Commission et al., appellees, and Hall County Livestock Improvement Association and Nebraska Thoroughbred Breeders Association, appellants. ___ N.W.2d ___ Filed September 18, 2020. No. S-19-020. 1. Administrative Law: Judgments: Appeal and Error. A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. 2. ____: ____: ____. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by com- petent evidence, and is neither arbitrary, capricious, nor unreasonable. 3. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. 4. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. 5. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. 6. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte. 7. ____: ____. A court action taken without subject matter jurisdiction is void.  - 173 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 8. Administrative Law: Jurisdiction: Appeal and Error. Where a dis- trict court has statutory authority to review an action of an adminis- trative agency, the district court may acquire jurisdiction only if the review is sought in the mode and manner and within the time provided by statute. 9. Appeal and Error. The right of appeal in Nebraska is purely statutory. 10. Jurisdiction: Statutes: Appeal and Error. The requirements of a stat- ute underlying a right to appeal are mandatory and must be complied with before the appellate court acquires jurisdiction of the subject matter of the action. 11. Statutes: Legislature: Intent. In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. 12. Administrative Law: Jurisdiction: Appeal and Error. In analyzing the requirements to initiate judicial review under the Administrative Procedure Act, for a district court to acquire jurisdiction to review a final decision of an administrative agency, the appellant must file the petition and serve summons. 13. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject mat- ter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties. 14. Administrative Law: Parties: Appeal and Error. Determining whether an agency acted beyond its role as a neutral fact finder to qualify as one of the “parties of record” under Neb. Rev. Stat. § 84-917 (Reissue 2014) requires looking at the nature of the administrative proceeding under review. 15. Administrative Law: Words and Phrases. An administrative agency is a neutral factfinding body when it is neither an adversary nor an advo- cate of a party. 16. Administrative Law: Parties. When an administrative agency acts as the primary civil enforcement agency, as distinguished from determining the rights of two or more individuals in a dispute before such agency, it is more than a neutral factfinding body. 17. ____: ____. An agency that is charged with the responsibility of protect- ing the public interest, and not merely determining the rights of two or more individuals in a dispute, is more than a neutral factfinding body. 18. Administrative Law: Parties: Appeal and Error. When evaluating whether an agency is a neutral fact finder under Neb. Rev. Stat. § 84-917(2)(a) (Reissue 2014), courts look to the agency’s actions as to the dispute at issue, the statutory basis upon which the agency was  - 174 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 acting, and the participation of the agency in the matters surrounding the dispute. 19. Administrative Law. Where an agency acts beyond the role of a neutral fact finder due to its responsibility to the public interest, its role as the primary civil enforcement entity, or its licensing and credentialing func- tion, the agency takes some action or is required to make some consid- eration beyond merely resolving a dispute between outside parties. Appeal from the District Court for Lancaster County: Susan I. Strong, Judge. Vacated and dismissed. Cathy S. Trent-Vilim, John M. Walker, and Daniel J. Waters, of Lamson, Dugan & Murray, L.L.P., for appellant Hall County Livestock Improvement Association. O. William VonSeggern for appellant Nebraska Thoroughbred Breeders Association. Christopher D. Jerram, Raymond E. Walden, and Michael T. Gibbons, of Woodke & Gibbons, P.C., L.L.O., for appellee Omaha Exposition and Racing, Inc. Tara Tesmer Paulson, of Rembolt Ludtke, L.L.P., for appellee Nebraska Horsemen’s Benevolent and Protective Association, Inc. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Funke, J. This case concerns moneys accumulated from deductions of horseracing wagers under Neb. Rev. Stat. §§ 2-1207(2) (Cum. Supp. 2018) and 2-1207.01 (Reissue 2012) for the promotion, support, and preservation of agriculture and horse breeding in Nebraska. Pursuant to a request from the Nebraska Thoroughbred Breeders Association (NTBA), the Nebraska State Racing Commission (Commission) directed § 2-1207(2) funds collected by the Nebraska Horsemen’s Benevolent & Protective Association, Inc. (HBPA), from Nebraska horserac- ing tracks be transferred to NTBA. The district court reversed  - 175 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 and vacated the order, finding the Commission exceeded its statutory authority in ordering that the funds be paid over to NTBA for distribution. Because the district court lacked sub- ject matter jurisdiction to consider the petition, its order revers- ing and vacating the Commission’s order is void and must be vacated, and we must dismiss this appeal. BACKGROUND Appellant NTBA is a nonprofit corporation formed to pro- mote breeding of thoroughbred horses in Nebraska. Appellant Hall County Livestock Improvement Association, doing busi- ness as Fonner Park, is a nonprofit corporation for the pro- motion of agriculture, fairs, and horseracing. Fonner Park is licensed and authorized to operate as a horseracing track and participate in the simulcasting of horseraces in Grand Island, Nebraska. Fonner Park and Agricultural Park, a Nebraska race- track located in Columbus, Nebraska, account for 90 percent of all live horseracing in Nebraska. Omaha Exposition and Racing, Inc. (OER), is a nonprofit corporation and is licensed and authorized for horseracing and simulcasting services. OER operates and does business as Horsemen’s Park in Omaha, Nebraska, and Lincoln Race Course in Lincoln, Nebraska. Horsemen’s Park and Lincoln Race Course hold live races each year, but most of their reve- nues are derived from simulcasting. The facilities at Horsemen’s Park and Lincoln Race Course are owned by HBPA, which is a member of OER and holds two of the four OER governing board seats. HBPA is a nonprofit corporation representing a majority of all licensed owners and trainers that race thorough- bred horses at Nebraska licensed racetracks. Nebraska horseracing tracks are statutorily required to deduct a percentage of all wagers made at their tracks to pro- mote and preserve agriculture, horse breeding, and horseracing in Nebraska. 1 These deducted amounts are to be ­distributed 1 §§ 2-1207(2) and 2-1207.01.  - 176 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 as purse supplements and breeder and stallion awards for Nebraska-bred horses. 2 Distribution is to be made at the race- track where the funds are generated unless the racetrack does not conduct live race meets, in which case the deducted funds may be distributed to those racetracks which do con- duct live race meets for the promotion of horseracing or as purse supplements. 3 Prior to the 1990’s, each horseracing track in Nebraska had individual bookkeepers, including HBPA who used its bookkeeper to distribute purse awards at the tracks. In 1996, Ak-Sar-Ben, an Omaha racetrack, closed and the remaining tracks determined it would be economically beneficial to trans- fer their bookkeeping duties to a single bookkeeper, the one used by HBPA. NTBA alleges this system was approved by the Commission and worked without issue until the current dispute arose in 2017. In 1998, because the majority of live horseracing occurred at only a few of the parks, the presidents of HBPA and NTBA entered into an agreement for the redistribution of a portion of the funds collected from the statutorily required deductions from wagers on simulcast races. That year, the amount deducted from simulcast races totaled approximately $175,000. The par- ties agreed to distribute $80,000 to Fonner Park, $25,000 to Agricultural Park, and $70,000 to a now-relocated Lincoln racetrack. Appellants allege that until 2017, the parties con- tinued to allocate a portion of funds deducted from simulcast races to individual racetracks by determining what an equitable amount of breeder purses were to be and HBPA’s bookkeeper paying out those amounts. By a letter in June 2017, HBPA advised NTBA that the bookkeeper, at HBPA’s direction, was suspending distribution of the deducted funds because Fonner Park failed to contribute its share. According to Fonner Park, this alleged deficit was 2 § 2-1207.01. 3 Id. - 177 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 created by the addition to Fonner Park’s earnings of simulcast funds allocated by NTBA. Fonner Park asserts such deficits have historically been satisfied by HBPA’s bookkeeper using surplus deducted simulcast funds from other Nebraska race- tracks. In the June 2017 letter, HBPA claimed this use of deducted simulcast funds from other Nebraska racetracks to satisfy Fonner Park’s contribution requirements appeared to be contrary to a statutory directive that all contributions of the deducted funds must come from the individual track and can- not come from another. On July 7, 2017, NTBA submitted an emailed request to be on the agenda for the upcoming Commission meeting. In the email, NTBA asked the Commission to order “the HBPA[’s] Purse Bookkeeper to pay all NTBA accumulated funds in the Purse Bookkeeper[’]s possession to the [NTBA].” In a sub- sequent email, NTBA modeled the statutory language for the deducted funds and described “NTBA accumulated funds” as “funds generated for our breeders’ awards, purse supplements, and purses.” NTBA also asked the Commission to order that all future deducted funds by Nebraska racetracks be paid over to NTBA and its bookkeeper for allocation and disbursement. The Commission held hearings on NTBA’s request at its meetings on July 20, October 25, and December 19, 2017. On February 21, 2018, the Commission issued an order grant- ing NTBA’s request. The order stated that the Commission’s statutory authority to enforce all state laws covering horserac- ing extended to enforcement of the deduction statutes and determination of a proper custodian of the funds generated. The Commission found that the current structure wherein the HBPA bookkeeper collected and distributed the funds allowed for the potential of future conflicts such as underpayment or misappropriation. Finding NTBA is the proper entity to serve as custodian of the funds, the Commission directed that all current deducted funds held by HBPA and its bookkeeper be transferred to NTBA and that all future funds deducted by any Nebraska racetracks be paid to NTBA.  - 178 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 OER submitted a petition for judicial review of the Commission’s order to the district court on February 28, 2018. On March 1, OER filed a copy of a summons for the Commission that was addressed to the Attorney General through certified mail, although no return receipt was filed. OER also sent a summons with a copy of the petition by certified mail directly to the Commission, of which a return receipt was signed March 19, and the Commission filed a transcript of its proceedings in this matter on March 28. The Attorney General filed an answer to OER’s petition on March 27. OER sent another notice for the Commission through certified mail to the Attorney General’s office on March 28, which return receipt was signed April 3. Additionally on March 1, 2018, OER filed a copy of a summons for NTBA addressed to “Linda F. Hoffman & Zack Mader.” However, no return receipt was filed. On March 22, NTBA filed an answer. After a hearing on the matter, the district court reversed and vacated the Commission’s order. The court found the Commission lacked statutory authority to appoint a custodian of the funds and require payment of the funds by Nebraska racetracks to that appointed entity. The court explained that the statutes governing the deduction of the funds are unambig­ uous and that the Legislature did not empower any entity other than the licensed racetracks with responsibility to collect the funds or delegate custody of the funds to anyone other than the licensed racetracks. The court additionally determined that the past practice of subsidizing other racetracks by allowing NTBA to allocate a portion of the generated funds based on its determination of what was equitable was contrary to the statutory directive that the funds be distributed at the racetrack where they were generated. Accordingly, the court concluded that the Commission erred in appointing NTBA as custodian and granting NTBA the authority to collect and determine dis- tribution of the deducted funds.  - 179 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 ASSIGNMENTS OF ERROR Appellants assign, consolidated and restated, that the district court erred by (1) considering the petition for further review while lacking subject matter jurisdiction due to OER’s failure to sufficiently serve NTBA and the Commission, (2) determin- ing the Commission did not have authority to appoint a custo- dian of the deducted funds, (3) reaching the issue of where the deducted funds may be used when the issue was not brought before the Commission, and (4) determining all deducted funds must be used at the racetrack where the funds are generated. STANDARD OF REVIEW [1,2] A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act (APA) may be reversed, vacated, or modified by an appel- late court for errors appearing on the record. 4 When reviewing an order of a district court under the APA for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 5 [3] Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an inde- pendent conclusion irrespective of the decision made by the court below. 6 [4] A jurisdictional question which does not involve a fac- tual dispute is determined by an appellate court as a matter of law. 7 ANALYSIS Before we can consider whether the Commission was autho- rized to appoint NTBA as the custodian of the funds and 4 J.S. v. Grand Island Public Schools, 297 Neb. 347 , 899 N.W.2d 893 (2017). 5 Id. 6 Id. 7 Id.  - 180 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 the merits of the appeal, we must first determine whether the district court had subject matter jurisdiction to consider OER’s petition for further review and whether we, in turn, have juris- diction to consider an appeal of the district court’s order. Neb. Rev. Stat. § 84-917 (Reissue 2014) provides the pro- cedure for judicial review of an agency’s final decision in a contested case. Under this statute, an aggrieved party may seek review of a final decision by filing a petition in district court within 30 days after service of the decision. 8 All parties of record to the agency action must be made parties to the pro- ceedings for judicial review. 9 Appellants claim that the district court lacked subject matter jurisdiction due to insufficiencies in OER’s service of NTBA and the Commission under § 84-917(2)(a)(i). Appellees, in turn, claim service of a petition for judicial review under the APA is not an issue of subject matter jurisdiction, that NTBA entered a voluntary appearance which is the equivalent of proc­ ess, and that OER properly served the Commission. Subject Matter Jurisdiction Contrary to appellees’ arguments, under the APA, service of necessary parties in a petition for further review is an issue of subject matter jurisdiction. 10 [5-7] Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. 11 Lack of subject matter jurisdiction may be raised at any time by any party or by the 8 § 84-917(2)(a)(i). 9 Id. 10 See, Candyland, LLC v. Nebraska Liquor Control Comm., 306 Neb. 169 , 944 N.W.2d 740 (2020); J.S., supra note 4; Concordia Teachers College v. Neb. Dept. of Labor, 252 Neb. 504 , 563 N.W.2d 345 (1997). 11 J.S., supra note 4.  - 181 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 court sua sponte. 12 A court action taken without subject matter jurisdiction is void. 13 [8] Where a district court has statutory authority to review an action of an administrative agency, the district court may acquire jurisdiction only if the review is sought in the mode and manner and within the time provided by statute. 14 [9-11] The right of appeal in Nebraska is purely statutory. 15 The requirements of a statute underlying a right to appeal are mandatory and must be complied with before the appellate court acquires jurisdiction of the subject matter of the action. 16 In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordi- nary, and popular sense. 17 [12] In analyzing the requirements to initiate judicial review under the APA, we have held that for a district court to acquire jurisdiction to review a final decision of an adminis- trative agency, the appellant must file the petition and serve summons. 18 Section 84-917(2)(a)(i) states that judicial review “shall be instituted by filing a petition in the district court . . . within thirty days after the service of the final decision by the agency”; “[a]ll parties of record shall be made parties to the proceedings for review”; and, if the agency is a party of record, “[s]ummons shall be served within thirty days of the filing of the petition in the manner provided for service of a sum- mons in section 25-510.02.” (Emphasis supplied.) When Neb. 12 Id. 13 Id. 14 Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938 , 902 N.W.2d 147 (2017). See J.S., supra note 4. 15 J.S., supra note 4. 16 Id. 17 Id. 18 See Candyland, LLC, supra note 10. See, also, J.S., supra note 4; Concordia Teachers College, supra note 10.  - 182 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 Rev. Stat. § 25-510.02 (Reissue 2016) applies, a summons must be served on the Attorney General in order to institute judicial review. 19 Additionally, while § 84-917(2)(a)(i) states service shall be provided “in the manner provided for service of a summons in section 25-210.02” and the required means of service under § 25-510.02 only addresses the means of service of the agency, we have held that “service on nongovernmental entities under § 84-917(2)(a)(i) is required ‘within thirty days of the filing of the petition’” and have applied such require- ment as an issue of subject matter jurisdiction when there is insufficient service of nongovernmental entities. 20 Because § 84-917(2)(a)(i) requires service within 30 days of necessary parties to an agency action—including nongov- ernmental parties of record and, if the agency is a party of record, the agency through the Attorney General—in order to initiate a judicial review, such service is an issue of subject matter jurisdiction. Sufficiency of OER’s Service of NTBA Appellees do not contest that OER failed to serve NTBA within 30 days of the filing of the petition. Instead, appellees claim NTBA voluntarily appeared by filing its answer and sub- mitted itself to the district court’s authority. Appellees’ argument is premised on the proposition that serv­ice of nongovernmental parties of record is an issue of only personal and not subject matter jurisdiction. As discussed, this proposition is incorrect and the service of nongovernmental parties of record under § 84-917(2) is necessary to provide the reviewing court with subject matter jurisdiction. 21 [13] Parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may 19 See Concordia Teachers College, supra note 10. 20 Candyland, LLC, supra note 10. 21 See id. - 183 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties. 22 Accordingly, NTBA was unable to voluntarily submit itself to the district court’s author- ity and NTBA’s filing its answer did not overcome OER’s fail- ure to serve NTBA as required by § 84-917(2). Because NTBA was a party of record to the agency action and it is undisputed that OER did not serve NTBA within 30 days of filing the petition, the district court lacked subject mat- ter jurisdiction to consider the petition. Sufficiency of OER’s Service of Commission Similarly, OER’s service of the Commission was insuf- ficient and also deprived the district court of subject mat- ter jurisdiction. The required means and manner of service of an agency under the APA depends on whether the agency was a party of record to the proceedings. When determining whether the agency is a party of record, § 84-917(2)(a)(i) clarifies that the agency is not a party of record “[i]f an agency’s only role in a contested case is to act as a neutral factfinding body . . . .” If the agency is not a party of record, the petitioner is required to serve only a copy of the petition and a request for preparation of the official record upon the agency within 30 days of filing the petition. 23 However, when the agency functions beyond a neutral factfinding body, the agency is a party of record and summons shall be served within 30 days of the filing of the petition as provided by § 25-510.02. 24 Section 25-510.02 requires that service upon a state agency be executed by leav- ing the summons at the office of the Attorney General or by certified mail or designated delivery service addressed to the office of the Attorney General. The purpose of § 25-510.02 is 22 J.S., supra note 4. 23 § 84-917(2)(a)(i). 24 Id. - 184 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 to give the State, its agencies, and its employees “‘adequate notice of the case against it’” and to “‘eliminate ineffec- tual service.’” 25 Appellants argue that OER’s service on the Commission was insufficient because the Commission acted beyond a neutral factfinding body, making it a necessary party of record and requiring service of the Attorney General within 30 days of the filing of the petition. Because OER failed to serve the Attorney General in accordance with § 25-510.02 until after the run- ning of the 30 days, appellants claim service was insufficient and the district court lacked subject matter jurisdiction over the review. [14-17] Determining whether an agency acted beyond its role as a neutral fact finder to qualify as one of the “parties of record” under § 84-917 requires looking at the nature of the administrative proceeding under review. 26 An administrative agency is a neutral factfinding body when it is neither an adver- sary nor an advocate of a party. 27 In contrast, when an admin- istrative agency acts as the primary civil enforcement agency, as distinguished from determining the rights of two or more individuals in a dispute before such agency, it is more than a neutral factfinding body. 28 Also, an agency that is charged with the responsibility of protecting the public interest, and not merely determining the rights of two or more individ­uals in a dispute, is more than a neutral factfinding body. 29 [18,19] When evaluating whether an agency is a neutral fact finder under § 84-917(2)(a), we have repeatedly looked to the agency’s actions as to the dispute at issue, the statutory basis upon which the agency was acting, and the participation of the agency in the matters surrounding the dispute. In cases 25 Anthony K. v. State, 289 Neb. 523 , 532, 855 N.W.2d 802 , 810 (2014). 26 See Kozal, supra note 14. 27 McDougle v. State ex rel. Bruning, 289 Neb. 19 , 853 N.W.2d 159 (2014). 28 See id. 29 See id. - 185 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 where an agency acts beyond the role of a neutral fact finder due to its responsibility to the public interest, its role as the primary civil enforcement entity, or its licensing and creden- tialing function, the agency takes some action or is required to make some consideration beyond merely resolving a dispute between outside parties. 30 For instance, in McDougle v. State ex rel. Bruning, 31 the Division of Public Health of the Department of Health and Human Services revoked a practitioner’s licenses to practice as a mental health practitioner and as a provisional alcohol and drug counselor after previously adopting regulations on statutorily impermissible unprofessional conduct of a licensee, conducting an investigation as to the practitioner’s possi- ble violations of the regulation, recommending the Attorney General file a petition for disciplinary action, and holding a hearing before the department’s chief medical officer and director. In re 2007 Appropriations of Niobrara River Waters 32 involved a challenge to the Department of Natural Resources’ issuance of closing notices for the purpose of administering water, and the department sought to advocate for the valid- ity of its administration. In In re Application of Metropolitan Util. Dist., 33 a utilities district applied to the Nebraska Public Service Commission (PSC) for certification as a competitive natural gas provider, the PSC had authority to approve or 30 See, Shaffer v. Nebraska Dept. of Health & Human Servs., 289 Neb. 740 , 857 N.W.2d 313 (2014); McDougle, supra note 27; In re 2007 Appropriations of Niobrara River Waters, 283 Neb. 629 , 820 N.W.2d 44 (2012); Metropolitan Util. Dist. v. Aquila, Inc., 271 Neb. 454 , 712 N.W.2d 280 (2006); In re Application of Metropolitan Util. Dist., 270 Neb. 494 , 704 N.W.2d 237 (2005); Becker v. Nebraska Acct. & Disclosure Comm., 249 Neb. 28 , 541 N.W.2d 36 (1995); Leach v. Dept. of Motor Vehicles, 213 Neb. 103 , 327 N.W.2d 615 (1982) (superseded by statute as stated in Candyland, LLC, supra note 10). 31 McDougle, supra note 27. 32 In re 2007 Appropriations of Niobrara River Waters, supra note 30. 33 In re Application of Metropolitan Util. Dist., supra note 30.  - 186 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 deny and set conditions on a certification, the PSC had the authority to enforce any order on the certification, and the PSC denied the utilities district’s application. In Becker v. Nebraska Acct. & Disclosure Comm., 34 following a taxpayer’s complaint against the Board of Regents of the University of Nebraska, the Nebraska Accountability and Disclosure Commission investigated, found probable cause of violations, and entered into a settlement wherein the disclosure commis- sion agreed to certain prosecutorial concessions in exchange for the board’s making certain disclosures and refraining from the alleged violations in the future. Finally, in Leach v. Dept. of Motor Vehicles, 35 the Department of Motor Vehicles had revoked a driver’s license pursuant to the implied consent law in execution of the department’s given responsibility of protecting the public interest, as opposed to determining the rights of two or more people in a dispute, and the driver attempted to challenge the revocation by the department. In the current action, the Commission was not merely deter- mining the rights of two or more individuals in a dispute. It was also acting pursuant to its claimed licensing and creden- tialing authority to approve a custodian of the funds based upon the public interest. NTBA requested that funds deducted under §§ 2-1207(2) and 2-1207.01 be transferred to NTBA and that NTBA be appointed custodian of the funds to be collected and distributed by an independent bookkeeper hired by NTBA. NTBA did this because it alleged the current structure utilizing HBPA’s book- keeper resulted in delayed distribution of the funds due to an external dispute among multiple horseracing organizations. The Commission’s statutory purpose is to provide statewide regulation of horseracing in order to prevent and eliminate corrupt practices and fraudulent behavior, and thereby main- tain a high level of integrity and honesty in the horseracing 34 Becker, supra note 30. 35 Leach, supra note 30.  - 187 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 industry of Nebraska and to ensure that all funds received by the Commission are properly distributed. 36 As to the oversight of racetracks’ compliance with §§ 2-1207(2) and 2-1207.01, the Commission has the statutory authority to review account- ing of the racetracks, 37 license racetracks and racing industry participants, 38 revoke any license issued at any time for good cause, 39 and enforce horseracing statutes and regulations. 40 The Commission also has the authority to adopt rules and reg- ulations governing horseracing and the licensing of horserac- ing associations. 41 Under this authority, the Commission adopted an administra- tive regulation, which states: Each Association shall have a bookkeeper, approved by the Commission, whose duty it is to keep and preserve books which will reflect the deposits or other credits and withdrawals or other charges that may be made by an owner or other licensee. Said bookkeeper shall have an office at the track and said office shall be open on each racing day during the hours specified by the Commission. Said bookkeeper must also furnish such reports and infor- mation as may be required by the Commission or its representatives. 42 In reviewing NTBA’s request, the Commission considered whether to approve NTBA and its appointed bookkeeper for the management of the deducted funds or to maintain its alleged approval of HBPA’s bookkeeper for such management. The Commission based its ruling on consideration of either 36 Neb. Rev. Stat. § 2-1201.01 (Reissue 2012). 37 § 2-1207.01; Neb. Rev. Stat. §§ 2-1205 and 2-1211 (Reissue 2012). 38 Neb. Rev. Stat. § 2-1203.01 (Cum. Supp. 2018). 39 § 2-1205. 40 Neb. Rev. Stat. § 2-1203 (Cum. Supp. 2018); § 2-1203.01. 41 § 2-1203. 42 294 Neb. Admin. Code ch. 3, § 001.08 (2006).  - 188 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 option’s potential for corrupt practices and fraudulent behavior such as underpayment or misappropriation. The designation of the bookkeeper was not merely resolving an independent dispute between the parties, but was the Commission’s exer- cising compliance assurance authority grounded in its role as the racetrack licensor and certifying agency. In approving the bookkeeper, the Commission indicated that it was attempt- ing to prevent the exposure of possible future corruption and fraud. In arguing the Commission was acting as a neutral fact finder, appellees note the Commission held evidentiary hear- ings where interested parties made appearances, exhibits were received, and the parties briefed their arguments. However, such procedures and similarities to the judicial process do not necessitate that the Commission was acting as a neutral fact finder. In Shaffer v. Nebraska Dept. of Health & Human Servs., 43 a Medicaid recipient was denied the continuation of coverage for private duty nursing services by a managed care organi- zation because the managed care organization deemed the services were not medically necessary. The recipient appealed to the Department of Health and Human Services (DHHS), which held a hearing where the parties appeared before a DHHS hearing officer, presented testimony and evidence, and submitted arguments. 44 Based upon the record made at the hearing, DHHS’ director of the Division of Medicaid & Long-Term Care concluded that the services were not medi- cally necessary and agreed with the managed care organiza- tion’s denial of coverage. 45 While DHHS’ order involved a dispute between two or more parties and was the result of an evidentiary hearing, we determined DHHS’ involvement 43 Shaffer, supra note 30. 44 Id. 45 Id.  - 189 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 went beyond that of a neutral fact finder because DHHS was charged with the administration of the Medicaid program and had broad regulatory and oversight powers, adopted and promulgated the rules and regulations to determine eligibil- ity, and was authorized to and did contract with the managed care organization for the provision of medical assistance for eligible recipients. 46 The Commission’s actions in the instant case are similar to DHHS’ actions in Shaffer. The Commission was acting under broad regulatory, enforcement, and licensing author- ity. The Commission adopted and promulgated rules that require racetracks to have bookkeepers and which require the Commission’s approval of those bookkeepers. In approving NTBA as the custodian of the funds and the use of its book- keeper while revoking the approval of HBPA’s bookkeeper, the Commission considered the potential effect its decision would have on the horseracing industry and its exposure to potential mistake, corrupt practices, and fraud. This case is distinguishable from Metropolitan Util. Dist. v. Aquila, Inc. 47 There, a dispute between a utilities district and Aquila, Inc., two distributers of natural gas which both had contracts with the same natural gas supplier, arose over the utilities district’s proposed construction of a gas main extension. 48 Aquila argued in a complaint before the PSC that the utilities district’s extension violated Neb. Rev. Stat. §§ 57-1301 to 57-1307 (Reissue 2004), because it was not in the public interest. 49 Following a hearing, the PSC agreed and granted Aquila’s request to order a cease and desist of the construction. 50 46 Id. 47 Aquila, Inc., supra note 30. 48 Id. 49 Id. 50 Id.  - 190 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 In determining the PSC was not a party of record under § 84-917, we concentrated our review on the PSC’s actions in considering the dispute then at issue. 51 The statute authorizing the PSC to consider such a complaint, § 57-1306, expressly stated that the PSC “‘shall have no jurisdiction over a metro- politan utilities district or natural gas utility beyond the deter- mination of disputes’” brought under the relevant statutes. 52 These statutes specified that no utility could extend or enlarge its natural gas mains or services unless it was in the public interest and that, if a complaint was brought alleging an action was not in the public interest, the PSC was instructed to con- sider the question of public interest by weighing statutorily prescribed factors. 53 There are no such limiting statutes that restrained the Commission’s consideration in approving a bookkeeper and custodian of the deducted funds. The Commission was gen- erally charged with overseeing the horseracing industry to ensure all funds received by the Commission are properly distributed, licensing and credentialing horseracing entities, enforcing horseracing statutes and regulations, and establishing rules and regulations governing horseracing and the licensing of horseracing associations. 54 Additionally, in the requirement of the Commission’s approval of racetracks’ bookkeepers, the Commission was not limited in its evaluation to specific statu- torily prescribed factors. For the reasons stated above, we find that the Commission was acting beyond its neutral factfinding role when it consid- ered NTBA’s request to approve NTBA and its bookkeeper as the custodian of the deducted funds and revoke the previous approval of HBPA. Therefore, the Commission was a party of record and appellees were required to serve summons on the 51 Id. 52 Id. at 458, 712 N.W.2d at 285. 53 Id. 54 §§ 2-1203, 2-1203.01, 2-1205, 2-1207.01, and 2-1211.  - 191 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 Commission through the Attorney General’s office within 30 days of filing the petition for further review. 55 Appellees contend that OER complied with § 84-917(2) because OER filed its petition for judicial review on February 28, 2018, and a summons was issued for the Commission on March 1, which alleged it would be sent to the Attorney General’s office through certified mail, and that it can be implied such summons was sent by certified mail because the Attorney General filed an answer on March 27. Appellees claim this proof of service was sufficient because §§ 84-917(2) and 25-510.02 do not require a return receipt. In analyzing the service of an agency under § 25-510.02, as when analyzing the option to serve an individual through certified mail under Neb. Rev. Stat. § 25-508.01 (Reissue 2016), we look to Neb. Rev. Stat. § 25-505.01(1)(c) (Reissue 2016) for the requirements of service by certified mail. 56 Section 25-505.01(1) requires the servicing party request a return receipt and states: [A] plaintiff may elect to have service made by . . . : .... (c) Certified mail service which shall be made by (i) within ten days of issuance, sending the summons to the defendant by certified mail with a return receipt requested showing to whom and where delivered and the date of delivery, and (ii) filing with the court proof of service with the signed receipt attached[.] In order for the district court to obtain subject matter juris- diction, OER was required to serve the Commission within 30 days of filing the petition as provided by § 25-510.02; one option for service under § 25-510.02 is through certified mail, and § 25-505.01(1)(c) explains the process of service by certified mail to include requesting and filing a return 55 § 84-917(2)(a)(i); § 25-510.02. 56 See Anthony K., supra note 25. See, also, Mendoza v. Osterberg, No. 8:13CV65, 2014 WL 3784122 (D. Neb. July 31, 2014).  - 192 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 receipt as proof of service. As such, OER was required to request a return receipt on any service of the Commission it sent through certified mail. Without the return receipt, it is unknown whether OER sent the summons or whether service upon the Attorney General occurred. There is no affidavit of service or other evidence to establish service, and the fact that the Attorney General filed an answer is insufficient to establish service was executed. Accordingly, the issued summons listing the Attorney General’s address is insufficient to prove proper service under § 84-917(2). Though perhaps not the only method available to challenge the Commission’s order, a petition for judicial review was the method chosen by OER. As a result, OER was obligated to bring the action in compliance with § 84-917(2). Because the Commission acted beyond the role of a neutral fact finder and was a party of record and because OER failed to execute service on the Attorney General in compliance with § 84-917(2)(a)(i), the district court lacked subject matter jurisdiction to review the Commission’s order and its order reversing and vacating the Commission’s order is void. 57 Because the district court lacked subject matter jurisdiction to consider OER’s petition for judicial review, we, in turn, lack jurisdiction to consider the district court’s review. 58 Even when appellate jurisdiction is lacking, however, we have the power to vacate a void order and, if necessary, to remand the cause with appropriate directions. 59 As a result, we must vacate the order of the district court. In vacating the order of the district court, we make no determination as to the merits of the Commission’s order, whether the Commission had authority to consider NTBA’s request, whether the Commission had authority to appoint 57 See J.S., supra note 4. 58 See In re Estate of Evertson, 295 Neb. 301 , 889 N.W.2d 73 (2016). 59 See Francisco v. Gonzalez, 301 Neb. 1045 , 921 N.W.2d 350 (2019).  - 193 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 a custodian, or the extent of the Commission’s authority to approve a bookkeeper. CONCLUSION OER failed to seek district court review of the Commission’s order in the mode and manner provided by § 84-197(2) by failing to timely serve the summons and a copy of the peti- tion upon NTBA and the Commission through the Attorney General’s office. The district court, therefore, lacked subject matter jurisdiction under the APA to consider the petition for judicial review and its order is void. We likewise lack subject matter jurisdiction over this appeal. We vacate the order of the district court and dismiss this appeal. Vacated and dismissed. Papik, J., concurring. Nebraska’s Administrative Procedure Act (APA) allows those aggrieved by decisions of state agencies to seek review of those decisions in district court. See Neb. Rev. Stat. § 84‑917(1) (Reissue 2014). In Concordia Teachers College v. Neb. Dept. of Labor, 252 Neb. 504 , 563 N.W.2d 345 (1997), this court interpreted the APA to require that all parties of record before the agency be timely served with a summons in order for the district court to have subject matter jurisdiction of such a judicial review proceeding. We have followed that principle in subsequent APA cases, see, e.g., Candyland, LLC v. Nebraska Liquor Control Comm., 306 Neb. 169 , 944 N.W.2d 740 (2020), and in a case brought pursuant to similar statutes, see J.S. v. Grand Island Public Schools, 297 Neb. 347 , 899 N.W.2d 893 (2017), and the court applies it today to find that the district court lacked subject matter jurisdiction in this case. While I believe the court’s decision faithfully applies the cases cited above, I write separately to observe that the interpretation of the APA we adopted in Concordia Teachers College resulted in a rule that is legally anomalous and, in my view, can lead to peculiar results.  - 194 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 The interpretation we first adopted in Concordia Teachers College is a legal anomaly because in most cases, properly serving a party with a summons is necessary to confer personal rather than subject matter jurisdiction. See, e.g., Henderson v. Department of Corr. Servs., 256 Neb. 314 , 589 N.W.2d 520 (1999) (holding that district court lacked personal jurisdiction over named parties because they were not served with sum- mons and did not enter voluntary appearance); Rudd v. Debora, 20 Neb. Ct. App. 850 , 855, 835 N.W.2d 765 , 770 (2013) (“[t]he father was properly served with a valid summons, and the court thereby obtained personal jurisdiction over him”). See, also, Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97 , 104, 108 S. Ct. 404 , 98 L. Ed. 2d 415 (1987) (“[b]efore a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satis- fied”); York Group, Inc. v. Wuxi Taihu Tractor Co., Ltd., 632 F.3d 399 , 403 (7th Cir. 2011) (“[t]he effectiveness of service concerns personal jurisdiction, not subject matter jurisdiction” (emphasis in original)). Treating service of a summons as an issue of personal rather than subject matter jurisdiction is con- sistent with how those concepts have been traditionally under- stood by this court. As we have often stated, personal jurisdic- tion is the power of a tribunal to subject and bind a particular person or entity to its decisions while subject matter jurisdic- tion refers to the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. See, e.g., Young v. Govier & Milone, 286 Neb. 224 , 835 N.W.2d 684 (2013). But the interpretation of the APA we embraced in Concordia Teachers College affects more than just those concerned with consistent use of legal terminology. As this case illustrates, application of the Concordia Teachers College rule can pre- clude judicial review in cases in which judicial review would be available if service of summons were, as in other con- texts, a matter of personal jurisdiction. Here, NTBA and the  - 195 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 Commission filed answers in the judicial review proceeding less than 30 days after OER filed its petition. Their answers did not assert that the district court lacked jurisdiction, but asked that the district court affirm the decision of the Commission on its merits. If proper service of summons were a mat- ter of personal jurisdiction, there would be no jurisdictional problem under these circumstances. The answers of NTBA and the Commission amounted to a general appearance and authorized the exercise of personal jurisdiction over them. See Hunt v. Trackwell, 262 Neb. 688 , 635 N.W.2d 106 (2001). But because subject matter jurisdiction cannot be waived or conferred by the consent or conduct of the parties, see id., under the rule of Concordia Teachers College, the district court lacked subject matter jurisdiction over OER’s petition for judicial review. While dictated by Concordia Teachers College and its prog- eny, this strikes me as a strange outcome. One would expect the purpose of a requirement that parties be served with a sum- mons to be to ensure that parties involved have notice of the proceedings and an opportunity to participate before the court takes action that potentially affects the outcome of the agency proceedings in which they had an interest. But when parties make a general appearance within the time before which sum- mons must be served, as the NTBA and the Commission did here, there is no need to worry about whether those parties received adequate notice. And I cannot conceive of any other reason why a district court should be precluded from exercis- ing judicial review when a party who was not served with a summons nonetheless willingly engages on the merits in a judicial review proceeding. As far as I can tell, our interpre- tation of the APA in Concordia Teachers College has estab- lished, at best, a counterintuitive exception to the general rule that effective service is a requirement of personal rather than subject matter jurisdiction, and, at worst, a jurisdictional trap. See, e.g., J.S. v. Grand Island Public Schools, 297 Neb. 347 , 899 N.W.2d 893 (2017) (citing Concordia Teachers College v.  - 196 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 Neb. Dept. of Labor, 252 Neb. 504 , 563 N.W.2d 345 (1997), and holding that district court lacked subject matter jurisdic- tion because there was no evidence school board that filed voluntary appearance in which it purported to waive service of summons was served with summons). Given the important role of judicial review of administrative agency actions, this strikes me as a particularly unfortunate area for counterintuitive rules or jurisdictional traps. While usually belonging to the executive branch, administrative agen- cies that promulgate rules and regulations and adjudicate vio- lations of those rules and regulations also exercise functions that appear to be more legislative or judicial in character. See Arlington v. FCC, 569 U.S. 290 , 304 n.4, 133 S. Ct. 1863 , 185 L. Ed. 2d 941 (2013) (explaining that administrative agency actions can take “‘legislative’ and ‘judicial’ forms”). So how is the exercise of all these powers by the same entity not, as James Madison famously wrote, “the very definition of tyr- anny”? See The Federalist No. 47 at 298 (James Madison) (Clinton Rossiter ed., 2003) (“accumulation of all powers, leg- islative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny”). While different jurists would surely offer different answers to that question, one that is commonly offered is that courts, through judicial review provisions, can hold agencies in check. See, e.g., Brietta R. Clark, APA Deference After Independent Living Center: Why Informal Adjudicatory Action Needs a Hard Look, 102 Ky. L.J. 211, 229 (2014) (“judicial review helps guard against abuse of power and arbitrariness”); Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo‑Federalist Approach, 81 Cornell L. Rev. 393, 471 (1996) (“[i]n fact, the huge growth of executive agencies has not resulted in tyr- anny primarily because of congressional oversight and judicial review”). At the risk of stating the obvious, courts cannot perform this important function if they do not acquire subject matter jurisdiction.  - 197 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports OMAHA EXPO. & RACING v. NEBRASKA STATE RACING COMM. Cite as 307 Neb. 172 None of these observations should be taken as criticism of the court’s decision in this case. OER did not ask that we over- rule Concordia Teachers College, and, even if it had, it would have to overcome the doctrine of legislative acquiescence. But even if the Legislature has, up to this point, acquiesced in our interpretation of the APA in Concordia Teachers College, the outcome in this case may provide reason for the Legislature to consider anew whether the APA should be amended to allow courts to exercise subject matter jurisdiction when parties are not served with a summons but nonetheless make a timely gen- eral appearance in a judicial review proceeding.

2020-12-04 06:08:38.589017+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007389PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 275 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 Jayson H. Tilson, appellant, v. Erica M. Tilson, appellee, and Kimberly L. Hill, intervenor-appellee. ___ N.W.2d ___ Filed September 25, 2020. No. S-19-344. 1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court’s decision. 2. Judges: Recusal: Appeal and Error. A motion requesting a judge to recuse himself or herself on the ground of bias or prejudice is addressed to the discretion of the judge, and an order overruling such a motion will be affirmed on appeal unless the record establishes bias or prejudice as a matter of law. 3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by such rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. 4. Trial: Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such deter- minations will not be disturbed on appeal unless they constitute an abuse of that discretion. 5. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to admit evidence over a hearsay objection or exclude evidence on hearsay grounds. 6. Modification of Decree: Appeal and Error. Modification of a dis- solution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and will be affirmed absent an abuse of discretion by the trial court.  - 276 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 7. Evidence: Appeal and Error. In a review de novo on the record, an appellate court is required to make independent factual determina- tions based upon the record, and the court reaches its own independent conclusions with respect to the matters at issue. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. 8. Modification of Decree: Attorney Fees: Appeal and Error. In an action for modification of a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. 9. Judges: Recusal. A judge should recuse himself or herself when a liti- gant demonstrates that a reasonable person who knew the circumstances of the case would question the judge’s impartiality under an objective standard of reasonableness, even though no actual bias or prejudice was shown. 10. Judges: Recusal: Presumptions. A party alleging that a judge acted with bias or prejudice bears a heavy burden of overcoming the presump- tion of judicial impartiality. 11. Judges: Recusal. Opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. 12. Appeal and Error. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. 13. Rules of Evidence: Hearsay: Proof. In order for statements to be admissible under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016), the party seeking to introduce the evidence must demon- strate (1) that the circumstances under which the statements were made were such that the declarant’s purpose in making the statements was to assist in the provision of medical diagnosis or treatment and (2) that the statements were of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional. 14. Rules of Evidence: Medical Assistance: Health Care Providers. Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016), applies to persons seeking medical assistance from persons who are expected to provide some form of health care. 15. Modification of Decree: Child Custody: Proof. Ordinarily, custody of a minor child will not be modified unless there has been a material  - 277 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 change in circumstances showing either that the custodial parent is unfit or that the best interests of the child require such action. 16. Parent and Child: Words and Phrases. Parental unfitness means a personal deficiency or incapacity which has prevented, or will prob- ably prevent, performance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child’s well-being. 17. Modification of Decree: Visitation. Visitation rights established by a marital dissolution decree may be modified upon a showing of a material change of circumstances affecting the best interests of the children. 18. Modification of Decree: Words and Phrases. A material change in circumstances means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently. 19. Modification of Decree: Visitation: Proof. The party seeking to mod- ify visitation has the burden to show a material change in circumstances affecting the best interests of the child. 20. Modification of Decree: Visitation. The best interests of the children are primary and paramount considerations in determining and modifying visitation rights. 21. Modification of Decree: Child Support: Proof. A party seeking to modify a child support order must show a material change in circum- stances that (1) occurred subsequent to the entry of the original decree or previous modification and (2) was not contemplated when the decree was entered. Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Affirmed. Matt Catlett, of Law Office of Matt Catlett, for appellant. David P. Kyker for intervenor-appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Papik, J. Jayson H. Tilson appeals a district court order modifying the decree that dissolved his marriage. The district court rejected Jayson’s argument that the original decree was void. It ordered that custody of Jayson’s three children should remain with the children’s maternal grandmother, but modified the decree  - 278 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 as to parenting time and child support. On appeal, Jayson primarily argues that because, several years ago, he filed a motion to dismiss his complaint for dissolution, the decree of dissolution that followed was void, even though he withdrew the motion to dismiss hours after he filed it. In the alternative, Jayson challenges admissibility rulings at the modification hearing and the modification order’s custody, parenting time, child support, and attorney fees determinations, as well as the denial of his motion to disqualify the presiding judge. We find no merit to Jayson’s claims, and we affirm. BACKGROUND Motion to Dismiss and Dissolution Decree. In September 2014, Jayson filed a complaint for dissolution of his marriage to Erica M. Tilson, who has been incarcer- ated and is not involved in the current appeal. In December 2014, temporary custody of the couple’s three minor children was awarded to the maternal grandmother, Kimberly L. Hill (Kimberly). The court subsequently allowed Kimberly to inter- vene and appointed a guardian ad litem for the children. In August 2015, Kimberly and her husband filed a third-party complaint, asking for grandparent visitation and continued temporary custody of the children. On November 16, 2015, the day before a scheduled dissolu- tion hearing, Jayson filed a motion to dismiss his complaint for dissolution. The dissolution hearing was held as scheduled on November 17, with Jayson in attendance. On December 8, 2015, the court entered a decree of dissolu- tion, drafted by Jayson’s counsel. Referring to the November 17 hearing, the decree stated, “Upon motion of [Jayson’s] attorney . . . [Jayson’s] motion to dismiss is withdrawn.” The decree ordered the continuation of Kimberly’s legal and physical custody, and as to Jayson, it ordered parenting time and a contribution toward childcare expenses. Jayson was not ordered to pay child support. The decree prohibited Jayson from consuming alcohol within 24 hours prior to or during his parenting time and ordered him to administer the children’s  - 279 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 prescribed medications during his parenting time. Erica was ordered to pay child support and was awarded supervised par- enting time by arrangement. Jayson’s February 24, 2017, “Complaint,” Initial Appeal, and Motion for Judicial Disqualification. More than a year after the entry of the decree, on February 24, 2017, Jayson filed a “Complaint.” Relevant here, the com- plaint requested (1) that the decree be vacated as void because his November 2015 motion to dismiss was self-executing, and thus the court lacked jurisdiction to enter the decree, and (2) that in the alternative, the decree be modified to place custody of the children with him. In an answer and cross-complaint, Kimberly asked that Jayson’s weekly parenting time be reduced and “fully supervised.” She also requested child support. Before any ruling on Jayson’s complaint filed February 24, 2017, Jayson filed additional motions upon which the district court ruled, and Jayson appealed. We dismissed the appeal. See Tilson v. Tilson, 299 Neb. 64 , 907 N.W.2d 31 (2018). We concluded that the ruling appealed from was not a final order because it did nothing more than deny requests for temporary relief and preserve the status quo pending the determination of other issues. Id. On May 5, 2018, Jayson filed a motion for judicial dis- qualification. As discussed in more detail below, he alleged several ways in which the presiding judge had exhibited bias. Following a hearing, the district court overruled the motion. Trial Addressing February 24, 2017, “Complaint.” The district court held a trial on Jayson’s February 24, 2017, complaint. At trial, Kimberly testified that she is the maternal grandmother of the children: M.T., born in 2007; R.T., born in 2012; and T.T., born in 2013. The children had lived with Kimberly and her husband since December 2014, after Jayson was ticketed for leaving them home alone while he was out drinking at a bar. According to Kimberly, until  - 280 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 March 2017, Jayson did not exercise all of his allotted parent- ing time. Kimberly’s testimony generally showed that while the children were with her, she took care of all their needs, including food, clothing, bathing, medical appointments and prescriptions, counseling, help with schoolwork, and extracur- ricular activities. Kimberly testified that she had many concerns about the children’s safety when they were with Jayson. She estimated that she observed the children improperly restrained in Jayson’s vehicle 20 times during the year preceding trial and 50 times overall, despite talking to Jayson about the issue multiple times. Kimberly testified that she was also concerned that Jayson did not give the children their medication consistently, in particular, an antidepressant that M.T. used in 2015 and 2016. She testified about various dog and cat scratches the children had received while under Jayson’s care. Kimberly acknowledged that Jayson had been good about taking the chil- dren “to the lake and to the park,” but testified he was not good about supervising them while swimming. As a result, M.T.’s glasses had been lost and broken, and the two younger children had gone beyond where they should safely be in the water and without lifejackets. Kimberly testified that nearly every time the children returned from these outings, they had been “fried” by the sun. Kimberly had concerns about clothing, cleanliness, and food during the children’s time with Jayson. In late 2015 or early 2016, while Jayson was living at his previous resi- dence, Kimberly saw cockroaches in M.T.’s school backpack. Kimberly testified that starting in the summer of 2017, the chil- dren had lice for a 4-month period and had not had lice when they left to visit Jayson. She testified that in the year before trial, the children consistently returned from visits with Jayson extremely dirty and dressed in clothes that were the wrong size or inappropriate for the weather. Kimberly also stated that over the preceding 31⁄2 years, the children usually returned from Jayson’s home hungry.  - 281 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 Kimberly also expressed concerns about the effect Jayson’s parenting time had on the children’s behavior and school per- formance. She testified that the children were not doing their homework while at Jayson’s home. Kimberly testified that after Jayson’s overnight parenting time was suspended in March 2018, the children’s behavior improved. Before, M.T. was having urinary accidents about four times a year, but since the change in visitation, she had not had any. Similarly, when the two younger children were staying with Jayson overnight, they misbehaved for 2 days afterward, but since March 2018, any misbehavior had been short lived and their school performance had improved. The children’s guardian ad litem, Candice Wooster, testified about her investigation in this case. Wooster was not able to schedule a visit at Jayson’s home and has never been informed where he lives. She testified that she spoke to Jayson by tele- phone a handful of times between December 2015 and May 2017. During one call, Jayson hung up on Wooster. In May 2017, Jayson stopped returning her calls. As a result, Wooster was unable to arrange a home visit with Jayson. She also con- tacted his attorney and asked if he would like to be present at a home visit, but this did not result in an opportunity to either speak with Jayson or visit his home. Wooster testified that at a hearing during the 3- or 4-month period preceding trial, Jayson’s counsel submitted an affidavit in which Jayson stated he would not be speaking to Wooster. In contrast, Wooster visited Kimberly’s home four or five times for an hour and found no concerns. Wooster observed a very loving relationship between Kimberly and the chil- dren. She saw Kimberly helping the children with their home- work. When R.T. had a tantrum, Kimberly calmly helped her through it. She also observed Kimberly’s husband playing with the children. Dr. Judith Bothern, a licensed psychologist, testified that she provided therapy for M.T., R.T., and T.T. from December 2015 until November 2017. Bothern testified that Kimberly  - 282 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 initiated this therapy. M.T., who had 89 sessions with Bothern, was Bothern’s primary client in the family. Bothern diagnosed M.T. with adjustment disorder and major depressive disorder. Bothern’s treatment plan for M.T. included addressing her rela- tionship with Jayson and his knowledge of parenting practices. Pursuant to a court order, Jayson participated in 18 sessions starting around the same time as the children and continuing until September 2016. Bothern testified regarding several safety concerns about Jayson’s care for M.T. M.T. told her that Jayson did not regu- larly give M.T. her antidepressant medication, which, accord- ing to Bothern, could have a significant effect on M.T.’s ability to modulate her moods, emotions, and behavior. M.T. reported to Bothern that sometimes when she reminded Jayson about her medication, he would tell her she had already taken it, when she had not. Bothern testified, however, that Jayson rec- ognized the need to be more consistent with the medication and expressed an intention to make greater efforts. Bothern testified that she was also concerned about the children’s physical safety. In April 2017, R.T. presented with a bruise on her forehead and T.T. presented with bruises on her chest and her leg, apparently caused by Jayson’s shoot- ing them with a “Nerf” gun. Bothern testified that this made her concerned that Jayson had poor judgment about what was appropriate with the children. In addition, during her last ses- sion, M.T. told Bothern that Jayson used a pellet gun to shoot the children for “‘fun.’” As a result, Bothern filed a report with Child Protective Services (CPS). Bothern had concerns relating to Jayson’s living situations. Bothern testified that early on during Jayson’s participation, he acknowledged that his residence at that time was in dis- repair and had “trouble with mice and bugs,” but he claimed he was doing what he could to handle the issue. In early 2016, Jayson’s living situation resulted in five or six children, including older boys and younger girls, sharing a bedroom. M.T. reported being very concerned because in the bedroom  - 283 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 the boys would expose themselves to her and had touched the genitals of a female child living in the home, who was about 3 years old at the time. Bothern filed a CPS report as a result. M.T. also had concerns that the boys were “barging in on her in the bathroom.” When Bothern discussed these things with Jayson, he said he would show M.T. how to lock the bath- room door. But with regard to the incidents in the bedroom, Bothern said Jayson responded with a “boys will be boys type of thing.” Jayson subsequently moved in to the residence of Lexi Wallen, where the three children shared a bedroom with Wallen’s daughter. In September 2017, M.T., R.T., T.T., and Wallen’s daughter, who was approximately 6 years old at the time, left that residence in the middle of the night and were returned home by the police. M.T. told Bothern they left because their bedroom smelled like urine, there was a moldy hole in the wall, and ants were all over. In her last session, M.T. told Bothern that there were three mice in the residence, which Jayson shot at with a pellet gun. Bothern testified that she was concerned that Jayson had told M.T. not to tell Kimberly about events in Jayson’s home. When Bothern reported things M.T. had told her to Jayson, Jayson would often subject M.T. to “some backlash.” When Bothern spoke to Jayson about the matter in therapy, he told M.T. that she could talk to Bothern about anything. But when Jayson stopped participating in therapy, M.T. reported that Jayson had told her not to tell Kimberly about certain inci- dents. M.T. struggled with this because it required her to either lie to Kimberly or betray Jayson. And in June 2017, M.T., then about 9 years old, reported to Bothern that CPS came to Jayson’s home with the police because R.T. had reported to someone that Jayson had left the children home alone. When Jayson got very angry with M.T. over this, she falsely told CPS and the police it never happened. Additionally, Bothern testi- fied that many times throughout treatment, the children told her that Jayson instructed them to misbehave while in Kimberly’s care. This too caused emotional distress for M.T.  - 284 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 Bothern testified that she was also concerned about supervi- sion being delegated to M.T. For example, Bothern recounted that in the spring of 2016, T.T. had incurred a bad scrape on her face from falling off a retaining wall while under M.T.’s supervision. Bothern testified that around the same time, M.T. had been “terrified” during a swimming outing when a 4-year- old child in their group fell into the water and M.T. felt responsible for bringing her to safety. In October 2017, M.T., then about age 9, reported that Jayson told her it was her responsibility to take care of her 1- or 2-month-old brother while Jayson and a friend were drinking beer in the home and Wallen was away. Bothern further testified that once in her clinic, she observed Jayson instruct M.T. to take the younger children to the bathroom and also observed Jayson instruct M.T. to retrieve the younger children when they went into the toy room without an adult; in Bothern’s view, these were “[i]nappropriate” expectations to be placing on M.T. at her level of development. Bothern testified that she never performed a psychological evaluation on Jayson. Rather, she tried to work with Jayson to understand M.T.’s developmental needs and expectations, along with appropriate discipline and parenting. Bothern char- acterized Jayson as “very easy to work with”; he always responded well in the clinic and was respectful. Bothern testi- fied that Jayson improved in identifying problem areas, but “not so much in follow through.” In Jayson’s later sessions, Bothern observed that he was frequently not following through on her recommendations about intervening with the children. Dr. Colleen M. Lecher, a licensed mental health profes- sional, testified that she had provided therapy to M.T. and R.T., whom she first met in November 2017 upon Bothern’s retire- ment. Lecher testified that she had never met Jayson and that he was not involved in the children’s treatment. Lecher, who had conducted 20 sessions with M.T., testi- fied that she had diagnosed M.T. with adjustment disorder and depression with symptoms of sadness, confusion, and anxiety. Lecher’s treatment goals for M.T. were to increase her ability  - 285 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 to express her emotions and grief over the loss of her mother and to practice relaxation techniques when feeling stressed. Lecher testified that for the numerous adults involved in M.T.’s life, she set a goal of meeting the children’s needs of safety and stabilization at home and at school because those issues “looked like a big problem for the group.” Lecher described safety and stabilization as making sure transitions are positive and doing everything to be appropriate and consistent, to take care of needs, and to provide structure for adjustment so that the children can “trust their environment.” Lecher observed that M.T. felt compelled to meet the needs of the younger children in Jayson’s home as a parenting figure. Lecher opined that the responsibilities M.T. was given for the younger children put their safety at risk because her knowledge of how to care for them was limited and she had no supervision or instruction regarding how to provide care. This, in Lecher’s view, also posed a risk to M.T.’s emotional well-being. M.T. told Lecher about an occasion prior to November 2017 when the children were left home alone completely unsupervised and she was scared. Lecher testified this was likely a traumatic memory for M.T. and an “attachment strain” that could cause mistrust of her main caregivers, in addition to the initial risk of having been left home alone. M.T. reported to Lecher that there were times she wanted to call Kimberly and tell her she was scared or unhappy at Jayson’s house, but she thought she would be punished for doing so. M.T. told Lecher that even if she had a cell phone of her own while at Jayson’s house, she feared that Jayson would be able to discover that she called Kimberly and she would be grounded or in trouble with Jayson if she did. M.T. shared with Lecher that she saw Jayson drinking alco- hol and getting drunk with his friends. M.T. told Lecher that one time, she crawled underneath a bed at Jayson’s residence and found alcohol there. On several occasions, M.T. also brought up the presence in Jayson’s living room of what she called marijuana and said she believed there were other illegal drugs in the home as well. M.T.’s mother was incarcerated for  - 286 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 drug offenses, and she was worried that Jayson would go to jail too. Lecher considered accessible alcohol and drugs in the home to be a safety risk for the children. Within the first 2 months of treatment, M.T. told Lecher that Jayson transported her in a car without a seatbelt. Around the same time, M.T. also said she was scared because Jayson was texting while driving. Lecher testified that on approximately four occasions at the beginning of treatment, M.T. said that the children did not have enough food at Jayson’s house and would go home to Kimberly’s house hungry. M.T. also expressed con- cerns to Lecher about three mice in Jayson’s house. Lecher observed that during the first 3 months of therapy, M.T. was secretive about what went on during visitations and struggled with knowing what to say and to whom because she did not want to get in trouble or get anyone else in trouble. She told Lecher that Jayson had told her to keep certain things that go on in his house “secret,” but when Lecher tried to follow up, M.T. was very guarded because she was afraid she would get in trouble. In Lecher’s opinion, this was a safety risk. M.T. told Lecher that she loved Jayson, but M.T. also had concerns about Jayson’s ability to provide safety and to be in a relationship with her, listen to her, communicate with her, and understand her needs. M.T. expressed to Lecher that she believed Jayson could meet these needs, but he would need help to do that before she felt safe with him. Since the decrease in Jayson’s parenting time to Wednesday evenings and Saturdays, M.T. had reported feeling less stressed, enjoying planned activities with Jayson, and being happier with their relationship. Lecher observed that since the change, M.T. was able to concentrate and focus more, her mood was more stabilized, and she was more willing to talk about her feelings. Lecher started seeing R.T. in family sessions shortly after Lecher began treating M.T., and she began treating R.T. on March 1, 2019. Lecher diagnosed R.T. with adjustment disor- der with “disturbance of conduct.” Lecher explained that this means that R.T. is adjusting to transitions in her living arrange- ments and separation from her parents and communicating  - 287 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 through negative conduct rather than words. R.T.’s treatment goals were the same as M.T.’s, and she required safety and sta- bilization in the home, consistency, and plans for de-escalating her “meltdown[s]” and making her feel calm. Like M.T., R.T. had reported that Jayson had instructed her not to disclose to Kimberly everything that went on at his house; R.T. also referred to this information as “secrets” and was very guarded when Lecher asked for more information, fearing she would get into trouble. Jayson testified that in addition to being the father of M.T., R.T., and T.T., he was the father of a son born in 2006, as well as a son born to Wallen in 2017. Jayson testified that his younger son lived with him and Wallen, along with Wallen’s two children, in a three-bedroom, two-bathroom trailer home that belonged to Wallen. Jayson testified that he and Wallen had been in a relationship and lived together for approximately 2 years. Jayson asked the court not to grant access to the chil- dren to anyone other than himself. Jayson generally denied or explained the bases for the concerns voiced by other witnesses. Wallen also testified and provided details that generally dis- counted the concerns brought up by other witnesses. District Court Order Disposing of February 24, 2017, “Complaint.” The district court denied the relief Jayson requested in his February 24, 2017, complaint. It found that Jayson’s motion to dismiss the dissolution complaint had not rendered the decree void or unlawful. Regarding custody, the district court stated that it had “observed the parties, the witnesses and their demeanors, and made determinations as to credibility.” It continued, “To the extent the court’s recitation of the facts differ from a party’s position on those facts, the court’s recitation will constitute the court’s findings of disputed facts.” In particular, the dis- trict court noted that Jayson’s failure to meet with the guard- ian ad litem “casts doubt upon his true motivations” and “works against his credibility and position that he is fit, has  - 288 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 satisfactory living arrangements for the children, has the chil- dren’s best interests in mind, and can care for them appropri- ately.” The district court decided that the parental preference principle had been rebutted by showings of parental forfeiture and unfitness and that the best interests of the children “‘lie elsewhere.’” It awarded Kimberly legal and physical custody of the children. Addressing parenting time, the district court found that Kimberly had proved a material change in circumstances and that the children’s best interests required changes to Jayson’s parenting time then in effect. Jayson received parenting time every other week from Thursday afternoon through Sunday afternoon and for designated holidays and 4 weeks total dur- ing the summer, a change from the initial decree’s schedule of Friday evenings through Monday mornings and Wednesday evenings through Thursday mornings. As to child support, the district court completed child sup- port worksheets based in part on Kimberly’s suggested calcu- lations and found a material change in circumstances. For the first time, it ordered Jayson to pay child support on a perma- nent basis, in the amount of $587 per month. The district court found that the remainder of the dissolution decree was to stay in effect and that any other relief sought was denied. The parties were ordered to pay their own attor- ney fees. Subsequent Motions and Amended Order. Jayson filed a motion for new trial and a motion to vacate, alter, or amend the judgment. The latter motion again asserted, among other things, that the dissolution decree was void. The district court denied the motions, with the exception of the issue of child support. At a subsequent hearing on the child support issue, Jayson testified regarding his employment history and income. As of February 26, 2019, Jayson was unemployed and looking for employment and also spending time with his young son. Jayson testified that he did not believe he should be ordered to  - 289 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 pay child support because he “takes care of” the children when he has them. Kimberly testified that shortly after December 2015, when Jayson began exercising less parenting time than was awarded him in the original decree, her expenses increased because the children were with her more often. The district court completed new child support worksheets and entered an order amending the child support aspects of the judgment to require Jayson to pay $236 per month. Jayson was not required to contribute to childcare expenses. Jayson now appeals. ASSIGNMENTS OF ERROR Jayson assigns that the district court erred in not vacating the decree and declaring it to be void. In the alternative, Jayson assigns that the district court erred in (1) denying Jayson’s motion for disqualification for judicial bias, (2) receiving the children’s statements to therapists and the therapists’ opinions, (3) not modifying the decree to award custody to Jayson, (4) modifying the decree as to parenting time and child support, and (5) not awarding Jayson attorney fees. STANDARD OF REVIEW [1] A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion inde- pendent of the lower court’s decision. Simms v. Friel, 302 Neb. 1 , 921 N.W.2d 369 (2019). [2] A motion requesting a judge to recuse himself or herself on the ground of bias or prejudice is addressed to the discre- tion of the judge, and an order overruling such a motion will be affirmed on appeal unless the record establishes bias or preju- dice as a matter of law. McCullough v. McCullough, 299 Neb. 719 , 910 N.W.2d 515 (2018). [3,4] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by such rules; judicial discretion is involved only when the rules make dis- cretion a factor in determining admissibility. Lindsay Internat.  - 290 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 Sales & Serv. v. Wegener, 301 Neb. 1 , 917 N.W.2d 133 (2018). 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. Id. [5] Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to admit evidence over a hearsay objection or exclude evidence on hearsay grounds. Pantano v. American Blue Ribbon Holdings, 303 Neb. 156 , 927 N.W.2d 357 (2019). [6,7] Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and will be affirmed absent an abuse of discretion by the trial court. Jones v. Jones, 305 Neb. 615 , 941 N.W.2d 501 (2020). In a review de novo on the record, an appellate court is required to make independent factual determinations based upon the record, and the court reaches its own independent conclusions with respect to the matters at issue. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one ver- sion of the facts rather than another. Dooling v. Dooling, 303 Neb. 494 , 930 N.W.2d 481 (2019). [8] In an action for modification of a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Garza v. Garza, 288 Neb. 213 , 846 N.W.2d 626 (2014). ANALYSIS Motion to Vacate Decree as Void. We begin with Jayson’s contention that the district court erred by not vacating the decree and declaring it void. Jayson takes the position that the motion to dismiss he filed on November 16, 2015, terminated the dissolution action. According to  - 291 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 Jayson, because the district court did not have jurisdiction of the matter after he filed his motion, the entire decree, which includes custody and child support orders, was void and should have been vacated. Jayson’s argument rests on his understanding that he, as the party that filed the dissolution action, had an absolute right to voluntarily dismiss it and that his filing of the motion to dis- miss had the effect of immediately terminating the action with- out need for additional action by the district court. In short, Jayson claims that his November 16, 2015, motion dismissed the action by operation of law the moment it was filed. Kimberly disagrees, arguing that Jayson did not have the right to unilaterally dismiss the action. Although she concedes that a plaintiff has the right to unilaterally dismiss an action without prejudice under some circumstances, she contends Jayson did not have such a right in this case, because she had filed a third-party complaint seeking temporary custody or visi- tation, which remained pending at the time of Jayson’s motion to dismiss. It does not appear that when he filed his November 16, 2015, motion, Jayson or his counsel believed that Jayson could unilaterally terminate the dissolution proceedings. Jayson filed a motion to dismiss, which would seem to request that the district court take action to effectuate a dismissal rather than notifying it and the other parties of a self-executing dismissal. See Black’s Law Dictionary 1168 (10th ed. 2014) (defining “motion” as “written or oral application requesting a court to make a specified ruling or order”). But even if that issue is set to the side and, further, even if we assume that Jayson is correct that he could and did, in fact, dismiss the dissolu- tion proceeding at the moment he filed his motion to dis- miss, we still disagree with Jayson that the subsequent decree was void. If the dissolution action was terminated the moment Jayson filed his motion to dismiss, the action was effectively rein- stated. While Jayson is correct that an order of dismissal or dismissal by operation of law generally divests a court of  - 292 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 jurisdiction to take any further action in the matter, we have also held that parties may move to reinstate a dismissed action, that such a motion is treated as a motion to vacate, and that courts generally have jurisdiction to vacate an order of dis- missal and reinstate a case. See Molczyk v. Molczyk, 285 Neb. 96 , 825 N.W.2d 435 (2013). Here, the record indicates that Jayson filed a motion to withdraw his motion to dismiss on November 17, 2015. Although framed as a motion to withdraw his motion to dismiss, our law treats motions according to their substance and not their title. See Gerber v. P & L Finance Co., 301 Neb. 463 , 919 N.W.2d 116 (2018). The substance of a motion to withdraw a motion to dismiss asks that the action continue. Accordingly, even if the action was automatically dismissed upon Jayson’s motion, Jayson’s motion to withdraw the motion to dismiss operated as a motion to vacate the dis- missal and reinstate the action, a request that the district court had jurisdiction to entertain. Under this scenario, the district court effectively granted the motion to reinstate by recognizing that Jayson desired that the action continue and proceeding to enter a decree. For these reasons, we find that the district court did not err in concluding that the decree was not void. We thus proceed to address Jayson’s alternative assignments of error. Motion for Judicial Disqualification. [9,10] Before moving to Jayson’s substantive challenges to the modification order, we address his claim that the district court judge erred in not recusing himself. A motion request- ing a judge to recuse himself or herself on the ground of bias or prejudice is addressed to the discretion of the judge, and an order overruling such a motion will be affirmed on appeal unless the record establishes bias or prejudice as a matter of law. McCullough v. McCullough, 299 Neb. 719 , 910 N.W.2d 515 (2018). A judge should recuse himself or herself when a litigant demonstrates that a reasonable person who knew the circumstances of the case would question the judge’s impar- tiality under an objective standard of reasonableness, even  - 293 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 though no actual bias or prejudice was shown. Thompson v. Millard Pub. Sch. Dist. No. 17, 302 Neb. 70 , 921 N.W.2d 589 (2019). Such instances in which the judge’s impartiality might reasonably be questioned specifically include where the judge has a personal bias or prejudice concerning a party or a party’s lawyer. See In re Interest of J.K., 300 Neb. 510 , 915 N.W.2d 91 (2018). A party alleging that a judge acted with bias or prejudice bears a heavy burden of overcoming the presumption of judicial impartiality. Thompson v. Millard Pub. Sch. Dist. No. 17, supra . Jayson has not satisfied this burden. Jayson’s brief contends there were many instances in which the district court demonstrated bias. Because Jayson did not raise some of those allegations before the district court, we will not consider them all. See Weber v. Gas ’N Shop, 278 Neb. 49 , 54, 767 N.W.2d 746 , 750 (2009) (“[a]n appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court”). See, also, In re Interest of Michael N., 302 Neb. 652 , 925 N.W.2d 51 (2019). Instead, we confine our review to alleged instances of judicial bias that were raised below and on appeal; and we conclude that the presiding judge did not err in declining to remove himself from the case. The allegations of bias that Jayson has made below and on appeal arise from hearings in June 2017 and February 2018 relating to temporary alterations of his parenting time. At the hearings, the presiding judge twice allowed Kimberly’s counsel additional time to submit exhibits in proper form, over Jayson’s objections. On one of those occasions, the judge granted a con- tinuance. The judge also allowed the guardian ad litem to offer opinions despite Jayson’s objection. Further, the judge asked Jayson’s counsel whether Jayson’s affidavit stated that he would not answer any questions posed by any court-appointed guardian ad litem. [11] Jayson’s allegations of bias relate to the presiding judge’s courtroom administration and evidentiary and substan- tive rulings. But “‘judicial rulings alone almost never consti- tute a valid basis for a bias or partiality motion’” directed to a trial judge. Huber v. Rohrig, 280 Neb. 868 , 875, 791 N.W.2d - 294 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 590, 598 (2010), quoting Liteky v. United States, 510 U.S. 540 , 114 S. Ct. 1147 , 127 L. Ed. 2d 474 (1994). See, also, Young v. Govier & Milone, 286 Neb. 224 , 835 N.W.2d 684 (2013). Nor can a judge’s ordinary efforts at courtroom administration be a basis for bias or partiality. Id. Opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not con- stitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. In re Interest of J.K., supra . Our review of the record reveals nothing in the district judge’s rulings or other actions that indicates bias or prejudice necessitating recusal. Accordingly, we conclude that the dis- trict court did not abuse its discretion when it denied Jayson’s motion for recusal. Evidentiary Rulings at Modification Hearing. Jayson also challenges the district court’s modification of the dissolution decree. Relevant to that issue are admissibility rulings at the modification hearing that Jayson also disputes. We address those rulings now. [12] First, Jayson argues that the district court erred in admitting testimony based on statements that the children and Kimberly made to Bothern and Lecher. He claims those statements were inadmissible hearsay. However, Jayson only assigns that the district court erred in receiving the children’s statements, and to be considered by an appellate court, an alleged error must be both specifically assigned and spe- cifically argued in the brief of the party asserting the error. Fetherkile v. Fetherkile, 299 Neb. 76 , 907 N.W.2d 275 (2018). Therefore, we will address only the admissibility of the chil- dren’s statements to the therapists. Jayson is correct in identifying the children’s statements as hearsay, because it was not the declarants who testified to them and they were received for the truth of the matters asserted. See, Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 2016). However, we conclude that they fall under the  - 295 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 medical purpose exception to the hearsay rule and were there- fore properly admitted. [13] Under the medical purpose exception, “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment” are not excluded by the hearsay rule. Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016). Rule 803(3) is based on the notion that a person seeking medical attention will give a truthful account of the history and current status of his or her condition in order to ensure proper treatment. See, State v. Beeder, 270 Neb. 799 , 707 N.W.2d 790 (2006), disapproved on other grounds, State v. McCulloch, 274 Neb. 636 , 742 N.W.2d 727 (2007); State v. Hardin, 212 Neb. 774 , 326 N.W.2d 38 (1982). In order for statements to be admissible under rule 803(3), the party seeking to introduce the evidence must demonstrate (1) that the circumstances under which the statements were made were such that the declarant’s purpose in making the statements was to assist in the provision of medical diagnosis or treatment and (2) that the statements were of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional. State v. Mora, 298 Neb. 185 , 903 N.W.2d 244 (2017). Jayson asserts, without additional elaboration, that state- ments made by M.T. and R.T. to Bothern and Lecher were not made for the purposes of or reasonably pertinent to medical diagnosis or treatment. To the extent Jayson implies that the mental health professional services provided by Bothern and Lecher were not medical in nature and that therefore, the medi- cal purpose exception cannot apply, we disagree. [14] Our prior cases in this area do not support an argument that the medical purpose exception cannot apply to statements made to mental health professionals. First of all, we have stated that “[a]lthough the heart of the rule 803(3) exception lies in statements made by a patient to a treating physician, the exception casts its net wider than the patient-physician  - 296 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 relationship.” State v. Vigil, 283 Neb. 129 , 136, 810 N.W.2d 687 , 695 (2012). As a general rule, then, this hearsay excep- tion applies to persons seeking medical assistance from per- sons who are expected to provide some form of health care. Vacanti v. Master Electronics Corp., 245 Neb. 586 , 514 N.W.2d 319 (1994). More specifically, our cases have applied this hearsay excep- tion to statements made for purposes of obtaining a mental health diagnosis or mental health treatment. In In re Interest of B.R. et al., 270 Neb. 685 , 708 N.W.2d 586 (2005), we applied the medical purpose exception to statements a foster mother made to a therapist regarding evidence that the minor patient may have been sexually abused. Although our primary focus in that case was whether statements from someone other than the child herself could be admitted, we concluded that the state- ments fell within the exception as long as the declarant’s pur- pose in making the statements was to assist in the provision of medical diagnosis or treatment, the declarant’s statements were reasonably pertinent to such diagnosis or treatment, and a doc- tor would reasonably rely on such statements. We determined that statements to the child’s therapist setting forth evidence that the child had been sexually abused met these requirements and were thus admissible. Later, in State v. Vigil, supra , we applied the exception to statements made during a child advocacy center forensic inter- view regarding a sexual assault. There, we considered the dual medical and investigatory purposes of the interview. We held that even when an interview is conducted for both medical and investigatory purposes, the medical purpose exception will apply if the statements were made in legitimate and reason- able contemplation of medical diagnosis or treatment. Relying on our decision in In re Interest of B.R. et al., supra , we held that when an individual is alleged to be the victim of sexual assault, “statements reasonably pertinent to medical diagnosis and treatment of both physical and psychological trauma” were admissible under rule 803(3). State v. Vigil, 283 Neb. at 141 , 810 N.W.2d at 698 (emphasis supplied).  - 297 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 Our cases are consistent with those of federal appeals courts. A recent opinion from the Third Circuit Court of Appeals noted that every federal court of appeals that has considered the issue has concluded that statements to mental health profes- sionals for purposes of diagnosis or treatment are admissible under the medical purpose exception to the hearsay rule in the Federal Rules of Evidence. See U.S. v. Gonzalez, 905 F.3d 165 (3d Cir. 2018), cert. denied ___ U.S. ___, 139 S. Ct. 2727 , 204 L. Ed. 2d 1120 (2019) (collecting cases). Having determined that statements made to mental health professionals can fall within the medical purpose exception to the hearsay rule, we must consider whether the statements at issue here met the necessary requirements: that the declarant’s purpose in making the statements was to assist in the provision of medical diagnosis or treatment, that the declarant’s state- ments were reasonably pertinent to such diagnosis or treatment, and that a medical professional would reasonably rely on such statements. Whether a statement was both taken and given in contemplation of medical diagnosis or treatment is a factual finding made by the trial court in determining the admissi- bility of the evidence under rule 803(3), and we review that determination for clear error. State v. Vigil, supra . Applying that standard here, we find no clear error on the part of the district court. In the case before us, Kimberly sought assistance for M.T. and R.T. from Bothern and Lecher, health care profession- als expected to provide mental or psychological health care. Bothern diagnosed M.T. with adjustment disorder along with depression. In treating M.T., Bothern testified that it was nec- essary to address her relationship with Jayson and his parent- ing practices. Lecher made the same diagnosis for M.T., and her treatment goals included helping the adults in M.T.’s life meet M.T.’s needs for safety and stabilization. This entailed providing structure and consistency so that M.T. could trust her environment. Lecher set the same treatment goals for R.T., whom she also diagnosed with adjustment disorder. Statements by M.T. and R.T. relating to their relationship with Jayson  - 298 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 and their time under his care were integral to their diagno- sis and treatment, and considering the context in which they were made, the statements could be reasonably relied upon. We find no error in admitting the disputed testimony over Jayson’s objections. Second, Jayson argues that the testimony of Bothern and Lecher lacked foundation and relevance because of what he claims are admissions that they could not offer opinions about Jayson’s parental fitness or the best interests of the children. But even if such admissions exist, it does not follow that Bothern and Lecher lacked knowledge relevant to issues that the district court had to resolve in this case. Whether in the form of opinions or personal observations, the testimony of Bothern and Lecher was relevant to custody and parenting time because it painted a picture of the children’s time and ­relationship with Jayson, the children’s perception of it, and the effects it was having on them. As for foundation, the testimony of Bothern and Lecher was based on their personal knowledge. They both spent time with the children in therapy over the course of months or years, with Bothern spending some therapeutic time with Jayson, and as explained above, the therapy itself necessarily focused on Jayson’s parenting time and his relationship with the chil- dren. Therefore, we are not persuaded that the district court abused its discretion in admitting the therapists’ testimony over Jayson’s relevance and foundation objections. We proceed to consider Jayson’s remaining claims in light of this admissible evidence. Child Custody. [15] Jayson challenges the district court’s determination that custody of the children should remain with Kimberly. This matter has come to us by way of modification proceed- ings. Ordinarily, custody of a minor child will not be modi- fied unless there has been a material change in circumstances showing either that the custodial parent is unfit or that the best interests of the child require such action. Jones v. Jones,  - 299 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 305 Neb. 615 , 941 N.W.2d 501 (2020). Jayson does not argue that there has been a material change in circumstances, but argues that modification of the decree to award him custody is required under the parental preference principle. The parental preference principle establishes a presumption that the best interests of a minor child are served by plac- ing custody with his or her parent. See In re Guardianship of K.R., 304 Neb. 1 , 932 N.W.2d 737 (2019). We agree that the parental preference principle governs our analysis. But based on this record and our standard of review, we conclude that the parental preference principle did not require the district court to place the children with Jayson. The parental preference principle applies to child custody controversies between a biological or adoptive parent on one hand and one who is neither a biological or adoptive par- ent on the other. See In re Guardianship of D.J., 268 Neb. 239 , 682 N.W.2d 238 (2004). In those cases, the parent has a superior right to and is entitled to custody of the child unless the third party negates the parental preference principle. See id. On many occasions, we have recognized that the parental preference principle can be overcome by a showing that the parent is unfit or has forfeited the right to custody. See In re Guardianship of K.R., supra (collecting cases). In addition, in Windham v. Griffin, 295 Neb. 279 , 288, 887 N.W.2d 710 , 717 (2016), we indicated that the preference could be “negated by a demonstration that the best interests of the child lie elsewhere.” We cautioned, however, that we viewed cases in which the best interests of the child defeated the parental preference principle as “exceptional” and further explained that a third party could not overcome the parental preference principle merely by showing that he or she would be able to provide more ameni- ties for the child. Id. at 290, 887 N.W.2d at 718. In this case, the district court concluded that the parental preference principle applied, but found that Kimberly was nonetheless entitled to custody. The district court found the parental preference principle was overcome because Jayson was unfit to have custody of the children, he had forfeited his  - 300 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 right to custody, and it was in the best interests of the children for Kimberly to have custody. Jayson argues that the district court erred by finding that he was unfit or forfeited his right to custody. As for the district court’s conclusion that it was in the children’s best interests for Kimberly to have custody, he argues that the parental prefer- ence principle cannot be overcome by a showing that it is in the children’s best interests for someone other than the parent to have custody and urges us to overrule Windham v. Griffin, supra , to the extent it holds otherwise. We find that it is not necessary for us to consider whether Jayson forfeited his right to custody or whether the parental preference principle was overcome by a showing that it was in the children’s best interests for Kimberly to have custody. Even if Jayson’s arguments on those points have merit, the parental preference principle would still be negated by a showing that Jayson is unfit. And, as we will explain, viewing the admis- sible evidence through the lens of the district court’s credibility determinations, we cannot say that the district court abused its discretion in finding Jayson was unfit. [16] Parental unfitness means a personal deficiency or inca- pacity which has prevented, or will probably prevent, perform­ ance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child’s well-being. In re Guardianship of K.R., 304 Neb. 1 , 932 N.W.2d 737 (2019). Evidence of unfitness should be focused upon a parent’s ability to care for a child, and not any other moral failings a parent may have. In re Interest of Lakota Z. & Jacob H., 282 Neb. 584 , 804 N.W.2d 174 (2011). Evidence of a parent’s past failings is pertinent only insofar as it suggests present or future faults. Id. Parental unfitness must be shown by clear and convincing evidence. See In re Guardianship of D.J., supra . The district court heard evidence that under Jayson’s care, the children’s physical well-being was at risk. This included evidence of poor living conditions. Jayson had acknowledged that his earlier residence was in disrepair and had issues  - 301 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 with mice and insect infestations. Kimberly testified that at the time Jayson lived there, she found cockroaches in M.T.’s school backpack. There was evidence that at Jayson’s next resi- dence with Wallen, similar problems persisted, including mice and a months-long lice issue. In September 2017, the children left Jayson’s residence in the middle of the night due to an odor of urine, a moldy hole in the wall, and the presence of ants in their bedroom. While Jayson insists his home was in a much better condition than portrayed by Kimberly’s witnesses, he passed up the opportunity to have a third party, the guardian ad litem, visit it. Other evidence showed a risk to the children’s safety. Kimberly testified that the children often returned from Jayson’s home with animal bites or scratches. During the year before trial, the children routinely returned from Jayson’s house hungry, dirty, and dressed in clothing that was either the wrong size or inappropriate for the weather. At that time, M.T. reported that she had been punished by losing a meal and told Lecher that she did not have enough food to eat when she was at Jayson’s house. During the year preceding trial, M.T. also reported that for “‘fun,’” Jayson had shot the children with a pellet gun. Also during the year before trial, M.T. reported the presence of drugs and alcohol in Jayson’s home, which she was able to access, and said she had observed Jayson intoxi- cated, when the decree prohibited Jayson from consuming alcohol within 24 hours prior to or during his parenting time. Kimberly testified that Jayson often transported the children without proper car restraints, and during the year before trial, M.T. also reported that Jayson had transported her without a seatbelt and had texted while driving. Evidence was also introduced that Jayson did not supervise the children prop- erly, including during swimming outings. When the children were returned from swimming outings with Jayson, Kimberly testified that they were nearly always sunburned. Sometimes Jayson entrusted M.T. with supervising the younger children, leaving them home alone, when, according to Bothern and Lecher, M.T. was not developmentally ready to supervise  - 302 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 others. According to Lecher, this posed an initial safety risk to the children and also could diminish M.T.’s ability to trust her caregivers, posing a future safety risk. In addition to issues of physical health and safety, there was evidence that Jayson had not routinely contributed financially to the children’s care. Until these proceedings, Jayson was not obligated to pay child support, but there was no evidence that he had otherwise contributed to their maintenance aside from childcare expenses he paid after contempt proceedings and what was incidental to his limited and inconsistent parent- ing time. The record in this case also contains evidence that Jayson’s parental shortcomings have been or probably will be detrimen- tal to his children’s mental and emotional well-being. At the time of trial, both M.T. and R.T. were undergoing treatment for adjustment disorders. An atmosphere of safety and stabili- zation was part of their treatment, but their experience under Jayson’s care, described above, was inconsistent with these mental health needs. And in assessing parental fitness, we have considered a parent’s ability to meet the particular needs of a child. See In re Guardianship of K.R., 304 Neb. 1 , 932 N.W.2d 737 (2019). Other evidence also showed that Jayson posed a detriment to the children’s mental and emotional well-being. Contrary to the initial decree, in 2015 and 2016, Jayson was inconsist­ ent about giving M.T. antidepressant medication she needed regularly to modulate her moods, emotions, and behavior, despite reminders from M.T. herself. Jayson’s “boys will be boys” response to M.T.’s concerns about older boys at his previous residence exposing themselves to her and touching the genitals of a young girl in the home could be understood as dismissive. And Jayson consistently put the children, espe- cially M.T., in a position that required them to choose whether they were loyal to him or to Kimberly. He asked them to keep the goings-on at his home “secret,” and if the children did disclose such information, they would be in trouble with Jayson. This caused internal struggles for M.T. Fearing  - 303 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 discovery and punishment, M.T. reported that she did not feel free to call Kimberly if she was scared or unhappy at Jayson’s house. In June 2017, CPS and the police came to the home after Jayson left the children home alone, and due to Jayson’s anger with M.T. over the situation, M.T. lied about the mat- ter. Lecher observed that M.T. had an “attachment strain” as a result of being left home alone. Jayson caused further emo- tional turmoil for M.T. by telling the children to misbehave for Kimberly. Jayson’s detrimental effect on the children’s mental and emotional health was evident when his visitation was tem- porarily reduced. Kimberly testified that when visits with Jayson were scaled back, the children’s behavior and school performance improved, and Lecher testified that upon Jayson’s reduced visitation, M.T. became less stressed, more stable in her mood, able to focus more, and more open about her feel- ings. M.T. was also happier with her relationship with Jayson, whom she loved, but she questioned his ability to provide for her safety and understand her needs. Despite Jayson’s expressing intentions to improve as a par- ent, this history, along with other testimony, is evidence that at the time of trial, he did not have either the will or the capac- ity to do so. According to Bothern, she observed that Jayson frequently did not follow through with her recommendations, even though he was easy to work with in the clinic. This may not, on its own, demonstrate unfitness, but it could reasonably be understood as demonstrating a reluctance or inability to change his parenting practices. We have reviewed the testimony of Jayson and Wallen, in which they either denied or explained the circumstances above and generally cast a positive light on Jayson as a par- ent. But the district court’s order demonstrates that it did not find this testimony to be credible. In child custody cases, where the credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.  - 304 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 Dooling v. Dooling, 303 Neb. 494 , 930 N.W.2d 481 (2019). Because this court is not positioned to pass on the credibility of the witnesses like the district court was, we defer to the district court’s credibility determinations in our assessment of the facts. Jayson argues that this case is “nothing like notable paren- tal preference cases in which the appellate court affirmed the lower court’s decision to award custody . . . of a child to a nonparent.” Brief for appellant at 24 (emphasis in original), citing In re Guardianship of K.R., 304 Neb. 1 , 932 N.W.2d 737 (2019); State on behalf of Lilliana L. v. Hugo C., 26 Neb. Ct. App. 923 , 924 N.W.2d 743 (2019); and State on behalf of Combs v. O’Neal, 11 Neb. Ct. App. 890 , 662 N.W.2d 231 (2003). But the cases Jayson cites are as different from one another as they are from this one. And, even if the cases presented by Jayson shared some factual similarities with this case, our analysis would not depend on a fact-for-fact comparison. Taken alone, many of Jayson’s individual parental short- comings might not amount to unfitness. However, the parental fitness analysis is a fact-intensive inquiry. See In re Interest of Noah C., 306 Neb. 359 , 945 N.W.2d 143 (2020). Accordingly, we must review the record in this case in totality, rather than focusing on whether any one piece of evidence, viewed in isolation, demonstrates unfitness. Having done so in this case, and given the deference we owe to the trial court’s credibility determinations, we cannot say that the district court abused its discretion in finding Jayson unfit by clear and convincing evi- dence and ordering that custody remain with Kimberly. Parenting Time. Jayson asserts that even if the district court did not err in its custody determination, it erred in modifying his parenting time. The district court modified Jayson’s unsupervised parent- ing time to every other week from Thursday afternoon through Sunday afternoon and designated holidays, plus summer visita- tion. Under the initial decree, Jayson’s unsupervised parent- ing time had been previously scheduled for Friday evenings  - 305 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 through Monday mornings and Wednesday evenings through Thursday mornings. [17-20] Visitation rights established by a marital dissolution decree may be modified upon a showing of a material change of circumstances affecting the best interests of the children. VanSkiver v. VanSkiver, 303 Neb. 664 , 930 N.W.2d 569 (2019). A material change in circumstances means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently. Id. The party seeking to modify visitation has the burden to show a material change in circumstances affecting the best interests of the child. Id. The best interests of the children are primary and paramount considerations in determining and modifying visitation rights. Id. Jayson argues the district court could only modify his parent- ing time if Kimberly proved that between the December 2015 decree and the modification proceedings, a material change of circumstances had taken place and Kimberly failed to prove such a change. We disagree. Evidence during this time period showed that Jayson was inconsistent in exercising his parent- ing time, and when he did, it negatively affected the children’s mental and physical well-being. There was also testimony that the children had a therapeutic need for stability and consist­ ency, which Jayson was not able to provide. Thus, it was not an abuse of discretion for the district court to find there had been a material change of circumstances regarding parenting time that affected the best interests of the children. Jayson also argues the district court abused its discretion in modifying Jayson’s parenting time, because the district court modified it to a “level below” the parenting time Kimberly requested in her answer and cross-complaint. Brief for appel- lant at 32. The parenting time ordered by the district court did differ from that requested by Kimberly, but it is not so clear to us that it was a “level below,” as Jayson contends. The district court’s parenting time order granted Jayson less time with the children than Kimberly requested, but it also granted  - 306 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 Jayson unsupervised time when Kimberly requested that it be “fully supervised.” In any event, we are not convinced by Jayson’s position. Jayson argues that Eric H. v. Ashley H., 302 Neb. 786 , 925 N.W.2d 81 (2019), precluded the district court from reducing Jayson’s parenting time below that requested by Kimberly. In that case, we held that a district court did not abuse its discre- tion by concluding that sexual abuse by the child’s stepfather was the only material change of circumstances alleged in a complaint to modify and therefore within the scope of the modification proceeding. Jayson makes no argument here that Kimberly relied on evidence outside the scope of her pleadings to demonstrate a material change of circumstances. Kimberly’s answer and cross-complaint alleged several material changes in circumstances affecting the children’s best interests and requested a change to the parenting time schedule. Jayson was on notice that parenting time was at issue, and he had the opportunity to put on any and all evidence pertinent to the parenting time schedule. See Fetherkile v. Fetherkile, 299 Neb. 76 , 907 N.W.2d 275 (2018) (due process requires reasonable notice and opportunity to be heard appropriate to nature of proceeding and character of rights to be affected). We conclude that the district court did not exceed the scope of the pleadings or rule without notice to Jayson in modifying his parenting time. Child Support. Jayson argues that the district court erred in modifying the decree to impose a child support obligation on him, when none existed before. Jayson does not dispute the district court’s cal- culation of the amount of child support or that Kimberly, as a third party, could be entitled to child support. See Neb. Ct. R. § 4-222 (rev. 2011) (if child resides with third party, court shall order each parent to pay to third party his or her respective amount of child support). Instead, Jayson contends that there was no material change in circumstances to justify any modifi- cation to his child support obligation.  - 307 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 [21] A party seeking to modify a child support order must show a material change in circumstances that (1) occurred subsequent to the entry of the original decree or previous modi- fication and (2) was not contemplated when the decree was entered. Hotz v. Hotz, 301 Neb. 1 02, 917 N.W.2d 467 (2018). According to Jayson, there was no material change in circum- stances as to child support because there was no evidence that his income or the children’s expenses had increased since the original decree and because custody remained with Kimberly. We find no merit to this argument. Although Jayson asserts that there was no change in cus- tody between the original decree and the order modifying it, a closer analysis reveals a more complicated picture. The initial decree provided that Kimberly had physical and legal custody of the children. The decree scheduled Jayson’s parenting time for Friday evenings through Monday morn- ings and Wednesday evenings through Thursday mornings. Supervised parenting time with Erica was by arrangement. Under this schedule, the amount of time the children were to spend with Jayson was nearly equal to the amount of time the children were to spend with Kimberly. In fact, this schedule provided for the children to spend more nights with Jayson than with Kimberly. And we have previously explained that a trial court can effectively establish a joint physical custody arrangement by awarding nearly equal parenting time even if it uses a different label to describe the arrangement. See State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933 , 932 N.W.2d 692 (2019). See, also, Neb. Rev. Stat. § 43-2922(20) (Reissue 2016) (defining physical custody as authority and responsibility regarding child’s place of residence and exer- tion of continuous parenting time for significant periods of time). In the order modifying the decree, however, the district court reduced Jayson’s parenting time to every other week from Thursday afternoon through Sunday afternoon and des- ignated holidays, with 4 weeks total during the summer. After the modification order, Jayson clearly did not have physical custody of the children.  - 308 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TILSON v. TILSON Cite as 307 Neb. 275 Regardless of whether there was a change in custody, Kimberly’s regular time with the children increased signifi- cantly between the original and modified decrees. And even when Jayson’s blocks of summer parenting time are consid- ered, her overall time with the children was no longer roughly equivalent to Jayson’s. Under the modified decree, the children would spend more than twice as many nights with Kimberly than they would with Jayson. Further, Kimberly testified that the more time she had the children, the more expenses she incurred. This permanent change to Jayson’s parenting time and the corresponding increase in expenses for Kimberly were not contemplated at the time of the original decree, and we conclude that they amounted to a material change in circum- stances, which permitted modification of Jayson’s child sup- port obligation. But see Brodrick v. Baumgarten, 19 Neb. Ct. App. 228 , 809 N.W.2d 799 (2011) (finding temporary change to amount of parenting time did not amount to material change in circumstances). Attorney Fees. Jayson contends that the district court erred in declining to award him attorney fees. This argument is based on his posi- tion that he should have prevailed in this matter. Because we have found no merit to Jayson’s other claims, we conclude that the district court did not abuse its discretion in rejecting this one. See Noonan v. Noonan, 261 Neb. 552 , 624 N.W.2d 314 (2001). CONCLUSION For the reasons set forth above, we find no error on the part of the district court and affirm. Affirmed.

2020-12-04 06:08:31.909743+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007407PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 393 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HURD Cite as 307 Neb. 393 State of Nebraska, appellee, v. Kenneth E. Hurd, appellant. ___ N.W.2d ___ Filed October 2, 2020. No. S-19-919. 1. Sentences: Appeal and Error. An appellate court will not disturb a sen- tence imposed within the statutory limits absent an abuse of discretion by the trial court. 2. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unrea- sonable or if its action is clearly against justice or conscience, reason, and evidence. 3. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law, which an appellate court reviews independently of the lower court. 4. ____: ____. An appellate court will not resort to interpretation to ascertain the meaning of statutory words that are plain, direct, and unambiguous. 5. Courts: Sentences. A sentencing court has wide latitude and discretion to impose any sentence within the statutory limits. Appeal from the District Court for Seward County: James C. Stecker, Judge. Affirmed. Jim K. McGough and Nathan S. Lab, of McGough Law, P.C., L.L.O., for appellant. Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.  - 394 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HURD Cite as 307 Neb. 393 Heavican, C.J. INTRODUCTION Kenneth E. Hurd pled no contest to a misdemeanor charge of child abuse. He was sentenced to 1 year’s imprisonment. He appealed, and we moved this case to our docket to answer the question of whether, under Neb. Rev. Stat. § 81-1848 (Cum. Supp. 2018), a victim may both fill out a victim impact state- ment to be included in the presentence investigation report and also write and read a separate letter to be offered at the defendant’s sentencing hearing. We conclude that the plain lan- guage of § 81-1848 allows both a victim impact statement and a written letter and that Hurd’s sentence was not excessive. We accordingly affirm. FACTUAL BACKGROUND Hurd was charged by information with incest. Pursuant to a plea agreement, Hurd subsequently pled no contest to one count of misdemeanor child abuse. In return for Hurd’s no con- test plea, the State agreed to recommend probation. A presentence investigation report was completed. The vic- tim included a victim impact statement, consisting of responses to a questionnaire drafted by the probation office, and ­suggested that she believed probation would be appropriate. The proba- tion officer completing the report indicated the same. At the sentencing hearing, the State offered a factual basis alleging that Hurd resided with his wife and the alleged victim in this case and that Hurd subjected the victim to emotional trauma and physical abuse. The State also requested that the victim be permitted to read aloud a separate letter that she had written to Hurd. That request was granted over Hurd’s objec- tion. The contents of the letter were read into the record, and the letter itself was entered into evidence. Hurd was subse- quently sentenced to 1 year’s imprisonment. Hurd appeals.  - 395 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HURD Cite as 307 Neb. 393 ASSIGNMENTS OF ERROR Hurd assigns, renumbered, that the district court abused its discretion by (1) allowing the victim to submit a statement to be included in the presentence investigation report and allow- ing her to also read a separate letter that was then offered into evidence for purposes of sentencing and (2) relying on state- ments suggesting that Hurd had committed first degree sexual assault in sentencing him to the maximum 1-year sentence of imprisonment allowable for his conviction for misdemeanor child abuse. STANDARD OF REVIEW [1,2] An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. 1 An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreason- able or if its action is clearly against justice or conscience, reason, and evidence. 2 [3] Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court. 3 ANALYSIS Interpretation of § 81-1848(1)(d). In his first assignment of error, Hurd argues that the district court erred in allowing the victim to provide a victim impact statement for the presentence investigation report and to also read and offer to the court a separate, written statement. As relevant, § 81-1848 provides: (1) Victims as defined in section 29-119 shall have the . . . right[]: .... 1 State v. Price, 306 Neb. 38 , 944 N.W.2d 279 (2020). 2 Id. 3 State v. Galvan, 305 Neb. 513 , 941 N.W.2d 183 (2020).  - 396 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HURD Cite as 307 Neb. 393 (d) To be notified by the county attorney by any means reasonably calculated to give prompt actual notice of the following: .... (iv) The victim’s right to make a written or oral impact statement to be used in the probation officer’s prepa- ration of a presentence investigation report concerning the defendant; .... (vii) The victim’s right to submit a written impact statement at the sentencing proceeding or to read his or her impact statement submitted pursuant to subdivision (1)(d)(iv) of this section at the sentencing proceeding. We held in State v. Galindo, 4 and reiterated in State v. Thieszen, 5 that § 81-1848 of the Nebraska Crime Victim’s Reparations Act provides a list of baseline rights and that the act “does not seek to limit the sentencing court’s traditional discretion to consider evidence from a variety of sources.” Hurd’s assignment of error presents two issues—whether the victim was entitled to submit both a victim impact state- ment under § 81-1848(1)(d)(iv) and a written impact statement under § 81-1848(1)(d)(vii) and whether the district court erred in allowing the victim to read the second impact statement at sentencing before making the written version part of the record. These issues require this court to consider the language of § 81-1848. There is no allegation on appeal that the State violated the plea agreement. [4] An appellate court will not resort to interpretation to ascertain the meaning of statutory words that are plain, direct, and unambiguous. 6 In this case, the language of § 81-1848 plainly states that the victim had both the right to offer a written statement for 4 State v. Galindo, 278 Neb. 599 , 670, 774 N.W.2d 190 , 245 (2009). 5 See State v. Thieszen, 300 Neb. 112 , 912 N.W.2d 696 (2018). 6 State v. Montoya, 305 Neb. 581 , 941 N.W.2d 474 (2020).  - 397 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HURD Cite as 307 Neb. 393 the presentence investigation report under subsection (1)(d)(iv) and to also offer a written impact statement at the time of sentencing under subsection (1)(d)(vii). As the State notes, the ability to do so seems to be a “peculiar quirk” of that section, but the language is nevertheless plain in allowing both. 7 The victim here did both, as was permitted by statute, and we find no error in the district court’s allowing both to be considered at sentencing. We note that Hurd objected to the written letter offered at sentencing on the ground that the victim had offered a written statement for inclusion in the presentence investigation report. We also note that Hurd further objected to facts relating to a sexual assault included in the report. But Hurd did not seek a continuance as a result of the reading or offering of the victim’s letter, nor did he argue that the information alleged in the letter read and offered at sentencing was unknown to him. We also observe that the same plain language set forth above does not explicitly reserve to a victim the right to read aloud a separate victim impact statement drafted for purposes of sentencing, as occurred in this case. But as we have previ- ously noted, the rights set forth in § 81-1848 are baseline rights and do not limit a sentencing court’s discretion to consider evidence from a variety of sources. Where Hurd has failed to demonstrate that he was prejudiced by the victim’s reading her letter, a written version was, in any case, made available to the court. 8 The district court has discretion to consider many things in determining a sentence, as will be discussed below. Allowing this letter to be read, rather than simply offered, is consistent with this discretion. Hurd’s first assignment of error is with- out merit. 7 Brief for appellee at 11. 8 See State v. Scott, 284 Neb. 703 , 824 N.W.2d 668 (2012).  - 398 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HURD Cite as 307 Neb. 393 Consideration of Charges Dropped Pursuant to Plea Agreement. In his second assignment of error, Hurd assigns that the district court erred in relying on allegations originally charged, but ultimately dismissed, in order to sentence him to the maxi- mum sentence allowed for his conviction. The State relied on State v. Janis 9 to support its position that it was not an abuse of discretion for the district court to con- sider dismissed charges when sentencing a defendant: “It must be assumed, we think, that a trial judge knows the difference between information that is pertinent to the issue before him and that which is unfounded rumor. The law invests a trial judge with a wide discretion as to the sources and types of information used to assist him in determining the sentence to be imposed within statutory limits.” It is hard for us to understand how a trial court may properly consider information of the appellant’s behavior if no charges are filed, but may not consider the underlying facts if a charge is filed and later dismissed, not because the facts are untrue, but due to a plea bargain. While we do not mean to suggest . . . that a trial court is free to consider any matter having no relevance or basis, we do mean to say that a trial court is, indeed, given wide discretion and where it appears that a sentence imposed is within statutory and constitutional limitations, it will not be disturbed on appeal in the absence of an abuse of discretion on the part of the trial court. Hurd argues that his case is distinguishable from Janis because “the district court in this matter improperly con- cluded that [Hurd] was guilty of a more serious and dismissed charge and abused its discretion by excluding consideration of a probationary sentence because the court believed that [Hurd] would not admit to the more serious charge.” 10 Having 9 State v. Janis, 207 Neb. 491 , 495, 299 N.W.2d 447 , 449-50 (1980) (quot­ ing State v. Rapp, 184 Neb. 156 , 165 N.W.2d 715 (1969)). 10 Brief for appellant at 12.  - 399 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HURD Cite as 307 Neb. 393 reviewed the district court’s comments made at sentencing, we disagree with this characterization. [5] As noted above, we have observed that a sentencing court has wide latitude and discretion to impose any sentence within the statutory limits: “It is a long accepted practice in this state that before sentencing a defendant after conviction a trial judge has a broad discretion in the source and type of evidence he may use to assist him in determining the kind and extent of punishment to be imposed within the limits fixed by statute. Highly relevant, if not essential, to his determina- tion of an appropriate sentence is the gaining of knowl- edge concerning defendant’s life, character, and previous conduct. In gaining this information, the trial court may consider reports of probation officers, police reports, affi- davits, and other information including his own observa- tions of the defendant. A presentence investigation has nothing to do with the issue of guilt. The rules governing due process with respect to the admissibility of evidence are not the same in a presentence hearing as in a trial in which guilt or innocence is the issue. The latitude allowed a sentencing judge at a presentence hearing to determine the nature and length of punishment, other than in recidi- vist cases, is almost without limitation as long as it is relevant to the issue.” 11 The sentence imposed was supported by the facts of this case and the victim’s statement, and it was within the district court’s discretion. Hurd’s second assignment of error is with- out merit. CONCLUSION We affirm the judgment of conviction and the sentence of the district court. Affirmed. 11 Rapp, supra note 9, 184 Neb. at 157-58 , 165 N.W.2d at 716.

2020-12-04 06:08:35.330261+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007409PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 407 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CANADAY Cite as 307 Neb. 407 State of Nebraska, appellee, v. Clint C. Canaday, appellant. ___ N.W.2d ___ Filed October 2, 2020. Nos. S-19-1102, S-19-1103. 1. Pleas: Appeal and Error. An appellate court will not disturb the trial court’s ruling on a presentencing motion to withdraw a guilty or no con- test plea absent an abuse of discretion. 2. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in con- sidering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. 3. Pleas. The right to withdraw a plea previously entered is not absolute. 4. Pleas: Proof. When a defendant moves to withdraw his or her plea before sentencing, a court, in its discretion, may sustain the motion for any fair and just reason, provided that such withdrawal would not substantially prejudice the prosecution. The defendant has the burden to show the grounds for withdrawal by clear and convincing evidence. 5. Appeal and Error. Appellate courts do not ordinarily consider argu- ments and theories raised for the first time on appeal. 6. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unrea- sonable or if its action is clearly against justice or conscience, reason, and evidence. 7. Convicted Sex Offender. Because registration duties under the Sex Offender Registration Act are not punitive, a trial court may inform a defendant of the registration duties before accepting pleas of guilty or no contest, but it is not required to do so. 8. Sentences. In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural back- ground, (5) past criminal record or record of law-abiding conduct,  - 408 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CANADAY Cite as 307 Neb. 407 and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime. 9. ____. The appropriateness of a sentence is necessarily a subjective judg- ment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. 10. ____. Generally, it is within a trial court’s discretion to direct that sentences imposed for separate crimes be served either concurrently or consecutively. Appeals from the District Court for Dawes County: Travis P. O’Gorman, Judge. Affirmed. Justin J. Cook, of Lincoln Law, L.L.C., for appellant. Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Stacy, J. Pursuant to a plea agreement, Clint C. Canaday entered no contest pleas to felony charges in two separate cases. At the sentencing hearing, he made an oral motion to withdraw one of the pleas. The court overruled the motion and proceeded with sentencing in both cases. Canaday appeals his convictions and sentences in both cases, which we have consolidated for appel- late review. Finding no error, we affirm. I. BACKGROUND On October 12, 2018, Canaday was charged in the district court for Dawes County with three Class II felonies: intentional child abuse resulting in serious bodily injury, 1 first degree assault, 2 and use of a deadly weapon to commit a felony. 3 1 Neb. Rev. Stat. § 28-707 (Reissue 2016). 2 Neb. Rev. Stat. § 28-308 (Reissue 2016). 3 Neb. Rev. Stat. § 28-1205 (Reissue 2016).  - 409 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CANADAY Cite as 307 Neb. 407 The information also alleged Canaday was a habitual criminal. 4 Canaday entered “not guilty” pleas to all counts. About 8 months later, on June 6, 2019, a second felony information was filed against Canaday, charging him with two counts of first degree sexual assault of a child, 5 both Class IB felonies. 6 Canaday entered “not guilty” pleas to both counts. 1. Plea Agreement In July 2019, Canaday and the State entered into a written plea agreement involving both cases. In the first case, Canaday agreed to plead guilty or no contest to an amended information charging one count of intentional child abuse resulting in seri- ous bodily injury and one count of child abuse not resulting in serious bodily injury. In return, the State agreed to dismiss the charges of first degree assault and use of a deadly weapon to commit a felony, and it further agreed to dismiss the habitual criminal allegation. In the second case, Canaday agreed to plead guilty or no contest to an amended information charging one count of first degree sexual assault of a child. In return, the State agreed to dismiss the second count of first degree sexual assault of a child. And in both cases, the State also agreed not to file additional charges against Canaday for offenses involving three specific juveniles occurring prior to the date of his arrest. A change of plea hearing in both cases was held July 22, 2019. At the hearing, Canaday’s counsel recited the terms of the plea agreement on the record. The court asked Canaday whether the terms, as stated, reflected his understanding of the agreement, and Canaday answered, “Yes.” During the plea colloquy, the court explained each charge in the amended informations and the possible penalties, including an advisement that the sentences imposed could be ordered to be served concurrently or consecutively. Canaday 4 Neb. Rev. Stat. § 29-2221 (Reissue 2016). 5 Neb. Rev. Stat. § 28-319.01 (Reissue 2016). 6 § 28-319.01(2).  - 410 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CANADAY Cite as 307 Neb. 407 stated he understood. The court also informed Canaday that on the charge of first degree sexual assault of a child, he “can be ordered to comply with” the Nebraska Sex Offender Registration Act (SORA). Canaday stated he understood. The court advised Canaday of the various rights he would be waiv- ing by entering his pleas, and Canaday stated he understood. Canaday told the court he did not have any questions about his rights or the possible penalties, and when asked whether he had enough time to think about his pleas and discuss them with his attorney, Canaday replied, “Yes.” Canaday entered pleas of no contest in both cases, after which the State provided a factual basis for the charges. The charges related to Canaday’s treatment of his girlfriend’s three children. In the first case, concerning the charge of intentional child abuse resulting in serious bodily injury, Canaday threw a metal tape measure at his girlfriend’s then 5-year-old son, causing the child’s lip to split so severely he needed plastic surgery to correct it. The event was recorded on video cameras the girlfriend had installed in the home. On the charge of child abuse not resulting in serious bodily injury, Canaday used a cattle prod to shock his girlfriend’s then 14-year-old son when Canaday felt the child had misbehaved. In the second case, concerning the charge of first degree sexual assault of a child, the then 11-year-old daughter of Canaday’s girlfriend told her mother that Canaday had been sexually assaulting her, and the child’s mother told her she needed “proof.” The child used her cell phone to make an audio recording of two incidents in which Canaday anally and vaginally penetrated her while she pleaded with him to stop. A transcript of the audio recording was admitted into evidence at the plea hearing. After making appropriate findings, the district court accepted Canaday’s pleas in both cases. In the first case, Canaday was found guilty of intentional child abuse resulting in serious bodily injury, a Class II felony, 7 and intentional child abuse 7 § 28-707(1) and (7).  - 411 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CANADAY Cite as 307 Neb. 407 not resulting in serious bodily injury, a Class IIIA felony. 8 In the second case, Canaday was found guilty of first degree sexual assault of a child, a Class IB felony. 9 A presentence investigation report (PSR) was ordered and sentencing was scheduled for October 22, 2019. 2. Sentencing Hearing When the sentencing hearing began, defense counsel advised the court: Mr. Canaday tells me that at the time that he entered into the plea it was his understanding he wasn’t going to have to do the registration as outlined in the SORA. I’ve been through it with him. He refuses to sign it; does not want to be registered. Says that he would rather withdraw his plea if registration is part of it because he’s not going to sign it. He tells me that he — and I knew that he was somewhat disabled as far as reading and writing. He says he can’t read or write and just doesn’t understand any part of it. So for those reasons Mr. Canaday is requesting today that he be allowed to withdraw his plea. No exhibits were offered in support of the motion, and Canaday offered no testimony. The State opposed the motion, arguing Canaday had been properly advised of the conse- quences of his plea in the second case and there was no basis for allowing withdrawal. The court agreed with the State, stat- ing: “[T]he motion is denied. I told you when you entered your plea you’d be required to comply with [SORA]. I don’t care if you sign [the SORA form] or not. I really don’t. I’m still going to order you to be a lifetime registrant [under SORA].” The sentencing hearing proceeded. The State generally requested consecutive sentences in the maximum range. It argued that throwing the tape measure at the 5-year-old child was senseless and brutal, that using a cattle prod on the 8 § 28-707(1) and (4). 9 § 28-319.01(1)(a).  - 412 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CANADAY Cite as 307 Neb. 407 14-year-old child was essentially torture, and that the audio recording of the sexual assault on the 11-year-old child graphi- cally depicted how vulnerable and helpless she was while Canaday assaulted her. Defense counsel did not request specific sentences, but he argued that Canaday had taken responsibility for some of his actions. Counsel also suggested that Canaday’s inability to read and write complicated some of the testing included in the PSR. Defense counsel confirmed he had discussed the PSR with Canaday, and counsel also clarified the record regarding some of the statements contained in the PSR. Canaday was given an opportunity for allocution, but he declined. The court then addressed Canaday directly: I’ve listened to and considered the remarks of your attor- ney as well as the county attorney. I’ve carefully consid- ered the [PSR]. In arriving at your sentence I’ve considered your age, your mentality, your education, your experience, your social and cultural background, as well as your past crim- inal record. I’ve also considered the motivation for your offenses, the amount of violence involved, as well as any letters that I received. You know, I will say this is one of the toughest sets of [PSR’s] I’ve ever had to go through. And, you know, I felt — if going through a [PSR] has bugged me like it did, I can’t imagine what these children have been through. And they will never be the same. . . . You know, the Legislature gives a maximum sentence on a sexual assault of a child as a life sentence, and, you know, if there’s ever one that deserved a life sentence it’s this one. And you take absolutely no responsibility. You [claim you] weren’t even there, despite the fact that there’s video, there’s recordings. It’s just — you’re a monster and you deserve to spend the rest of your life locked in a cage. And I can’t say it any more nice[ly] than that.  - 413 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CANADAY Cite as 307 Neb. 407 The court then sentenced Canaday to consecutive terms of imprisonment as follows: •  20 to 30 years on the conviction of intentional child abuse resulting in serious bodily injury; •  2 to 2 years on the conviction of intentional child abuse not resulting in serious bodily injury; and •  50 years to life on the conviction of first degree sexual assault of a child. Canaday was given credit for 453 days previously served, and speaking from the bench, the court ordered Canaday to comply with SORA. Canaday filed a timely notice of appeal in both cases. We consolidated the appeals and now resolve them in a sin- gle opinion. II. ASSIGNMENTS OF ERROR Canaday assigns, renumbered, that the district court erred in (1) not allowing him to withdraw his plea prior to sentencing and (2) imposing excessive sentences. III. STANDARD OF REVIEW [1] A trial court has discretion to allow defendants to with- draw their guilty or no contest pleas before sentencing. 10 An appellate court will not disturb the trial court’s ruling on a presentencing motion to withdraw a guilty or no contest plea absent an abuse of discretion. 11 [2] Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. 12 10 State v. Carr, 294 Neb. 185 , 881 N.W.2d 192 (2016). 11 Id. 12 State v. Becker, 304 Neb. 693 , 936 N.W.2d 505 (2019).  - 414 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CANADAY Cite as 307 Neb. 407 IV. ANALYSIS 1. Withdrawal of Plea [3,4] The right to withdraw a plea previously entered is not absolute. 13 When a defendant moves to withdraw his or her plea before sentencing, a court, in its discretion, may sustain the motion for any fair and just reason, provided that such withdrawal would not substantially prejudice the prosecution. 14 The defendant has the burden to show the grounds for with- drawal by clear and convincing evidence. 15 (a) Grounds for Withdrawal Before the district court, Canaday’s counsel offered just two reasons for seeking to withdraw his plea. First, he stated that “at the time that [Canaday] entered into the plea it was his understanding he wasn’t going to have to do the registration as outlined in the SORA.” Second, Canaday’s counsel stated he had been through the SORA advisement form with Canaday, but he “refuse[d] to sign it; does not want to be registered.” Counsel continued: “He says he can’t read or write and just doesn’t understand any part of it. So for those reasons [he] is requesting today that he be allowed to withdraw his plea.” Both of these reasons pertained exclusively to the SORA con- sequences of Canaday’s plea to the charge of first degree sexual assault of a child. Consequently, it appears the district court treated Canaday’s oral motion to withdraw his plea as confined only to the conviction for sexual assault of a child. In his briefing on appeal, Canaday argues for the first time that his difficulty reading and writing affected his ability to understand the entire plea agreement and that he should have been allowed to withdraw all of his pleas on that basis. But Canaday did not convey such a request in the district court. Rather, at the sentencing hearing, Canaday requested to 13 Carr, supra note 10. 14 Id. 15 Id.  - 415 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CANADAY Cite as 307 Neb. 407 withdraw his “plea” and the only grounds given for this request were counsel’s representations that Canaday did not under- stand he would be subject to SORA and that Canaday’s illit- eracy prevented him from understanding the SORA advise- ment form. [5] During oral argument before this court, Canaday con- ceded that the district court was not presented with a request to withdraw all of the pleas based on a claim that Canaday’s inability to read and write made him unable to understand the written plea agreement. Because appellate courts do not ordi- narily consider arguments and theories raised for the first time on appeal, 16 we will not entertain Canaday’s arguments seeking to expand the grounds presented to the district court. Thus, in considering whether the district court abused its discretion in overruling Canaday’s motion to withdraw his plea, we limit our analysis to those grounds expressly presented to the dis- trict court. (b) No Abuse of Discretion [6] For the reasons explained below, we find no abuse of discretion in overruling Canaday’s motion to withdraw his plea based on the claim he did not understand the SORA con- sequences. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreason- able or if its action is clearly against justice or conscience, reason, and evidence. 17 The record directly refutes Canaday’s claim that he did not understand that a conviction for first degree sexual assault of a child would subject him to SORA registration requirements. During both his arraignment and his change of plea hearing, the court advised Canaday that he could be ordered to comply with SORA and Canaday affirmatively stated he understood. [7] But even an incorrect or incomplete advisement on SORA would not have entitled Canaday to withdraw his plea. 16 See State v. Uhing, 301 Neb. 768 , 919 N.W.2d 909 (2018). 17 State v. Montoya, 304 Neb. 96 , 933 N.W.2d 558 (2019).  - 416 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CANADAY Cite as 307 Neb. 407 In State v. Lane, 18 we explained that a defendant’s duty to register under SORA is not a criminal penalty, but, rather, it is a collateral civil consequence of a conviction. Because regis- tration duties under SORA are not punitive, a trial court may inform a defendant of the registration duties imposed under SORA before accepting pleas of guilty or no contest, but it is not required to do so. 19 And in Lane, we expressly rejected the claim that a plea is rendered involuntary or unintelligent because a defendant was not aware of his or her registration duties under SORA. 20 On this record, we find no abuse of discretion in the district court’s decision to overrule Canaday’s motion to withdraw his plea. 2. Excessive Sentences In both his appellate briefing and at oral argument before this court, Canaday concedes the sentences imposed by the district court were within statutory limits. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sen- tencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. 21 [8,9] In determining a sentence to be imposed, relevant factors customarily considered and applied are the defend­ ant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime. 22 The appropriateness of a sentence is necessarily a subjective 18 State v. Lane, 299 Neb. 170 , 907 N.W.2d 737 (2018). 19 Id. 20 Id. 21 Becker, supra note 12. 22 Id. - 417 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. CANADAY Cite as 307 Neb. 407 judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. 23 Canaday argues the district court failed to consider these sentencing factors, but our review of the record affirmatively refutes this argument. At the sentencing hearing, the district court stated it had carefully considered the remarks of counsel and the information in the PSR, which the judge described as “one of the toughest” he had ever read. The court stated it had considered Canaday’s age, mentality, education, experience, and social and cultural background, as well as his past criminal record. The court also stated it had considered Canaday’s moti- vation for the offenses and the amount of violence involved, including the fact that his victims were children who “will never be the same.” The record shows the district court con- sidered and applied the relevant sentencing factors when deter- mining Canaday’s sentences, and we find no abuse of discre- tion in that regard. [10] Finally, Canaday argues it was an abuse of discre- tion to impose consecutive sentences. He generally character- izes his crimes as “related” and argues the court should have imposed concurrent sentences. We soundly reject any sugges- tion that because Canaday’s victims were related, his crimes were related. Canaday’s convictions involved different offenses against different children on different dates. Generally, it is within a trial court’s discretion to direct that sentences imposed for separate crimes be served either concurrently or consecu- tively. 24 We find no abuse of discretion in the district court’s imposition of consecutive sentences. V. CONCLUSION For the foregoing reasons, the convictions and sentences are affirmed. Affirmed. 23 Id. 24 State v. Leahy, 301 Neb. 228 , 917 N.W.2d 895 (2018).

2020-12-04 06:08:41.548473+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007391PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 330 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ARCHER Cite as 307 Neb. 330 State of Nebraska, appellant, v. Deborah S. Archer, appellee. State of Nebraska, appellant, v. Cory L. Russell, appellee. ___ N.W.2d ___ Filed September 25, 2020. Nos. S-19-802, S-19-803. 1. Judgments: Appeal and Error. When dispositive issues on appeal pre­ sent questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. 2. Criminal Law: Preliminary Hearings: Probable Cause. The purpose of a preliminary hearing is to ascertain whether a crime has been com- mitted and whether there is probable cause to believe the accused com- mitted it. 3. Constitutional Law: Criminal Law: Preliminary Hearings. A prelim- inary hearing is not a criminal prosecution or trial within the meaning of the Nebraska Constitution. Nor is it a trial of the person charged in regard to his or her guilt or innocence. 4. Criminal Law: Preliminary Hearings: Probable Cause. If after a preliminary hearing the court finds that a crime has been committed and there is probable cause to show that the accused committed it, the effect of the hearing is to hold the accused for trial. Appeals from the District Court for Washington County: John E. Samson, Judge. Exceptions overruled. M. Scott Vander Schaaf, Washington County Attorney, for appellant. Mallory N. Hughes, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., for appellees.  - 331 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ARCHER Cite as 307 Neb. 330 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Heavican, C.J. INTRODUCTION The State of Nebraska seeks appellate review of the district court’s dismissal of charges filed against Deborah S. Archer and Cory L. Russell. The Nebraska Court of Appeals granted leave to appeal, and we moved this case to our docket. We overrule the State’s exceptions. BACKGROUND Archer owned DJ’s Vapes, located in Herman, Washington County, Nebraska. Russell was employed by Archer at DJ’s Vapes. Archer and Russell were arrested in December 2017, fol- lowing an investigation by local law enforcement into whether DJ’s Vapes was engaged in selling illegal drugs. Specifically at issue on appeal is the sale of products containing cannabidiol, also known as CBD. Archer and Russell were both first charged in Washington County Court with possession of CBD with the intent to manu- facture, deliver, or dispense under Neb. Rev. Stat. § 28-416(1) (Cum. Supp. 2018) and conspiracy under Neb. Rev. Stat. § 28-202 (Cum. Supp. 2018). A preliminary hearing was held in March 2018. At the preliminary hearing, a member of law enforcement testified that he purchased from Archer and Russell items advertised as containing CBD oil. Following that hearing, the county court found sufficient probable cause to bind Archer and Russell over to district court. Accordingly, an information was filed in the district court charging the same counts. Archer and Russell then filed pleas in abatement, and in June 2018, the district court dismissed all of the counts. According to the State’s application for leave to docket an appeal, an order explaining the court’s reasoning accompanied its decision. That reasoning is not part of our record.  - 332 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ARCHER Cite as 307 Neb. 330 In July 2018, the county attorney refiled the criminal cases in county court, and a preliminary hearing was held in October. The laboratory technician who tested the CBD oil at issue testified that tetrahydrocannabinol, otherwise known as THC, and CBD had a similar chemical structure. The technician also indicated, in response to cross-examination, that his testing revealed no THC in the CBD oil sold by Archer and Russell, and he further testified that his testing did not reveal whether the CBD in question was synthetically produced. The county court dismissed the charges, finding that the county attorney did not establish probable cause. Apparently no explanation of reasoning accompanied these dismissals. The present charges were filed in November 2018. A pre- liminary hearing was held in May 2019. A clinical neuropsy- chologist at the University of Nebraska Medical Center testi- fied at the preliminary hearing that the pharmacological effects of THC and CBD were not similar. In addition, the transcripts of proceedings from the prior cases were offered as exhib- its. In July, the district court dismissed without prejudice all charges for failure of sufficient probable cause. No reasoning was given. The State filed an application to docket appeals, tak- ing exception to the district court’s July 2019 dismissals. 1 The Court of Appeals granted those applications, and the exception proceedings were consolidated and moved to this court’s docket. ASSIGNMENT OF ERROR The State assigns that the district court erred in dismissing the charges against Archer and Russell. STANDARD OF REVIEW [1] When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an 1 See Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2018).  - 333 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ARCHER Cite as 307 Neb. 330 independent conclusion irrespective of the decision of the court below. 2 ANALYSIS Archer and Russell were charged with possession of CBD with the intent to manufacture, deliver, or dispense under § 28-416(1) and conspiracy under § 28-202. The issue pre- sented by this appeal is whether the district court erred when, following a preliminary hearing, it dismissed the charges against Archer and Russell. Legal Principles. Section 28-202(1) provides: A person shall be guilty of criminal conspiracy if, with intent to promote or facilitate the commission of a felony: (a) He agrees with one or more persons that they or one or more of them shall engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense; and (b) He or another person with whom he conspired com- mits an overt act in pursuance of the conspiracy. Section 28-416(1) provides that “[e]xcept as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person knowingly or intentionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufac- ture, distribute, deliver, or dispense a controlled substance . . . .” “Controlled substance” is defined as “a drug, biological, substance, or immediate precursor in Schedules I through V of section 28-405.” 3 Neb. Rev. Stat. § 28-405(c) [Schedule I] (Cum. Supp. 2018) of the Uniform Controlled Substances Act lists the following as prohibited substances: 2 State v. Rossbach, 264 Neb. 563 , 650 N.W.2d 242 (2002). 3 See Neb. Rev. Stat. § 28-401(4) (Cum. Supp. 2018).  - 334 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ARCHER Cite as 307 Neb. 330 Any material, compound, mixture, or preparation which contains any quantity of the following hallucinogenic substances, their salts, isomers, and salts of isomers, unless specifically excepted, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation, and, for purposes of this subdivision only, isomer shall include the optical, position, and geometric isomers: .... (12) Tetrahydrocannabinols, including, but not limited to, synthetic equivalents of the substances contained in the plant or in the resinous extractives of cannabis, sp. or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity .... .... (25) Any material, compound, mixture, or prepara- tion containing any quantity of synthetically produced cannabinoids . . . . Since nomenclature of these syntheti- cally produced cannabinoids is not internationally stan- dardized and may continually evolve, these structures or compounds of these structures shall be included under this subdivision, regardless of their specific numerical designation of atomic positions covered, so long as it can be determined through a recognized method of scientific testing or analysis that the substance contains properties that fit within one or more of the following categories: .... (M) Any nonnaturally occurring substance, chemical compound, mixture, or preparation, not specifically listed elsewhere in these schedules and which is not approved for human consumption by the federal Food and Drug Administration, containing or constituting a cannabinoid receptor agonist as defined in section 28-401. (Emphasis supplied.)  - 335 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ARCHER Cite as 307 Neb. 330 A preliminary hearing did not exist at common law. 4 A preliminary hearing is a creature of statute, and its functional purpose is stated in Neb. Rev. Stat. § 29-506 (Reissue 2016): If upon the whole examination, it shall appear that no offense has been committed or that there is no probable cause for holding the accused to answer for the offense, he shall be discharged; but if it shall appear that an offense has been committed and there is probable cause to believe that the person charged has committed the offense, the accused shall be committed to the jail of the county in which the same is to be tried, there to remain until he is discharged by due course of law . . . . [2-4] In short, the purpose of a preliminary hearing is to ascertain whether a crime has been committed and whether there is probable cause to believe the accused committed it. 5 Its purpose is not a criminal prosecution or trial within the mean- ing of the Nebraska Constitution. 6 Nor is it a trial of the person charged in regard to his or her guilt or innocence. 7 Rather, if after a preliminary hearing the court finds that a crime has been committed and there is probable cause to show that the accused committed it, the effect of the hearing is to hold the accused for trial. 8 Did District Court Err? In this appeal, the State assigns that the district court erred in dismissing the charges against Archer and Russell follow- ing a preliminary hearing. The county attorney requests this court to provide a legal analysis, reason, and opinion providing direction of this issue for prosecuting attorneys, and further 4 Id. 5 Id. 6 Id. 7 Id. 8 See id. - 336 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ARCHER Cite as 307 Neb. 330 asserts that sufficient evidence was presented to establish that probable cause existed. As to the merits, the county attorney argues that sufficient evidence was presented to establish probable cause because items sold by Archer and Russell contained CBD, which is listed as a Schedule I substance under the Uniform Controlled Substances Act. The county attorney takes issue with Archer and Russell’s expert’s testimony that CBD did not have the same pharmacological effect as THC, calling it “irrelevant.” 9 Finally, at oral argument in this case, the county attorney indicated that because the district court failed to explain why the charges were lacking in probable cause, the county attorney was unsure how to proceed. The county attorney further indi- cated that the Legislature’s passage of 2019 Neb. Laws, L.B. 657, otherwise known as the Nebraska Hemp Farming Act, and its impact upon such prosecutions, had not been addressed by this court. As noted, the purpose of a preliminary hearing is to ascer- tain whether a crime has been committed and whether there is probable cause to believe the accused committed it. While certainly most preliminary hearings center on questions of fact related to the alleged crime, the preliminary hearing in this case was different in that its focus was on whether a crime was committed at all. As such, a prosecutor was required to show (1) possession and/or distribution (2) of a controlled substance. Only the second requirement—whether the CBD oil is a con- trolled substance—is at issue here. In order to determine if a substance is a “controlled sub- stance,” one must examine the Uniform Controlled Substances Act. Before the district court, the record shows that both § 28-405(c)(12) and § 28-405(c)(25) were at issue. We turn first to § 28-405(c)(12), which lists as a con- trolled substance THC and synthetic equivalents of THC, as well as any substances “with similar chemical structure and 9 Brief for appellant at 6.  - 337 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ARCHER Cite as 307 Neb. 330 pharmacological activity” as THC. Archer and Russell con- cede the CBD in this case had a similar chemical structure as THC, but they argue that the prosecutor failed to show the CBD oil had “similar . . . pharmacological activity” to an illegal substance as set forth in § 28-405(c)(12) and that to the contrary, Archer and Russell’s expert’s testimony showed that it did not. Our review of the record supports the contention of Archer and Russell that the CBD oil in question did not contain THC and did not have the same pharmacological effects as THC. Therefore, the State failed to establish that the CBD tested in this matter was a “controlled substance” under the Uniform Controlled Substances Act. We turn next to whether the CBD was a synthetic equivalent to an illegal substance for purposes of § 28-405(c)(25). At issue here is whether Archer and Russell possessed or distributed “[a]ny material, compound, mixture, or preparation containing any quantity of synthetically produced cannabinoids . . . .” 10 The county attorney has proved there was cannabinoids, or CBD, in the CBD oil. But the record establishes that the county attorney failed to show the source of the CBD, i.e., failed to show that it was “synthetically produced.” As such, the record presented by the State fails to establish that the CBD in ques- tion was a prohibited “controlled substance” under the Uniform Controlled Substances Act. We finally turn to the county attorney’s request, not specifi- cally assigned on appeal, 11 that we provide direction on how to prosecute cases involving CBD. But these exception proceed- ings do not involve anything other than the State’s failures of proof at the preliminary hearing, and do not implicate L.B. 657. We therefore decline the invitation to address the prosecu- tion of cases involving CBD products in this opinion. 10 See § 28-405(c)(25). 11 See, e.g., State v. Lierman, 305 Neb. 289 , 940 N.W.2d 529 (2020).  - 338 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. ARCHER Cite as 307 Neb. 330 Finally, we note that there is no requirement in either stat- ute or case law for a district court to provide explanation for a decision to dismiss charges following a preliminary hearing, and thus to the extent the county attorney seeks a finding of error for the court’s failure to do so, we find none. CONCLUSION We find no error in the district court’s dismissal of the infor- mations filed against Archer and Russell, and thus, we overrule the State’s exceptions. Exceptions overruled.

2020-12-04 06:08:43.577941+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007392PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 339 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. KOZLIK Cite as 307 Neb. 339 State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator, v. Michael D. Kozlik, respondent. ___ N.W.2d ___ Filed September 25, 2020. No. S-20-459. Original action. Judgment of disbarment. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Per Curiam. INTRODUCTION On May 22, 2020, the Iowa Supreme Court entered an order revoking the license to practice law of the respondent, Michael D. Kozlik. The Counsel for Discipline of the Nebraska Supreme Court, the relator, filed a motion for reciprocal disci- pline against the respondent. We grant the motion for recipro- cal discipline and impose discipline of disbarment from the practice of law in the State of Nebraska. FACTS The respondent was admitted to the practice of law in the State of Nebraska on September 12, 1979. He was licensed to practice law in Iowa in 2000. On May 22, 2020, the Iowa Supreme Court entered an order revoking the respondent’s license to practice law in Iowa. Based on the respondent’s misappropriation of funds while serving as the administrator of his uncle’s estate, the Iowa Supreme Court Attorney Disciplinary Board sought  - 340 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. KOZLIK Cite as 307 Neb. 339 disciplinary sanctions against the respondent based on viola- tions of the following Iowa Rules of Professional Conduct: rule 32:8.4(b) (criminal act reflects adversely on lawyer’s honesty, trustworthiness, or fitness) and rule 32:8.4(c) (mis- conduct involving dishonesty, fraud, deceit, or misrepresenta- tion). The respondent argued that the unauthorized payments were an honest mistake because he believed the payments he made to himself from the estate were permitted without prior court authorization, although it is required in Iowa. The com- mission found a violation of rule 32:8.4(c) and recommended a public reprimand. On review, the Iowa Supreme Court found violations of both rule 32:8.4(b) and rule 32:8.4(c) and entered an order revok- ing the respondent’s license to practice law in Iowa. The court noted numerous examples of the respondent’s prior legal work in Iowa probate cases to demonstrate his knowledge of the stat- utes requiring court approval prior to the payment of adminis- trator fees. In reaching its decision, the court concluded that the respondent misappropriated funds and breached a fiduciary duty to the estate. On May 14, 2020, the relator filed a motion for reciprocal discipline pursuant to Neb. Ct. R. § 3-321 of the disciplinary rules. The motion stated that the above-cited Iowa Supreme Court rules are in sum and substance the equivalent of Neb. Ct. R. of Prof. Cond. § 3-508.4(b) and (c) (rev. 2016). This court filed an order to show cause as to why it should not impose reciprocal discipline. On July 8, 2020, the relator filed a response that requested reciprocal discipline of disbar- ment. On July 27, the respondent filed a response in which he requested that this court impose no discipline or, at most, a public reprimand. ANALYSIS The basic issues in a disciplinary proceeding against an attorney are whether discipline should be imposed and, if so, the type of discipline appropriate under the circumstances.  - 341 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. KOZLIK Cite as 307 Neb. 339 State ex rel. Counsel for Dis. v. Murphy, 283 Neb. 982 , 814 N.W.2d 107 (2012). In a reciprocal discipline proceeding, a judicial determination of attorney misconduct in one jurisdic- tion is generally conclusive proof of guilt and is not subject to relitigation in the second jurisdiction. Id. Neb. Ct. R. § 3-304 of the disciplinary rules provides that the following may be considered as discipline for attorney misconduct: (A) Misconduct shall be grounds for: (1) Disbarment by the Court; or (2) Suspension by the Court; or (3) Probation by the Court in lieu of or subsequent to suspension, on such terms as the Court may designate; or (4) Censure and reprimand by the Court; or (5) Temporary suspension by the Court; or (6) Private reprimand by the Committee on Inquiry or Disciplinary Review Board. (B) The Court may, in its discretion, impose one or more of the disciplinary sanctions set forth above. Section 3-321 of the disciplinary rules provides in part: (A) Upon being disciplined in another jurisdiction, a member shall promptly inform the Counsel for Discipline of the discipline imposed. Upon receipt by the Court of appropriate notice that a member has been disciplined in another jurisdiction, the Court may enter an order impos- ing the identical discipline, or greater or lesser discipline as the Court deems appropriate, or, in its discretion, sus- pend the member pending the imposition of final disci- pline in such other jurisdiction. In imposing attorney discipline, we evaluate each case in light of its particular facts and circumstances. State ex rel. Counsel for Dis. v. Murphy, supra . Upon due consideration of the record, and the facts as deter- mined by the Iowa Supreme Court, we determine that disbar- ment is appropriate. Therefore, we grant the motion for recip- rocal discipline and disbar the respondent from the practice of law in the State of Nebraska.  - 342 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. KOZLIK Cite as 307 Neb. 339 CONCLUSION The motion for reciprocal discipline is granted. It is the judg- ment of this court that the respondent should be and hereby is disbarred from the practice of law in the State of Nebraska, and we therefore order him disbarred from the practice of law, effective immediately. The respondent shall comply with all notification requirements by disbarred members provided by Neb. Ct. R. § 3-316 (rev. 2014), and upon failure to do so, he shall be subject to punishment for contempt of this court. The respondent is directed to pay costs and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and Neb. Ct. R. §§ 3-310(P) (rev. 2019) and 3-323(B) of the disci- plinary rules within 60 days after an order imposing costs and expenses, if any, is entered by the court. Judgment of disbarment.

2020-11-20 19:27:21.22102+00

Estate of T. G. Hendrick, Deceased, Fort Worth National Bank, Independent Executor and Trustee v. Commissioner. Estate of Hendrick v. Comm'r Docket No. 19647. United States Tax Court 1950 Tax Ct. Memo LEXIS 149; 9 T.C.M. (CCH) 581; T.C.M. (RIA) 50169; July 7, 1950 *149 R. B. Cannon, Esq., 909-13 Sinclair Bldg., Fort Worth, Tex., for the petitioner. John W. Alexander, Esq., for the respondent. JOHNSON Memorandum Findings of Fact and Opinion JOHNSON, Judge: The Commissioner determined a deficiency in the estate tax of petitioner in the sum of $58,344.77. The two issues for decision are these: (1) Did the $45,075 in United States War Savings Bonds which were registered in the name of Ida Hendrick constitute community property taxable to the estate of T. G. Hendrick, deceased; (2) did the Commissioner err in computing the life estate of decedent's wife in arriving at the value of annuities and trust payments as to which she was the annuitant and beneficiary, the reversionary interest therein under T. G. Hendrick's will belonging to certain educational and charitable institutions? A third issue, viz.: the amount of attorneys' fees deductible by petitioner, the parties agreed should be computed under Rule 50. Petitioner also alleged an overpayment of $64,743.34 in estate taxes. Findings of Fact T. G. Hendrick of Abilene, Texas, hereinafter called decedent, aged 83 years, died testate July 8, 1946. Upon probate of his will, the*150 Fort Worth National Bank duly qualified as Independent Executor and Trustee and filed an estate tax return with the collector of internal revenue for the second district of Texas. His surviving widow, Ida Hendrick, hereinafter called Ida, to whom he was married in 1882, died December 29, 1946, at the age of 81 years. Decedent's will was a joint and mutual will of himself and Ida, executed by them on January 22, 1929. "Item One" therein reads: "We first state that all of the property of every kind and character now owned as well as any that may hereafter be owned by us, or in which either of us may have an interest, is community property, earned by us since our marriage, and is owned one-half by each of us, whether the apparent title to such property or any item thereof is in the one or the other or in both of us. Having earned the property together we desire to dispose of it by joint will, in accordance with the terms hereof, and each of us hereby solemnly pledges his and her faith to the other that he or she will not alter or change or attempt to alter or change such disposition of the property, unless by proper instrument likewise jointly signed by us, and particularly that*151 the survivor of us will not make or attempt to make any change in such disposition." There were eleven codicils to the will, all executed on different dates, the first on March 17, 1931, and the last on October 10, 1945, none of which referred specifically to Item One. However, in the seventh codicil, dated December 12, 1936, in paragraph 9, it was stated that the will was designed to devise and bequeath "any and all property owned by us or either of us, both community property and individual property," following which it was stated that "this clause" was "supplementary" to other provisions of the will, it "being intended only to pick up any and all items of property that may not be otherwise disposed of." The community property of decedent and Ida consisted of both real and personal property, and at the time of his death its total value was $4,381,912. 1 They had no children and except for bequests to various relatives ranging in amounts from $10,000 to $25,000 each, aggregating about $225,000, all of their properties under the will went to named charities. These charities included a home for children, sanitarium and various religious activities of the Baptist Church and other*152 benevolences, and went directly or through trusts created by the will, the corpus of which was to be administered by the Fort Worth National Bank, which was named as trustee and independent executor without bond, and was given wide discretionary powers in the investment, operation and management of the estate and the trusts created thereunder, "the same as an absolute owner could do." The various codicils dealt mainly with changes affecting the different charities named in the will. In some instances the amounts of these were increased, decreased or revoked, and others substituted in lieu of those revoked, or new ones named and additional trusts created. Also, in some of the codicils the bequests to individual relatives were changed either in amount or revoked; in some instances it was recited that the amounts of the bequests had already been paid to the beneficiaries. Illustrative of this, and also as showing the reliance placed by decedent on "the books used by us with respect to the management of our property" in determining the property affected by the will, and also as evidencing the intention*153 of decedent that the recitals and the contents of "our books" should govern in the disposition of property affected by the will, there is set out below one of such codicils. 2 No property other than a monthly income was left Ida, either in the original will or in any of the codicils. Under the "general theory" of the will as explained in the fifth codicil, if Ida should die first, then*154 decedent should be permitted to carry on and manage the joint properties until his death, at which time the trusts would be created and the other dispositions made as provided in the will, but if decedent died first, then Ida would thereafter "receive a certain income sufficient for her needs and be relieved of all worry and responsibility of managing the property" of $1,000 per month "or more up to $1,500 per month if requested by her." Prior to the fifth codicil, $1,000 per month was fixed as Ida's income after decedent's death, and in authorizing the optional increase to $1,500 per month said codicil also provided that the monthly payments to Ida should have priority in payment from a $500,000 trust fund then created and which provisions were never changed. Immediately preceding these provisions, the reason therefor was expressed as follows: "* * * our main purpose and desire, particularly of T. G. Hendrick, is, in the event he should die first, that Ida Hendrick should have the first call on the entire property with respect to receiving such certain and regular income therefrom during the balance of her life. Withth at in mind, and particularly in view of the disturbed financial*155 and business conditions since the will was written, we now stipulate and provide and will as follows: * * *" [Here follow provisions above mentioned] Ida acquired as owner eight United States War Savings Bonds, each bond as issued being registered in her name only, "Mrs. Ida Hendrick", and remained so registered, the date of purchase of each bond being the same month and year as appears in the "issued" column below, the cost of each of said bonds, the due date and the face amount thereof being as follows: Face SeriesIssuedDueCostAmount DAug. 1, 1939Aug. 1, 1949$7,500$10,000 DMar. 1, 1940Mar. 1, 19507,50010,000 DJan. 1, 1941Jan. 1, 19517,50010,000 EJan. 1, 1942Jan. 1, 19523,7505,000 EJan. 1, 1943Jan. 1, 19533,7505,000 EJan. 1, 1944Jan. 1, 19543,7505,000 EMay 1, 1945May 1, 19553,7505,000 EJan. 1, 1946Jan. 1, 19563,7505,000 There was printed on the face of each bond the following: "This bond is not transferable and except as provided in said regulations, it is payable only to the registered owner." On July 8, 1946, said bonds belonged to Ida, being*156 her individual and separate property, and were then of the total value of $45,075. The first bond above listed was paid for by check drawn by Ida upon her individual bank account, but the payments for the purchase price of all of said bonds were from the community funds of decedent and Ida. Decedent purchased or caused to be purchased for Ida all of said bonds, and he directed that each bond as issued be registered in Ida's name only, so as to designate it as her individual and separate property, as he intended that it should be. It was the intention of decedent in purchasing said bonds and having them registered in Ida's name to make a gift to her of his one-half of the community funds expended in their purchase, and he did in fact make a gift to Ida of his one-half of all of the community funds expended in their purchase. Decedent kept and caused to be kept under his supervision and control a regular set of books 3 concerning all transactions relating to the community property belonging to him and Ida, and recorded therein were all of the assets owned and belonging to their community estate. When and as each of the bonds above listed was purchased for Ida and registered in her*157 name, the amount expended in purchasing such bond was charged direct to the investment account (capital account) in the community books as representing withdrawal of funds from the community estate, and the bonds, after their purchase, were not treated as belonging to the community estate of decedent and Ida. Thereafter the bonds belonging to Ida were recorded in separate ledger sheets, being removed and kept separate and apart from the books relating to the community estate. Furthermore, in 1944 and 1945, decedent had an audit made of his books and records covering a number of years, which audit reports he kept in his desk and used in the conduct of his business. In both of these audit reports the funds used to acquire the bonds purchased for and in the name of Ida were shown to have been withdrawn from the assets of the community estate and the net worth or capital account of the community estate reduced by the amount of such withdrawals. During the same years in which the bonds were purchased for and registered in Ida's name, decedent also bought 25*158 other War Savings Bonds, the face value of which aggregated $500,000, but none of these was registered in Ida's name or purported to have been her property. One of the 25 bonds was registered in the name of "Ida Hendrick or T. G. Hendrick", but petitioner does not contend that this bond was Ida's separate property. Gift tax returns were filed by decedent covering the years 1939 to 1946, inclusive, and decedent did not report therein any and decedent did not report therein any gifts made by him to Ida during those years. In the estate tax return filed herein by petitioner, the bonds registered in Ida's name were included as a part of the community assets of decedent and Ida. Ida was 81 years of age when decedent died, and she had been in ill health and a weakened and impaired condition for many years. She was under the constant treatment of a physician from 1934 to the date of her death. She had anemia, chronic myocarditis, that is an impairment of her heart muscles, and other evidences of senility during the entire period of her treatment. Her condition did not improve, and in 1936 there was begun and continued for about eight years blood transfusions which were given at intervals*159 of one to three months, which tended to prolong her life. About a year and a half prior to her death, the blood transfusions had to be discontinued, since her condition became such that the transfusions were attended with considerable reaction, causing high fever. Her physician testified that at the time of decedents' death, Ida's life expectancy was from six months to one year. His testimony as to her life expectancy was corroborated by another physician. The life expectancy of Ida on the date of decedent's death was not greater than one year. The parties agreed that petitioner has incurred attorneys' fees which are deductible, and that the amount of same would be computed under Rule 50 or Rule 51, if they could not agree as to the amount. Opinion The claim that the bonds registered in Ida's name were her separate property was first made by petitioner in the petition initiating this proceeding. As we said in the recent case of (promulgated June 9, 1950) "it is fundamental that a taxpayer appealing to this Court may set up as a ground of appeal from a proposed additional assessment a right to a deduction which was not claimed in the original*160 return or at any hearing before the . If the bonds registered in Ida's name were her separate property, then they were not includible in decedent's estate and no estate tax is due thereon. If, on the other hand, as respondent contends, they were the community property of herself and husband, then they are includible and taxable. Whether the bonds were separate or community property, the laws of Texas must determine, since the parties resided there. In Texas all property purchased with community funds is presumed to be community property. It has been held, however, by the Supreme Court of that state, in , and followed and approved in later cases, 4 that when property is purchased with community funds and the deed thereto, by direction of the husband, is made to the wife, and there is sufficient evidence to show that he intended the property to be a gift to his wife, the presumption of title in the community is overcome and the property is the separate property of his wife. *161 The evidence and record as a whole sustain our finding that it was the intention of decedent to make a gift to Ida of his onehalf of the community funds expended in their purchase; that he did thereby make such gifts and the bonds thereby became her separate property at the time of the purchase of each. Ida and decedent both being dead at the time of the hearing, evidence to establish a gift and revealing decedent's intention necessarily rests upon circumstances, a number of which we have recited in our findings. These we think, when considered together, establish inescapably the conclusion reached. Chief among these was decedent's purchase of the bonds and having them registered exclusively in Ida's name, thus designating her as sole owner. She alone could collect them and they thereby became separate and apart from the community property owned by them. Strongly confirming this intention and separation of ownership were the books of decedent whereby the funds expended for the bonds and the bonds themselves were treated as not being a part of the community estate. The purchase of one bond each year for his wife, over a period of eight years, reflected that decedent intended that*162 as they matured Ida would receive in cash each year the face value of each bond, thus supplementing the annual bequest she was to receive under the will. This is in line with decedents' intention, expressed in the will, that he desired that Ida should "receive a certain income for each year and be relieved of all worry and responsibility of managing the property." That decedent also bought a half million dollars in War Savings Bonds during the same years, none of which he had registered in her name, and one of which for $50,000 he had registered in his or Ida's name, shows clearly his intention that these eight bonds, which alone were registered in Ida's name only, were to be her individual and separate property. We are not impressed with the argument that decedent failed to report a gift tax on the transactions for the years in which the bonds were purchased. The bonds were paid for with community funds, one-half of which already belonged to Ida, and her one-half would not be subject to a gift tax. . The husband's one-half of the amount paid for the purchase price of the bonds in each of said years was less than the amount excluded from*163 taxable gifts by the provisions of section 1003(b)(2) and (3) of the Code. The remaining question is whether, in valuing the charitable bequests, the life estate of Ida is to be determined with reference to established mortality tables, as was done by the respondent in his determination of the deficiency and as relied upon in his brief, or with reference to the actual physical condition of Ida at the time of her husband's death. Petitioner contends that in view of Ida's advanced age and the condition of her health, as testified to by her physician, that her reasonable life expectancy was not more than six months to one year from the date of decedent's death. Such was the testimony of her attending physician and that of another medical witness. She died within less than six months after her husband's death. In , and , we held that the actual physical condition of the life beneficiary on the date of decedent's death, rather than the use of established mortality tables, would control. We therefore hold that in determining the valuation of Ida's life estate, it should be based upon her life*164 expectancy of not more than one year. Amounts of attorneys' fees and over-payments will be computed under Rule 50. Decision will be entered under Rule 50. Footnotes

2020-11-20 19:21:28.149508+00

Philip Edward Drury v. Commissioner. Drury v. Commissioner Docket Nos. 101-63, 1921-63. United States Tax Court T.C. Memo 1963-328; 1963 Tax Ct. Memo LEXIS 19; 22 T.C.M. (CCH) 1723; T.C.M. (RIA) 63328; December 18, 1963 *19 Dependency credit exemption for infant son living with divorced wife denied. Petitioner failed to prove he provided more than one-half of the son's support. Philip Edward Drury, pro se, 553 Elm St., San Carlos, Calif. Leo A. McLaughlin, for the respondent. DRENNEN Memorandum Findings of Fact and Opinion DRENNEN, Judge: In these consolidated cases respondent determined deficiencies in petitioner's income taxes for the years 1960 and 1961 in the amounts of $159.36 and $204, respectively. The only issue for decision is whether petitioner is entitled to the dependency credit exemption provided in section 151 of the Internal Revenue Code of 1954 for his son for each of the years involved. Findings of Fact Petitioner is an individual residing in San Carlos, *20 Calif. His returns for the taxable years 1960 and 1961 were filed with the district director of internal revenue, San Francisco, Calif. After about 3 months of marriage petitioner and his former wife were separated in 1958 after which petitioner's wife sued for a divorce. A final decree of divorce was granted in 1960. A son, Marcus Dean Drury, was born of the marriage in September 1958. Under the divorce decree custody of the child was granted to the mother and petitioner was ordered to pay $75 per month for support of the child. During the years here involved petitioner's former wife and his child lived with her parents in San Marino, Calif. Pursuant to the order of the court, petitioner paid his former wife $900 for the support of the child in each of the years 1960 and 1961. Petitioner has failed to prove that he provided more than one-half for the support of his son during the years 1960 and 1961. Opinion Respondent determined that petitioner was not entitled to the dependency credit exemption claimed on his returns for 1960 and 1961 for his son for the reason that petitioner had not established that he had furnished more than one-half of his son's support in either*21 year. Respondent's determination is presumptively correct and the burden is on petitioner to prove that he provided more than one-half of his son's support during those years. This he has failed to do. Petitioner, who was the only witness, testified that because of his strained relations with his former wife and her parents he had been unable to determine how much it cost to support the child during these years. He did testify that the home in which the child lived was rather "elaborate." Other than this, he could give no evidence upon which the Court could even estimate what the total cost of support of the child was during these 2 years. While $900 per year may seem adequate to provide more than one-half of the support of a child of these tender years, and while we can sympathize with petitioner in his predicament, nevertheless we cannot find on this record that petitioner provided more than one-half of the support of the child in either year, without which petitioner must lose. Decision will be entered for the respondent.

2020-12-04 06:08:30.75718+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007406PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 375 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 Connie S. Yori, appellee, v. Kirk P. Helms, appellant. ___ N.W.2d ___ Filed October 2, 2020. Nos. S-19-520, S-19-840. 1. Contempt: Appeal and Error. In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court’s resolution of issues of law is reviewed de novo, (2) the trial court’s factual findings are reviewed for clear error, and (3) the trial court’s determinations of whether a party is in contempt and of the sanc­ tion to be imposed are reviewed for abuse of discretion. 2. Parental Rights: Appeal and Error. Whether relief entered in a pro- ceeding to enforce a parent’s rights is reasonably necessary to enforce such rights is reviewed for an abuse of discretion. 3. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a fac­tual dispute is determined by an appellate court as a matter of law. 4. Contempt. Contempt proceedings may both compel obedience to orders and administer the remedies to which the court has found the parties to be entitled. 5. ____. In a civil contempt proceeding, for the sanction to retain its civil character, the contemnor must, at the time the sanction is imposed, have the ability to purge the contempt by compliance and either avert punish- ment or, at any time, bring it to an end. 6. Courts: Jurisdiction: Divorce: Contempt. A court’s continuing juris- diction over a dissolution decree includes the power to provide equitable relief in a contempt proceeding. 7. Courts: Equity. Where a situation exists that is contrary to the prin- ciples of equity and which can be redressed within the scope of judicial action, a court of equity will devise a remedy to meet the situation. 8. Evidence: Appeal and Error. Where credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give  - 376 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. 9. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. 10. ____: ____. Generally, once an appeal has been perfected, the trial court no longer has jurisdiction. 11. ____: ____. A trial court’s jurisdiction under Neb. Rev. Stat. § 42-351(2) (Reissue 2016) during the pendency of an appeal is properly character- ized as jurisdiction in aid of the appeal process. 12. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, the party must be appealing from a final order or a judgment. 13. Judgments: Final Orders: Appeal and Error. While all judgments not incorrectly designated as such are appealable, an order may be appealed only if a statute expressly makes the order appealable or the order falls within the statutory definition of a final order. 14. Final Orders: Appeal and Error. To be a final order subject to appel- late review, the lower court’s order must (1) affect a substantial right and determine the action and prevent a judgment, (2) affect a substantial right and be made during a special proceeding, (3) affect a substantial right and be made on summary application in an action after a judg- ment is rendered, or (4) deny a motion for summary judgment which was based on the assertion of sovereign immunity or the immunity of a government official. 15. Final Orders. The inquiry of whether a substantial right is affected focuses on whether the right at issue is substantial and whether the court’s order has a substantial impact on that right. 16. ____. Whether an order affects a substantial right depends on whether it affects with finality the rights of the parties in the subject matter. 17. Final Orders: Time. The duration of an order is relevant to whether it affects a substantial right. Appeals from the District Court for Lancaster County: John A. Colborn, Judge. Judgment in No. S-19-520 affirmed. Appeal in No. S-19-840 dismissed. Gregory D. Barton, of Barton Law, P.C., L.L.O., for appellant. Amie C. Martinez and Megan M. Zobel, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellee.  - 377 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Cassel, J. INTRODUCTION The district court found Kirk P. Helms in contempt of court for violating parenting provisions of a dissolution decree, imposed a suspended jail sentence, and modified terms of the parenting plan. Helms appealed, arguing that the modifications were punitive and not reasonably necessary (first appeal). While that appeal was pending, the district court entered an order of commitment and a purge order which contained a reduction in Helms’ parenting time but set the matter for a review hear- ing in 41⁄2 months. Helms appealed that order (second appeal). Because the modifications involved in the first appeal were part of the equitable relief that the court was authorized to pro- vide, we find no abuse of discretion and affirm. We dismiss the second appeal for lack of a final order. BACKGROUND Marriage and Dissolution Helms married Connie S. Yori in 1996, and a child was born to the marriage in July 2004. The parties subsequently sought to dissolve their marriage and entered into a mediated agreement. On March 1, 2017, the district court entered a decree of dissolution. The decree awarded the parties joint legal and physical custody of the child. The parenting plan attached to the decree contained the terms of the parties’ mediated agree- ment and addressed topics such as day-to-day decisionmaking, alcohol consumption and testing, and parental responsibility and cooperation. Contempt Proceedings Yori claimed that Helms violated provisions of the parent- ing plan and mediated agreement. She filed an application for an order to show cause in October 2017 and thereafter filed  - 378 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 several amended applications. The operative pleading, filed in September 2018, alleged over 60 violations by Helms of the mediated agreement and decree of dissolution. In particular, Yori alleged that Helms violated the provisions regarding pay- ment of expenses for the child, medical appointments for the child, cooperation between the parents, and Helms’ consump- tion of alcohol and compliance with alcohol testing. Trial began in October 2018 but needed to be continued to December. In November, Helms moved to continue the hear- ing. The court sustained the motion, subject to provisions con- tained in a temporary order. Trial resumed in March 2019. The December 2018 temporary order addressed transpor- tation of the child and also gave Yori “final say on matters relating to the minor child’s sports and athletics.” It ordered that during the pendency of the proceedings, Yori or her designated representative be allowed to provide the child’s transportation to and from all religious confirmation or youth group activities, educational meetings or events relating to an educational action plan, athletic practices, and athletic tourna- ments or games. During a February 2019 hearing, the court clarified its intent with respect to the December 2018 temporary order. The court explained that its intent was for Yori to transport the child to the various activities, even if the activities occurred during Helms’ parenting time. The court stated that Yori “either is to return the child or, if . . . Helms is present at that activity, I don’t think there was any objection to him taking the child home from that activity, at least, from an email here it says you can take him home afterwards.” The court repeated, “The purpose and intent of this is to make sure the child makes it to all the activities . . . .” During the hearings on Yori’s application for an order to show cause, a number of witnesses testified on Yori’s behalf. Tim McGovern, who coached the child’s basketball team with Yori, testified that during a meeting with the players’ parents, Helms said that Yori was bullying the children and should not be trusted to be in charge of their sons. It appeared to  - 379 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 McGovern that “trying to make [Yori] look bad was the goal.” McGovern testified that he observed Helms at the child’s bas- ketball tournaments and had concerns that Helms was under the influence of alcohol. Other witnesses echoed McGovern’s testimony. Jennifer Cramer, who attended the meeting mentioned by McGovern, testified that Helms told the parents that Yori was abusive to the players and to him during their marriage. Cramer com- plained to Helms at that meeting about his failure to bring the child to practices or games. At a May 2018 basketball tourna- ment, Cramer observed Helms exhibiting abnormal behavior, including “flip[ping her] off” in the presence of parents and children. Another parent testified about her concerns that Helms was under the influence of alcohol at the child’s bas- ketball tournaments. She testified that she smelled alcohol on him and that she observed him “walk across the court, flip- ping off . . . towards our area.” Helms denied standing in the middle of a basketball court and flipping off the crowd. He also denied attending any of the child’s basketball games or events while under the influence of alcohol. But in February 2019, Helms was arrested for driving under the influence on his way home from attending the child’s basketball event. At the time of the hearing, Helms did not have a driver’s license and relied on transportation by bicycle or bus or as provided by his family. Yori testified about difficulties in obtaining reimbursement from Helms for the child’s medical expenses. She sent numer- ous emails to Helms, requesting reimbursement and including itemizations of expenses and copies of each billing statement. Helms did not reimburse Yori because she did not send him the insurer’s explanation of benefits and instead sent handwritten information and amounts. He also asked Yori to sign a release so that he could talk with the healthcare provider, but she did not do so. The parties testified regarding issues with alcohol monitor- ing through Soberlink. The decree required Helms to keep Soberlink in place and to test during his parenting time at  - 380 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 8 a.m., 2 p.m., and 10 p.m. Six weeks after entry of the decree, Helms submitted a change request form to Soberlink, direct- ing that Yori not be listed as a concerned party. Although a Soberlink form showed a change in the concerned party name to Helms’ sister, Helms testified that he just intended to add his sister as a contact. The same page of the form identified Yori as someone who is to receive test results. Helms testified that Yori never informed him that she was not timely receiving Soberlink reports and that he did not recall her complaining about not being listed as a concerned party. Helms also reduced the Soberlink monitoring from “Level 2” to “Level 1” monitoring. With Level 1 monitoring, in con- trast with Level 2 monitoring, Yori does not receive missed tests alerts and Helms does not have scheduled testing. Helms testified that he switched from Level 2 to Level 1 because it was his understanding that dates and times for testing could not be changed on Level 2. He felt that Level 1 would work better under the parenting agreement, because dates when the child would be with him would not stay the same all year long. Yori testified that through the summers of 2017 and 2018, Helms routinely missed Soberlink testing at 2 p.m. on Fridays. According to Helms, he tested at all required times when the child was with him. But if his parenting time ended at 3 p.m., he would not take the 2 p.m. test unless he had to pick the child up for some reason. He admitted there was no lan- guage in the decree excusing him from taking a test at 2 p.m. on Fridays. The decree gave Yori “final say” regarding educational and religious issues. Yori informed Helms that she wanted the child to participate in religious confirmation preparation, but she testified that Helms expressed unwillingness to allow the child to participate. Yori testified that because the child was struggling in school, his counselor and teacher devised a plan to help him which included arriving at school 30 minutes early. But of the 11 sessions during Helms’ parenting time, the child attended only 3. Yori testified that in April 2018, during Helms’ parenting time, the child was suspended from school  - 381 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 and Helms did not inform her of a meeting with the principal and vice principal. Helms did not respond to Yori’s request inquiring of the consequences for the child. Yori had concerns about the child’s attendance at athletic events. She testified that in the summer of 2017, Helms took the child to only 3 of 18 practices. She felt that Helms acted in a retaliatory fashion when he removed the child from an athletic team. Even after the court entered the temporary order allowing Yori to transport the child to and from events, Helms attempted to transport the child. Order of Contempt On May 1, 2019, the court entered an order of contempt. The court found that Helms willfully, intentionally, and contu- maciously violated multiple provisions of the decree, includ- ing the obligation to not consume alcohol, to continue with Soberlink as ordered, and to comply with the parenting respon- sibilities and cooperation language. It also found that it had the authority to modify the decree as it related to the child in order to remedy the contempt. The court committed Helms to jail for 21 days, but suspended execution of the sentence as long as Helms complied with several terms of the order. Among others, the terms included: •  refraining from consuming alcohol through December 31, 2022; •  refraining from attending any practices for the child; •  allowing Yori or her designee to pick the child up from Helms’ house for various specified reasons and return the child following the event; and •  giving Yori “final say” on “all athletic issues and sports participation, religious activities, school activities, medical issues, and all other issues regarding the minor child’s partici- pation, education and development.” The court ordered that Helms comply with the purge plan for 36 months. On May 29, 2019, Helms filed a notice of appeal. The first appeal is docketed as case No. S-19-520.  - 382 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 Motion for Commitment In July 2019, while the first appeal was pending, Yori moved for Helms’ commitment pursuant to the order of contempt. An amended motion additionally requested attorney fees and “such further and equitable relief as this Court deems just and equi- table including, but not limited to, a modification of [Helms’] parenting time.” Yori alleged that Helms violated the decree of dissolution in numerous ways. She alleged Helms failed to timely reimburse her for the child’s health care expenses, disparaged her in the child’s presence, failed to promptly notify her of orthodontic appointments scheduled for the child, scheduled the child’s orthodontic appointments during times that conflict with the child’s other activities, and scheduled an appointment for the child regarding an ankle injury without informing Yori of the time. Yori also alleged that Helms failed to abide by multiple pro- visions of the order of contempt. Specifically, she alleged that Helms refused to allow Yori to transport the child to and from athletic events, refused to commence counseling to address the family dynamic, refused to allow Yori to speak with the child on the telephone, and failed to reimburse Yori for half of the cost of the child’s athletic activities. During a hearing, Yori testified that it was important that she transport the child after events because Helms had removed the child from events early. Yori testified that a recurring problem was Helms’ demanding to transport the child. On one occa- sion, Yori arrived at Helms’ residence to pick the child up for a weightlifting session, but the child was still sleeping even though Yori communicated with Helms about the session ear- lier that morning. Yori also presented evidence concerning Helms’ failure to pay his share of expenses. Despite Yori’s sending Helms a request for payment with attachments, including the explana- tion of benefits, Helms had not paid. Helms testified that he notified Yori that the explanation of benefits was not attached,  - 383 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 but that she did not respond. He said he would pay his share if he received those documents. Yori also requested payment for athletic expenses, including hotel charges for out-of-state tournaments. But she had not received payment for anything sent in a July 8, 2019, email. Helms did not have any evidence that he paid Yori for any expenses she had incurred since May 1, 2019. On May 14, 2019, Yori sent Helms a copy of the court’s order requiring him to immediately commence counseling with a mutually agreed-upon provider and included the names of three counselors. On May 28, she sent another email stating that she had not received any communication regarding which counselor Helms had selected. Helms testified that he made an appointment but had not seen a counselor yet. Yori claimed that Helms refused to allow her to speak to the child on May 1 and 12, 2019. According to Helms, Yori called to say that the child did not answer and to ask Helms to have the child call her. Helms was not home at the time, so he sent the child a text, told him to call Yori, and “left it at that.” On one occasion, Helms spoke with the child on the telephone for 38 minutes, exceeding his 20-minute telephone call limit, but he did not realize he had done so because he “usually do[es]n’t keep track” when speaking to the child. Order of Commitment On August 1, 2019, the court entered an order of commit- ment. It committed Helms to the Lancaster County Department of Corrections for 21 days. The next day, the court entered a purge order. It ordered Helms to serve his 21-day commitment, but stated that he shall be released from custody so long as he met the following terms: paid $513.74 for past-due athletic expenses, paid $537.34 for past-due medical expenses, and paid $5,000 in attorney fees. The purge order contained additional terms. The court ordered that Helms immediately commence counseling per the May 1, 2019, order of contempt. It declared that Yori “shall  - 384 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 have initial and final say on all medical, dental and ortho­ dontic appointments for the minor child.” The order stated that Helms is allowed to attend such appointments but shall not schedule such appointments nor transport the minor child to or from such appointments. [Yori] shall be contacted in the event [Helms] believes any medical, dental or ortho­ dontic issue has arisen. [Yori] will be responsible for making any decision as to whether an appointment is nec- essary. [Helms] is granted authority only to take the minor child for emergent situations to the emergency room or Urgent Care during his parenting time. In the event he does so, he shall immediately notify [Yori] of the same including the reason for the emergent visit, and the loca- tion to which he will be taking the minor child. The court reduced Helms’ parenting time from a “7/7” sched- ule to a “10/4” schedule, which it stated it was doing “[t]empo- rarily” until December 19 or until further order of the court. The court ordered Helms to not denigrate Yori in the child’s presence, to direct the child to do as Yori has decided, to sup- port Yori’s decisions related to the child, and to “not sit silently with regard to those decisions.” The court set the matter for a review hearing on December 19, 2019. The court explained that the purpose of the review hearing would be to allow Helms to prove his compliance with the court’s orders and to “adduce evidence as to the best interest of the minor child to support [Helms’] request for rein- statement of the original parenting time schedule.” The court stated that it would then address whether changes should be made to the 10/4 parenting time schedule. During the hearing, the court stated that if Helms was in compliance, the parent- ing schedule would “likely” go back to the 7/7 schedule. The court ordered that all provisions of prior court orders, except those specifically modified, shall remain in full force and effect. The court ordered Helms to comply with the purge plan for 36 months and provided that if he failed to do so, “he  - 385 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 shall be immediately detained for a period of 21 days in the Lancaster County jail.” On September 3, 2019, Helms filed a notice of appeal, stat- ing his intent to appeal from the August 2 purge order. The second appeal is docketed as case No. S-19-840. ASSIGNMENTS OF ERROR In the first appeal, Helms assigns several errors to the dis- trict court’s parenting plan modifications which he claims went beyond what was reasonably necessary and were punitive and therefore contrary to the law and the evidence. Specifically, he challenges (1) the “transportation provisions” of the original mediated parenting plan, (2) the modifications banning him from attending the child’s athletic and piano practices, and (3) the “final say provisions” of the original mediated parent- ing plan. In the second appeal, Helms assigns that the court erred by (1) reducing his parenting time by 43 percent, (2) making par- enting plan modifications that were not reasonably necessary to enforce Yori’s rights, and (3) finding he was in arrears on his obligation to pay half of the child’s athletic expenses. STANDARD OF REVIEW [1] In a civil contempt proceeding where a party seeks reme- dial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court’s resolution of issues of law is reviewed de novo, (2) the trial court’s factual findings are reviewed for clear error, and (3) the trial court’s determinations of whether a party is in contempt and of the sanc­tion to be imposed are reviewed for abuse of discretion. 1 [2] Whether relief entered in a proceeding to enforce a par- ent’s rights is reasonably necessary to enforce such rights is reviewed for an abuse of discretion. 2 1 Braun v. Braun, 306 Neb. 890 , 947 N.W.2d 694 (2020). 2 See Martin v. Martin, 294 Neb. 106 , 881 N.W.2d 174 (2016).  - 386 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 [3] A jurisdictional question which does not involve a fac- tual dispute is determined by an appellate court as a matter of law. 3 ANALYSIS First Appeal The court modified the parenting plan after finding Helms to be in contempt. Helms does not contest the finding of con- tempt. Nor does he dispute the court’s authority to modify the decree and parenting plan. Rather, he challenges particular modifications included in the order of contempt and purge plan. He claims that those modifications were punitive and were not reasonably necessary. [4,5] Contempt proceedings may both compel obedience to orders and administer the remedies to which the court has found the parties to be entitled. 4 The sanction in a civil con- tempt proceeding is both remedial and coercive. 5 In a civil con- tempt proceeding, for the sanction to retain its civil character, the contemnor must, at the time the sanction is imposed, have the ability to purge the contempt by compliance and either avert punishment or, at any time, bring it to an end. 6 [6] A court’s continuing jurisdiction over a dissolution decree includes the power to provide equitable relief in a contempt proceeding. 7 Neb. Rev. Stat. § 42-364.15(1) (Reissue 2016) explicitly authorizes a court to “enter such orders as are rea- sonably necessary to enforce rights of either parent including the modification of previous court orders relating to parenting time, visitation, or other access” and to “use contempt powers to enforce its court orders relating to parenting time, visitation, or other access.” 3 Picard v. P & C Group 1, 306 Neb. 292 , 945 N.W.2d 183 (2020). 4 Mart. v . Martin, supra note 2. 5 See Braun v. Braun, supra note 1. 6 Id. 7 Martin v. Martin, supra note 2.  - 387 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 Helms argues that certain modifications were punitive rather than coercive and that they were not reasonably necessary to protect Yori’s rights under the parenting plan. He challenges as punitive the transportation provisions, the ban on his attend­ ance at athletic and piano practices, and the final say provi- sions. He argues that the transportation provisions were puni- tive because the purpose was to ensure that the child make it to all of his activities; thus, it was unnecessary to give Yori con- trol over transportation from the event. He also argues that they are punitive because there is nothing he can do to avoid them through his conduct—they are unconditional. Helms argues that there was no factual or remedial justification to ban him from attending the child’s athletic and musical practices or to deprive him of final say over the child’s participation in musical activities or any say regarding participation in athletic events. He contends that the alcohol and Soberlink testing pro- visions were not reasonably necessary to protect Yori’s rights under the parenting plan. In characterizing the modifications as punitive, Helms appears to be trying to impose a “least remedial measure” rule. But that is not consistent with statute. Section 42-364.15(1) empowers the court to solve the problem. Rather than a sanc- tion, the modifications here were remedial measures to gain compliance. While it is possible that a modification could be so extreme that it qualifies as a sanction, the modifications here do not rise to that level. [7] Where a situation exists that is contrary to the principles of equity and which can be redressed within the scope of judi- cial action, a court of equity will devise a remedy to meet the situation. 8 Here, the court had the equitable authority, within the contempt proceeding, to modify the decree and parenting plan to remedy issues that led to contempt. [8] The evidence showed that the remedial modifications were reasonably related to behavior prompting the contempt 8 Id. - 388 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 proceeding. Yori adduced evidence that Helms violated the parenting plan on numerous occasions and in numerous ways. Where credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. 9 There was evidence that Helms expressed an unwillingness to allow the child to participate in some events, failed to trans- port him to educational meetings and practices, and had him depart early from other events. The court also heard testimony about Helms’ intoxication and inappropriate behavior at the child’s athletic games and practices. And Yori testified that he had been confrontational. We conclude the modifications about which Helms complains were part of the equitable relief that the court is authorized to provide. 10 We find no abuse of discretion. Second Appeal [9] 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. 11 This appeal presents two distinct jurisdictional issues: whether the district court pos- sessed jurisdiction to further modify aspects of the parenting plan and whether Helms has appealed from a final order. [10,11] Helms argues that the district court did not have jurisdiction to further modify the final say provisions of the parenting plan while an appeal concerning the final say provi- sions was pending. Generally, once an appeal has been per- fected, the trial court no longer has jurisdiction. 12 But under Neb. Rev. Stat. § 42-351(2) (Reissue 2016), a trial court retains jurisdiction for certain matters. Section 42-351(2) provides: 9 Id. 10 See id. 11 Cullinane v. Beverly Enters. - Neb., 300 Neb. 210 , 912 N.W.2d 774 (2018). 12 Burns v. Burns, 293 Neb. 633 , 879 N.W.2d 375 (2016).  - 389 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 When final orders relating to proceedings governed by sections 42-347 to 42-381 are on appeal and such appeal is pending, the court that issued such orders shall retain jurisdiction to provide for such orders regarding support, custody, parenting time, visitation, or other access . . . or other appropriate orders in aid of the appeal process. Such orders shall not be construed to prejudice any party on appeal. A trial court’s jurisdiction under § 42-351(2) during the pend­ ency of an appeal is properly characterized as jurisdiction in aid of the appeal process. 13 A trial court’s jurisdiction to modify a decree regarding an issue which is pending appeal is not unlimited. Section 42-351(2) does not grant a trial court authority to hear and determine anew the very issues then pending on appeal and to enter permanent orders addressing these issues during the appeal process. 14 In the first appeal, Helms opposed modifi- cations to provisions regarding transportation, the ban on his attendance at athletic and piano practices, the final say provi- sions, and his alcohol use and testing. Following the filing of the notice of appeal, the district court held further hearings, but it did not make new determinations about the identical issues being appealed. Rather, in the August 2019 purge order, the court set forth terms for Helms to comply with in order to be released from jail. This falls within the court’s continuing jurisdiction to provide for such orders regarding parenting time or other access. [12,13] Yori contends that the August 2019 order is not a final, appealable order. For an appellate court to acquire juris- diction of an appeal, the party must be appealing from a final order or a judgment. 15 A judgment is the final determination 13 See Brozek v. Brozek, 292 Neb. 681 , 874 N.W.2d 17 (2016). 14 Burns v. Burns, supra note 12. 15 State v. Fredrickson, 306 Neb. 81 , 943 N.W.2d 701 (2020).  - 390 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 of the rights of the parties in an action. 16 Every direction of the court made or entered in writing and not included in a judg- ment is an order. 17 While all judgments 18 not incorrectly desig- nated as such 19 are appealable, an order may be appealed only if a statute expressly makes the order appealable or the order falls within the statutory definition of a final order. 20 [14] Under our final order statute, 21 to be a final order subject to appellate review, the lower court’s order must (1) affect a substantial right and determine the action and prevent a judgment, (2) affect a substantial right and be made during a special proceeding, (3) affect a substantial right and be made on summary application in an action after a judgment is ren- dered, or (4) deny a motion for summary judgment which was based on the assertion of sovereign immunity or the immunity of a government official. 22 Proceedings regarding modifica- tion of a marital dissolution are special proceedings. 23 And we have described a contempt order as one made upon a summary application in an action after judgment. 24 Here, our focus is not upon the procedural classification under § 25-1902, but, rather, whether the order affected a substantial right of one or more parties. 25 [15,16] The inquiry of whether a substantial right is affected focuses on whether the right at issue is substantial and whether the court’s order has a substantial impact on that 16 Neb. Rev. Stat. § 25-1301(1) (Cum. Supp. 2018). 17 State v. Fredrickson, supra note 15. 18 See § 25-1301(1) (defining judgment). 19 See Neb. Rev. Stat. § 25-1315(1) (Reissue 2016). 20 See State v. Fredrickson, supra note 15. 21 See Neb. Rev. Stat. § 25-1902 (Supp. 2019). 22 See State v. Fredrickson, supra note 15. 23 Tilson v. Tilson, 299 Neb. 64 , 907 N.W.2d 31 (2018). 24 See McCullough v. McCullough, 299 Neb. 719 , 910 N.W.2d 515 (2018). 25 See State v. Fredrickson, supra note 15.  - 391 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 right. 26 Whether an order affects a substantial right depends on whether it affects with finality the rights of the parties in the subject matter. 27 An order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review. 28 [17] The duration of an order is relevant to whether it affects a substantial right. 29 In several cases, we have determined that orders temporarily affecting a parent’s custodial, visitation, or educational rights were not final. 30 With respect to a visitation order in a guardianship proceeding, we stated that where a final guardianship hearing was scheduled for 3 weeks later, an order that effectively denied visitation until that hearing did not affect a substantial right because “the length of time that [the mother’s] relationship with [the child] was to be disturbed was brief, and the order was not a permanent disposition.” 31 Here, the court did not intend its order to be a permanent disposition. The order stated in part: IT IS FURTHER ORDERED that this matter be set for review hearing on Thursday, December 19, 2019 at 1:30 p.m. At such hearing, [Helms] shall be allowed 45 minutes to present evidence. [Yori] shall be awarded a like amount of time. The purpose of the review hearing shall be to allow [Helms] to prove his compliance with the Court’s orders and adduce evidence as to the best interest of the minor child to support [Helms’] request for reinstatement of the original parenting time schedule. 26 See id. 27 Id. 28 Id. 29 Tilson v. Tilson, supra note 23. 30 See, id.; In re Interest of Danaisha W. et al., 287 Neb. 27 , 840 N.W.2d 533 (2013); Steven S. v. Mary S., 277 Neb. 124 , 760 N.W.2d 28 (2009); Gerber v. Gerber, 218 Neb. 228 , 353 N.W.2d 4 (1984). 31 In re Guardianship of Sophia M., 271 Neb. 133 , 139, 710 N.W.2d 312 , 317 (2006).  - 392 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports YORI v. HELMS Cite as 307 Neb. 375 The Court notes it is specifically interested in [Helms’] compliance with the Court’s orders and the information from Dr. Williams. The Court will address what changes, if any, should be made to the 10/4 parenting time sched- ule as in the best interest of the minor child. And the court orally advised that it was changing Helms’ par- enting time “[t]emporarily” and that the “temporary order” would be in effect until December 19, 2019. The court antici- pated that the parenting schedule would “likely” revert to the 7/7 schedule if Helms complied with the purge order. That the court planned to revisit the parenting time schedule in 41⁄2 months demonstrates the temporary nature of the order. We recognize that the length of time involved here is perhaps on the outer edge of what would be considered a temporary disturbance, but we cannot say the reduction in parenting time from a 7/7 schedule to a 10/4 schedule for 41⁄2 months affects a substantial right. Because the order did not affect a substantial right of Helms, it is not a final order that may be appealed under § 25-1902. We dismiss the second appeal for lack of jurisdiction. CONCLUSION In the first appeal, we conclude that the court’s modifica- tions were part of the equitable relief that it had the authority to provide to remedy issues that led to contempt. We find no abuse of discretion and affirm the district court’s judgment. Because the second appeal was not taken from a final order, we dismiss it for lack of jurisdiction. Judgment in No. S-19-520 affirmed. Appeal in No. S-19-840 dismissed.

2020-12-04 06:08:28.019729+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007421PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 452 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F. Cite as 307 Neb. 452 In re Guardianship and Conservatorship of J.F., a child under 18 years of age. Gerald F., appellant, v. Misty B., appellee. ___ N.W.2d ___ Filed October 9, 2020. No. S-19-1123. 1. Estates: Appeal and Error. An appellate court reviews probate cases for error appearing on the record made in the county court. 2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 3. Guardians Ad Litem: Fees: Appeal and Error. In considering a trial court’s order concerning the payment of guardian ad litem fees, the allowance, amount, and allocation of guardian ad litem fees is a mat- ter within the initial discretion of a trial court, involves consideration of the equities and circumstances of each particular case, and will not be set aside on appeal in the absence of an abuse of discretion by the trial court. 4. Judgments: Words and Phrases. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substan- tial right or a just result in matters submitted for disposition through a judicial system. 5. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. 6. Costs. Under Nebraska law, the costs of litigation and expenses incident to litigation may not be recovered unless provided for by statute or a uniform course of procedure. 7. ____. Whether costs and expenses are authorized by statute or by the court’s recognition of a uniform course of procedure presents a question of law.  - 453 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F. Cite as 307 Neb. 452 8. Statutes: Legislature: Intent. In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. 9. Statutes. It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute. 10. Statutes: Legislature: Intent. It is a court’s duty to discover, if pos- sible, legislative intent from the statute itself. 11. Legislature: Intent. The intent of the Legislature is expressed by omis- sion as well as by inclusion. 12. Statutes: Legislature: Intent. Repeal by implication is strongly disfa- vored, unless made necessary by the evident intent of the Legislature. 13. Statutes. A statute will not be considered repealed by implication unless the repugnancy between the new provision and the former statute is plain and unavoidable. 14. Statutes: Legislature: Intent. In determining whether a new enactment is repugnant, a court looks at the new enactment for any indication of an evident legislative intent to repeal the former statute. 15. ____: ____: ____. In the absence of clear legislative intent, the construc- tion of a statute will not be adopted which has the effect of nullifying or repealing another statute. 16. Appeal and Error. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court. 17. ____. In order to be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. Appeal from the County Court for Holt County: Kale B. Burdick, Judge. Affirmed. Charles W. Balsiger, of Carney Law, P.C., for appellant. Brent M. Kelly, Holt County Attorney, for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Funke, J. Gerald F. petitioned to be appointed guardian and conserva- tor of a minor child. Gerald also moved for the appointment of a guardian ad litem (GAL) to represent the interests of the  - 454 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F. Cite as 307 Neb. 452 minor child, which motion was sustained by the county court. After trial, the court granted Gerald’s petition to be appointed guardian and conservator. The court ordered Gerald to pay the GAL’s reasonable fees and costs. Gerald appeals the order to pay fees and costs, arguing that the court’s order was not statu- torily authorized. Because the court had statutory authority to order the petitioner to pay a GAL’s reasonable fees and costs in a proceeding to appoint a conservator, we affirm. BACKGROUND On July 18, 2018, Gerald filed a petition in the county court for Holt County seeking to be appointed temporary and per- manent guardian and conservator of J.F, a minor child. Gerald alleged that J.F.’s biological mother, Misty B., is unable to properly care for him. Gerald stated that he believed he was J.F.’s biological father until a paternity test was completed in May 2018, showing he was not. He alleged that he raised J.F. as his son and has lived with him since birth and that he is concerned Misty will move him to Idaho to live with his grand- mother. That day, the county court issued an order appointing Gerald as temporary guardian and conservator and setting the matter of permanent appointment for a hearing. On July 24, 2018, Gerald filed a motion for the appointment of a GAL. Though Gerald’s motion is not in our record, the court referenced the motion in its written order sustaining the motion and appointing an attorney as GAL. The order stated that on July 16, 2018, unbeknownst to the court, Misty filed in the district court a petition and affidavit to obtain a domestic abuse protection order against Gerald. Gerald was personally served that same afternoon with Misty’s petition and an order to show cause. On July 23, the district court held a hearing and entered a domestic abuse protection order against Gerald, under which Misty and J.F. were pro- tected parties. Under the protection order, Gerald was prohib- ited from having contact with J.F. The county court found that the granting of the protec- tion order raised a conflict and vacated its order appointing  - 455 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F. Cite as 307 Neb. 452 Gerald as temporary guardian and conservator and issued a new order appointing Gerald as temporary conservator. The court stated that the competing cases appeared to present a cus- tody dispute, and as a result, the court found that J.F.’s interests were inadequately represented and appointed the GAL pursuant to Neb. Rev. Stat. § 30-2222(4) (Reissue 2016). On August 13, 2018, the district court issued a modified protection order removing J.F. as a protected party. On August 14, 2018, in the county court, Misty filed an objection to guardianship and a motion to dismiss. After a hearing on Misty’s objection and motion to dismiss, the court overruled both motions. The county court then held a trial on the merits on January 24 and 28, 2019. In February, the court granted Gerald’s petition and appointed him as J.F.’s permanent guardian and conservator over Misty’s objection. On May 6, 2019, the GAL filed an application for payment of fees and costs, with an affidavit and itemized invoice stat- ing that $10,665.57 was incurred for services provided from July 25, 2018, to February 7, 2019. The court granted the GAL’s application and ordered that pursuant to Neb. Rev. Stat. § 30-2620.01 (Reissue 2016), the GAL’s fees in the amount of $10,665.57 shall be paid by the ward’s estate, if the ward pos- sesses an estate: “If not, those fees shall by paid by the peti- tioner, as the petitioner requested the appointment of the GAL, and no evidence has been adduced to support a finding that the fees be paid by the county.” On June 13, 2019, Gerald moved to set aside the court’s order, arguing that he was not made aware of the GAL’s appli- cation or the hearing. On July 2, the court held a hearing where Gerald testified that he did not receive notice of the June 4 hearing. Gerald argued that because Misty contested the guard- ianship and conservatorship, she should be responsible for the GAL’s fees. However, Gerald did not contest the amount of the GAL’s fees or whether the fees were reasonable. The court stated that it appointed the GAL at Gerald’s request and that while it agreed that Misty should be held par- tially responsible, under the language of § 30-2620.01, only  - 456 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F. Cite as 307 Neb. 452 J.F., Holt County, or Gerald could be held responsible. The court denied Gerald’s motion to set aside. On September 6, 2019, the GAL moved to compel Gerald to comply with the order for payment of fees and costs. The GAL further moved for an order finding Gerald in contempt for fail- ing to comply with the court’s June 4 order. The court found the GAL’s motions were premature and scheduled a hearing to determine whether J.F. possessed an estate and whether any such estate could pay the GAL’s fees. At the hearing, Gerald claimed that 2016 Neb. Laws, L.B. 934, repealed by implication § 30-2620.01 and Neb. Rev. Stat. § 30-2643 (Reissue 2016) and that therefore, Holt County should be responsible for the GAL’s fees. Gerald argued that the matter is instead controlled by Neb. Rev. Stat. § 30-4210 (Reissue 2016), which allows for payment of fees by the county where the protective proceeding is brought, or by the person who is the subject of the protective proceeding, and does not allow for payment by the petitioner. Holt County objected, stating that it was not a party to the proceedings, that the case concerns a civil matter in which the county has no interest, and that the county had no opportunity to object to the appointment of a GAL. Following the hearing, the court found that J.F. did not pos- sess an estate from which the GAL’s fees could be paid. The court also found that the issue was controlled by §§ 30-2620.01 and 30-2643 and that based on the terms of those provi- sions, the GAL’s fees “shall be paid by the county in which the proceedings are brought or by the petitioner as costs of the action.” The court found that §§ 30-2620.01 and 30-2643 had not been repealed by implication or otherwise. The court further found that § 30-4210, which pertains to payments for court- ordered evaluations of the person who is the subject of the guardianship or conservatorship, did not apply to the services described in the GAL’s application. The court stated that the case was a private custody dispute and that private parties should expect to pay the costs associated with their litigation,  - 457 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F. Cite as 307 Neb. 452 rather than the taxpayers of Holt County. The court found that because Gerald requested appointment of a GAL, and because Holt County did not have an interest and did not participate in the proceedings, Gerald, as the petitioner, must pay the GAL’s fees and costs. Gerald filed an appeal. Holt County filed a brief in opposi- tion. We moved the case to our docket on our own motion. ASSIGNMENT OF ERROR Gerald assigns, restated, that the county court lacked statu- tory authority to order him to pay the GAL’s fees and costs. STANDARD OF REVIEW [1,2] An appellate court reviews probate cases for error appearing on the record made in the county court. 1 When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is sup- ported by competent evidence, and is neither arbitrary, capri- cious, nor unreasonable. 2 [3,4] In considering a trial court’s order concerning the payment of GAL fees, the allowance, amount, and allocation of GAL fees is a matter within the initial discretion of a trial court, involves consideration of the equities and circumstances of each particular case, and will not be set aside on appeal in the absence of an abuse of discretion by the trial court. 3 A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, but the selected option results in a deci- sion which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for dispo- sition through a judicial system. 4 1 In re Guardianship & Conservatorship of Karin P., 271 Neb. 917 , 716 N.W.2d 681 (2006). 2 Id. 3 Id. 4 Id.  - 458 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F. Cite as 307 Neb. 452 [5] Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. 5 ANALYSIS [6,7] The narrow issue presented to us is whether the county court was authorized to order Gerald to pay the GAL’s reason- able fees and costs. Under Nebraska law, the costs of litigation and expenses incident to litigation may not be recovered unless provided for by statute or a uniform course of procedure. 6 Whether costs and expenses are authorized by statute or by the court’s recognition of a uniform course of procedure presents a question of law. 7 [8-11] In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascer- tained from the entire language of the statute considered in its plain, ordinary, and popular sense. 8 It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute. 9 It is a court’s duty to discover, if possible, legislative intent from the statute itself. 10 The intent of the Legislature is expressed by omission as well as by inclusion. 11 Here, the court assessed the GAL’s fees to Gerald pursuant to §§ 30-2620.01 and 30-2643 under the Nebraska Probate Code. Section 30-2620.01 provides in pertinent part: The reasonable fees and costs of an attorney, a [GAL], a physician, and a visitor appointed by the court for the person alleged to be incapacitated shall be allowed, 5 In re Estate of Hutton, 306 Neb. 579 , 946 N.W.2d 669 (2020). 6 Id. 7 Id. 8 Id. 9 Id. 10 In re Adoption of Kailynn D., 273 Neb. 849 , 733 N.W.2d 856 (2007). 11 In re Estate of Hutton, supra note 5; In re Adoption of Kailynn D., supra note 10.  - 459 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F. Cite as 307 Neb. 452 disallowed, or adjusted by the court and may be paid from the estate of the ward if the ward possesses an estate or, if not, shall be paid by the county in which the proceedings are brought or by the petitioner as costs of the action. (Emphasis supplied.) Section 30-2643 provides in perti- nent part: The reasonable fees and costs of an attorney, a [GAL], a physician, a conservator, a special conservator, and a visitor appointed by the court for the person to be pro- tected shall be allowed, disallowed, or adjusted by the court and may be paid from the estate of the protected person if the protected person possesses an estate or, if not, shall be paid by the county in which the proceedings are brought or by the petitioner as costs of the action. The county court was incorrect to rely upon § 30-2620.01, because that provision does not apply to an award of fees and costs in a guardianship proceeding for a minor. 12 Under article 26 of the Nebraska Probate Code, there are three distinct sections of statutes that apply respectively to (1) a guardian- ship proceeding for a minor, 13 (2) a guardianship proceeding for an incapacitated person, 14 and (3) a conservatorship pro- ceeding for a person under a disability or a minor. 15 Section 30-2620.01 establishes a recognized uniform course of pro- cedure for the assessment of fees and costs to pay a court- appointed GAL in a guardianship proceeding for an inca- pacitated person. An incapacitated person is defined as any 12 See, e.g., In re Guardianship & Conservatorship of Alice H., 303 Neb. 235 , 927 N.W.2d 787 (2019); In re Guardianship of Brydon P., 286 Neb. 661 , 838 N.W.2d 262 (2013); In re Guardianship & Conservatorship of Karin P., supra note 1. 13 Neb. Rev. Stat. §§ 30-2605 to 30-2616 (Reissue 2016 & Cum. Supp. 2018). 14 Neb. Rev. Stat. §§ 30-2617 to 30-2629 (Reissue 2016). 15 Neb. Rev. Stat. §§ 30-2630 to 30-2661 (Reissue 2016 & Cum. Supp. 2018).  - 460 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F. Cite as 307 Neb. 452 person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that the person lacks sufficient understanding or capac- ity to make or communicate responsible decisions concerning himself or herself. 16 Section 30-2620.01 is inapplicable based on the facts and circumstances of this case. Here, the court was not authorized to assess the GAL’s fees against Gerald pursuant to § 30-2620.01, because the GAL was appointed in a guardianship proceeding for J.F., who is a minor and not an incapacitated person. As we explained in In re Guardianship of Brydon P., 17 while the statutes govern- ing a guardianship proceeding for a minor authorize a court to appoint an attorney and a GAL for a minor whose interests may be inadequately represented, 18 there is no statute govern- ing minor guardianship proceedings which explicitly authorizes a court to assess the fees and costs of appointed persons against the ward’s estate, a petitioner, or a county. In In re Guardianship of Brydon P., we found that § 30-2643 authorizes a court to assess fees and costs for a court-appointed person in a conservatorship proceeding, but held that § 30-2643 does not provide for an award of fees and costs in a guardian- ship proceeding for a minor. 19 Here, based on the plain and ordinary language of § 30-2620.01, we hold that § 30-2620.01 does not provide for an award of fees and costs in a guardian- ship proceeding for a minor. However, the court made clear that it also relied upon § 30-2643 in assessing the GAL’s fees against Gerald. Holt County contends that the court’s order was authorized under § 30-2643. We agree. 16 Neb. Rev. Stat. § 30-2601(1) (Reissue 2016). 17 In re Guardianship of Brydon P., supra note 12. 18 See, § 30-2222(4); § 30-2611(d). 19 In re Guardianship of Brydon P., supra note 12.  - 461 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F. Cite as 307 Neb. 452 Section 30-2643 authorizes a court to allow, disallow, or adjust the payment of “reasonable fees and costs” of a GAL for a protected person in a conservatorship proceeding. “A protected person is a minor or other person for whom a con- servator has been appointed or other protective order has been made.” 20 Section 30-2643 provides that if a protected person “possesses an estate,” the fees “may be paid from the estate.” Section 30-2643 also provides that if the protected person does not possess an estate, then the fees and costs “shall be paid by the county in which the proceedings are brought or by the peti- tioner as costs of the action.” Here, Gerald has not contested the court’s finding that J.F. does not possess an estate from which the GAL’s fees could be paid. As a result, the only issue is whether Gerald or the county should be required to pay the GAL’s fees. The court found that the proceedings concerned a pri- vate domestic dispute in which Holt County was in no way involved. The court also found that the case did not concern an interest of Holt County or involve a juvenile under the jurisdiction of the juvenile court as defined by Neb. Rev. Stat. § 43-247 (Reissue 2016). The court went on to find that the county should not be ordered to pay the fees. In this situation, the language of § 30-2643 authorized the court to assess the fees of a court-appointed GAL in a conservatorship proceeding to the petitioner. In In re Guardianship & Conservatorship of Karin P., 21 a father filed a petition seeking appointment as guardian and conservator for his adult child and the mother filed an objec- tion and cross-petition seeking to be appointed as a limited guardian. On appeal, we held that the county court did not abuse its discretion in finding that both parties were petition- ers and ordered the parties to split the GAL’s fees. Here, even though Misty contested Gerald’s appointment as guardian 20 § 30-2601(3). 21 In re Guardianship & Conservatorship of Karin P., supra note 1.  - 462 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F. Cite as 307 Neb. 452 and conservator, she did not seek to be appointed conserva- tor. Also, as articulated by the county court, Gerald filed the petition for guardianship and conservatorship in this case. As such, the court correctly found that Gerald is a petitioner within the meaning of § 30-2643. Additionally, the court stated that Gerald should be responsible for the GAL’s fees rather than the county, because Gerald moved for the appointment of the GAL. Further, under Neb. Rev. Stat. § 30-2602(b) (Reissue 2016), when both guardianship and protective proceedings as to the same person are commenced or pending in the same court, the proceedings may be consolidated. As such, Gerald’s petition seeking both a guardianship and conservatorship gave the court authority to award fees under § 30-2643. On this record, we find that the court’s order conforms to the law and is supported by competent evidence. Gerald also argues that § 30-2643 was implicitly repealed and/or amended by § 30-4210. Gerald argues that § 30-2643 is irreconcilable with § 30-4210, which was enacted into law by 2016 Neb. Laws, L.B. 934. The portion of § 30-2643 at issue was enacted into law by 1993 Neb. Laws, L.B. 782. Gerald argues, as the most recent enactment, § 30-4210 should prevail over § 30-2643. Section 30-4210 provides: The court may order the cost of any evaluation as pro- vided in section 30-4203 to be paid by the county where the guardianship, conservatorship, or other protective pro- ceeding is brought, or the court may, after notice and a hearing, assess the cost of any such evaluation, in whole or in part, to the person who is the subject of the guard- ianship, conservatorship, or other protective proceeding. The court shall determine the ability of such person to pay and the amount of the payment. [12-15] Repeal by implication is strongly disfavored, unless made necessary by the evident intent of the Legislature. 22 22 Premium Farms v. County of Holt, 263 Neb. 415 , 640 N.W.2d 633 (2002).  - 463 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F. Cite as 307 Neb. 452 A statute will not be considered repealed by implication unless the repugnancy between the new provision and the former stat- ute is plain and unavoidable. 23 In determining whether the new enactment is repugnant, we look at the new enactment for any indication of an evident legislative intent to repeal the former statute. 24 In the absence of clear legislative intent, the construc- tion of a statute will not be adopted which has the effect of nullifying or repealing another statute. 25 We find no indication that the Legislature intended to repeal or amend § 30-2643 when it adopted 2016 Neb. Laws, L.B. 934, and codified § 23 at § 30-4210. Further, based on their plain and ordinary language, we find no repugnancy between § 30-4210 and § 30-2643, because they apply in dis- tinct circumstances. Section 30-4210 authorizes a court to assess against a county or protected person, but not the petitioner, the costs of a court- ordered evaluation conducted by a GAL under Neb. Rev. Stat. § 30-4203(2)(c) (Reissue 2016). Under § 30-4203(2)(c), evalua­tions are referred to as medical, psychological, geriatric, or any other evaluation of the person who is the subject of the guardianship, conservatorship, or other protective proceeding to determine the condition and extent of impairment, if any, of the person who is the subject of the guardianship, conservator- ship, or other protective proceeding. Here, we have not been referred to any court-ordered evaluations in our record or any evidence that the GAL’s fees included court-ordered evalua- tions. The court correctly found that the GAL did not request payment for any court-ordered evaluations and that § 30-4210 does not apply to the GAL’s application for fees. [16] Even though we conclude here that the court acted within its authority, it also seems clear that the outcome in 23 State v. Thompson, 294 Neb. 197 , 881 N.W.2d 609 (2016). 24 Id. 25 Bergan Mercy Health Sys. v. Haven, 260 Neb. 846 , 620 N.W.2d 339 (2000).  - 464 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE GUARDIANSHIP & CONSERVATORSHIP OF J.F. Cite as 307 Neb. 452 this case could lead to situations in which a person in need of protection is left without someone to initiate a proceeding on his or her behalf. 26 Although this case concerned a conser- vatorship for J.F., the vast majority of the dispute concerned Gerald’s petition for guardianship of J.F. Had Gerald not also sought to be appointed conservator, he would not have been required to pay the GAL’s $10,665.57 in fees. This is so, even though the dispute was civil in nature. However, Gerald did not contest the amount of the GAL’s fees or whether the GAL’s fees were reasonable. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court. 27 [17] Additionally, Gerald has not reasserted, on appeal, his objection from his motion to set aside that he was not provided notice of the GAL’s application for fees and costs or the hear- ing on the application. In order to be considered by an appel- late court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. 28 CONCLUSION In a guardianship proceeding for a minor, no statute or recog- nized uniform course of procedure permits a court to assess the fees of an appointed person against a ward’s estate, a county, or a petitioner. In a conservatorship proceeding for a protected person, the court is statutorily authorized to assess the fees of an appointed person to the estate of the protected person if the protected person possesses an estate or, if not, the county in which the proceedings are brought or the petitioner. Affirmed. 26 In re Guardianship of Brydon P., supra note 12, citing In re Guardianship & Conservatorship of Donley, 262 Neb. 282 , 631 N.W.2d 839 (2001). 27 State v. Thomas, 303 Neb. 964 , 932 N.W.2d 713 (2019). 28 In re Guardianship & Conservatorship of Forster, 22 Neb. Ct. App. 478 , 856 N.W.2d 134 (2014).

2020-12-04 06:08:42.567229+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007393PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 343 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. WALDRON Cite as 307 Neb. 343 State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator, v. Nancy G. Waldron, respondent. ___ N.W.2d ___ Filed September 25, 2020. No. S-20-556. Original action. Judgment of disbarment. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Per Curiam. INTRODUCTION This case is before the court on the voluntary surrender of license filed by the respondent, Nancy G. Waldron, on August 10, 2020. The court accepts the respondent’s voluntary surren- der of her license and enters a judgment of disbarment. STATEMENT OF FACTS The respondent was admitted to the practice of law in the State of Nebraska on September 12, 1984. On August 10, 2020, the respondent filed a voluntary surrender of her license to practice law, in which she stated that on July 31, 2018, she was charged in the county court for Fillmore County, Nebraska, with a Class IIA felony count of theft by unlaw- ful taking in violation of Neb. Rev. Stat. § 28-511 (Reissue 2016). See Neb. Rev. Stat. § 28-518(1) (Reissue 2016). The respondent ultimately was convicted and sentenced by the district court to a 5-year term of probation and ordered to pay restitution of $56,913. The respondent stated that she freely  - 344 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. WALDRON Cite as 307 Neb. 343 and voluntarily surrenders her privilege to practice law in the State of Nebraska; waives her right to notice, appearance, or hearing prior to the entry of an order of disbarment; and con- sents to the entry of an immediate order of disbarment. ANALYSIS Neb. Ct. R. § 3-315 of the disciplinary rules provides in pertinent part: (A) Once a Grievance, a Complaint, or a Formal Charge has been filed, suggested, or indicated against a member, the member may voluntarily surrender his or her license. (1) The voluntary surrender of license shall state in writing that the member knowingly admits or knowingly does not challenge or contest the truth of the suggested or indicated Grievance, Complaint, or Formal Charge and waives all proceedings against him or her in connection therewith. Pursuant to § 3-315 of the disciplinary rules, we find that the respondent has voluntarily surrendered her license to practice law and, for purposes of her license to practice law, knowingly does not challenge or contest the fact of her conviction refer- enced above. Further, the respondent has waived all proceed- ings against her in connection with the disciplinary proceeding. We further find that the respondent has consented to the entry of an order of disbarment. CONCLUSION Upon due consideration, the court accepts the respondent’s voluntary surrender of her license to practice law, finds that the respondent should be disbarred, and hereby orders her disbarred from the practice of law in the State of Nebraska, effective immediately. The respondent shall forthwith comply with all terms of Neb. Ct. R. § 3-316 (rev. 2014) of the disci- plinary rules, and upon failure to do so, she shall be subject to punishment for contempt of this court. Accordingly, the respondent is directed to pay costs and expenses in accordance  - 345 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. WALDRON Cite as 307 Neb. 343 with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and Neb. Ct. R. §§ 3-310(P) (rev. 2019) and 3-323(B) of the disci- plinary rules within 60 days after an order imposing costs and expenses, if any, is entered by the court. Judgment of disbarment.

2020-12-04 06:08:32.998099+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007410PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 418 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. GRAY Cite as 307 Neb. 418 State of Nebraska, appellee, v. Neland T. Gray, Jr., appellant. ___ N.W.2d ___ Filed October 2, 2020. No. S-19-1173. 1. Sentences: Appeal and Error. A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of dis- cretion by the trial court. 2. Judges: Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. 3. Appeal and Error. For an alleged error to be considered by an appellate court, an appellant must both assign and specifically argue the alleged error in the party’s initial brief. 4. ____. Where an appellant’s brief contains conclusory assertions unsup- ported by an analytical argument, the appellant fails to satisfy this requirement. 5. Sentences: Appeal and Error. When sentences imposed within statu- tory limits are alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering well-established factors and any applicable legal principles. 6. Sentences. When imposing a sentence, a sentencing judge should con- sider the defendant’s (1) age, (2) mentality, (3) education and experi- ence, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime. 7. ____. The sentencing court is not limited to any mathematically applied set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that includes the sentencing judge’s observations of the defendant’s demeanor and attitude and all the facts and circum- stances surrounding the defendant’s life.  - 419 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. GRAY Cite as 307 Neb. 418 Appeal from the District Court for Lancaster County: Jodi L. Nelson, Judge. Affirmed. Nancy K. Peterson for appellant. Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. NATURE OF CASE In an appeal from a second degree murder conviction, the appellant challenges the district court’s imposition of a life sen- tence to run consecutively with a sentence of 25 to 35 years’ imprisonment for use of a deadly weapon to commit a felony. According to the appellant, the district court abused its discre- tion by imposing an excessive sentence. BACKGROUND Pursuant to a plea agreement, Neland T. Gray, Jr., was con- victed of second degree murder, in violation of Neb. Rev. Stat. § 28-304 (Reissue 2016), a Class IB felony, and use of a deadly weapon to commit a felony, in violation of Neb. Rev. Stat. § 28-1205(1)(a) and (b) (Reissue 2016), a Class II felony. The district court imposed on Gray a life sentence for the second degree murder conviction and a consecutive sentence of 25 to 35 years’ imprisonment for the use of a deadly weapon to com- mit a felony conviction. The convictions and sentences at issue arise out of events that occurred on December 31, 2018. Gray killed his ex-girlfriend, Dijah Ybarra, who was the mother of their two young children, by stabbing her at least 15 times. That eve- ning, Ybarra took the children to Gray’s mother’s home, where Gray was living. Gray previously agreed to watch the children while Ybarra went out to celebrate New Year’s Eve. But when Ybarra arrived, Gray informed her that he had decided to go  - 420 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. GRAY Cite as 307 Neb. 418 out as well and had arranged for his aunt to watch the children instead. Gray rode with Ybarra to his aunt’s house where they dropped the children off. Ybarra then took Gray to another location where she had agreed to drop him off. After arriving, Ybarra discussed with Gray that she was moving on and had been dating another man. This discussion upset Gray. Gray pulled out a kitchen knife that he had taken from his mother’s house and began stabbing Ybarra. Gray ini- tially prevented Ybarra from exiting the car by grabbing her hair, but she was eventually able to get out and attempted to run away. Gray pursued Ybarra, continuing to stab her. Gray then left Ybarra bleeding and dying on the curb while he took her car and fled the scene. Gray called his mother and told her he was going to jail. According to the information in the presentence investiga- tion report, Gray had been physically and emotionally abusive to Ybarra throughout their relationship and had been in jail the previous year for assaulting her. During that prior alterca- tion, Gray also assaulted another woman who had attempted to intervene on Ybarra’s behalf. Gray then threatened the inter- vening woman’s fiance with a knife when the fiance verbally confronted Gray. While in jail after this incident and despite a protection order, Gray continued to contact Ybarra numerous times, threatening and verbally abusing her. Gray also assaulted other inmates while incarcerated. Gray was released from jail in early December 2018. Gray and Ybarra resumed their sexual relationship upon his release. Gray had wanted to reestablish a relationship. However, Ybarra was apparently involved with both Gray and another man dur- ing this time, which Gray reported caused him severe feelings of jealousy. According to interviews with Gray’s family and friends contained within the presentence investigation report, a couple of days before the murder, Ybarra and her new boy- friend had taunted Gray about their new relationship. The family and friends asserted that Ybarra’s boyfriend sent Gray  - 421 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. GRAY Cite as 307 Neb. 418 pictures of himself with Gray’s children and Ybarra, claiming he was replacing Gray in Ybarra’s and his children’s lives. At sentencing, Gray’s counsel requested that Gray’s sentence allow for a release date early enough to allow Gray to still become a productive member of society. Defense counsel also argued that Gray’s sentence should take into account Gray’s age of 22 years, remorse, history of psychological issues, sub- stance abuse, and childhood exposure to domestic violence. The presentence investigation report sets forth that Gray was raised in an abusive household, struggled with his temper from a young age, consistently experienced domestic violence at home, and failed to learn any coping skills. Gray had been suspended multiple times from school for fighting, eventually being expelled. Gray ultimately obtained his diploma through the GED program and held multiple jobs, but never for longer than 7 months at a time. Gray has engaged in heavy alcohol and marijuana use since age 14, smoking marijuana six to eight times per day up until his incarceration in 2017. He also reported consuming a pint of hard liquor per day. Gray admitted that he was using alcohol heavily in the time following his release in December 2018 and that he had been drinking throughout the afternoon on the day of the murder. Gray has a significant criminal history, both as a juvenile and as an adult. Gray abused Ybarra physically, verbally, and emotionally throughout their tumultuous relationship. Multiple family members and friends had told Gray to move on and leave Ybarra alone. At the sentencing hearing, the district court stated that it had “carefully and thoughtfully considered [Gray’s early release] request, particularly in light of [Gray’s] age,” but reasoned that it was not appropriate in light of Gray’s history of violent crim- inal conduct, character, and flagrant violations of court orders. The district court observed that Gray had been “abusive, con- trolling, demeaning, possessive, and selfish” and had “shown a complete unwillingness to follow orders of the Court.”  - 422 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. GRAY Cite as 307 Neb. 418 The court pointed out that Gray had contacted Ybarra mul- tiple times while incarcerated in “flagrant violation[]” of the protection order in place. The court further recognized that Gray’s postrelease supervision order prohibited Gray from hav- ing any contact with Ybarra; using, possessing, or consuming alcoholic beverages or controlled substances; possessing any weapons; and engaging in unlawful acts or acts injurious to others, and yet, Gray “demonstrated no regard whatsoever for that order.” The district court concluded that it was “impossible . . . to find that [Gray] at some time in the future will be amenable to the same type of supervision he was on at the time of this brutal murder” and that he is “a violent and dangerous man who has demonstrated an inability through incarceration or otherwise to co-exist with others without violence.” ASSIGNMENT OF ERROR Gray assigns that the district court abused its discretion in imposing an excessive sentence. STANDARD OF REVIEW [1,2] A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. 1 A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly unten- able, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. 2 ANALYSIS [3-5] Gray alleges the life sentence for his second degree murder conviction was excessive. He does not specifically challenge the weapons conviction of 25 to 35 years’ imprison- ment. For an alleged error to be considered by an appellate court, an appellant must both assign and specifically argue the 1 State v. Smith, 240 Neb. 97 , 480 N.W.2d 705 (1992). 2 State v. Weaver, 267 Neb. 826 , 677 N.W.2d 502 (2004).  - 423 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. GRAY Cite as 307 Neb. 418 alleged error in the party’s initial brief. 3 Where an appellant’s brief contains conclusory assertions unsupported by an ana- lytical argument, the appellant fails to satisfy this requirement. 4 Gray’s conviction for second degree murder was punishable by a minimum of 20 years’ imprisonment and a maximum of life imprisonment. 5 When sentences imposed within statutory limits are alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discre- tion in considering well-established factors and any applicable legal principles. 6 [6,7] When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) moti- vation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime. 7 The sentencing court is not limited to any math- ematically applied set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that includes the sentencing judge’s observations of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. 8 Gray was 21 years old at the time of the murder and 22 years old when he was sentenced. He argues that, in light of his age, a minimum sentence of life that would never allow for his parole eligibility is excessive. Gray relies on cases like State v. Iromuanya, 9 where we have reduced life sentences 3 See State v. Smith, 292 Neb. 434 , 873 N.W.2d 169 (2016). 4 See id. 5 See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2018). 6 See State v. Lassek, 272 Neb. 523 , 723 N.W.2d 320 (2006). 7 Id. See State v. Thieszen, 300 Neb. 112 , 912 N.W.2d 696 (2018). 8 See State v. Lassek, supra note 6. See, also, State v. Thieszen, supra note 7. 9 State v. Iromuanya, 272 Neb. 178 , 719 N.W.2d 263 (2006).  - 424 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. GRAY Cite as 307 Neb. 418 based on the characteristics and history of the defendant. The defendant in Iromuanya was 23 years old when he committed second degree murder and had no significant criminal history. The defendant had fired a single shot, while at a party, which wounded one victim and killed another. We noted that by set- ting a minimum of life imprisonment, the court could not have imposed a more severe minimum term for second degree mur- der on a hardened criminal with a lengthy history of violent felony convictions. 10 We reiterated that a sentence should fit the offender and not merely the crime. 11 Both Gray’s criminal history and the nature of his killing of Ybarra differ significantly from Iromuanya. Although Gray pleaded to a lesser charge, premeditation is indicated by the fact that Gray took a kitchen knife from his mother’s house, had it on his person when he entered Ybarra’s car, and manipu- lated the situation so that Ybarra would end up alone with him, where he used the knife to stab Ybarra over 15 times while in the car and as she attempted to flee. Gray has a long criminal history, including multiple con- victions of violent conduct with others and with Ybarra spe- cifically, including Gray’s being incarcerated for a year for assaulting Ybarra—his release being only weeks before this killing occurred. During that prior assault incident, Gray also assaulted another woman who attempted to intervene on Ybarra’s behalf and threatened the intervening woman’s fiance with a knife when he verbally confronted Gray. As the district court noted, Gray has shown no interest or effort to abide by court orders. Despite a protection order in place while Gray was incarcerated, Gray still contacted Ybarra numerous times, threatening and verbally abusing her. Gray repeatedly violated the prohibitions of his postrelease supervision by possessing the kitchen knife from his mother’s 10 Id. 11 Id.  - 425 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. GRAY Cite as 307 Neb. 418 house, consuming alcohol, and having multiple contacts with Ybarra that evening that led to her death. The district court recognized the appropriate factors when imposing Gray’s life sentence despite his relatively young age. Further, the sentence properly reflected the seriousness of the crimes committed and Gray’s past criminal conduct. As the district court observed, Gray is a “violent and dangerous man who has demonstrated an inability through incarceration or otherwise to co-exist with others without violence.” A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriv- ing a litigant of a substantial right and denying a just result in matters submitted for disposition. 12 We find the district court did not abuse its discretion in imposing a life sentence in this matter. CONCLUSION The district court carefully considered all the relevant facts when it imposed the life sentence. Considering the totality of the circumstances, we cannot say that the sentence imposed by the district court was untenable. Gray’s assignment of error regarding the imposition of an excessive sentence is without merit. For the foregoing reasons, we affirm. Affirmed. 12 State v. Weaver, supra note 2.

2020-12-04 06:08:47.999039+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007380PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 221 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 Brian Lassalle, and all others similarly situated, appellant, v. State of Nebraska and State of Nebraska, acting through the Nebraska Department of Health and Human Services, et al., appellees. ___ N.W.2d ___ Filed September 18, 2020. No. S-19-810. 1. Summary Judgment: Appeal and Error. An appellate court affirms a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. 2. ____: ____. An appellate court reviews the district court’s grant of sum- mary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. 3. Contracts. The interpretation of a contract and whether the contract is ambiguous are questions of law. 4. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court. 5. Employer and Employee: Employment Contracts: Wages. A pay- ment will be considered a wage subject to the Nebraska Wage Payment and Collection Act if (1) it is compensation for labor or services, (2) it was previously agreed to, and (3) all the conditions stipulated have been met. 6. Contracts. When the terms of a contract are clear, a court may not resort to rules of construction, and the terms are to be accorded their plain and ordinary meaning as an ordinary or reasonable person would understand them. 7. ____. A contract must receive a reasonable construction and must be construed as a whole, and if possible, effect must be given to every part of the contract.  - 222 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 8. ____. A court is not free to rewrite a contract or to speculate as to terms of the contract which the parties have not seen fit to include. 9. Contracts: Intent. A court should avoid interpreting contract provisions in a manner that leads to unreasonable or absurd results that are obvi- ously inconsistent with the parties’ intent. 10. Contracts. Extrinsic evidence is not permitted to explain the terms of a contract that is unambiguous. 11. Moot Question. A case becomes moot when the issues initially pre- sented in the litigation cease to exist, when the litigants lack a legally cognizable interest in the outcome of litigation, or when the litigants seek to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive. Appeal from the District Court for Lancaster County: John A. Colborn, Judge. Affirmed. Kathleen M. Neary and Vincent M. Powers, of Powers Law, and R. Joseph Barton and Vincent Cheng, of Block & Leviton, L.L.P., for appellant. Douglas J. Peterson, Attorney General, and Stephanie Caldwell for appellees. Heavican, C.J., Miller-Lerman, Stacy, Funke, Papik, and Freudenberg, JJ. Papik, J. On several occasions between 2016 and 2019, Brian Lassalle, an employee of the Nebraska Department of Health and Human Services (DHHS), sought to take and be paid for leave hours during pay periods in which he also worked his full complement of hours. When DHHS did not allow him to do so, he brought an action against the State alleging various claims, including a violation of the Nebraska Wage Payment and Collection Act (NWPCA), see Neb. Rev. Stat. §§ 48-1228 to 48-1234 (Reissue 2010, Cum. Supp. 2018 & Supp. 2019). He also filed a motion for class certification in which he asked to represent a class of similarly situated DHHS employees. The district court entered summary judgment in favor of the State and denied Lassalle’s motion for class certification  - 223 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 as moot. Finding no error on the part of the district court, we affirm. BACKGROUND Lassalle’s Allegations. Since 1993, Lassalle has worked for DHHS as a security specialist and medication aide at the Lincoln Regional Center. Lassalle receives pay every 2 weeks and is paid by the hour. As a term of his employment, Lassalle receives paid vacation, sick, and bereavement leave. In this case, Lassalle sought to bring an action on behalf of himself and other DHHS employees against the State of Nebraska. He alleged that beginning in July 2016, DHHS refused to pay him and other employees for certain vacation, sick, and bereavement leave hours that were approved by supervisors and recorded by the employees. Lassalle asserted that this happened because in July 2016, DHHS began prohib- iting employees from taking and being paid for leave hours to the extent that use would cause the employee to exceed more than 40 hours per week if paid weekly or more than 80 hours every 2 weeks if paid on that basis. According to Lassalle, he had previously been paid for leave time during pay periods in which he recorded more than 80 hours of work and leave time. Lassalle alleged that the refusal to pay him for the leave hours at issue violated the NWPCA; the State Tort Claims Act, see Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014, Cum. Supp. 2018 & Supp. 2019); and the State Contract Claims Act, Neb. Rev. Stat. §§ 81-8,302 to 81-8,306 (Reissue 2014). Motions for Class Certification. Early in the case, Lassalle filed a motion for class certifica- tion. Lassalle defined the class as: All current and former full-time non-exempt employ- ees of [DHHS] (a) who work at one or more of the following facili- ties: the Lincoln Regional Center, Norfolk Regional Center, Hastings Regional Center, Whitehall Psychiatric  - 224 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 Residential Treatment Facility, Kearn[e]y Youth Reha­ bilitation & Treatment Center, Geneva Youth Rehabilita­ tion & Treatment Center, and Beatrice State Department Center (collectively “the Facilities”); or (b) who took paid vacation or sick leave on or after June 27, 2016[,] while they worked at any of the Facilities and have not been compensated for all the hours corre- sponding to such leave. The district court overruled Lassalle’s motion for class certification. The court reasoned that although the class was sufficiently numerous, a potential conflict of interest existed between class members, because if Lassalle prevailed, cer- tain class members who might prefer to keep rather than use accrued leave would lose the chance to do so. Alternatively, the district court found that class certification should be denied because whether and to what extent any class member would be entitled to recover would be subject to varying proof. Lassalle filed a second amended complaint in which he attempted to address the potential conflict of interest found by the district court. The second amended complaint asked that the district court order that class members be allowed to elect whether they wished to receive back wages or to retain their accrued leave. Lassalle later filed a renewed motion for class certification. Summary Judgment. Prior to the district court’s ruling on Lassalle’s renewed motion for class certification, the State filed a motion for sum- mary judgment. The district court held one hearing in which it received evidence and heard argument on both motions. We summarize certain evidence offered in support of and in oppo- sition to the State’s motion for summary judgment below. The district court received two labor contracts between the State and the union representing the bargaining unit to which Lassalle belonged. The first labor contract applied between July 1, 2015, and June 30, 2017, and the second applied between July 1, 2017, and June 30, 2019. There was no dispute  - 225 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 that these contracts set forth the terms and conditions of Lassalle’s employment. The relevant provisions of the labor contracts were substan- tially the same. Each labor contract stated that it “supersedes and cancels all prior practices and agreements, whether written or oral, unless expressly stated to the contrary,” and “­constitutes the complete and entire agreement between the parties.” In both labor contracts, the State reserved the right “to oper- ate and direct the employees of the State . . . to the extent that such rights do not violate its legal authority, and to the extent such rights are not modified by [the contracts].” The labor con- tracts provided that those rights included “[t]he right to adopt, modify, change, enforce, or discontinue any existing rules, regulations, procedures or policies.” The labor contracts also contained provisions concerning employees’ right to paid leave. Under the labor contracts, employees earned vacation and sick leave according to the duration of their employment. Another provision stated that employees may be granted up to 5 days of bereavement leave in the event of a death in the employee’s immediate family. A provision of the labor contracts pertaining to overtime work provided that, with an exception not relevant to Lassalle, “holi- days shall be considered as work hours for overtime purposes,” but that “[l]eave time (vacation, sick, etc.) shall not be consid- ered as hours worked.” Under the labor contracts, employees received a lump-sum payment for any unused vacation leave upon separation of employment. The labor contracts also provided, however, that employees forfeit any accumulated vacation time in excess of 35 days at the end of each year. The contracts provided that “[v]acation leave should be applied for in advance by the employee and may be used only when approved by the Agency Head and/or his/her Designee. Vacation leave may not be unrea- sonably denied or deferred so that the employee is deprived of vacation rights.” The labor contract in effect between July 1, 2017, and June 30, 2019, contained an additional provision  - 226 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 obligating the employing agency “to provide reasonable oppor- tunity for a State employee to use rather than forfeit accumu- lated vacation leave.” Under that provision, if an employee made a reasonable request to use vacation leave before the leave must be forfeited and that request was denied, the State was obligated to pay the employee the cash equivalent of the forfeited and denied vacation leave. Both labor contracts provided that all sick leave was for- feited upon separation from employment, except that employ- ees age 55 and older and certain other employees were entitled, upon separation, to a payment equivalent to one-quarter of their accumulated sick leave not to exceed 480 hours. The labor contracts contained no provision regarding payouts for unused bereavement leave, and the parties agree that unused bereavement leave was forfeited at the end of each year. The labor contracts provided that bereavement leave “will not be unreasonably denied.” In addition to the labor contracts, the district court received evidence regarding a DHHS policy concerning the use of leave. The district court received an affidavit of DHHS’ chief of staff, in which she stated the following: Since at least 2013, it has been the policy of the DHHS that employees are only allowed to report more than 40 hours of time in a single work period (or more than 80 hours in a two-week work period) when actually work- ing overtime. DHHS hourly employees are not allowed to use leave time to exceed 40 hours in a single work period or 80 hours in a two-week work period. For example, an employee that works a 40 hour work week cannot report 35 hours of work and 8 hours of leave time. Only 5 hours of leave time may be used in this situation. Other employees of DHHS also testified as to this policy. Additionally, the policy was reflected in a document received by the district court entitled “KRONOS Quick Start Guide for Employees” (KRONOS guide). KRONOS is a time and attend­ ance software used by DHHS to track employees’ worktime  - 227 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 and leave usage. The KRONOS guide, which indicated it was updated in 2013, provided: Employees are only allowed to report more than 40 hours of time in a single week when working overtime. Employees are not allowed to use leave time to exceed 40 hours in the week. For example, an employee cannot report 35 hours of work and 8 hours of vacation. Only 5 hours of vacation may be used in this situation. The district court also received evidence that it came to the attention of DHHS in 2016 that at some DHHS facilities, including the Lincoln Regional Center, some employees were recording and being paid for leave time in excess of the total hours allowed in the employees’ pay periods. In response to that information, on June 8, 2016, the deputy human resources director at DHHS emailed a memorandum to all DHHS super- visors. The memorandum stated that “[e]mployees cannot have more than 40 hours in any work week unless they have physi- cally worked more than 40 hours.” (Emphasis in original.) It went on to provide a similar example to the one noted in the KRONOS guide: “If an employee works 34 hours in a week, and submits a leave request for 8 hours—the supervi- sor should only approve 6 hours.” The district court also received as an exhibit a document indicating that on July 13, Lassalle, along with others, was forwarded an email from human resources staff at the Lincoln Regional Center stating that if a full-time employee actually worked 80 hours, paid leave was unavailable. The district court also received at the summary judgment hearing interrogatory answers of Lassalle in which he identi- fied 11 different days between September 2016 and January 2019 on which he claimed that his supervisor approved and he took and recorded vacation, sick, or bereavement leave but was denied pay. According to Lassalle, he was denied approxi- mately $1,300 as a result of DHHS’ refusal to allow him to take and be paid for the leave at issue.  - 228 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 District Court Order on Summary Judgment and Class Certification. The district court issued an order in which it sustained the State’s motion for summary judgment and overruled Lassalle’s motion for class certification. The district court addressed the State’s summary judgment motion first. In analyzing Lassalle’s NWPCA claim, the district court considered the labor contracts and found that they contained no agreement to pay Lassalle for leave time exceeding 80 hours in a pay period. Without evidence of such an agreement, the district court concluded the State was entitled to judgment as a matter of law on his NWPCA claim. The district court also found the State was entitled to summary judgment on Lassalle’s claims under the State Tort Claims Act and the State Contract Claims Act. In light of its finding that the State was entitled to summary judgment, the district court determined that Lassalle’s renewed motion for class certification was moot. Even so, the district court, “for the sake of judicial efficiency,” went on to explain why it would overrule the motion for class certification even if it had not entered summary judgment against Lassalle. It stated that although Lassalle had attempted to remedy the issues the district court identified when it denied his initial motion for class certification, Lassalle did not explain why the evidence and argument he relied upon were not offered at the time of the first motion. The district court also noted that it believed class certification at that point would result in unac- ceptable delay. ASSIGNMENTS OF ERROR Lassalle assigns 12 errors on appeal, all of which relate to the entry of summary judgment in favor of the State and the denial of his motion for class certification. He assigns, consoli- dated and restated, that the district court erred in (1) sustain- ing the State’s motion for summary judgment on his NWPCA claim and (2) denying his motions for class certification.  - 229 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 STANDARD OF REVIEW [1,2] An appellate court affirms a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. Drought v. Marsh, 304 Neb. 860 , 937 N.W.2d 229 (2020). An appellate court reviews the district court’s grant of sum- mary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. Pitts v. Genie Indus., 302 Neb. 88 , 921 N.W.2d 597 (2019). [3,4] The interpretation of a contract and whether the con- tract is ambiguous are questions of law. Timberlake v. Douglas County, 291 Neb. 387 , 865 N.W.2d 788 (2015). An appellate court independently reviews questions of law decided by a lower court. Fisher v. PayFlex Systems USA, 285 Neb. 808 , 829 N.W.2d 703 (2013). ANALYSIS NWPCA Claim. As mentioned above, Lassalle asserted multiple theories of recovery in the district court. On appeal, however, Lassalle challenges only the entry of summary judgment in favor of the State on his NWPCA claim. We thus limit our analysis to that claim. Before turning to the NWPCA itself, however, we pause to clarify the basis of Lassalle’s claim and to identify the issues that are in dispute. As explained above, Lassalle contends that during several pay periods between 2016 and 2019, he sought to take and be paid for leave time even though the combined total of his work and leave hours exceeded 80. This apparently came about as a result of Lassalle’s receiving approval to take time off on days he was scheduled to work, but also agree- ing to work additional hours at other times during the same pay period. Lassalle would then record both a full 80 hours of work and the additional leave hours. The State does not  - 230 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 dispute that it did not pay Lassalle for leave hours to the extent they exceeded 80 hours on those occasions. Lassalle makes a number of concessions as well. He does not dispute that DHHS never denied him pay for hours he worked and that in each of the instances in which DHHS did not permit him to take or be paid for leave, it did not deduct those hours from his leave balances. Lassalle also admits that he had never lost or forfeited any vacation or sick leave under the labor contracts. The issue in this case is thus whether the State violated the NWPCA when it refused to permit Lassalle to take and be paid for leave hours when doing so would cause him to exceed 80 hours of work and leave during a pay period. With that background established, we turn to the NWPCA. [5] The NWPCA essentially permits an employee to sue his or her employer if the employer fails to pay the employee’s wages as they become due. Pick v. Norfolk Anesthesia, 276 Neb. 511 , 755 N.W.2d 382 (2008). “Wages” are defined as “compensation for labor or services rendered by an employee, including fringe benefits, when previously agreed to and con- ditions stipulated have been met by the employee, whether the amount is determined on a time, task, fee, commission, or other basis.” § 48-1229(6). On the basis of this statutory language, we have held that a payment will be considered a wage subject to the NWPCA if (1) it is compensation for labor or services, (2) it was previously agreed to, and (3) all the conditions stipu- lated have been met. Pick v. Norfolk Anesthesia, supra . It is clear that sick and vacation leave plans like those pro- vided under the labor contracts qualify as compensation for labor or services. The NWPCA specifically provides that sick and vacation leave plans are “fringe benefits” and thus included within the act’s definition of “wages.” See § 48-1229(4). See, also, Timberlake v. Douglas County, 291 Neb. 387 , 865 N.W.2d 788 (2015). But establishing that the leave benefits qualify as compen- sation for labor or services proves only the first element of an NWPCA claim. In order to prove the other two elements,  - 231 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 Lassalle was also required to show that the State previously agreed to pay him for the leave at issue and that all the con- ditions stipulated to receive that pay were met. It was here that the district court found that Lassalle’s NWPCA claim fell short: it found that the State did not agree in the labor contracts that it would pay Lassalle for vacation, sick, or bereavement leave to the extent doing so would allow Lassalle to be paid for more than 80 hours during a pay period. Lassalle offers a number of reasons why he believes this was erroneous, but, as we will explain, we are not persuaded. Lassalle first argues that the district court erred by giving any consideration to whether there was a prior agreement to pay him for the leave at issue. Lassalle asserts that under the NWPCA, the question of whether there was an agreement to pay compensation is an issue of fact that should not have been resolved at summary judgment. We disagree. Lassalle brought his claim under the NWPCA, but he alleged in his operative complaint that his right to payment arose out of the labor con- tracts. When, as here, a party’s NWPCA claim is premised on a written contract, the meaning of that contract may present a question of law to be decided by the court. As we have previ- ously observed, “[i]n virtually every case brought under the [NWPCA], the employee and the employer dispute whether wages are owed based on an existing contract or agreement of some sort. The court then determines which party’s interpre- tation of the agreement is correct.” Professional Firefighters Assn. v. City of Omaha, 290 Neb. 300 , 307, 860 N.W.2d 137 , 142 (2015). A court may make such a determination because the meaning of an unambiguous contract is a question of law. See Kasel v. Union Pacific RR. Co., 291 Neb. 226 , 865 N.W.2d 734 (2015). That is what we understand the district court to have done here. [6-9] Neither do we agree with Lassalle that the district court was incorrect when it determined that the labor contracts did not contain an agreement to pay Lassalle for leave hours in excess of 80 hours in a pay period. In reviewing the district  - 232 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 court’s interpretation of the labor contracts, we are guided by familiar principles. When the terms of a contract are clear, a court may not resort to rules of construction, and the terms are to be accorded their plain and ordinary meaning as an ordinary or reasonable person would understand them. Coffey v. Planet Group, 287 Neb. 834 , 845 N.W.2d 255 (2014). A contract must receive a reasonable construction and must be construed as a whole, and if possible, effect must be given to every part of the contract. Kercher v. Board of Regents, 290 Neb. 428 , 860 N.W.2d 398 (2015). A court is not free to rewrite a contract or to speculate as to terms of the contract which the parties have not seen fit to include. Ray Anderson, Inc. v. Buck’s, Inc., 300 Neb. 434 , 915 N.W.2d 36 (2018). A court should avoid interpreting contract provisions in a manner that leads to unreasonable or absurd results that are obviously inconsistent with the parties’ intent. Timberlake v. Douglas County, 291 Neb. 387 , 865 N.W.2d 788 (2015). Lassalle cannot point to any provision in the labor contracts in which the State agreed that employees could take and be paid for leave hours in addition to being compensated for a fully worked pay period. The labor contracts did provide that “[v]acation leave may not be unreasonably denied or deferred so that the employee is deprived of vacation rights.” This pro- vision, however, does not give employees a right to use vaca- tion leave in any manner they choose or a right to be paid for vacation leave during pay periods in which they actually work a full schedule. In any event, we do not see how this provision could be of any assistance to Lassalle, because it refers only to employees who are denied vacation leave and are thereby deprived of vacation rights. Lassalle acknowledges that he has never forfeited any vacation leave. The provision in the contracts stating that “[b]ereavement leave will not be unreasonably denied” is also of no assistance to Lassalle. Like the language regarding vacation leave, this provision does not reflect an agreement that employees will be  - 233 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 paid for bereavement leave to the extent it would cause them to exceed their normal paid hours during a pay period. The labor contracts did contain a provision that made clear that leave time was not to be counted as hours worked for overtime purposes. The district court relied on this provision in the course of concluding that there was no agreement to pay Lassalle for the leave time at issue. Lassalle criticizes the dis- trict court’s reliance on this provision, arguing that it is irrel- evant because he did not claim an entitlement to overtime pay. But even if Lassalle is correct that the labor contracts’ overtime provisions do not directly address his claim, it remains true that no provision of the labor contracts, outside of those dealing with overtime, refers to employees’ right to be paid for more than 40 hours if paid weekly or more than 80 hours if paid every 2 weeks. Not only did the labor contracts not contain any language suggesting an agreement to pay employees leave time in a pay period in which they worked a full schedule, they contained language giving DHHS the authority to enforce its policy pro- hibiting employees from using leave time in this fashion. As noted above, in the labor contracts, the State reserved the right to direct employees “to the extent such rights [were] not modi- fied by [the labor contracts],” and that this included the “right to adopt, modify, change, enforce, or discontinue any existing rules, regulations, procedures, or policies.” Because the labor contracts contained no provision guaran- teeing employees the right to use leave time to the extent that doing so would cause them to exceed their normal hours during a pay period, the State could, within the terms of the labor con- tracts, enforce its policy prohibiting employees from doing so. And while Lassalle strives to create a genuine issue of material fact regarding the policy, we do not see one. Lassalle princi- pally points to deposition testimony from a longtime DHHS payroll processor that she had to change the way she processed payroll in response to DHHS’ June 2016 memorandum regard- ing the usage of leave time. This testimony is undoubtedly  - 234 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 evidence that DHHS did not consistently enforce its policy prior to June 2016, but that point is not in question. We do not believe this evidence creates a genuine dispute of material fact as to whether such a policy existed or that the labor contracts authorized DHHS to enforce it. Lassalle also argues that the State could not enforce its policy in the instances at issue, because a supervisor approved his taking of leave, he did not work on the days leave was approved, and he recorded that leave on his timesheets. He apparently takes the position that the State agreed to pay leave when those conditions were met. But while those steps may be necessary conditions to an employee’s receiving leave pay under the labor contracts, Lassalle points to nothing in the labor contracts that provides those are sufficient conditions to receiving leave pay. In the instances at issue, Lassalle may have received super- visor approval to miss work on a particular day he was sched- uled, but under the policy adopted by DHHS—which, as we have discussed above, the labor contracts authorized it to enforce—he was not permitted to use leave time to the extent it would cause his total hours to exceed 80 in a pay period. Further, there is no dispute that DHHS did not, in fact, deduct any leave hours from Lassalle’s accumulated totals in the instances at issue. So while Lassalle may not have received leave pay for some days in which his supervisor approved his absence from work, he did not actually use leave hours on those days either. There is nothing in the labor contracts indi- cating that employees could, prior to separation from employ- ment and during a pay period in which they were compensated for a full 80 hours, also receive pay for leave hours that were not used. [10] Lassalle makes other arguments that the district court erred by granting summary judgment on his NWPCA claim, but in light of our conclusion that the district court correctly concluded that the labor contracts contained no agreement to pay him for the leave at issue, they can be dispensed with  - 235 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 quickly. Lassalle argues, for example, that the district court ignored deposition testimony of certain current and former state employees. He argues that this testimony was favorable to his position there was an agreement to pay him for the leave at issue and that by not addressing it, the district court failed to view the evidence in the light most favorable to him as the nonmoving party. Although we understand much of the tes- timony Lassalle relies upon to recognize only a general right of state employees to accrue and use leave benefits, it is not necessary for us to parse that testimony in detail, because it is extrinsic to the labor contracts. Extrinsic evidence is not per- mitted to explain the terms of a contract that is unambiguous. Ray Anderson, Inc. v. Buck’s, Inc., 300 Neb. 434 , 915 N.W.2d 36 (2018). Finally, Lassalle argues that the district court erred by focusing exclusively on the labor contracts. In both his briefs and at oral argument, Lassalle emphasized that he brought an NWPCA claim and not a claim for breach of the labor con- tracts. But as we have discussed, to prevail on an NWPCA claim, the employee must show an agreement to pay the wages at issue, and Lassalle alleged that the labor contracts contained such an agreement. Given this allegation, we cannot fault the district court for analyzing the labor contracts to determine if they contained an agreement that would support Lassalle’s NWPCA claim. Further, Lassalle has not identified any other agreement in which the State committed to pay him for leave under the circumstances at issue here. The district court did not err by concluding as a matter of law that there was no prior agreement to pay Lassalle for the leave at issue and sustaining the State’s motion for summary judgment on Lassalle’s NWPCA claim. Class Certification. Lassalle also argues that the district court erred when it overruled his motion for class certification. The district court concluded that because it sustained the State’s motion for  - 236 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports LASSALLE v. STATE Cite as 307 Neb. 221 summary judgment, Lassalle’s motion for class certification was moot. We agree. [11] A case becomes moot when the issues initially pre- sented in the litigation cease to exist, when the litigants lack a legally cognizable interest in the outcome of litigation, or when the litigants seek to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive. State v. Dunster, 278 Neb. 268 , 769 N.W.2d 401 (2009). Lassalle sought to represent a class of DHHS employees in an action against the State, but because the State was entitled to summary judgment on those claims, he could no longer do so. The class certification issue was moot. See, e.g., Spaulding v. United Transp. Union, 279 F.3d 901 (10th Cir. 2002) (holding that entry of summary judgment in favor of defendants mooted plaintiffs’ argument that district court erred in denying motion for class certification); Jibson v. Michigan Educ. Ass’n-NEA, 30 F.3d 723 , 734 (6th Cir. 1994) (“because we affirm the district court’s grant of [the defendant’s] motion for summary judgment, we also find that the district court did not err in subsequently refusing to rule on the motion for class certification, and in not granting any relief to the other pur- ported class members”). See, also, Cowen v. Bank United of Texas, FSB, 70 F.3d 937 (7th Cir. 1995) (explaining that entry of summary judgment in favor of defendant moots motion for class certification if grounds for summary judgment would apply equally to other members of proposed class). CONCLUSION Because the district court did not err by sustaining the State’s motion for summary judgment on Lassalle’s NWPCA claim or by denying his motion for class certification as moot, we affirm. Affirmed. Cassel, J., not participating.

2020-12-04 06:08:36.89974+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007405PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 346 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 In re Claim of Roberts for Attorney Fees. Kristine Roberts, appellee, v. County of Washington, Nebraska, appellant. ___ N.W.2d ___ Filed October 2, 2020. Nos. S-19-378, S-19-533, S-19-932. 1. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law. An appellate court independently reviews questions of law decided by the lower court. 2. Judgments: Statutes: Rules of the Supreme Court: Appeal and Error. For purposes of construction, Nebraska Supreme Court rules are treated like statutes, and therefore an appellate court independently reviews the conclusion of a lower court. 3. Attorney Fees: Appeal and Error. When attorney fees are authorized, the trial court exercises its discretion in setting the amount of the fee, which ruling an appellate court will not disturb absent an abuse of discretion. 4. Courts: Statutes: Appeal and Error. The right of appeal in Nebraska is purely statutory, and courts have no power to allow an appeal when it is not authorized by statute. 5. Final Orders: Appeal and Error. Neb. Rev. Stat. § 25-1902 (Supp. 2019) authorizes appeals from four types of final orders: (1) those affecting a substantial right in an action that, in effect, determines the action and prevents a judgment; (2) those affecting a substantial right made during a special proceeding; (3) those affecting a substantial right made on summary application in an action after judgment is rendered; and (4) those denying a motion for summary judgment when such motion is based on the assertion of sovereign immunity or the immunity of a government official. 6. Juvenile Courts: Attorney Fees: Final Orders. Orders fixing fees for court-appointed counsel in juvenile cases under Neb. Rev. Stat. § 43-273 (Reissue 2016) fall into the second category of final order  - 347 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 under Neb. Rev. Stat. § 25-1902 (Supp. 2019), because they are made in a special proceeding and affect a substantial right. 7. Actions: Final Orders: Words and Phrases. A “special proceeding” occurs where the law confers a right and authorizes a special application to a court to enforce the right. A special proceeding includes every spe- cial statutory remedy that is not in itself an action, and a proceeding may be special, even if the proceeding is connected with a pending action. 8. Juvenile Courts: Attorney Fees: Final Orders. Fee applications under Neb. Rev. Stat. § 43-273 (Reissue 2016) meet the definition of a spe- cial proceeding. 9. Attorney Fees: Statutes: Final Orders: Counties. When court- appointed counsel is authorized by statute to apply to the appointing court to fix reasonable fees for legal services rendered, an order fixing such fees is a final, appealable order from which either appointed coun- sel or the county board responsible for payment may appeal. 10. Statutes: Rules of the Supreme Court: Appeal and Error. When construing both statutes and Nebraska Supreme Court rules, an appellate court applies familiar rules of statutory interpretation. The language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of words which are plain, direct, and unambiguous. It is not within the province of the courts to read meaning into a statute that is not there or to read anything direct and plain out of a statute. 11. Juvenile Courts: Attorney Fees: Rules of the Supreme Court. Neither Neb. Rev. Stat. § 43-273 (Reissue 2016) nor Neb. Ct. R. § 6-1407 requires that the county must be notified when a fee application is filed by court-appointed counsel, nor does either require that an evidentiary hearing be routinely held on such an application. 12. Attorney Fees: Statutes: Evidence. When a statute requires the court to fix reasonable fees for appointed counsel, the trial court has a duty to determine whether the requested fees are in fact reasonable, even if there is no objection to the application or no contrary evidence presented. 13. Juvenile Courts: Attorney Fees. Once a juvenile court appoints coun- sel in a juvenile proceeding, it has a duty under Neb. Rev. Stat. § 43-273 (Reissue 2016) to fix reasonable fees for the necessary legal services performed. 14. Attorney Fees. When fixing reasonable fees, a court considers several factors: the nature of the litigation, the time and labor required, the nov- elty and difficulty of the questions raised, the skill required to properly conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attor- ney, and the customary charges of the bar for similar services.  - 348 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 15. Attorney Fees: Counties: Appeal and Error. In the absence of an appeal, a court’s order fixing court-appointed counsel fees is conclusive upon both appointed counsel and the county as to the amount allowed. 16. Judges: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in mat- ters submitted for disposition. 17. Courts: Attorney Fees: Appeal and Error. While both trial courts and appellate courts are regarded as experts on the value of legal services, a trial court ordinarily has a better opportunity for practically appraising the situation, and an appellate court will interfere only to correct a patent injustice, where the allowance is clearly excessive, or insufficient. 18. Juvenile Courts: Attorney Fees: Appeal and Error. When a juvenile case is appealed, Neb. Rev. Stat. § 43-273 (Reissue 2016) requires appointed counsel to apply to the juvenile court, not the appellate court, for payment of services performed on appeal. Appeals from the County Court for Washington County: C. Matthew Samuelson, Judge. Affirmed. M. Scott Vander Schaaf, Washington County Attorney, and Desirae M. Solomon for appellant. Kristine Roberts, of Roberts Law Office, L.L.C., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Stacy, J. In these consolidated appeals, the county attorney for Washington County, Nebraska, challenges a series of orders fixing fees for court-appointed counsel in a juvenile proceed- ing. This opinion clarifies the statutory framework for appeal- ing such orders and explains how the appeal should be styled. It then addresses the procedural and evidentiary challenges raised by the county, including its contentions that (1) the county is entitled by law to notice and an evidentiary hearing whenever a fee application is filed, (2) fee applications must be supported by evidence of the client’s continued indigency, (3) courts may not allow fees for defending objections to a  - 349 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 fee application, and (4) only an appellate court may award fees for services performed on appeal. Finding no abuse of discretion, we affirm the fee orders entered by the juvenile court. I. BACKGROUND 1. Procedural History of Juvenile Proceedings In March 2016, the State filed a petition in the county court for Washington County alleging the minor children of Kilynn K. were within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015) due to the faults and habits of Kilynn. Pursuant to an ex parte order, the children were removed from Kilynn’s home, which was alleged to be unsanitary and bug infested. Early in the case, the county court, sitting as a juvenile court, granted Kilynn’s request for court-appointed counsel and appointed attorney Kristina Roberts. 1 Roberts has represented Kilynn during all phases of this juvenile proceeding. Eventually, the children were adjudicated under § 43-247(3)(a). The court set a permanency goal of reunifi- cation, and Kilynn was ordered to work with family support services, complete a psychological evaluation, attend therapy, attend parenting classes, learn how to clean and organize the home, and eradicate insects from the home. At regular review hearings throughout 2017, the court found that Kilynn was making progress and that supervised visits were going well. However, in the spring of 2018, Kilynn started to backslide, and in June 2018, the State moved to terminate her paren- tal rights. Trial on the motion to terminate was held in November 2018. The trial lasted 4 full days; more than 20 witnesses testi- fied, and approximately 90 exhibits were offered. At the con- clusion of trial, the juvenile court denied the State’s motion, 1 See Neb. Rev. Stat. § 43-279.01(1) (Reissue 2016) (authorizing juvenile court to appoint counsel to represent parent in adjudication and termination proceeding if parent unable to afford attorney).  - 350 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 finding it had not shown that Kilynn was unfit or that termi­ nating her parental rights was in the children’s best interests. The State timely appealed that ruling, and the Nebraska Court of Appeals affirmed. 2 2. Orders Compensating Court-Appointed Counsel (a) Fee Applications From 2016 Through 2018 During the first few years of this juvenile proceeding, Roberts filed an application in the county court for Washington County every 3 to 4 months seeking payment for past legal services at the approved hourly rate, which at the time was $75 per hour. There were no objections to any of these fee appli- cations. The court routinely allowed Roberts’ fee applications without a hearing, and no appeals were taken from any of the fee orders during this time period. (b) February 2019 Fee Application On February 13, 2019, Roberts filed a verified fee applica- tion seeking payment of $12,103.80 for 151 hours of services rendered from August 30, 2018, through February 6, 2019. The application included time billed by Roberts in preparing for and defending the 4-day termination trial. The fee application was supported by Roberts’ affidavit, which included a detailed bill- ing statement. Roberts served a copy of the February 2019 fee application, along with a notice of hearing, on the Washington County Attorney. Washington County filed a written objection to Roberts’ fee application, alleging Roberts’ affidavit contained hearsay and lacked necessary foundation. In a subsequently filed brief, the county also challenged evidence of Kilynn’s indigency and argued that Roberts’ fee application should be denied because prior fee orders had sufficiently compensated Roberts for her services. 2 In re Interest of A.M. & S.K.S., No. A-19-247, 2019 WL 5561409 (Neb. App. Oct. 29, 2019) (selected for posting to court website).  - 351 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 At the hearing, Roberts offered a copy of her affidavit and the court received it without objection. Roberts also called a local attorney, who testified that for the past 30 years, a portion of his general law practice involved representing parents in termination proceedings. He described parental rights termina- tion cases as the “capital punishment of all family law cases.” When privately retained, he billed his time for such work at $200 an hour. He also accepted juvenile court appointments despite the lower hourly rate, because he understood the court “wants experienced trial attorneys to be available on the court list.” The attorney testified that trial preparation time varies from case to case, but that, generally, an attorney prepares approximately 2 hours for each hour spent in trial. He testified that other attorneys in the area often consult him about han- dling parental rights termination cases and that Roberts con- sulted him several times during the pendency of this case but did not bill the county for any of that time. The attorney was familiar with the history of this juvenile case and had reviewed Roberts’ affidavit and her billing statement. When asked his opinion on whether Roberts’ fees and expenses were fair and reasonable, he testified that if anything, Roberts underbilled for the time she spent defending Kilynn. Washington County offered no evidence at the hearing. It instead urged the court to deny Roberts’ February 2019 fee application in its entirety, based on the arguments it raised in its objection and brief. Summarized, it was the county’s pri- mary position that Roberts’ past fee awards were sufficient to compensate her for all of her legal services in the case, even if it meant she received no payment for the time billed defending Kilynn in the parental rights termination trial. On March 28, 2019, the court entered an order overruling Washington County’s objection to Roberts’ February 2019 fee application. The court found Roberts’ requested fees were fair and reasonable, and it allowed fees in the sum of $12,103.80. The county timely appealed from that order, and the appeal was docketed as case No. A-19-378.  - 352 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 (c) April 2019 Fee Application Roberts filed another verified fee application on April 25, 2019, seeking payment of $2,347.50 for approximately 31 hours of legal services performed from February 11 to April 25, 2019. This application included 3 hours billed in connec- tion with preparing for and attending the evidentiary hearing on Washington County’s objection to the February 2019 fee appli- cation and 1.2 hours of work in connection with the county’s direct appeal of the decision declining to terminate Kilynn’s parental rights. Roberts’ April 2019 fee application was sup- ported by her own affidavit and a detailed billing invoice. Roberts served the Washington County Attorney with a copy of the April 2019 fee application and a notice of hearing. The county did not file an objection to the April 2019 fee application, but it did appear at the scheduled hearing. At the hearing, Roberts offered a copy of her affidavit and the court received it over the State’s objections. Washington County offered no evidence, but made an oral objection to the fee application, claiming the court lacked jurisdiction over the matter, because the county had appealed some of the juvenile court’s recent orders. The juvenile court rejected the county’s jurisdictional argu- ment and, speaking from the bench, found that Roberts had been properly appointed and that “[t]here were no irregulari- ties” in her fee request. The county took exception to the lat- ter finding and asked to be heard, arguing that Roberts’ April 2019 fee application was irregular because some of the billed time pertained to work performed in defending the county’s appeals. It was the county’s position that Roberts could not ask the juvenile court to compensate her for work performed in the appellate court. According to the county, if Roberts wanted to be paid for work performed on appeal, she would need to “re-apply to the Court of Appeals to get separately appointed for the purposes of the appeal,” and then “the Court of Appeals takes up that application for attorney fees when that case closes.”  - 353 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 The county also argued that Roberts’ fee request was irregu- lar because she was seeking compensation for time spent defending the county’s objection to her February 2019 fee application. The county argued that such time “ha[d] nothing to do with” representing Kilynn in the juvenile proceeding and, thus, was not compensable under Neb. Rev. Stat. § 43-273 (Reissue 2016). When the court asked what Roberts should have done when the county objected to her fee application, the county conceded it was appropriate for Roberts to prepare for and appear at the hearing on the county’s objection. But it maintained Roberts was not entitled to be compensated for that time. The juvenile court ruled from the bench and allowed Roberts’ fee request after making a minor deduction. Later that same day, the court entered an order overruling the county’s objection, finding that Roberts’ fees were fair and reasonable, and allowing fees in the sum of $2,325. The county timely appealed from that order, and the appeal was docketed as case No. A-19-533. (d) July 2019 Fee Application On July 12, 2019, Roberts filed a verified application seek- ing fees in the amount of $2,991.85 for nearly 40 hours of legal services performed from April 26 through July 1, 2019. This application included approximately 19 hours of time billed for activities related to defending Kilynn in the ongoing juvenile court proceedings, approximately 1 hour billed for defending the county’s objection to Roberts’ April 2019 fee application, and approximately 20 hours billed for reviewing, researching, and drafting briefs in the various appeals taken by the county. Roberts’ July 2019 fee application was accompanied by a detailed billing statement, but unlike her prior two applications, it contained no certificate of service and no notice of hearing. Washington County contends it was never served with a copy of this fee application. Without setting the matter for hearing, the court entered an order on August 26, 2019, allowing Roberts’ July 2019 fee  - 354 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 application in the amount of $ 2,991.85. Washington County timely appealed from that order, and the appeal was docketed as case No. A-19-932. We moved all three appeals to our docket on our own motion and consolidated them for purposes of this opinion. II. ASSIGNMENTS OF ERROR In its first appeal, Washington County assigns, restated, that the juvenile court’s February 2019 fee order was errone- ous, because Roberts offered no evidence that Kilynn was still unable to afford a lawyer and because Roberts had already been adequately compensated by prior fee orders. In its second appeal, Washington County assigns that the April 2019 fee order was erroneous for the same reasons raised in the first appeal and, in addition, assigns that the allowed fees were excessive because Roberts was compensated for time spent defending the county’s objection to her February 2019 fee application. In its third appeal, Washington County assigns that the July 2019 fee order was erroneous for the same reasons raised in the first and second appeals and, in addition, assigns that the order was erroneous because fees were allowed without providing Washington County notice or an opportunity to be heard. III. STANDARD OF REVIEW [1] Statutory interpretation presents a question of law. 3 An appellate court independently reviews questions of law decided by the lower court. 4 [2] For purposes of construction, Nebraska Supreme Court rules are treated like statutes, 5 and therefore an appellate court independently reviews the conclusion of a lower court. 6 3 State v. Brye, 304 Neb. 498 , 935 N.W.2d 438 (2019). 4 Id. 5 Hotz v. Hotz, 301 Neb. 102 , 917 N.W.2d 467 (2018). 6 See Sellers v. Reefer Systems, 305 Neb. 868 , 943 N.W.2d 275 (2020).  - 355 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 [3] When attorney fees are authorized, the trial court exercises its discretion in setting the amount of the fee, which ruling an appellate court will not disturb absent an abuse of discretion. 7 IV. ANALYSIS When the juvenile case was filed in 2016, Kilynn advised the court she could not afford to hire a lawyer and she requested court-appointed counsel. 8 The court appointed Roberts, and Washington County does not, in these appeals, challenge the basis for that appointment. Instead, the county challenges the court’s 2019 orders fixing Roberts’ attorney fees. The parties’ appellate briefing demonstrates considerable confusion regarding the proper procedure under Nebraska law for requesting and fixing fees for court-appointed counsel in juvenile proceedings. We therefore begin by setting out the statutes and uniform court rules governing that procedure. 1. Statutes and Court Rules Governing Payment of Court-Appointed Counsel Section 43-273 provides in relevant part that counsel appointed under the juvenile code shall apply to the court before which the proceedings were had for fees for services performed. The court upon hearing the application shall fix reasonable fees. The county board of the county wherein the proceedings were had shall allow the account, bill, or claim presented by any attorney . . . in the amount determined by the court. No such account, bill, or claim shall be allowed by the county board until the amount thereof shall have been determined by the court. In addition to the statutory process outlined in § 43-273, the Supreme Court has adopted a uniform court rule which applies in all county courts and governs the content and filing 7 See State v. Rice, 295 Neb. 241 , 888 N.W.2d 159 (2016). 8 See § 43-279.01(1).  - 356 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 of fee applications in both criminal and juvenile matters. 9 That uniform court rule provides: Before the claim of any attorney appointed by the court is allowed in criminal and juvenile matters, such attorney shall make a written application for fees, positively veri- fied, stating time and expenses in the case. Counsel shall also state in the application that counsel has not received and has no contract for the payment of any compensation by such defendant or anyone in the defendant’s behalf, or, if counsel has received any fee or has a contract for the payment of same, shall disclose the same fully so that the proper credit may be taken on counsel’s application. The application shall be filed with the clerk. If a hearing is required, the time and date of hearing shall be set by court order. 10 A different uniform court rule governs the rate of compensation for court-appointed counsel and provides in relevant part: (E) Compensation for Court-Appointed Attorneys. (1) An attorney appointed by a court shall be paid at the hourly rate established by the court. (2) Generally, no distinction should be made between rates for services performed in and outside of court, and the same rate should be paid for any time the attor- ney spends traveling in fulfilling his or her professional obligations. 11 Similar uniform court rules apply to court-appointed counsel in separate juvenile courts. 12 Finally, in addition to the statute and uniform court rules just referenced, some judicial districts have adopted local court rules, not inconsistent with statute or Supreme Court 9 Neb. Ct. R. § 6-1407. 10 Id. 11 Neb. Ct. R. § 6-1470(E) (rev. 2017). 12 See Neb. Ct. R. §§ 6-1704 (rev. 2014) and 1706(B)(3) and (E) (rev. 2017).  - 357 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 rules, 13 establishing additional procedures for paying court- appointed counsel in that district. 14 However, during the rel- evant time period, the county court judges in the Sixth Judicial District, which includes Washington County, had no local court rule governing the procedure for paying court-appointed counsel. We note the appellate briefing in this case refers to a “Washington County Attorney Fee Policy” 15 which purportedly requires court-appointed counsel to present all fee applications to the county attorney for “approval or objection” 16 before the court rules on the application. But no such policy was included in our record, and no local court rule reflecting such a policy has been adopted by the judges of that district or approved by the Supreme Court. We therefore do not consider, and express no opinion regarding, any informal procedures or poli- cies in Washington County pertaining to compensating court- appointed counsel. 2. Right to Appeal From Order Allowing Fees In a juvenile case, as in any other appeal, before reach- ing the legal issues presented for review, it is the duty of an 13 See, Neb. Ct. R. § 6-1448 (providing each county court by majority of its judges may adopt local rules not inconsistent with uniform court rules or state statute); Neb. Ct. R. § 6-1501 (providing each district court by majority of its judges may adopt local rules concerning matters not covered by uniform district court rules which are not inconsistent with statute or any Supreme Court directive). 14 See, e.g., Rules of Dist. Ct. of First Jud. Dist. 1-19 (rev. 2005); Rules of Dist. Ct. of Third Jud. Dist. 3-14 (rev. 2013); Rules of Dist. Ct. of Fifth Jud. Dist. 5-17 (rev. 2016); Rules of Dist. Ct. of Sixth Jud. Dist. 6-8 (rev. 2010); Rules of Dist. Ct. of 10th Jud. Dist. 10-23 (rev. 2010); Rules of Dist. Ct. of 11th Jud. Dist. 11-6 (rev. 2002). See, also, Rules of Sep. Juv. Ct. of Douglas Cty. 11.4 and 11.6 (rev. 2014); Rules of Sep. Juv. Ct. of Lancaster Cty. VI(G) (rev. 2018). 15 Brief for appellee in case No. S-19-932 at 9. 16 Id. - 358 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 appellate court to determine whether it has jurisdiction over the matter before it. 17 Washington County filed a timely notice of appeal within 30 days after the entry of each of the fee orders it seeks to challenge, but the threshold jurisdictional question is whether those orders are appealable. The right to appeal from orders in juvenile court is governed by Neb. Rev. Stat. § 43-2,106.01(1) (Reissue 2016). That stat- ute permits authorized parties to appeal from “[a]ny final order or judgment” entered by a juvenile court. 18 The instant appeals were filed by the county attorney, who is among those autho- rized by § 43-2,106.01 to take an appeal. Setting aside for now the question of whether the county attorney has styled these appeals to correctly reflect the proper parties, the pertinent jurisdictional question is one we have not yet addressed: Is an order ruling on a fee application of court-appointed counsel in a juvenile matter a final, appealable order? Our opinions addressing appeals of fee awards in other appointed-counsel contexts provide some guidance. 19 In the 1987 case of In re Claim of Rehm and Faesser (Rehm), 20 court-appointed counsel in a criminal case appealed from a fee order, claiming the fees were inadequate to com- pensate counsel for the work performed. We recognized that some of our earlier cases had been inconsistent regarding both the right to appeal, and the procedure for appealing, from fee awards to appointed counsel in criminal cases. Rehm expressly disapproved of our prior cases on the issue and announced the following rule regarding the appealability of fee orders and the manner in which such appeals should be styled: 17 In re Interest of Paxton H., 300 Neb. 446 , 915 N.W.2d 45 (2018). 18 § 43-2,106.01(1). See § 43-2,106.01(2)(a) through (d). 19 See, e.g., White v. White, 296 Neb. 772 , 896 N.W.2d 600 (2017); Rice, supra note 7; White v. White, 293 Neb. 439 , 884 N.W.2d 1 (2016); In re Claim of Rehm and Faesser, 226 Neb. 107 , 410 N.W.2d 92 (1987). 20 Rehm, supra note 19.  - 359 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 We hold, therefore, that either appointed counsel or the county involved may appeal to this court from an order determining the amount of fees and expenses allowed appointed counsel under § 29-1804.12. Such an appeal is a proceeding separate from the criminal case. It should be docketed separately and disposed of without regard to the result of any appeal in the criminal case itself. In the absence of an appeal, the order of the district court is conclusive upon both appointed counsel and the county as to the amount allowed. 21 Rehm acknowledged that the county was not a party to the criminal case “in the usual sense,” 22 because the county attorney was prosecuting the matter on behalf of the State, not the county. But Rehm reasoned that because any order award- ing fees to court-appointed counsel would be presented to the county for payment, the county attorney could be expected to “make whatever showing is necessary” 23 to ensure a proper decision regarding fees. And Rehm expressly found that “both appointed counsel and the county must be afforded a right of [appellate review] in the event either is dissatisfied with the order of the district court.” 24 We have applied the reasoning from Rehm to appeals from fee awards to appointed counsel in both postconviction pro- ceedings 25 and domestic relations proceedings. 26 We see no principled reason to depart from the Rehm reasoning in appeals from fee awards to appointed counsel in juvenile proceedings. We do, however, take this opportunity to explain the statutory basis for our conclusion in Rehm that such orders are final and appealable. 21 Id. at 113-14, 410 N.W.2d at 96. 22 Id. at 113, 410 N.W.2d at 96. 23 Id. 24 Id. 25 Rice, supra note 7. 26 White, supra note 19 (2017); White, supra note 19 (2016).  - 360 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 (a) Order Fixing Fees Under § 43-273 Is Final Order [4-6] The right of appeal in Nebraska is purely statutory, and courts have no power to allow an appeal when it is not authorized by statute. 27 Neb. Rev. Stat. § 25-1902 (Supp. 2019) authorizes appeals from four types of final orders: (1) those affecting a substantial right in an action that, in effect, deter- mines the action and prevents a judgment; (2) those affecting a substantial right made during a special proceeding; (3) those affecting a substantial right made on summary application in an action after judgment is rendered; and (4) those denying a motion for summary judgment when such motion is based on the assertion of sovereign immunity or the immunity of a government official. 28 As we explain below, orders fixing fees for court-appointed counsel in juvenile cases under § 43-273 fall into the second category of final order under § 25-1902, because they are made in a special proceeding and affect a substantial right. [7] A “special proceeding” occurs where the law confers a right and authorizes a special application to a court to enforce the right. 29 A special proceeding includes every special statu- tory remedy that is not in itself an action, 30 and “a proceeding may be special, even if the proceeding is connected with a pending action.” 31 Section 43-273 authorizes appointed coun- sel to apply to the appointing court for payment of earned fees, and once the appointing court fixes a reasonable fee, the county board is required to allow the claim in the amount determined by the court. [8] Fee applications under § 43-273 meet the definition of a special proceeding. The law authorizes the fee application so 27 Heckman v. Marchio, 296 Neb. 458 , 894 N.W.2d 296 (2017). 28 See State v. Kelley, 305 Neb. 409 , 940 N.W.2d 568 (2020). 29 See State v. Jacques, 253 Neb. 247 , 570 N.W.2d 331 (1997). 30 In re Estate of Abbott-Ochsner, 299 Neb. 596 , 910 N.W.2d 504 (2018). 31 Jacques, supra note 29, 253 Neb. at 253 , 570 N.W.2d at 336.  - 361 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 that appointed counsel can enforce the right to be compensated for services rendered, and the application is not itself an action or a step in an action. Moreover, while we did not expressly use final order terminology in Rehm, our analysis recognized that orders determining court-appointed attorney fees affect a substantial right of both the lawyer seeking payment of earned fees and the county responsible for paying those fees. 32 And while an order fixing fees does not result in a judgment, it “is conclusive upon both appointed counsel and the county as to the amount allowed.” 33 [9] We therefore hold that when court-appointed counsel is authorized by statute to apply to the appointing court to fix reasonable fees for legal services rendered, an order fix- ing such fees is a final, appealable order from which either appointed counsel or the county board responsible for payment may appeal. (b) Proper Parties in Appeal From Final Order Fixing Fees The county attorney has styled these appeals as though the State of Nebraska is the appellant and Kilynn is the appellee. This is not accurate, because neither the State nor Kilynn was involved in the special proceeding to fix court-appointed coun- sel’s fees. Rather, these consolidated appeals were brought by the county attorney for Washington County on behalf of the county board to challenge the fee orders. And it is Roberts, not Kilynn, who was allowed the fees and is defending the fee orders on appeal. We therefore modify the caption of these consolidated appeals to reflect that Washington County is the appellant and that Roberts is the appellee. Consistent with the man- ner in which Rehm was styled, the proper caption for these appeals is as follows: In re Claim of Roberts for Attorney 32 See Rehm, supra note 19. 33 Id. at 114, 410 N.W.2d at 96.  - 362 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 Fees. Kristine Roberts, Appellee, v. County of Washington, Nebraska, Appellant. 3. Arguments on Appeal Regarding the merits of these consolidated appeals, Washington County’s assignments of error fall generally into one of three categories: (1) claims that the juvenile court erred in the procedure followed when fixing fees, (2) claims that the evidence was insufficient to support the fee orders, and (3) claims that the amount of fees allowed was excessive. We address these assignments collectively where appropriate, and we begin with the county’s procedural claim that it was entitled to notice and an evidentiary hearing on the July 2019 fee application. (a) Notice and Hearing In its third appeal, Washington County argues the August 2019 fee order should be vacated because it was entered without providing notice to the county that the July 2019 fee application had been filed and without holding an evidentiary hearing on the application. The county generally frames this as a constitutional due process violation, arguing, “The juvenile court in this case violated the due process of the county by ordering fees without [a] hearing, notice or evidence.” 34 We dispense quickly with the county’s constitutional due process argument, because the law is well settled that the county has no such constitutional right. 35 We instead focus 34 Supplemental brief for appellant in case No. S-19-932 at 4. 35 See, White, supra note 19 (2016) (holding county has no constitutional right to due process); Schropp Indus. v. Washington Cty. Atty.’s Ofc., 281 Neb. 152 , 164, 794 N.W.2d 685 , 696 (2011) (holding “Washington County has no constitutional right to due process that the court could have violated”); City of Lincoln v. Central Platte NRD, 263 Neb. 141 , 146, 638 N.W.2d 839 , 844 (2002) (refusing to consider county’s constitutional due process arguments, because “[a] county, as a creature and political subdivision of the State, is neither a natural nor an artificial person”).  - 363 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 our analysis on whether § 43-273, or any of the applicable court rules, entitles the county to notice that a fee application has been filed, or requires that an evidentiary hearing be held before the court fixes reasonable fees. [10] When construing both statutes and Supreme Court rules, we apply familiar rules of statutory interpretation. 36 The language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of words which are plain, direct, and unambiguous. 37 It is not within the province of the courts to read meaning into a statute that is not there or to read anything direct and plain out of a statute. 38 Washington County directs us to nothing in the plain lan- guage of either § 43-273 or the applicable court rules that requires notifying the county or holding an evidentiary hear- ing when a fee application is filed by court-appointed counsel. Instead, Washington County argues we should construe the following statutory language to require evidentiary hearings on all fee applications: “The court upon hearing the application shall fix reasonable fees.” 39 The county suggests this language “indicates that there should be a hearing conducted” 40 on every fee application. We disagree. Section 43-273 requires the court to fix reasonable fees “upon hearing the application,” but we understand that phrase to refer broadly to the court’s consideration of the fee applica- tion, not as a mandate to hold an evidentiary hearing before fixing fees. When the Legislature wants to mandate an evi- dentiary hearing before allowing a ruling, it knows how to 36 See Hotz, supra note 5 (explaining for purposes of construction, Supreme Court rules treated like statutes). 37 See State v. Wal, 302 Neb. 308 , 923 N.W.2d 367 (2019). 38 Rogers v. Jack’s Supper Club, 304 Neb. 605 , 935 N.W.2d 754 (2019). 39 § 43-273. 40 Brief for appellant in case No. S-19-932 at 10.  - 364 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 do so. 41 Rather than mandating a hearing, § 43-273 describes an informal fee application process which is administrative rather than adversarial. The court rule regarding application for fees accommodates that informal statutory procedure, while also recognizing that judges have discretion to set a hearing on a fee application if they determine one is required. 42 The court rule also adds several administrative requirements to the statutory fee application process, including that the application must be written, must be positively verified by counsel, must include specific information, and must be filed with the clerk. 43 These requirements ensure both that a written record exists of any fee application that is allowed and that the court has positively verified information upon which to rely when fix- ing reasonable fees. In other words, the court rule is designed to reduce the need for courts to set an evidentiary hearing on fee applications, not to mandate hearings in every case, as the county contends. [11] We hold as a matter of law that neither § 43-273 nor court rule § 6-1407 requires that the county must be notified when a fee application is filed by court-appointed counsel, nor does either require that an evidentiary hearing be routinely held on such an application. And while it is true that several courts have adopted local rules requiring fee applications to be styled as motions and served on the county attorney, 44 the county court for Washington County had no local court rule 41 See, e.g., Neb. Rev. Stat. § 29-3702 (Reissue 2016); Neb. Rev. Stat. § 29-3703 (Reissue 2016); Neb. Rev. Stat. § 43-104.05 (Reissue 2016); Neb. Rev. Stat. § 43-246.02 (Cum. Supp. 2018). 42 See § 6-1407 (“[i]f a hearing is required, the time and date of hearing shall be set by court order”). 43 See id. 44 See, e.g., Rules of Dist. Ct. of First Jud. Dist. 1-19; Rules of Dist. Ct. of Third Jud. Dist. 3-14; Rules of Dist. Ct. of Fifth Jud. Dist. 5-17; Rules of Dist. Ct. of Sixth Jud. Dist. 6-8; Rules of Dist. Ct. of 10th Jud. Dist. 10-23.  - 365 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 requiring either notice to the county or an evidentiary hearing when appointed counsel files a fee application. We therefore find no merit to the county’s claim that the juvenile court erred in allowing the July 2019 fee application without first provid- ing the county with notice and a hearing. We are aware the local practice in some jurisdictions has long been to provide the county with notice when fee applica- tions are filed and to set such matters for hearing. Our opinion today does not condemn such practices, whether formalized through the adoption of local court rules or not. Indeed, appointed counsel in this case provided notice to the county of her February 2019 and April 2019 fee applications, and counsel set both for hearing. But the question before us is not whether it is the common practice, or even the best practice, to provide notice to the county and set fee applications for hearing. Rather, the question presented is whether notice and a hearing are required by the applicable statutes and court rules. They are not, and the county’s arguments to the contrary are without merit. (b) Sufficiency of Evidence In all three appeals, Washington County assigns the juvenile court erred in allowing fees without first receiving evidence that Kilynn remained unable to afford an attorney at the time of the fee application. In making this argument, the county does not challenge the initial appointment of counsel for Kilynn, nor does it contend that after counsel was appointed, Kilynn became able to afford counsel. Instead, it is the county’s posi- tion that each time Roberts applied for fees under § 43-273, she had the burden to prove that Kilynn was still unable to afford to hire private counsel. The county is incorrect. The evidentiary requirements governing Roberts’ fee appli- cation are set out in court rule § 6-1407. That rule requires that before appointed counsel’s fees are allowed in a criminal or juvenile matter, counsel must file a written fee application with the clerk which is positively verified and which states  - 366 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 counsel’s time and expenses in the case. 45 It also requires the application must either state that counsel “has not received and has no contract for the payment of any compensation by [the client] or anyone in [the client’s] behalf” or disclose “if counsel has received any fee or has a contract for the payment of same . . . so that the proper credit may be taken on coun- sel’s application.” 46 Because Washington County does not assign or argue that any of Roberts’ fee applications failed to meet the evidentiary requirements of court rule § 6-1407, we express no opinion in that regard. We do, however, reject as unfounded the county’s contention that before fees can be allowed under § 43-273, appointed counsel is required to affirmatively prove that his or her client remains unable to afford an attorney. (c) Reasonableness of Allowed Fees [12] When attorney fees are authorized by statute, the court exercises its discretion in setting the amount of the fee, which ruling an appellate court will not disturb absent an abuse of discretion. 47 We have recognized that when a trial court appoints counsel in either a criminal or a postconviction action, Nebraska statutes require the court to fix reasonable fees and expenses. 48 As such, we have found it amounts to an abuse 45 § 6-1407. 46 Id. 47 See Rice, supra note 7. 48 See, e.g., Rice, supra note 7 (holding that once counsel is appointed in postconviction case, Neb. Rev. Stat. § 29-3004 (Reissue 2016) requires court to fix reasonable fees and expenses); State v. Ortega, 290 Neb. 172 , 859 N.W.2d 305 (2015) (recognizing that once counsel is appointed to represent defendant in criminal matter, Neb. Rev. Stat. § 29-3905 (Reissue 2016) requires appointing court to fix reasonable fees and expenses); State v. Ryan, 233 Neb. 151 , 154, 444 N.W.2d 656 , 659 (1989) (holding appointed counsel in criminal cases must be paid reasonable fees and expenses and finding an abuse of discretion in refusing to pay counsel for “substantial hours” devoted to such representation).  - 367 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 of discretion to refuse to allow any fees 49 or to refuse to compensate court-appointed counsel for services necessarily performed in representing the defendant. 50 Moreover, when a statute requires the court to fix reasonable fees for appointed counsel, the trial court has a duty to determine whether the requested fees are in fact reasonable, even if there is no objec- tion to the application or no contrary evidence presented. 51 These same principles apply when a court appoints counsel in a juvenile proceeding. [13,14] Here, once the juvenile court appointed Roberts to represent Kilynn in the juvenile proceedings, it had a duty under § 43-273 to “fix reasonable fees” for the necessary legal services Roberts performed in those proceedings. When fixing reasonable fees, a court considers several factors: the nature of the litigation, the time and labor required, the novelty and difficulty of the questions raised, the skill required to properly conduct the case, the responsibility assumed, the care and dili- gence exhibited, the result of the suit, the character and stand- ing of the attorney, and the customary charges of the bar for similar services. 52 In these consolidated appeals, Washington County does not contend the juvenile court failed to consider any of these factors when fixing fees. Instead, it argues the fees allowed in 2019 were excessive and unreasonable, because Roberts already has been paid significant fees, because some of the billed time related to defending the county’s objection to her fee applications, and because some of the billed time pertained to activities on appeal. We address each of these arguments in turn. 49 See Rice, supra note 7. 50 See, Ryan, supra note 48; Rehm, supra note 19. 51 See Rice, supra note 7. 52 Id. - 368 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 (i) Prior Fee Orders The juvenile proceeding involving Kilynn has been pend- ing since 2016. Washington County’s primary opposition to Roberts’ 2019 fee applications has been that considering the total amount of fees allowed since the inception of the case, the additional fees allowed in 2019 were excessive and unrea- sonable. The record generally shows that before the 2019 fee orders at issue in these consolidated appeals, Roberts applied for and was paid a total of $23,788.40 in fees for legal services performed in the juvenile proceeding since 2016. [15] In arguing the fees allowed in 2019 were unreason- able and excessive, the county does not directly challenge the reasonableness of any earlier fee orders, nor could it. In the absence of an appeal, a court’s order fixing court-appointed counsel fees is conclusive upon both appointed counsel and the county as to the amount allowed, 53 and courts have no power to extend the time for appeal, either directly or indirectly. 54 Nor, for the most part, does the county argue that any particu- lar time billed by Roberts in 2019 was unnecessary. Instead, the county complains that the fees allowed in 2019, when considered “in conjunction with” 55 the fees allowed since the inception of the case in 2016, amount to excessive compensa- tion for a “simple” 56 abuse/neglect case. The county’s primary argument is that Roberts has “essentially been billing the county for working on the case nearly daily for three years” 57 without offering any “explanation of why it was reasonable and necessary.” 58 53 See, generally, Rehm, supra note 19. 54 See Bryson L. v. Izabella L., 302 Neb. 145 , 921 N.W.2d 829 (2019). 55 Brief for appellant in case No. S-19-378 at 18. 56 Id. at 17. 57 Id. at 18. 58 Id. at 17.  - 369 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 Roberts counters that this has not been a simple juvenile case, and in response to the county’s suggestion that she regu- larly billed time in this case, her brief cites the practice guide- lines applicable to attorneys in juvenile court, which require “high quality legal representation by all attorneys appearing before the juvenile court.” 59 Roberts highlights that in 2019, she successfully defended Kilynn in a 4-day parental rights ter- mination trial, and Roberts adds that while her representation of Kilynn has been continuous since 2016, these appeals have effectively prevented her from being paid for any legal services in the case since September 2018. We agree with the county that the total amount of fees allowed in this juvenile proceeding since 2016 has been signif- icant. But we cannot find, on that basis alone, that the juvenile court abused its discretion in allowing Roberts’ fee applications in 2019. [16,17] A judicial abuse of discretion exists when the rea- sons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. 60 While both trial courts and appellate courts are regarded as experts on the value of legal services, a trial court ordinarily has a better opportu- nity for practically appraising the situation, and an appellate court will interfere only to correct a patent injustice, where the allowance is clearly excessive, or insufficient. 61 Here, the juvenile court was in the best position to determine whether the time billed in Roberts’ 2019 fee applications was reasonable and necessary for the services performed in the case, and we find ample support in the record for the court’s 59 See §§ 6-1470 and 6-1706 (practice guidelines for attorneys practicing in juvenile court). See, also, Neb. Rev. Stat. § 43-272(5) (Reissue 2016) (requiring Supreme Court to provide guidelines for standards of all attorneys practicing in juvenile court). 60 State v. Edwards, 294 Neb. 1 , 880 N.W.2d 642 (2016). 61 See Omaha Paper Stock Co. v. California Union Ins. Co., 200 Neb. 31 , 262 N.W.2d 175 (1978).  - 370 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 findings in that regard. Moreover, we soundly reject the coun- ty’s suggestion that the court should have refused to allow any fees at all for necessary legal services in 2019 simply because prior fee allowances were significant. The juvenile court was correct in concluding it would have been an abuse of discre- tion either to refuse to fix any fees 62 or to refuse to reasonably compensate Roberts for services necessarily performed. 63 We therefore reject the county’s argument that the fees allowed in 2019 were unreasonable and excessive merely because significant fees had previously been allowed. (ii) Paying Appointed Counsel for Defending Objections to Fee Application Collectively, the juvenile court’s 2019 fee orders compen- sated Roberts for approximately 222 hours of time billed in the case; approximately 4 of those hours pertained to time billed to prepare for and attend the hearings on the county’s objections to her fee applications. Roberts did not bill for preparing or fil- ing her fee applications. Washington County contends it was error to compensate Roberts for any time defending the fee applications, arguing such time pertained to litigating counsel’s right to compensa- tion and thus was not “for services performed” in the pro- ceedings under § 43-273. Roberts responds that she is a solo practitioner and was required to take time away from other bill- able work to defend her statutory right to be reasonably com- pensated for services performed in the case. She suggests that if reasonable fees are never allowed for time spent defending meritless objections to fee applications, then appointed counsel will “be forced to take whatever the county attorney felt was appropriate” 64 and it would effectively be the county attorney, rather than the court, fixing appointed counsel fees. 62 See Rice, supra note 7. 63 See, Ryan, supra note 48; Rehm, supra note 19. 64 Brief for appellee in case No. S-19-533 at 15.  - 371 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 On this record, where the juvenile court essentially con- cluded the county’s objections to the fee applications had no basis in law or fact, we cannot find the trial court abused its discretion in concluding that the 4 hours billed by appointed counsel to defend against the county’s meritless objections was compensable as “services performed” in the proceeding under § 43-273. We caution that in so holding, we are not suggest- ing that appointed counsel is always entitled to be paid for time defending an objection to a fee application, nor are we suggesting that it can never be an abuse of discretion to allow fees for defending against objections to fee applications. The reasonableness of allowing fees for defending an objection to a fee application is highly fact dependent and will vary from one case to the next. However, we reject the county’s conten- tion that appointed counsel can never be allowed fees under § 43-273 for defending an objection to a fee application, and to the extent the Court of Appeals’ reasoning in In re Interest of Antone C. et al. 65 can be read to support such a contention, it is disapproved. Here, the record shows the juvenile court found no merit to any of the county’s objections to Roberts’ fee applications, and it expressly found that Roberts’ time defending her fee applica- tions was reasonable and necessary. Because the trial court’s reasons and rulings in that regard were not clearly untenable, we find no abuse of discretion and we reject the county’s argu- ment that the court erred in compensating appointed counsel for this time. (iii) Applying to Juvenile Court for Payment of Legal Services Performed on Appeal Roberts’ April 2019 fee application included approximately 1.2 hours billed for services performed on appeal, and her July 2019 fee application included approximately 20 hours of time billed for services on appeal. Washington County objected 65 In re Interest of Antone C. et al., 12 Neb. Ct. App. 152 , 669 N.W.2d 69 (2003).  - 372 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 to this time and took the position that if Roberts wanted to be paid for services performed on appeal, she needed to first seek appointment in the appellate court, and then needed to apply to the appellate court for payment once the appeal was con- cluded. The juvenile court rejected both of these arguments and allowed the fees. We have not previously addressed whether appointed coun- sel in a juvenile proceeding should apply to the juvenile court, or to the appellate court, for payment of services performed on appeal. But before we discuss that issue, we find it necessary to correct the county’s assertion that Roberts needed to seek reappointment in the appellate court once the county took an appeal. Our appellate rules make clear that “[t]he attorneys of record and guardians ad litem of the respective parties in the court below shall be deemed the attorneys and guardians ad litem of the same parties in [the appellate] court, until a with- drawal of appearance has been filed” and the procedure for withdrawal has been followed. 66 As such, there is no need for appointed counsel to seek reappointment in the appellate court when a case is appealed. The question whether counsel appointed in a juvenile pro- ceeding should apply to the juvenile court or to the appellate court for payment of services performed on appeal requires more discussion. We begin with the pertinent statutory language. Section 43-273 provides that counsel appointed under the juvenile code “shall apply to the court before which the pro- ceedings were had for fees for services performed” and that the court “shall fix reasonable fees.” It also provides that once fees are fixed, “[t]he county board of the county wherein the pro- ceedings were had shall allow [fees] in the amount determined by the court.” 67 The language of § 43-273 is somewhat different from the statutory language governing payment of court-appointed 66 Neb. Ct. R. App. P. § 2-101(F)(1) (rev. 2015). 67 § 43-273.  - 373 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 counsel in criminal cases, which expressly requires that appointed counsel “shall apply to the . . . court which appointed him or her . . . for fees for services performed pursuant to such appointment.” 68 Our appellate rules are clear that if a criminal case is appealed, court-appointed counsel may, “after issuance of a mandate by the appellate court, apply to the appointing court for an attorney fee regarding services in the appeal.” 69 Currently, there is no similar court rule addressing whether court-appointed counsel in a juvenile proceeding should apply to the juvenile court or to the appellate court for services per- formed when a juvenile proceeding is on appeal. We understand Washington County to take the position that once a juvenile proceeding is appealed, the appellate court becomes “the court before which the proceedings were had” 70 and appointed counsel must apply to the appellate court for payment of fees for all services performed on appeal. However, were we to construe § 43-273 to require court-appointed coun- sel to apply to the appellate court, rather than the juvenile court, for payment of legal services performed on appeal, it would cause an absurd result. Nebraska’s appellate courts are located in Lancaster County, and § 43-273 requires that once fees are fixed, “[t]he county board of the county wherein the proceedings were had” is required to allow the claim. As such, construing § 43-273 to require appointed counsel to apply to the appellate court for payment would make Lancaster County responsible for pay- ing all fees fixed for services performed by court-appointed counsel on appeal. An appellate court should try to avoid, if possible, the construction of a statute that would lead to an absurd result. 71 68 § 29-3905. 69 Neb. Ct. R. App. P. § 2-109(F) (rev. 2014) (emphasis supplied). 70 § 43-273. 71 See Hotz, supra note 5.  - 374 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE CLAIM OF ROBERTS FOR ATTORNEY FEES Cite as 307 Neb. 346 [18] The more sensible construction of § 43-273 is that “the court before which the proceedings were had” refers to the appointing juvenile court, even if an appeal is taken. We therefore hold that when a juvenile case is appealed, § 43-273 requires appointed counsel to apply to the juvenile court, not the appellate court, for payment of services per- formed on appeal. The juvenile court here was correct to reject Washington County’s suggestion that Roberts must apply to the appellate court for payment of her fees. Ordinarily, a juvenile court will want to wait for issuance of the appellate mandate before fixing reasonable fees for services on appeal, because that will allow it to fully evaluate the vari- ous factors a court is to consider when fixing fees. 72 But on this record, and absent a statute or court rule requiring appointed counsel to wait for the appellate mandate before applying for fees, we cannot find the juvenile court abused its discretion in fixing fees before the appellate mandate issued. V. CONCLUSION For the foregoing reasons, we affirm the fee orders of the juvenile court. Affirmed. 72 See Rice, supra note 7 (when fixing fees for court-appointed counsel, courts should consider nature of litigation, time and labor required, novelty and difficulty of questions involved, skill required, responsibility assumed, diligence exhibited, result of suit, standing of attorney, and customary charges for similar services).

2020-12-04 06:08:49.446767+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007379PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 198 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 First State Bank Nebraska, appellant, v. MP Nexlevel, LLC, appellee. ___ N.W.2d ___ Filed September 18, 2020. No. S-19-543. 1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admit- ted evidence show that there is no genuine issue as to any material facts 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. ____: ____. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence. 3. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. 4. Uniform Commercial Code: Secured Transactions: Security Interests. Article 9 of the Uniform Commercial Code, as adopted by Nebraska, provides a comprehensive scheme for the regulation of secu- rity interests. 5. Uniform Commercial Code: Secured Transactions. Article 9 of the Uniform Commercial Code, in part, applies to both a sale of certain payment rights—accounts, chattel paper, intangibles, and promissory notes—and the grant of an interest in specified payment rights to secure an obligation. 6. Uniform Commercial Code: Secured Transactions: Debtors and Creditors. In the case of a debtor granting a party payment rights to secure an obligation, part 6 of article 9 of the Uniform Commercial Code provides enforcement rights of the secured party in the event of a default by the debtor, as well as certain limitations on the exercise of those rights for the protection of the defaulting debtors, other creditors, and other affected persons.  - 199 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 7. ____: ____: ____. Part 4 of article 9 of the Uniform Commercial Code primarily addresses the rights and duties of account debtors and other persons obligated on collateral who are not, themselves, parties to a secured transaction. 8. Statutes: Appeal and Error. In construing a statute, 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. 9. Statutes: Legislature: Intent. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, har- monious, and sensible. 10. Uniform Commercial Code: Statutes. While official comments to the Uniform Commercial Code, as adopted by Nebraska, are not binding, they are persuasive in matters of statutory interpretation. 11. Uniform Commercial Code: Secured Transactions: Assignments: Words and Phrases. Unless there is a good reason for the definition of “assignment” to apply more narrowly in a given context, “assignment” under article 9 of the Uniform Commercial Code includes both an out- right transfer of ownership and a contingent transfer for security. 12. ____: ____: ____: ____. The determination of whether a sale or grant of an interest amounts to an “assignment” as used in a given statute under article 9 of the Uniform Commercial Code depends upon the context of the statute and the interest given. 13. Uniform Commercial Code: Secured Transactions: Security Interests: Assignments: Words and Phrases. “Assignment” and its derivatives under Neb. U.C.C. § 9-406(a) (Reissue 2001 & Cum. Supp. 2018) apply to presently exercisable security interests. 14. Uniform Commercial Code: Secured Transactions: Notice. Whether a notice is sufficient under Neb. U.C.C. § 9-406(a) (Reissue 2001 & Cum. Supp. 2018) depends upon the facts of each case. 15. Uniform Commercial Code: Secured Transactions: Assignments: Notice. In order to be sufficient under Neb. U.C.C. § 9-406(a) and (b)(1) (Reissue 2001 & Cum. Supp. 2018), a notice has to reasonably identify the rights assigned and demand payment to the assignee. 16. Uniform Commercial Code: Secured Transactions: Notice. A reason- able identification need not identify the right to payment with specific- ity, and “magic words” are not required for a notice under Neb. U.C.C. § 9-406(a) (Reissue 2001 & Cum. Supp. 2018) to be effective. 17. Uniform Commercial Code: Secured Transactions: Debtors and Creditors. Neb. U.C.C. § 9-406(a) (Reissue 2001 & Cum. Supp. 2018) can modify an account debtor’s obligations under its agreement with  - 200 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 the debtor if certain criteria are met, and Neb. U.C.C. § 9-607(a)(3) (Reissue 2001 & Cum. Supp. 2018) permits the secured party to enforce the account debtor’s obligations. 18. Uniform Commercial Code: Secured Transactions. Default under article 9 of the Uniform Commercial Code is not contingent on an adju- dication or agreement. 19. ____: ____. Article 9 of the Uniform Commercial Code leaves to the agreement of the parties the circumstances giving rise to a default; default is whatever the security agreement says it is. 20. ____: ____. Under Neb. U.C.C. § 9-607(a)(3) (Reissue 2001 & Cum. Supp. 2018), it is unnecessary for a secured party to first become the owner of the collateral pursuant to a disposition or acceptance. 21. ____: ____. Under Neb. U.C.C. § 9-607(a)(3) (Reissue 2001 & Cum. Supp. 2018), a secured party may collect and enforce obligations included in collateral in its capacity as a secured party. 22. Standing: Jurisdiction: Parties. Standing refers to whether a party had, at the commencement of the litigation, a personal stake in the outcome of the litigation that would warrant a court’s or tribunal’s exercising its jurisdiction and remedial powers on the party’s behalf. 23. Standing: Words and Phrases. Standing involves a real interest in the cause of action, meaning some legal or equitable right, title, or interest in the subject matter of the controversy. 24. Standing: Claims: Parties. To have standing, a litigant must assert the litigant’s own rights and interests, and cannot rest a claim on the legal rights or interests of third parties. Appeal from the District Court for Lancaster County: Susan I. Strong, Judge. Reversed and remanded for further proceedings. Brandon R. Tomjack and Nicholas A. Buda, of Baird Holm, L.L.P., for appellant. Michael S. Degan, of Kutak Rock, L.L.P., for appellee. Anthony Schutz for amicus curiae Commercial Law Amicus Initiative. Robert J. Hallstrom and Gerald M. Stilmock, of Brandt, Horan, Hallstrom & Stilmock, for amicus curiae Nebraska Bankers Association, Inc.  - 201 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 Heavican, C.J., Cassel, Funke, Papik, and Freudenberg, JJ. Funke, J. First State Bank Nebraska (First State) challenges the district court’s order dismissing its claims against MP Nexlevel, LLC. MP Nexlevel contracted to pay Husker Underground Utilities & Construction, LLC (Husker Underground), for certain con- struction services. First State held a security interest in Husker Underground’s accounts due to separate loan agreements. When Husker Underground failed to meet its loan obligations, First State sought direct payment of MP Nexlevel’s obligations under the contract by sending MP Nexlevel notices of Husker Underground’s default. Despite the notices, MP Nexlevel con- tinued to submit its payments to Husker Underground, and First State brought suit against MP Nexlevel for performance under the contract. First State challenges the district court’s finding that it lacked standing because it was not a party to the contract, Neb. U.C.C. § 9-607(a) (Reissue 2001 & Cum. Supp. 2018) did not authorize it to enforce MP Nexlevel’s obligations under the contract, and Neb. U.C.C. § 9-406(a) (Reissue 2001 & Cum. Supp. 2018) did not apply, because First State held a security interest rather than an assignment of Husker Underground’s rights to payment under the contract. For the reasons set forth herein, we reverse the judgment of the district court and remand this matter for further proceedings consistent with this opinion. BACKGROUND First State is a domestic bank chartered by and registered in the State of Nebraska. MP Nexlevel is a Minnesota lim- ited liability company performing excavation, trenching, and other services for Nebraska customers as well as customers in other states. In January 2018, MP Nexlevel and Husker Underground entered into a subcontract agreement whereby Husker Under­ ground promised to perform certain construction services.  - 202 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 As Husker Underground performed these services, it would submit invoices to MP Nexlevel for payment. MP Nexlevel was generally required to pay these amounts within 45 days of approval. Husker Underground performed these services throughout 2018. First State was not a party to the subcontract or any other agreement between MP Nexlevel and Husker Underground. Between May and June 2016, First State loaned money to Husker Underground pursuant to various promissory notes and agreements. These agreements included a May promissory note executed in the original principal amount of $50,000, a June promissory note in the original principal amount of $635,500, and a May business manager agreement with business and professionals in which First State agreed, in part, to purchase certain accounts receivable from Husker Underground. Husker Underground secured these agreements by granting First State a security interest in virtually all of its assets, including its accounts and accounts receivable. First State filed three financ- ing statements with the Nebraska Secretary of State to perfect these security interests. MP Nexlevel was not a party to any agreement between First State and Husker Underground and had no actual knowledge of the two parties’ relationship. Husker Underground failed to make payments to First State when due, including failing to pay the May note in full upon maturity. As such, in August 2018, First State filed a lawsuit against Husker Underground, alleging Husker Underground was in default under the agreements and seeking a judgment for the payment of the remaining obligations. On January 23, 2019, the district court entered a stipulated order, signed by Husker Underground representatives, granting summary judg- ment in favor of First State. Prior to filing suit against Husker Underground, First State sent three notices to MP Nexlevel in May, July, and August 2018. These notices alleged that Husker Underground had defaulted on loans from First State, that Husker Underground had granted First State a security interest in its accounts, and that Husker Underground assigned First State its rights to  - 203 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 receive payments from MP Nexlevel as a result of its default. The notices directed MP Nexlevel to pay all amounts owed on Husker Underground’s accounts to First State directly and warned that failure to do so could result in adverse conse- quences for MP Nexlevel. Attached was a copy of a Uniform Commercial Code (UCC) financing statement identifying the security interest in Husker Underground’s accounts. Once MP Nexlevel received the May 2018 notice, it con- tacted representatives at First State and Husker Underground. As to the communication with First State, affidavits offered by the parties alleged slightly varying facts as to MP Nexlevel’s representations on whether it would comply with the notice’s directions. Pat Carlson, an MP Nexlevel accounting supervisor, stated that he telephoned Miranda Hobelman, of First State, in order to gather additional information, including the amount [First State] claimed it was owed by Husker Underground. I informed [Hobelman] that [MP Nexlevel] would review and decide the matter after due consider- ation of [MP Nexlevel’s] legal rights and responsibilities, if any, to [First State] and Husker Underground. Hobelman, First State’s general counsel and a senior vice presi- dent, stated: . . . I received a telephone call from . . . Carlson with MP Nex[l]evel who[] acknowledged receipt of [First State’s] May Notice and otherwise stated that MP Nexlevel would be cooperating with the Notice and send- ing payments on the Accounts directly to [First State]. After our call, I sent . . . Carlson two emails . . . follow- ing-up our conversation confirming that [MP Nexlevel] would send [First State] all funds owed to Husker Underground on the Accounts. The first email Hobelman referenced in her affidavit apolo- gized for missing Carlson’s initial call and stated, “Please make the checks payable to First State . . . as requested in the letter.” The second email thanked Carlson for calling back, explaining, “As we discussed, please send funds owed to Husker Underground to First State . . . until the total of funds  - 204 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 sent equals $1,033,242.30. The funds will be credited to Husker Underground’s loans at First State.” As to MP Nexlevel’s communication with Husker Underground, Carlson asserted that Husker Underground dis- puted the claim that it assigned its rights to receive MP Nexlevel payments to First State. Husker Underground, instead, demanded MP Nexlevel continue to make the payments to it under terms of the subcontract agreement. Carlson claimed that Husker Underground never directed MP Nexlevel to make payments to First State, that MP Nexlevel was never provided an assignment of Husker Underground’s rights to payment under the subcontract, that MP Nexlevel was not notified of a judgment in favor of First State against Husker Underground, and that MP Nexlevel was not provided copies of the notes or agreement between First State and Husker Underground. As such, MP Nexlevel continued making its payments directly to Husker Underground. MP Nexlevel’s discovery responses show MP Nexlevel made payments totaling $412,302.59 to Husker Underground after receiving the May 2018 notice. There are no outstanding invoices of Husker Underground for MP Nexlevel to pay. In August 2018, 6 days after bringing suit against Husker Underground, First State filed a complaint against MP Nexlevel and, thereafter, filed a motion for summary judgment. First State alleged that because Husker Underground was in default of the notes and agreement and First State had a security interest in Husker Underground’s accounts receivable, it had a right to enforce this security interest and foreclose upon the same pursuant to §§ 9-406(a) and 9-607(a). First State further alleged that once First State sent its May 2018 notice to MP Nexlevel, MP Nexlevel could discharge its obligations under the subcontract only by paying the invoiced amounts directly to First State. First State claimed that because MP Nexlevel continued paying the invoiced amounts to Husker Underground, MP Nexlevel breached its obligations under the subcontract, and that First State is entitled to payment of the delinquent amounts.  - 205 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 MP Nexlevel resisted First State’s motion and filed a cross- motion for summary judgment. MP Nexlevel argued First State lacked standing to enforce the subcontract agreement, because there was no contractual relationship between First State and MP Nexlevel. Although MP Nexlevel received the notices, MP Nexlevel argued it properly continued to pay Husker Underground, because Husker Underground contested First State’s assertions and there was insufficient documentation that Husker Underground’s rights to payment under the subcontract were assigned to First State. The district court overruled First State’s motion for summary judgment and granted MP Nexlevel’s cross-motion, dismiss- ing the case with prejudice. First, the court held that § 9-607 does not give rise to a claim by a secured creditor against an account debtor where the debtor is not in default and has not otherwise agreed. As such, because the record demonstrated that Husker Underground denied being in default at the time of First State’s notices and First State did not obtain its judgment against Husker Underground until January 23, 2019, First State did not have a cognizable claim against MP Nexlevel under § 9-607 for MP Nexlevel’s performance under the subcontract. Additionally, the court determined that § 9-406(a) required receipt of notification of assignment in order to obligate the account debtor to pay the assignee and that an assignment is not the same as a secured interest. Because First State failed to adduce any evidence establishing Husker Underground made an assignment to First State, First State did not have author- ity under § 9-406(a) to demand MP Nexlevel to make the subcontract payments directly to it. As such, the court found First State lacked standing to pursue its claims for breach of the subcontract. ASSIGNMENTS OF ERROR First State assigns, restated, that the district court erred by (1) failing to find genuine issues of material fact existed, (2) finding Husker Underground was not in default at the time MP Nexlevel received the notices, (3) failing to find  - 206 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 MP Nexlevel’s motion was deficient by not filing an annotated statement of disputed facts, (4) admitting Carlson’s affidavit, (5) holding an “assignment” under § 9-406 does not include a “security interest,” and (6) granting MP Nexlevel’s motion for summary judgment. STANDARD OF REVIEW [1] An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. 1 [2] In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence. 2 [3] Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an inde- pendent conclusion irrespective of the decision made by the court below. 3 ANALYSIS Evidence and Finding of Husker Underground’s Default As an initial matter, several of First State’s assignments claim MP Nexlevel presented evidence that Husker Underground was not in default at the time of First State’s notices. First State claims this evidence and the court’s finding that default had not occurred contradicted First State’s allegations and evidence of Husker Underground’s earlier default. On this basis, First 1 JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855 , 932 N.W.2d 71 (2019). 2 Id. 3 Id.  - 207 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 State contends that it was reversible error for MP Nexlevel to fail to file an annotated statement of disputed facts. Further, First State contends that the court erred in admitting Carlson’s affidavit, finding Husker Underground was not in default at the time of the notice, and finding there were no genuine issues of material fact. First State misstates MP Nexlevel’s allegations and the court’s findings. Contrary to First State’s contention, MP Nexlevel did not contest that Husker Underground was in default of its loan obligations at the time of the notices. Instead, MP Nexlevel explained that at the time of the notices, Husker Underground disputed First State’s claim that it was in default. MP Nexlevel, and Carlson’s affidavit, made no allega- tion that the default had not actually occurred. Additionally, the court made no findings that Husker Underground was not in default at the time of the notices. To the contrary, the court specifically found that “Husker Underground defaulted on its obligations owed to [First State] under the Businessmanager[] Agreement and Notes by fail- ing to make payments to [First State] when due and failing to pay the May Note in full upon maturity.” The court’s basis for granting MP Nexlevel’s motion for summary judgment was that the default was disputed at the time of the notices and not on the basis that the default did not occur. Accordingly, First State’s assignments premised on this proposition are without merit, and we turn to First State’s assignments regarding its authority to seek and enforce pay- ment of Husker Underground’s account against MP Nexlevel after Husker Underground failed in its loan obligations to First State. Article 9 of UCC Husker Underground’s agreements with First State imposed various financial obligations which Husker Underground secured by granting First State a security interest in virtually all of its assets, including its accounts and accounts receiv- able. These accounts included an agreement between Husker  - 208 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 Underground and MP Nexlevel where Husker Underground would provide certain services in exchange for payment from MP Nexlevel. As discussed above, it is undisputed that Husker Underground failed to meet its obligations to First State. This case arises from First State’s attempt to enforce the security agreement after Husker Underground’s failure to meet its obli- gations and hinges on whether First State could demand MP Nexlevel comply with the terms of the security agreements when Husker Underground had disputed it was in default. [4,5] Article 9 of the UCC, as adopted by Nebraska, pro- vides a comprehensive scheme for the regulation of secu- rity interests. 4 Article 9, in part, applies to both a sale of certain payment rights—accounts, chattel paper, intangibles, and promissory notes—and the grant of an interest in speci- fied payment rights to secure an obligation. 5 Under article 9, a “secured party” includes, among others, either a person in whose favor a security interest is created or provided for under a security agreement or a person to which payment rights have been sold; a “debtor” includes a person having an interest in the collateral other than a security interest or other lien and a seller of payment rights; and an “account debtor” is a person obligated on an account, chattel paper, or general intangible subject to the payment rights sold or granted. 6 [6] In the case of a debtor granting a party payment rights to secure an obligation, part 6 of article 9 provides enforce- ment rights of the secured party in the event of a default by the debtor, as well as certain limitations on the exercise of those rights for the protection of the defaulting debtors, other credi- tors, and other affected persons. 7 Section 9-607(a) states, in relevant part: 4 See Neb. U.C.C. § 9-101, comment 1 (Reissue 2001 & Cum. Supp. 2018). 5 Neb. U.C.C. § 9-109 (Reissue 2001). 6 Neb. U.C.C. § 9-102(3), (28), (73) (Reissue 2001 & Cum. Supp. 2018). 7 See Neb. U.C.C. § 9-601, comment 2 (Reissue 2001 & Cum. Supp. 2018).  - 209 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 If so agreed, and in any event after default, a secured party: (1) may notify an account debtor or other person obligated on collateral to make payment or otherwise render performance to or for the benefit of the secured party; [and] .... (3) may enforce the obligations of an account debtor or other person obligated on collateral and exercise the rights of the debtor with respect to the obligation of the account debtor or other person obligated on collateral to make payment or otherwise render performance to the debtor, and with respect to any property that secures the obligations of the account debtor or other person obli- gated on the collateral. Section 9-607 addresses a secured party’s rights in relation to the debtor to collect a specified payment right. However, this section “does not determine whether an account debtor . . . owes a duty to a secured party.” 8 [7] Part 4 of article 9 primarily addresses the rights and duties of account debtors and other persons obligated on collat- eral who are not, themselves, parties to a secured transaction. 9 As part of these duties, § 9-406(a) provides: . . . [A]n account debtor on an account, chattel paper, or a payment intangible may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the assignee and may not discharge the obligation by paying the assignor. 8 § 9-607(e). 9 See Neb. U.C.C. § 9-401, comment 2 (Reissue 2001).  - 210 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 In other words, prior to receiving notice otherwise, account debtors may discharge their obligations by paying the “assignor.” However, once an account debtor receives notification of a transfer authenticated from the “assignor” or the “assignee” and receives instruction to pay the “assignee,” § 9-406(a) mandates that an account debtor must comply and may only discharge their account obligations by paying the “assignee.” Assignment Under § 9-406(a) The district court interpreted the use of “assignor” and “assignee” in § 9-406(a) to impose no duty upon an account debtor in those instances where there has been a granting of a security interest. We disagree. [8-10] In construing a statute, 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. 10 Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be con- junctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, har- monious, and sensible. 11 While official comments to the UCC, as adopted by Nebraska, are not binding, they are persuasive in matters of statutory interpretation. 12 [11] Unless there is a good reason for the definition of “assignment” to apply more narrowly in a given context, “assignment” under article 9 includes both an outright transfer of ownership and a contingent transfer for security. 13 Comment 10 State v. Galvan, 305 Neb. 513 , 941 N.W.2d 183 (2020). 11 Id. 12 Blue Valley Co-op v. National Farmers Org., 257 Neb. 751 , 600 N.W.2d 786 (1999), disapproved on other grounds, Weyh v. Gottsch, 303 Neb. 280 , 929 N.W.2d 40 (2019). See, also, Fjellin ex rel. Leonard Van Liew v. Penning, 41 F. Supp. 3d 775 (D. Neb. 2014). 13 See §§ 9-102, comment 26, and 9-109.  - 211 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 26 of § 9-102 explains that article 9 uses “assignment” in numerous provisions but that it and its derivatives are not defined by the UCC. Comment 26 of § 9-102 states that “[t]his article generally follows common usage by using the terms ‘assignment’ and ‘assign’ to refer to transfers of rights to pay- ment, claims, and liens and other security interests” and that “[d]epending on the context, [‘assignment’] may refer to the assignment or transfer of an outright ownership interest or to the assignment or transfer of a limited interest, such as a secu- rity interest.” We find no convincing justification for limiting the use of “assignment” in the context of § 9-406(a) when there is a presently exercisable security interest. Indeed, comment 5 of § 9-406 indicates that the draft- ers intended “assignment” to include contingent transfers for security. In discussing certain types of assignments, comment 5 identifies “assignment of an account (whether outright or to secure an obligation)” and “assignments of rights to payment as security and other assignments of rights to payment such as accounts and chattel paper.” 14 Comment 5 additionally includes an example hypothetical involving a security interest which applies § 9-406. Other sections of article 9 support a reading of “assign- ments” to include both outright transfers of ownership and contingent transfers for security. For instance, Neb. U.C.C. § 9-209 (Reissue 2001) imposes a duty on an account debtor to free up collateral when there is no longer any outstand- ing “secured obligation” or commitment to give value in the future. In establishing that a “secured party” has a duty upon demand from the “debtor” to release the account debtor from any further obligation to the secured party, § 9-209 identifies the account debtor as one that “has received notification of an assignment to the secured party as assignee under section 9-406(a).” 15 Section 9-209(c) specifies that this section does 14 § 9-406, comment 5 (emphasis supplied). 15 § 9-209(b) (emphasis supplied).  - 212 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 not apply to assignments from the sale of accounts, chattel paper, or payment intangibles. Accordingly, by the language of § 9-209, that section supports the conclusion that “assignment” under § 9-406 includes those transfers which provide interests in specified payment rights to secure obligations. Utilizing the current language of article 9, the U.S. District Court for the District of Arizona analyzed Arizona’s version of § 9-406(a). 16 The court noted holdings by previous courts that notification of a security interest in the amount due is the same as notification that the amount due has been assigned and con- cluded that under Arizona’s statute, there is “‘no meaningful difference between a security interest and an assignment.’” 17 Similarly, Colorado’s Arapahoe County District Court in Garber v. TouchStar Software Corp 18 found that the UCC makes “‘no distinction between a party with a security inter- est in a debtor’s accounts receivable and a party who is an assignee of a debtor’s accounts receivable.’” Several additional courts have also analyzed security agreements as assignments under the current article 9 version. 19 In applying previous versions of article 9, other jurisdictions have determined there is no meaningful difference between an “assignment” and a “security interest” under the UCC. The Eighth Circuit in In re Apex Oil Co. 20 held that “notice of a security interest constitutes notice of an assignment for pur- poses of security under Article 9,” explaining that “[w]e see no meaningful difference between a security interest and an 16 ARA Inc. v. City of Glendale, 360 F. Supp. 3d 957 (D. Ariz. 2019). 17 Id. at 967. 18 Garber v. TouchStar Software Corp, No. 2009 CV1189, 2011 WL 12526062 at *4 (Colo. Dist. Nov. 10, 2011). 19 See, Lake City Bank v. R.T. Milord Co., No. 18 C 7159, 2019 WL 1897068 (N.D. Ill. Apr. 29, 2019); Magnolia Financial Group v. Antos, 310 F. Supp. 3d 764 (E.D. La. 2018); ImagePoint, Inc. v. JPMorgan Chase Bank, Nat., 27 F. Supp. 3d 494 (S.D.N.Y. 2014); Swift Energy Operating v. Plemco- South, 157 So. 3d 1154 (La. App. 2015). 20 In re Apex Oil Co., 975 F.2d 1365 , 1369, 1370 (8th Cir. 1992).  - 213 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 assignment for purposes of security[ and i]n fact, they appear to be the same thing under Article 9.” Similarly, the Supreme Court of Maine held that “[e]ven though Article 9 usually refers to a creditor with a security interest as a ‘secured party,’ a secured party with a security interest in accounts is the ‘assignee’ under [Maine’s secured transactions statute].” 21 The U.S. Bankruptcy Court for the Eastern District of Tennessee also held that “‘assignee’ under [the Tennessee UCC] includes a secured party with a security interest in accounts or gen- eral intangibles.” 22 MP Nexlevel cites IIG Capital LLC v. Archipelago, L.L.C. 23 for the proposition that the use of the assignment derivatives in § 9-406 apply only to transfers of ownership and not contingent transfers for security. Specifically, MP Nexlevel quotes: Plaintiff also argues that a secured party with a secu- rity interest is the equivalent of an assignee for pur- poses of UCC 9-406. However, the cases plaintiff cites for this proposition do not support it. The cited cases deal with a distinct section of the UCC (former UCC 9-318 [1]), which provided that unless otherwise agreed, the rights of an assignee are subject to the terms of the original contract between the account debtor and assignor, including any defenses authorized therein . . . . While these cases treat assignees and holders of security interests similarly for purposes of holding them subject to defenses available to the original account debtors, they provide no authority to treat plaintiff’s security interest as an assignment for collection purposes under UCC 9-406. 24 21 Maine Farmers Exch. v. Farm Credit of Maine, 789 A.2d 85 , 88 n.7 (Me. 2002). 22 In re Otha C. Jean & Associates, Inc., 152 B.R. 219 , 223 (E.D. Tenn. 1993). 23 IIG Capital LLC v. Archipelago, L.L.C., 36 A.D.3d 401 , 829 N.Y.S.2d 10 (2007). 24 Id. at 404, 829 N.Y.S.2d at 3.  - 214 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 In IIG Capital LLC, the secured party’s interest was con- tingent upon an event of default but none was alleged. 25 The court dismissed the secured party’s claim, stating that “plain- tiff’s right to collect on the collateral is expressly conditioned on an event of default, and no such default is alleged in the complaint.” 26 Its statement evaluating whether a security inter- est was an assignment was dicta. [12] Also, the security interest in IIG Capital LLC is distin- guishable from the one in our review. Contrary to the security interest held by First State, the security interest in IIG Capital LLC was not alleged to be presently exercisable at the time of the notice, because it was contingent on the occurrence of an event that had not been alleged. 27 As stated above, the determination of whether a sale or grant of an interest amounts to an assignment as used in a given statute depends upon the context of the statute and the interest given. 28 Here, First State’s security interest was presently exercisable due to Husker Underground’s breach. Such context is distinct from a presently nonexercisable security interest which is contingent on the occurrence of a given event and which contingent event is not alleged to have occurred. [13] In consideration of all of the above, we hold that “assignment” and its derivatives under § 9-406(a) apply to presently exercisable security interests. Sufficiency of § 9-406(a) Notice We next address whether First State’s notification and authentication was sufficient to impose the § 9-406(a) duty upon MP Nexlevel to discharge its obligations on its Husker Underground agreement by paying First State. 25 See id. 26 Id. 27 See id. 28 See § 9-102, comment 26.  - 215 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 [14-16] Whether a notice is sufficient depends upon the facts of each case. 29 In order to be sufficient, the notice has to reasonably identify the rights assigned and demand payment to the assignee. 30 A reasonable identification need not identify the right to payment with specificity, and “magic words” are not required for a notice to be effective. 31 Here, First State provided sufficient notice of its currently exercisable security interest in Husker Underground’s account with MP Nexlevel. In its notices, First State identified itself, disclosed its agreements with Husker Underground which showed that Husker Underground had granted it a security interest in its accounts, and alleged Husker Underground had breached its loan obligations under those agreements. The notices directed MP Nexlevel to pay all amounts owed on Husker Underground’s accounts directly to First State and warned that failure to do so could result in adverse conse- quences for MP Nexlevel. First State authenticated the security interest by attaching a copy of a UCC financing statement identifying the security interest. The allegation that Husker Underground contested its breach at the time of First State’s notices does not change the facts that Husker Underground had breached its obligations to First State, that First State notified MP Nexlevel of Husker Underground’s breach and of its security interest, that First State provided documentation of that security interest, and that First State directed MP Nexlevel to pay all amounts owed on Husker Underground’s accounts to First State, directly warning that failure to do so could result in adverse consequences for MP Nexlevel. If MP Nexlevel was uncertain whether the breach occurred due to Husker Underground’s representations, § 9-406(c) pro- vides a means for MP Nexlevel to obtain additional proof 29 See ARA Inc., supra note 16. 30 § 9-406(a) and (b)(1). 31 See § 9-406, comment 3. See, also, ARA Inc., supra note 16.  - 216 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 of First State’s present authority to collect on the collateral. Section 9-406(c) states: “[I]f requested by the account debtor, an assignee shall seasonably furnish reasonable proof that the assignment has been made,” and “[u]nless the assignee com- plies, the account debtor may discharge its obligation by paying the assignor, even if the account debtor has received a notifica- tion under [§ 9-406(a)].” As discussed above, an “assignment” and its derivatives under § 9-406 include presently exercisable security interests. Accordingly, if MP Nexlevel had reason to doubt that First State held a presently exercisable security interest to MP Nexlevel’s accounts with Husker Underground, § 9-406(c) allows MP Nexlevel to request additional “reason- able proof” of such assignment, which First State would be required to “seasonably furnish.” We find First State’s notices were sufficient to reason- ably identify that First State had a presently exercisable security interest on Husker Underground’s account with MP Nexlevel, provide authentication of that security interest, and demand MP Nexlevel perform its obligations on its agreement with Husker Underground by paying First State. As such, § 9-406(a) required that MP Nexlevel could discharge its obli- gations only by paying First State and not by paying Husker Underground. This is contrary to MP Nexlevel’s assertion that it was entitled to the defense of discharge in that it fully performed and paid Husker Underground the obligated money because, as described in § 9-406(a), after receiving the notice, MP Nexlevel could discharge its obligation only by paying First State. Because MP Nexlevel continued paying Husker Underground and failed to pay First State, it breached its con- tractual obligations. Default Under § 9-607(a) In order to exercise its authority under § 9-607(a)(3) to enforce MP Nexlevel’s obligations, § 9-607(a) conditions this authority by stating that “[i]f so agreed, and in any event after default.” The district court seemingly interpreted this language as requiring that should a default be contested, the  - 217 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 default occurs when it is adjudicated or the parties agree. The district court based its holding on § 9-607(e)’s statement that “[t]his section does not determine whether an account debtor . . . owes a duty to a secured party” and its finding that requir- ing an account debtor to determine whether a breach actually occurred imposes an additional duty upon the account debtor to the secured party. 32 [17] As acknowledged above, § 9-607 does not impose a duty upon an account debtor. However, § 9-406(a) modifies an account debtor’s obligations under its agreement with the debtor if certain criteria are met and § 9-607(a)(3) permits the secured party to enforce the account debtor’s obligations. 33 A secured party’s exercise of its § 9-607(a)(3) authority against the account debtor is not the imposition of a duty upon the account debtor but the enforcement of existing duties. [18,19] Additionally, § 9-607(a) limits its application only to “after default” and default is not contingent on an adjudication or agreement. Article 9 leaves to the agreement of the parties the circumstances giving rise to a default; default is whatever the security agreement says it is. 34 Here, the agreements between Husker Underground and First State all provide that default includes failure to make payments to First State when due. It is presently uncontested that Husker Underground had failed to make these payments when First State sent MP Nexlevel the notices. Although Husker Underground initially disputed its default and the matter had to be adjudicated, the date of default does not 32 See ImagePoint, Inc., supra note 19. 33 See, e.g., Agri-Best Holdings v. Atlanta Cattle Exchange, 812 F. Supp. 2d 898 (N.D. Ill. 2011); Reading Co-Op. Bank v. Suffolk Const. Co., 464 Mass. 543 , 984 N.E.2d 776 (2013); Greenfield Commercial Credit, L.L.C. v. Catlettsburg Refining, L.L.C., No. Civ. A. 03-3391, 2007 WL 97068 (E.D. La. Jan. 9, 2007); Garber, supra note 18. 34 See § 9-607, comment 3. See, also, First Nat. Bank of Black Hills v. Beug, 400 N.W.2d 893 (S.D. 1987).  - 218 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 change simply because Husker Underground had previously challenged it. If MP Nexlevel did not have sufficient information to deter- mine whether the default occurred and First State was presently authorized to collect on the collateral, it could have requested additional proof from First State pursuant to § 9-406(c) as discussed above. And, if First State did not comply, § 9-406(a) would not have imposed an additional duty, MP Nexlevel would be able to continue discharging its obligations by pay- ing Husker Underground, and § 9-607(a) would not grant First State the authority to bring an action to enforce an obliga- tion to pay it directly. Because MP Nexlevel did not request such additional proof and the notice under § 9-406(a) was sufficient, MP Nexlevel had a duty under § 9-406(a) to pay First State directly to discharge its contractual obligations and § 9-607(a)(3) provided First State the authority to step into Husker Underground’s place and enforce MP Nexlevel’s obli- gations as adjusted by operation of § 9-406(a). We conclude that the district court erred in its requirement that should a debtor contest that a default occurred at the time of the § 9-406(a) notice, the default under § 9-607(a) to allow the secured party to enforce an account debtor’s obligation to pay it directly does not occur until the default is adjudicated or the parties otherwise agree. Instead, the default occurs when determined by the security agreement—in this case, when Husker Underground failed to make timely payments. If the debtor contests the default, the account debtor is authorized to exercise its authority under § 9-406(e) to acquire more proof of the secured party’s presently exercisable security interest. If the account debtor does not seek additional proof or if the secured party provides adequate proof, § 9-406(a) imposes a duty upon the account debtor to discharge its obligations by paying the secured party and the secured party can enforce those obligations under § 9-607(a)(3). The date of default relevant to § 9-607(a) remains as determined by the secu- rity agreement.  - 219 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 Standing [20,21] For completeness, MP Nexlevel claims that First State lacked standing to bring this action, because First State was not in privity of contract and §§ 9-406 and 9-607 do not provide private rights of action. However, First State did not bring claims for violations of §§ 9-406 and 9-607, but instead brought claims for breach of contract and account stated. First State’s reliance on §§ 9-406 and 9-607 was merely for the purpose of placing itself in the position to enforce Husker Underground’s agreement with MP Nexlevel as adjusted by operation of § 9-406(a) so as to require payment be sent to First State. Under § 9-607(a)(3), it is unnecessary for a secured party to first become the owner of the collateral pursuant to a disposition or acceptance. 35 A secured party may collect and enforce obligations included in collateral in its capacity as a secured party. 36 [22-24] Standing refers to whether a party had, at the com- mencement of the litigation, a personal stake in the outcome of the litigation that would warrant a court’s or tribunal’s exercis- ing its jurisdiction and remedial powers on the party’s behalf. 37 Standing involves a real interest in the cause of action, mean- ing some legal or equitable right, title, or interest in the subject matter of the controversy. 38 To have standing, a litigant must assert the litigant’s own rights and interests, and cannot rest a claim on the legal rights or interests of third parties. 39 First State was authorized by its security agreements with Husker Underground and § 9-607(a)(3) to step into Husker Underground’s place to enforce MP Nexlevel’s contractual obligations. Further, § 9-406(a) imposes a duty upon MP 35 See § 9-607, comment 6. 36 See id. See, also, Agri-Best Holdings, supra note 33. 37 Applied Underwriters v. S.E.B. Servs. of New York, 297 Neb. 246 , 898 N.W.2d 366 (2017). 38 Id. 3 9 Id. - 220 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports FIRST STATE BANK NEB. v. MP NEXLEVEL Cite as 307 Neb. 198 Nexlevel to discharge its obligation by paying First State and prevents MP Nexlevel from claiming it satisfied its contractual obligations by paying Husker Underground. As a result, First State had standing to bring its claims against MP Nexlevel. CONCLUSION The district court erred in granting MP Nexlevel summary judgment and dismissing First State’s complaint. First State was authorized by § 9-607(a)(1) to notify Husker Underground, as the account debtor obligated under the collateral, to make payment for its benefit due to Husker Underground’s default. Section 9-406(a) applies to presently exercisable security interests, and because First State’s notice and authentication were sufficient, § 9-406(a) imposed a duty on MP Nexlevel to discharge its obligations under its agreement with Husker Underground by paying directly to First State. When MP Nexlevel continued paying to Husker Underground and failed to pay directly to First State, MP Nexlevel breached its obligations and First State was authorized by § 9-607(a)(3) to step into Husker Underground’s place and enforce MP Nexlevel’s contractual obligations as adjusted by operation of § 9-406(a). After having received notice of First State’s claim, MP Nexlevel could have protected itself from liability by the very simple expedient of either demanding further proof (if it doubted the truth of First State’s claims) or making the pay- ments jointly to Husker Underground and First State. Because MP Nexlevel failed to do so, we must reverse the district court’s order granting summary judgment in favor of MP Nexlevel and dismissing First State’s complaint. We remand this matter to the district court for further proceedings consist­ ent with this opinion. Reversed and remanded for further proceedings. Miller-Lerman and Stacy, JJ., not participating.

2020-12-04 06:08:45.118836+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007390PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 309 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 Gaspar Nolasco, Personal Representative of the Estate of Maria E. Nolasco, deceased, appellant, v. Brennon Malcom, Special Administrator of the Estate of Catarina A. Nolasco, deceased, appellee. Gaspariny Nolasco, appellant, v. Brennon Malcom, Special Administrator of the Estate of Catarina A. Nolasco, deceased, appellee. ___ N.W.2d ___ Filed September 25, 2020. Nos. S-19-729, S-19-730. 1. Immunity. The scope of a judicially created rule of immunity, including whether such rule should be limited or extended, presents a question of law. 2. Appeal and Error. To the extent an appeal presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below. 3. Immunity: Parent and Child: Damages. The doctrine of parental immunity, as it has been articulated in Nebraska, provides generally that an unemancipated minor cannot maintain an action against his or her parents, or any other person standing in that relation to the minor, to recover damages for ordinary negligence, but can maintain an action to recover damages for brutal, cruel, or inhuman treatment. 4. Immunity: Parent and Child: Negligence. The doctrine of parental immunity, as adopted and applied in Nebraska, has always been con- fined to that class of ordinary negligence claims involving conduct related to parental authority, discretion, or decisionmaking in the super- vision, care, and treatment of a minor child.  - 310 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 5. Immunity: Parent and Child. The justifications for adopting the doc- trine of parental immunity in Nebraska include protecting the proper exercise of parental authority, recognizing parental discretion in raising and disciplining minor children, and protecting against tort liability based on a legitimate parental decision. 6. Immunity: Parent and Child: Negligence. When a negligence claim does not pertain in any respect to the exercise of parental authority, discretion, or decisionmaking in the supervision, care, and treatment of a minor child, the claim falls outside the scope of Nebraska’s modified parental immunity doctrine. Appeals from the District Court for Dawson County: James E. Doyle IV, Judge. Reversed and remanded for further proceedings. Tod A. McKeone, of Heldt, McKeone & Copley, for appellants. Elizabeth Ryan Cano and Stephen L. Ahl, of Wolfe, Snowden, Hurd, Ahl, Sitzmann, Tannehill & Hahn, L.L.P., for appellee. Daniel J. Thayer, of Thayer & Thayer, P.C., L.L.O., and Benjamin I. Siminou, of Siminou Appeals, Inc., for amicus curiae Nebraska Association of Trial Attorneys. Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Stacy, J. Appellants’ automobile negligence actions were dismissed on summary judgment after the district court concluded they were barred by the parental immunity doctrine. In these con- solidated appeals, appellants challenge the applicability and the continued viability of that doctrine in Nebraska. 1 After consid- ering the origins, development, and application of the doctrine, 1 See Pullen v. Novak, 169 Neb. 211 , 99 N.W.2d 16 (1959).  - 311 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 we conclude the automobile negligence claims alleged in these cases fall outside the scope of Nebraska’s parental immunity doctrine. We therefore reverse the judgments of the district court and remand the causes for further proceedings. I. BACKGROUND On January 21, 2017, Catarina A. Nolasco was operating a motor vehicle on the interstate near Wood River, Nebraska, when the vehicle left the roadway and entered the ditch, rolling several times. Nolasco’s unemancipated minor children were riding in the vehicle with her at the time; her son was seriously injured and her daughter died from injuries sustained in the accident. Nolasco also died as a result of the accident. The daughter’s estate filed a wrongful death and survival action against Nolasco’s estate, and the son (now an adult) filed a separate negligence action against Nolasco’s estate to recover for his injuries. Both actions alleged that Nolasco’s negligent operation of the vehicle caused the accident. Specifically, they alleged Nolasco was negligent in failing to maintain a proper lookout, driving at a speed greater than was reasonable and prudent under the conditions then existing, and failing to exer- cise proper control over her vehicle. Nolasco’s estate moved for summary judgment in both actions, alleging the doctrine of parental immunity applied to bar the negligence claims. The district court agreed. The court’s order discussed and considered several Nebraska cases, including the seminal case of Pullen v. Novak, 2 and ulti- mately determined the doctrine of parental immunity applied to automobile negligence claims. It acknowledged the appel- lants’ request to abrogate or limit the doctrine, but declined to do so, reasoning that any changes to the judicially created doctrine must come from either the Nebraska Supreme Court or the Nebraska Legislature. The district court thus granted 2 Id. - 312 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 summary judgment in favor of Nolasco’s estate and dismissed the actions. Timely appeals were filed by the son and by the daughter’s estate. We granted their petitions to bypass and consolidated the cases for purposes of appeal. II. ASSIGNMENT OF ERROR Appellants assign that the district court erred in dismissing the actions based on the parental immunity doctrine. III. STANDARD OF REVIEW [1] The scope of a judicially created rule of immunity, including whether such rule should be limited or extended, presents a question of law. 3 [2] To the extent an appeal presents questions of law, an appellate court must reach an independent conclusion irrespec- tive of the determination made by the court below. 4 IV. ANALYSIS [3] The doctrine of parental immunity, as it has been articulated in Nebraska, provides generally that an uneman- cipated minor cannot maintain an action against his or her parents, or any other person standing in that relation to the minor, to recover damages for ordinary negligence, but can maintain an action to recover damages for “‘brutal, cruel, or inhuman treatment.’” 5 We have described this as a “modified 3 See, Wood v. McGrath, North, 256 Neb. 109 , 589 N.W.2d 103 (1999) (discussing judgmental immunity rule); Frey v. Blanket Corp., 255 Neb. 100 , 582 N.W.2d 336 (1988) (discussing quasi-judicial immunity and parental immunity); Imig v. March, 203 Neb. 537 , 279 N.W.2d 382 (1979) (addressing spousal immunity). 4 See In re Adoption of Micah H., 301 Neb. 437 , 918 N.W.2d 834 (2018). 5 Pullen, supra note 1, 169 Neb. at 223 , 99 N.W.2d at 25.  - 313 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 version” of the parental immunity doctrine adopted in other jurisdictions. 6 In these consolidated appeals, the threshold question is one of first impression: Does Nebraska’s modified parental immunity doctrine apply to bar automobile negligence claims brought by unemancipated minors against a parent? To answer that question, we begin our analysis with a general overview of the origins of the judicially created doctrine in the United States. We then discuss the development, recognition, and application of the doctrine in Nebraska. And finally, we con- sider the parties’ arguments as to whether the doctrine applies to bar automobile negligence claims and whether this court should modify or abrogate the doctrine. 1. General History of Parental Immunity Doctrine The doctrine of parental immunity did not originate in English common law, 7 but instead was introduced into American tort jurisprudence by the 1891 Mississippi Supreme Court case of Hewlett v. Ragsdale. 8 In Hewlett, the court held that an unemancipated minor could not sue her mother for damages sustained when the mother confined the child in a mental institution. Hewlett reasoned: [S]o long as the parent is under obligation to care for, guide and control, and the child is under reciprocal obli- gation to aid and comfort and obey, no such action as this can be maintained. The peace of society, and 6 Id. See, also, Richards v. Meeske, 268 Neb. 901 , 689 N.W.2d 337 (2004). 7 See, 4 Restatement (Second) of Torts § 895G, comment b. (1979); 2 Dan B. Dobbs et al., The Law of Torts § 358 (2d ed. 2011); 2 Stuart M. Speiser et al., The American Law of Torts § 6:49 (2014). 8 Hewlett v. Ragsdale, 68 Miss. 703 , 9 So. 885 (1891), abrogated, Glaskox by and through Denton v. Glaskox, 614 So. 2d 906 (Miss. 1992).  - 314 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrong-doing, and this is all the child can be heard to demand. 9 In the decades immediately following Hewlett, courts in all but a handful of states 10 adopted some version of the doctrine of parental immunity, but courts were not consistent in articu- lating either the scope of the doctrine or the public policy rea- sons justifying its adoption. 11 Common justifications for adopt- ing the doctrine included (1) maintaining family harmony; (2) preserving parental autonomy and authority over the discipline, supervision, and care of children; (3) preventing fraud and collusion between family members; and (4) protecting family 9 Id. at 711, 9 So. at 887. 10 See, e.g., Petersen v. City and County of Honolulu, 51 Haw. 484 , 462 P.2d 1007 (1969) (declining to adopt doctrine, reasoning minors are entitled to same redress for wrongs as other persons and reasons other jurisdictions give for doctrine not sufficient to overcome that basic right); Rupert v. Stienne, 90 Nev. 397 , 528 P.2d 1013 (1974) (abrogating interspousal immunity while clarifying parental immunity was never adopted); Nuelle v. Wells, 154 N.W.2d 364 (N.D. 1967) (finding court had never adopted doctrine and should not); Wood v. Wood, 135 Vt. 119 , 370 A.2d 191 (1977) (answering certified question by holding minor’s suit against parent for negligent supervision not categorically barred by unrecognized doctrine of parental immunity). 11 See Annot., 6 A.L.R. 4th 1066 , § 2[a] (1981).  - 315 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 assets from depletion in favor of one child at the expense of others. 12 By the mid-20th century, jurisdictions began to reexam- ine the blanket doctrine. 13 The Wisconsin Supreme Court’s opinion in Goller v. White 14 is generally recognized as the first case to abrogate the doctrine, 15 but it was only a partial abrogation. Goller abolished blanket parental immunity, but expressly retained immunity where the alleged negligence involved either the exercise of parental authority over the child or “ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.” 16 After Goller, a few states chose to maintain blanket parental immunity, 17 but most jurisdictions moved away from blanket immunity and narrowed the practical application of the doctrine by recognizing a wide variety of exceptions and limitations. 18 12 See id. See, also, 4 Restatement (Second), supra note 7, § 895G, comment c.; 2 Dobbs et al., supra note 7; 2 Speiser et al., supra note 7. 13 See 2 Speiser et al., supra note 7. 14 Goller v. White, 20 Wis. 2d 402 , 122 N.W.2d 193 (1963). 15 See 4 Restatement (Second), supra note 7, § 895G, comment j. 16 Goller, supra note 14, 20 Wis. 2d at 413 , 122 N.W.2d at 198. 17 See, e.g., Rambo v. Rambo, 195 Ark. 832 , 114 S.W.2d 468 (1938); Blake v. Blake, 235 Ga. App. 38 , 508 S.E.2d 443 (1998); Vaughan v. Vaughan, 161 Ind. App. 497 , 316 N.E.2d 455 (1974); La. Rev. Stat. Ann. § 9:571 (2016). 18 See, Annot., 6 A.L.R. 4th 1066 , §§ 6 through 12 (1981 & Supp. 2020) (discussing various exceptions to doctrine including claims related to motor vehicle accidents, death of parent or child, breach of duty to general public, parent’s business activity, claims covered by liability insurance, and claims against noncustodial parents); 2 Dobbs et al., supra note 7.  - 316 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 The most commonly recognized limitation has been to allow suits against parents for the negligent operation of an automo- bile. 19 Some states adopted a Goller-like approach and limited the doctrine to bar tort claims only when the negligent conduct at issue is inherent to the parent-child relationship, such as the 19 See 4 Restatement (Second), supra note 7, § 895G, comment k. at 430 (noting “most of the cases abrogating the immunity have involved automobile accidents”). Accord, e.g., Hebel v. Hebel, 435 P.2d 8 , 15 (Alaska 1967) (finding it “unnecessary to attempt to define precisely what scope should be given to the doctrine of parental immunity,” but holding minor can sue parent for negligent driving); Nocktonick v. Nocktonick, 227 Kan. 758 , 611 P.2d 135 (1980) (holding minor may sue parent for automobile negligence and declining to otherwise define scope of doctrine); Glaskox, supra note 8 (abrogating doctrine as applied to suits for negligent operation of vehicle); Transamerica Ins. Co. v. Royle, 202 Mont. 173 , 656 P.2d 820 (1983) (declining to define scope of doctrine but holding it does not apply to actions based on automobile negligence); Briere v. Briere, 107 N.H. 432 , 224 A.2d 588 (1966) (allowing minor to sue parent for negligence in automobile accident); France v. A. P. A. Transport Corp., 56 N.J. 500 , 267 A.2d 490 (1970) (abrogating doctrine to allow suits based on negligent operation of motor vehicle and declining to address its continued scope beyond facts presented); Silva v. Silva, 446 A.2d 1013 (R.I. 1982) (abrogating doctrine in automobile tort actions); Smith v. Kauffman, 212 Va. 181 , 183 S.E.2d 190 (1971) (abrogating doctrine in actions for automobile negligence); Merrick v. Sutterlin, 93 Wash. 2d 411 , 610 P.2d 891 (1980) (abrogating doctrine in automobile negligence action and holding continued application of doctrine in other circumstances should be determined on case-by-case basis); Lee v. Comer, 159 W. Va. 585 , 224 S.E.2d 721 (1976) (abrogating doctrine regarding actions based on negligent operation of motor vehicle); Dellapenta v. Dellapenta, 838 P.2d 1153 (Wyo. 1992) (holding automobile negligence actions do not involve parental authority or discretion and thus fall outside doctrine of parental immunity).  - 317 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 exercise of parental authority, supervision, care, or discipline. 20 Some states have abolished the doctrine in toto, 21 and others 20 See, Schneider v. Coe, 405 A.2d 682 (Del. 1979) (noting preservation of parental authority vital to public policy and refusing to abrogate immunity in actions based on negligent supervision of children); Pedigo v. Rowley, 101 Idaho 201 , 610 P.2d 560 (1980) (retaining doctrine at least in cases of negligent supervision because family plays essential role in welfare of society); Cates v. Cates, 156 Ill. 2d 76 , 104-05, 619 N.E.2d 715 , 729, 189 Ill. Dec. 14 , 28 (1993) (holding parental immunity extends only to conduct “inherent to the parent-child relationship” which involves an “exercise of parental authority and supervision over the child”); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky. 1970) (abrogating doctrine except where conduct involves reasonable exercise of parental authority over child or where negligence involves providing care and necessities to child); Black v. Solmitz, 409 A.2d 634 (Me. 1979) (abrogating doctrine as categorical ban but retaining it for conduct involving care and discipline of children, which parameters can be defined in future cases); Plumley v. Klein, 388 Mich. 1 , 1 99 N.W.2d 16 9 (1972) (abrogating doctrine except for conduct involving exercise of reasonable parental authority over child or reasonable parental discretion with respect to provisions of food, clothing, housing, and other care); Broadwell by Broadwell v. Holmes, 871 S.W.2d 471 , 476-77 (Tenn. 1994) (finding parental immunity limited to conduct that “constitutes the exercise of parental authority, the performance of parental supervision, and the provision of parental care and custody”); Jilani by and through Jilani v. Jilani, 767 S.W.2d 671 (Tex. 1989) (holding immunity extends to acts involving exercise of parental authority and provision of care and necessities); Goller, supra note 14 (abrogating immunity except for acts of ordinary parental authority and discretion). 21 See, e.g., Kirchner v. Crystal, 15 Ohio St. 3d 326 , 474 N.E.2d 275 (1984) (abolishing blanket immunity doctrine in toto with no exceptions); Falco v. Pados, 444 Pa. 372 , 282 A.2d 351 (1971) (abrogating doctrine and noting minors can sue parents in property and contract); Elam v. Elam, 275 S.C. 132 , 268 S.E.2d 109 (1980) (abolishing doctrine and noting minors can sue parents in property and contract).  - 318 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 have replaced it with either a “reasonable parent” rule or the approach followed by the Restatement (Second) of Torts. 22 2. Parental Immunity Doctrine in Nebraska The first Nebraska case to formally recognize the doctrine of parental immunity was the 1959 case of Pullen v. Novak. 23 In Pullen, we identified three earlier cases that established the framework for the doctrine in Nebraska: Nelson v. Johansen, 24 Clasen v. Pruhs, 25 and Fisher v. State. 26 All three cases involved claims of cruel parental treatment of a minor child. 22 See 4 Restatement (Second), supra note 7, § 895G, comment k. at 431 (rejecting tort immunity between parent and child based solely on relationship but recognizing not all acts or omissions undertaken in course of parent-child relationship will result in liability because some conduct is protected by parental discipline privilege and, to be tortious, parental conduct should be “palpably unreasonable”). See, e.g., Broadbent v. Broadbent, 184 Ariz. 74 , 907 P.2d 43 (1995) (holding status as parent does not bar suit, but adopting reasonable parent test for suits of minors against parents); Gibson v. Gibson, 3 Cal. 3d 914 , 479 P.2d 648 , 92 Cal. Rptr. 288 (1971) (overruling prior adoption of doctrine and adopting reasonable and prudent parent test); Rousey v. Rousey, 528 A.2d 416 (D.C. 1987) (declining to adopt doctrine and instead endorsing approach of 4 Restatement (Second), supra note 7, § 895G); Anderson v. Stream, 295 N.W.2d 595 (Minn. 1980) (abolishing doctrine and adopting reasonable parent standard); Hartman by Hartman v. Hartman, 821 S.W.2d 852 (Mo. 1991) (abrogating doctrine and adopting reasonable parent test); Winn v. Gilroy, 296 Or. 718 , 681 P.2d 776 (1984) (agreeing with 4 Restatement (Second), supra note 7, § 895G, approach and focusing on nature of parent’s negligent act). 23 Pullen, supra note 1. 24 Nelson v. Johansen, 18 Neb. 180 , 24 N.W. 730 (1885). 25 Clasen v. Pruhs, 69 Neb. 278 , 95 N.W. 640 (1903). 26 Fisher v. State, 154 Neb. 166 , 47 N.W.2d 349 (1951).  - 319 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 Well over a century ago, in Nelson, 27 we considered a neg- ligence claim brought on behalf of a 10-year-old girl who was sent by her parents to work for and live with the defendant and his family. It was alleged the defendant sent the child out in bitterly cold weather to walk some distance back to her par- ent’s home without sufficient clothing, which caused her to become “badly frozen” and remain bedridden in “great pain” for a long time. 28 We affirmed the jury verdict in favor of the child, reasoning in part that the defendant stood in the relation of the child’s parent and it was his “duty to see that she was properly clothed [and if] he failed in this through negligence he would be liable for the consequences.” 29 The 1903 case of Clasen 30 was the first Nebraska case to expressly limit tort recovery by minors against parents. In Clasen, a 6-year-old child was sent by her parents in Germany to live with an aunt in Nebraska. Eventually, the aunt returned the child to her parents, after which the child, through a next friend, sued the aunt seeking damages for cruel and inhuman treatment. It was alleged the aunt had unnecessarily beaten, tortured, and whipped the child, and had denied her proper food and clothing, causing permanent injury to her health and growth. The jury returned a verdict in favor of the child. On appeal, the aunt admitted she stood in loco parentis to the child but argued that a parent should not be held liable in tort for correcting a child unless the parent acted with “wicked impulses” or the punishment was “of such a nature as to seri- ously injure the life, limbs or health of the child.” 31 We noted there was some authority for a rule that a parent cannot be 27 Nelson, supra note 24. 28 Id. at 181, 24 N.W. at 730. 29 Id. at 183, 24 N.W. at 731. 30 Clasen, supra note 25. 31 Id. at 283, 95 N.W. at 642.  - 320 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 held liable for punishment that “falls short of maiming or disfiguring . . . or seriously injuring or endangering life and health” 32 of the child. But we declined to adopt such a rule, preferring instead to follow “the trend of a long line of well considered cases” 33 that predicated the child’s right of recovery on proof that the parental treatment was unreasonable or cruel. We reasoned: That much of the welfare of society rests on the proper exercise of parental authority is self-assertive, but that there is and should be a reasonable limitation on the right of parents to punish their offspring, is an elemental principle of modern civilization. The question then is, what is the right, and what [is] the proper limitation of the right, and who shall judge when the right has been exceeded? 34 Clasen answered that question by announcing the rule that “[a] parent, teacher or master is not liable either civilly or criminally for moderately correcting a child, pupil or apprentice, but it is otherwise if the correction is immoderate and unreasonable.” 35 This principle from Clasen would eventually be cited by this court as support for both the parental immunity doctrine 36 and for the related parental discipline privilege. 37 32 Id. 33 Id. at 284, 95 N.W. at 642. 34 Id. at 283, 95 N.W. at 642. 35 Id. 36 Pullen, supra note 1. 37 See, e.g., Cornhusker Christian Ch. Home v. Dept. of Soc. Servs., 227 Neb. 94 , 106, 416 N.W.2d 551 , 560 (1987) (recognizing that rule announced in Clasen was “a restatement of the common-law rule that was later codified in the criminal defense provision of § 28-1413”). See, also, 1 Restatement (Second) of Torts, §§ 147 and 150 (1965) (regarding parental discipline privilege).  - 321 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 In Fisher, 38 a mother was charged with manslaughter after her 4-year-old son died. The mother admitted hitting the child with a stick when he was disobedient, but she maintained the punishment was moderate and appropriate. The State offered medical evidence that an examination conducted a few hours after the child’s death revealed he was extremely malnour- ished and had abrasions, contusions, and lacerations on his face, neck, arms, chest, and scalp. His scalp was reportedly twice the normal thickness due to the formation of scar tis- sue caused by repeated trauma. A doctor testified the cause of death was repeated trauma to his head and malnutrition. We affirmed the mother’s manslaughter conviction, reiterating the general principle announced in Clasen that a parent or one standing in the relation thereof “‘is not liable either civilly or criminally for moderately and reasonably correcting a child, but it is otherwise if the correction is immoderate and unrea- sonable . . . .’” 39 (a) Pullen v. Novak The principles articulated in Nelson, Clasen, and Fisher were all cited as support when this court formally recognized the doctrine of parental immunity in Pullen. 40 In that case, a toddler was injured when he was struck by a backing vehicle in his parents’ driveway while in his father’s care. The vehicle that struck the child was being driven by the father’s friend, who at the time was helping the father return a customer’s vehicle that had been serviced at the repair shop where the father worked. Through a next friend, the toddler brought a negligence action against his father, the father’s friend, and the father’s 38 Fisher, supra note 26. 39 Id. at 176, 47 N.W.2d at 355. 40 See Pullen, supra note 1, citing Nelson, supra note 24; Clasen, supra note 25; and Fisher, supra note 26.  - 322 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 employer. The father was dismissed from the action on grounds the toddler, “being an unemancipated minor child as shown in the petition, has no right of action against the parent for the negligent tort of such parent.” 41 The father’s employer was subsequently dismissed on summary judgment, and the claim against the father’s friend proceeded to trial but was dismissed by the court at the close of the plaintiff’s evidence. The plain- tiff appealed, assigning error to the dismissal of the claims against the friend and the employer, but not the father. In addressing whether the father’s employer could be vicari- ously liable for the toddler’s injuries, we noted such liability depended on whether the father could himself be liable in tort to his minor son. On that question, we first considered parental immunity cases from other jurisdictions, observing: The cases from other jurisdictions run strongly to the effect that an unemancipated minor, such as appellant was and is, cannot maintain an action against his parent, or any other person standing in that relation to the minor, to recover damages for negligence . . . . The reason for the rule is stated in Meece v. Holland Furnace Co., 269 Ill. App. 164 , as follows: “It is a rule of common law based upon public policy that a minor child cannot sue his father in tort unless a right of action is authorized by statute.” 42 We then cited Nelson, Clasen, and Fisher for the proposition that “Nebraska has adopted a modified version of this rule.” 43 The rule we articulated in Pullen was not one of blanket immunity. Rather, we announced a rule that allows uneman- cipated minors to recover from a parent in tort “‘where the child is subjected to . . . brutal, cruel, or inhuman treatment,’” 41 Pullen, supra note 1, 169 Neb. at 214 , 99 N.W.2d at 20. 42 Id. at 223, 99 N.W.2d at 25 . 43 Id. - 323 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 but which generally prohibits minors from “maintain[ing] an action against his parents, or any other person standing in that relation to the minor, to recover damages for ordinary negligence.” 44 Until the instant appeals, we have not been asked to limit the parental immunity rule announced in Pullen. But we have, in two reported opinions we address next, 45 discussed the pos- sibility of expanding the doctrine’s application. (b) Post-Pullen Cases In Frey v. Blanket Corp., 46 we discussed the potential appli- cability of the parental immunity doctrine to the ordinary negligence of court-appointed guardians in the performance of their duties on behalf of their ward. In Frey, the guardian placed the adult ward in an institution, where a roommate later fatally assaulted her. The ward’s estate sued the guardian for negligently failing to supervise the ward’s placement and liv- ing conditions. The trial court granted the guardian’s motion for summary judgment, finding the doctrine of quasi-judicial immunity applied and entitled the guardian to absolute immu- nity from suit. On appeal in Frey, we concluded quasi-judicial immu- nity did not apply to the guardian merely because she had been court appointed. We also suggested that quasi-judicial immunity was not necessary to protect court-appointed guard- ians from exposure to liability for ordinary negligence in the performance of their duties, reasoning that a guardian’s duty to a ward was “equivalent to that owed by a parent to an unemancipated minor child.” 47 We noted that Clasen and 44 Id. at 223, 224, 99 N.W.2d at 25. 45 See, Richards, supra note 6; Frey, supra note 3. 46 Frey, supra note 3. 47 Id. at 107, 582 N.W.2d at 341.  - 324 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 Pullen ­recognized that a minor may recover against a parent in tort only for brutal, cruel, or inhuman treatment, and we suggested that parental immunity may protect court-appointed guardians for ordinary negligence in supervising their wards. But Frey reversed the judgment and remanded the cause for further proceedings without actually applying the parental immunity doctrine. In Richards v. Meeske, 48 we again discussed the parental immunity doctrine without applying it. In that case, a 9-year- old girl was injured when her father allowed her to operate an all-terrain vehicle on the farm where he lived and worked. A negligence action was brought on behalf of the child against her father and the owner of the farm. The farm owner success- fully moved for summary judgment, and the trial court certi- fied the ruling as final for purposes of appeal. 49 We reversed the summary judgment, finding the lower courts had not analyzed the claim against the farm owner using the proper premises liability framework. But our opinion also addressed an issue the lower courts had not considered: whether the farm owner had a duty to protect the child from the allegedly negligent parenting decision of her father. In that regard, we observed the parental immunity doctrine might also limit the landowner’s duty: Here, a policy consideration might prevent the impo- sition of a duty on [the landowner] to protect a child lawfully on the land from negligent parenting decisions . . . . Courts have traditionally recognized that parents are entitled to discretion in how they raise and discipline their children. As a result, courts have been hesitant to impose tort liability because of a legitimate parental deci- sion. This court, for example, has adhered to a modified 48 Richards, supra note 6. 49 See Neb. Rev. Stat. § 25-1315(1) (Reissue 2016).  - 325 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 version of the parent-child tort immunity, holding that a child cannot recover in tort from his or her parent unless “‘the child is subjected to . . . brutal, cruel, or inhuman treatment.’” Pullen v. Novak, 169 Neb. 211 , 223, 99 N.W.2d 16 , 25 (1959). See, also, Frey v. Blanket Corp., 255 Neb. 100 , 582 N.W.2d 336 (1998). 50 Richards questioned whether the public policy interest under- pinning the parental immunity doctrine “suggests that pos- sessors of land should not be required to protect a child law- fully on the land from the negligent parenting decisions of the child’s parent, at least when those decisions are not palpably unreasonable.” 51 But Richards ultimately decided it was not appropriate to answer that question, in part because the claim against the child’s father was still pending before the trial court. We thus reversed the summary judgment and remanded the cause for further proceedings without expressing an opinion on whether Nebraska landowners have a duty to protect a child lawfully on the land from negligent parenting decisions. 3. Arguments of Parties Appellants present two basic arguments in support of their request to reverse the decisions of the district court. First, they argue the parental immunity doctrine, as applied in Nebraska, only precludes tort actions by unemancipated minors against their parents for negligent acts involving the exercise of paren- tal discretion. Appellants argue that our cases have never applied the doctrine to an automobile negligence claim, and they suggest such claims do not ordinarily implicate the exer- cise of parental discretion or authority. As such, they suggest the district court erred by expanding the doctrine to bar auto- mobile negligence claims. 50 Richards, supra note 6, 268 Neb. at 911-12 , 689 N.W.2d at 346. 51 Id. at 912, 689 N.W.2d at 346.  - 326 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 Alternatively, appellants argue that if Nebraska’s parental immunity doctrine does broadly bar all negligence actions by minors against their parents except those involving cruel or inhuman treatment, then either it should be modified to permit automobile negligence actions like the ones at issue here or it should be abrogated altogether. In support of this alternative argument, appellants generally suggest that the doctrine is out- dated and that the national trend is to either limit or abrogate parental immunity. They also argue that the doctrine, if applied to bar automobile negligence cases by a child against a parent, is inconsistent with the Legislature’s 2010 repeal of the guest statute in Nebraska. 52 Appellee responds that the district court correctly applied the parental immunity doctrine to bar the instant automobile negligence actions. Appellee argues, “A fair reading of Pullen, and of Nebraska precedent as a whole, shows that Nebraska has long adopted a broad parental-immunity doctrine that applies to all general-negligence claims.” 53 Appellee opposes abrogation or modification of Nebraska’s parental immunity doctrine, arguing the historical justifications for the doctrine remain applicable to modern families. Appellee also suggests the Legislature’s repeal of the guest statute did not reference or impact the continued viability of the parental immunity doc- trine in Nebraska. 4. Does Nebraska’s Modified Parental Immunity Doctrine Apply to Bar Automobile Negligence Claims? As stated, the modified parental immunity doctrine as artic- ulated in Pullen bars unemancipated minors from suing a parent, or one standing in that relation, for conduct involving 52 See 2010 Neb. Laws, L.B. 216, § 1 (repealing Neb. Rev. Stat. § 25-21,237 (Reissue 2008) effective July 15, 2010). 53 Brief for appellee in cases Nos. S-19-729 and S-19-730 at 5.  - 327 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 “ordinary negligence,” 54 but allows such suits when the con- duct involves “‘brutal, cruel, or inhuman treatment.’” 55 It is apparent, then, that Nebraska’s doctrine is not a blanket bar on all negligence claims because it expressly allows tort claims alleging brutal, cruel, or inhuman treatment of a child by a parent. But we have not had occasion to precisely define the class of “ordinary negligence” claims to which the doctrine does apply. Appellee argues Nebraska’s doctrine broadly bars all “general-negligence claims” 56 except those alleging brutal, cruel, or inhuman treatment. Appellants disagree and argue that Nebraska’s doctrine has always been limited to that class of negligence claims involving parental discretion in the treatment of their child. [4] We conclude it is not necessary, in this case, to define the outermost limits of Nebraska’s modified parental immu- nity doctrine. But we generally agree with appellants that the doctrine, as adopted and applied in Nebraska by this court, has always been confined to that class of ordinary negligence claims involving conduct related to parental authority, discre- tion, or decisionmaking in the supervision, care, and treatment of a minor child. Pullen announced and applied the doctrine to bar a claim related to a father’s conduct in failing to supervise his toddler in the driveway. 57 Clasen and Nelson both allowed tort recov- ery by a child who was injured by the mistreatment of someone standing in loco parentis. 58 And to the extent our post-Pullen cases discussed the potential application of the parental 54 Pullen, supra note 1, 169 Neb. at 224, 99 N.W.2d at 25 . 55 Id. at 223, 99 N.W.2d at 25 . 56 Brief for appellee in cases Nos. S-19-729 and S-19-730 at 5. 57 See Pullen, supra note 1. 58 See, Clasen, supra note 25; Nelson, supra note 24.  - 328 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 immunity doctrine in other contexts, Frey involved apply- ing the doctrine to the conduct of a court-appointed guardian who was alleged to have negligently supervised her ward and Richards considered applying the doctrine to limit a landown- er’s duty to protect children on the land from allegedy negli- gent parental decisionmaking regarding the child. 59 [5] All of our reported opinions developing, applying, and discussing the doctrine have involved allegations of negli- gence relating directly to the treatment or supervision of a child or ward by a parent or one standing in relation to a par- ent. Stated differently, we have neither applied nor discussed applying the parental immunity doctrine to conduct that did not involve the exercise of parental authority, discretion, or decisionmaking regarding the supervision, care, and treatment of a minor child. And our application of the doctrine has been entirely consistent with the expressed reasons for adopting a modified immunity rule in Nebraska: to protect “the proper exercise of parental authority,” 60 to recognize that “parents are entitled to discretion in how they raise and discipline their children,” 61 and to protect against “tort liability because of a legitimate parental decision.” 62 We consider these justifica- tions for the doctrine to be as valid today as when Clasen and Pullen were decided. Consequently, because appellants are correct that this court has never applied the parental immunity doctrine beyond that class of claims alleging ordinary negligence in the exercise of parental authority, discretion, or decisionmaking in the supervi- sion, care, and treatment of a minor child, we agree there is no need to expressly modify the doctrine to exclude automobile 59 See, Richards, supra note 6; Frey, supra note 3. 60 Clasen, supra note 25, 69 Neb. at 283, 95 N.W. at 642 . 61 Richards, supra note 6, 268 Neb. at 911 , 689 N.W.2d at 346. 62 Id. - 329 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports NOLASCO v. MALCOM Cite as 307 Neb. 309 negligence cases. Claims of negligence in the operation of a motor vehicle rarely involve the exercise of parental author- ity or discretion in the supervision, care, and treatment of a child, 63 which likely explains why Nebraska has no reported cases in which the parental immunity doctrine has been applied to such a case. [6] In the instant appeals, the allegations of negligence against Nolasco were limited to driving at an unreasonable speed, failing to keep a reasonable lookout, and failing to exer- cise proper control of her vehicle. Because none of this alleged conduct pertains in any respect to the exercise of parental authority, discretion, or decisionmaking in the supervision, care, and treatment of a minor child, the claim falls outside the scope of Nebraska’s modified parental immunity doctrine. We therefore hold that the negligence actions in this case, as currently alleged, are not barred by the doctrine of parental immunity and should not have been dismissed on that basis. And because the negligence claims presented here do not actu- ally implicate the continued viability of the parental immu- nity doctrine, we leave for another day the question whether Nebraska’s modified parental immunity doctrine should be revisited in any respect. V. CONCLUSION For the foregoing reasons, we reverse the summary judg- ments in favor of Nolasco’s estate and remand the causes to the district court for further proceedings consistent with this opinion. Reversed and remanded for further proceedings. Heavican, C.J., not participating. Cassel, J., concurs in the result. 63 See, e.g, Cates, supra note 20; Winn, supra note 22; Dellapenta, supra note 19.

2020-12-04 06:08:40.327745+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007488PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 237 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 State of Nebraska, appellant and cross-appellee, v. Jack E. Harris, appellee and cross-appellant. ___ N.W.2d ___ Filed September 25, 2020. Nos. S-19-130, S-19-133. 1. Jurisdiction. A question of jurisdiction is a question of law. 2. Judgments: Appeal and Error. Appellate courts independently review questions of law decided by a lower court. 3. ____: ____. The construction of a mandate issued by an appellate court presents a question of law, on which an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. 4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. 5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken. 6. Final Orders: Appeal and Error. Among the three types of final orders which may be reviewed on appeal is an order affecting a substantial right made during a special proceeding. 7. Actions: Words and Phrases. An action involves prosecuting the alleged rights between the parties and ends in a final judgment, whereas a special proceeding does not. 8. Final Orders. Whether an order affects a substantial right depends on whether it affects with finality the rights of the parties in the sub- ject matter. 9. ____. Whether an order affects a substantial right depends on whether the right could otherwise effectively be vindicated. 10. Final Orders: Appeal and Error. An order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review.  - 238 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 11. Appeal and Error: Words and Phrases. In appellate procedure, a “remand” is an appellate court’s order returning a proceeding to the court from which the appeal originated for further action in accordance with the remanding order. 12. Courts: Appeal and Error. After receiving a mandate, a trial court is without power to affect rights and duties outside the scope of the remand from an appellate court. 13. Courts: Judgments: Appeal and Error. A lower court may not modify a judgment directed by an appellate court; nor may it engraft any provi- sion on it or take any provision from it. 14. Judgments: Appeal and Error. No judgment or order different from, or in addition to, the appellate mandate can have any effect. 15. Courts: Judgments: Jurisdiction: Appeal and Error. Because a trial court is without power to affect rights and duties outside the scope of the remand from an appellate court, any order attempting to do so is entered without jurisdiction and is void. Appeals from the District Court for Douglas County: William B. Zastera and Jodi L. Nelson, Judges. Appeal in No. S-19-130 dismissed. Judgment in No. S-19-133 vacated, and cause remanded with directions. Douglas J. Peterson, Attorney General, and James D. Smith, Solicitor General, for appellant. Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellee. Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Moore and Welch, Judges. Papik, J. Two decades ago, following a jury trial, Jack E. Harris was convicted of first degree murder and use of a deadly weapon to commit a felony. His convictions were affirmed on direct appeal. As is often the case in such matters, years of litiga- tion followed, in which Harris filed many motions collaterally attacking his convictions and sentences. After we remanded for further proceedings in an appeal involving such collat- eral attacks in 2017, the district court granted Harris’ motion  - 239 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 for new trial and, later, his motion for absolute discharge on speedy trial grounds. On the State’s appeal from these orders, we conclude that the district court did not comply with our mandate in an earlier appeal and that its orders granting Harris a new trial and absolute discharge were thus void. Accordingly, we vacate those orders and remand the cause for further proceedings. I. BACKGROUND 1. Conviction, Earlier Proceedings, and Appeals by Harris In 2000, following a jury trial, Harris was convicted of first degree murder and use of a deadly weapon to commit a felony. He was sentenced to life imprisonment on the murder conviction and 10 to 20 years’ imprisonment on the weapons conviction, to be served consecutively. We affirmed on direct appeal. See State v. Harris, 263 Neb. 331 , 640 N.W.2d 24 (2002) (Harris I). Several unsuccessful motions and appeals by Harris fol- lowed. See State v. Harris, 267 Neb. 771 , 677 N.W.2d 147 (2004) (Harris II); State v. Harris, 274 Neb. 40 , 735 N.W.2d 774 (2007) (Harris III); State v. Harris, 292 Neb. 186 , 871 N.W.2d 762 (2015) (Harris IV); and State v. Harris, 296 Neb. 317 , 893 N.W.2d 440 (2017) (Harris V). In Harris IV, we reversed the district court order that dis- missed Harris’ second postconviction motion, which had been filed simultaneously with a new trial motion and a motion for writ of error coram nobis. Harris’ motions rested on allega- tions (1) that Howard “Homicide” Hicks, Harris’ accomplice and a key witness in Harris’ trial, disclosed to fellow inmate Terrell McClinton that Hicks had lied during his testimony and that Hicks alone, not Harris, had killed the victim; (2) that another witness, Curtis Allgood, generally corroborated McClinton’s account and provided details placing Hicks near the crime scene at the time of the murder; and (3) that Harris was unaware of this information until McClinton’s contact with  - 240 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 Harris’ attorney in 2006 and was prevented from discovering the information earlier because of misconduct by the prosecu- tor and the State’s witness. The district court had earlier granted Harris leave to file a third amended postconviction motion raising claims similar to the second motion’s and additional claims concerning the State’s plea agreement with Hicks. Although the court, the par- ties, and the evidence gave indications that the third amended postconviction motion was addressed at the subsequent June 28, 2013, hearing, Harris had not filed it. At the hearing, the district court announced that the matter was before the court on the third amended motion for postconviction relief and took judicial notice of the bill of exceptions for Harris’ trial in 1999. The State did not assert that Harris had failed to file the third amended motion, but instead offered a copy of the motion and the court’s docket entries showing that Harris had been given leave to file the motion. Harris presented evidence that was relevant only to his third amended motion for postcon- viction relief. Following the hearing, the district court’s order expressly dismissed the second postconviction motion, and Harris appealed. In Harris IV, we characterized the 2013 hearing as a hear- ing on the third amended postconviction motion. We held that “a court presented with a motion for postconviction relief which exists simultaneously with a motion seeking relief under another remedy must dismiss the postconviction motion with- out prejudice when the allegations, if true, would constitute grounds for relief under the other remedy sought.” Harris IV, 292 Neb. at 191 , 871 N.W.2d at 766. We determined that because the motion for new trial was time barred under the statute then in effect and because there was no possibility of obtaining relief through a writ of coram nobis, the district court erred in dismissing the motion for postconviction relief. See Neb. Rev. Stat. § 29-2103 (Reissue 2008). We remanded for consideration of “the postconviction motion” on the merits. Harris IV, 292 Neb. at 194 , 871 N.W.2d at 768.  - 241 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 On remand, the district court did not conduct a new evi- dentiary hearing but considered the evidence presented at the 2013 evidentiary hearing. It denied postconviction relief, but given the matters addressed at the 2013 hearing, it was unclear whether the district court’s order disposed of the second postconviction motion or the third amended postconviction motion involving similar and additional claims. The court’s order, signed on March 3, 2016, referred to the “[s]econd” motion for postconviction relief and addressed claims raised only in the second motion. It stated that “[t]he matter came on for full evidentiary hearing on June 28, 2013.” The court did not address Harris’ claims regarding Hicks’ plea agree- ment raised only in the third amended postconviction motion, but specifically ruled on his claims that the State suppressed information possessed by Allgood before Harris’ trial and by McClinton before Harris’ trial, direct appeal, or postconvic- tion proceedings. Harris appealed, which led to our decision in Harris V. In Harris V, we examined the record from the 2013 post- conviction hearing and took judicial notice of our previous records and decisions in Harris’ case. We determined that the district court properly denied relief on Harris’ claim that the State suppressed evidence of McClinton’s statements in his affidavit, but that it failed to apply the correct standard to Harris’ claim that the State suppressed Allgood’s statements at Harris’ 1999 murder trial and failed to address Harris’ claims from the third amended postconviction motion concerning the State’s plea agreement with Hicks. We affirmed in part, and in part reversed and remanded for further proceedings to clarify which postconviction motion the court intended to rule on in the March 2016 order and, if necessary, to enter an order to dispense with all of Harris’ claims for relief: The court’s reasoning that no suppression occurred because the prosecutor did not know about Allgood’s statements to investigators was incorrect. Under both federal and state law, the prosecutor had a duty to learn  - 242 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 of favorable material evidence known to others acting on the government’s behalf in the case. Thus, the State’s duty to disclose favorable material evidence existed even if the evidence was known only to police investigators and not to the prosecutor. Further, the court’s summary conclusion that Allgood’s statements were not exculpatory did not comply with the applicable standards for evaluating Harris’ claims. Favorable evidence includes both exculpatory and impeachment evidence. Harris alleged in his motion that Allgood’s statements would have corroborated his alibi defense and contra- dicted Hicks’ testimony that he left the murder scene with Harris and drove around with him, disposing of evidence and distributing the money. Harris also alleged that he would have cross-examined Hicks about his con- tacts with [Corey] Bass[, an alleged drug dealer for whom McClinton said Hicks killed people]. His trial attorney stated that knowing whether Hicks “was with others or alone in terms of the story that he related” may have undermined Hicks’ credibility and reinforced Harris’ alibi. The court did not consider whether Allgood’s state- ments to the officer would have impeached Hicks’ cred- ibility. Nor did the court explain why it concluded that Allgood’s statements were not “potentially exculpatory information.” As explained, we do not have the bill of exceptions from Harris’ trial. Whether the State suppressed mate- rial exculpatory information by not disclosing Allgood’s statements must be evaluated in the light of the trial evidence. The court’s summary conclusion does not sat- isfy that requirement. Accordingly, we remand the cause for further clarification as to whether Allgood’s state- ments were not exculpatory or would not have impeached Hicks’ credibility. ....  - 243 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 [W]e cannot determine from the record whether the district court intentionally or erroneously failed to rule on Harris’ claims regarding Hicks’ plea agreement. Though an argument can be made that the parties consented to try all of the claims set forth in Harris’ third amended motion for postconviction relief, making such determina- tion would be needlessly speculative. The better course is for this matter to be remanded to the district court for clarification as to which motion the court intended to rule on and, if necessary, the entry of an order which dis- penses with all of Harris’ claims for relief. .... We conclude that the court properly denied relief on Harris’ claim that the State suppressed evidence of McClinton’s statements in his affidavit. We conclude that the court applied the wrong standards in denying Harris relief on his claim that the State suppressed Allgood’s statements to police by focusing only on the prosecutor’s knowledge of Allgood’s statements, by failing to consider whether Allgood’s statements would have impeached Hicks’ credibility, and by failing to examine whether Allgood’s statements were material in the light of the trial evidence. Finally, the court erred in failing to accu- rately set forth which motion for postconviction relief it intended to address. If the court concludes that the State suppressed mate- rial evidence regarding Allgood’s statements to police or Hicks’ plea agreement, it must evaluate the materiality of that suppression cumulatively. That is, the prejudicial effect of any new suppression must be considered cumu- latively with the State’s known suppression of [Officer Leland Cass’ police] report. Harris V, 296 Neb. at 342-46 , 893 N.W.2d at 458-60. Following the release of our opinion, we issued our mandate ordering the district court to “proceed to enter judgment in conformity with the judgment and opinion of this court.”  - 244 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 2. New Trial Order On June 15, 2017, after our mandate in Harris V issued, Harris filed his third amended motion for postconviction relief, which he had previously been given leave to file, along with a motion for new trial based on newly discovered evidence. See Neb. Rev. Stat. § 29-2101(5) (Reissue 2016). In his motion for new trial, Harris alleged (1) that Hicks disclosed to McClinton that Hicks had lied during his testimony and that Hicks alone, not Harris, had killed the victim; (2) that Allgood corroborated McClinton’s account of Hicks’ statement; (3) that the prosecu- tor misrepresented or allowed Hicks to misrepresent Hicks’ plea agreement during Harris’ trial, documentation of which Harris’ counsel obtained in 2010; and (4) that another witness at Harris’ trial, Tony Bass, later told another inmate that he had lied during his testimony. Harris referenced supporting affida- vits and other documentary evidence attached to the motion. He concluded by requesting a hearing to substantiate his claims by affidavit or testimony. A hearing was held on Harris’ motions on July 24, 2017, Judge William B. Zastera presiding. The parties presented arguments, but no evidence was offered or received. On September 21, 2017, the district court entered an order granting Harris’ motion for new trial and dismissing Harris’ third amended motion for postconviction relief. Relevant to the mandate in Harris V, the district court stated: On March 3, 2016, this Court denied [Harris’] Amended Second Verified Motion for Postconviction Relief. [Harris] timely appealed and the Nebraska Supreme Court affirmed in part and reversed in part this Court’s prior decision. . . . At this juncture, [Harris] has filed a Third Amended Verified Motion for Postconviction Relief and a Motion for New Trial (Newly Discovered Evidence). In light of the Nebraska Supreme Court’s findings in [Harris V], the Court now considers the current motions filed by [Harris]. Quoting language from Harris IV, the district court deter- mined that it had to consider Harris’ motion for new trial  - 245 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 before addressing the third amended motion for postconvic- tion relief. The district court noted our finding in Harris IV that Harris’ previous motion for new trial was barred by the then-applicable statute of limitations, but found that the cur- rent motion was not time barred by the current version of § 29-2103(4) (Reissue 2016). That section requires motions for new trial based on newly discovered evidence to be brought within 5 years of the verdict “unless the motion and support- ing documents show the new evidence could not with reason- able diligence have been discovered and produced at trial and such evidence is so substantial that a different result may have occurred.” § 29-2103(4). Accord § 29-2101(5). The district court went on to observe that traditionally, new trial was not granted for issues of impeachment, but that where it appears the defendant has not been afforded a fair trial, it is the court’s duty to grant new trial. See State v. Robinson, 198 Neb. 785 , 255 N.W.2d 835 (1977). Moreover, it noted that in the context of Brady v. Maryland, 373 U.S. 83 , 83 S. Ct. 1194 , 10 L. Ed. 2d 215 (1963), impeachment evidence can be of such a weight that depriving the defendant of access to it can change the outcome of trial. The district court stated that it was unclear whether Harris would be procedurally barred from obtaining a new trial under § 29-2103, but that it believed Harris was entitled to a new trial because his constitutional rights had been implicated. The court continued: First, after reviewing the Bill of Exceptions, it is appar- ent to this Court that material evidence was suppressed at [Harris’] trial, whether done so intentionally or not. Regardless of intent, it is clear that the entirety of [an offi- cer’s] police report was not disclosed which contained the exculpatory statements of . . . Allgood. Further, it is pos- sible, that Allgood’s statements to the officer would have corroborated [Harris’] alibi defense and permitted him to impeach . . . Hicks’ credibility at [Harris’] trial. Second, the Court finds that a new trial is also warranted because the evidence reflects that the prosecutor misrepresented  - 246 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 or allowed Hicks to misrepresent the nature of Hicks’ plea agreement during [Harris’] trial. The district court determined the suppression of this evidence to be material and prejudicial. The district court dismissed Harris’ third amended postcon- viction motion without prejudice pursuant to Harris IV and ordered him held without bail pending retrial. Within 10 days, on September 29, 2017, the State filed a motion “to reconsider, alter and/or amend” pursuant to Neb. Rev. Stat. § 25-1329 (Reissue 2016). The State asserted that the new trial order was made without receiving any evidence or conducting an evidentiary hearing and that it was based on incorrect legal standards. The State requested that the order be amended or vacated. As publicized and announced to the parties months before, on October 1, 2017, Judge Zastera retired. 3. State Attempts to Appeal; Appeal Dismissed On October 23, 2017, before any ruling on its motion for reconsideration, the State filed a notice of appeal of the September 21 order for new trial. On December 11, this court issued an order to show cause within 10 days why the appeal should not be dismissed for lack of jurisdiction. The State did not respond and later acknowledged in a motion to extend brief date that it could not show cause. Harris moved to dis- miss the appeal for lack of jurisdiction, and on March 28, 2018, we did so. On April 20, our mandate was filed in the district court. 4. Order Ruling Motion for Reconsideration Moot and Granting Discharge On May 1, 2018, Chief Justice Michael G. Heavican appointed Judge Nathan B. Cox to preside over this matter, replacing Judge Zastera.  - 247 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 On May 10, 2018, Harris moved for absolute discharge on speedy trial grounds pursuant to Neb. Rev. Stat. § 29-1207 (Reissue 2016). He also moved to dismiss the State’s motion for reconsideration as inapplicable to criminal cases and untimely filed. On June 28, 2018, Judge Cox recused himself upon Harris’ motion. On July 10, Chief Justice Heavican appointed Judge Jodi L. Nelson to preside, and the order was filed in the district court on July 16. Judge Nelson subsequently conducted a hearing on the pending motions. The following exchange occurred between counsel for the State and Judge Nelson: [State’s counsel]: Judge, I was wondering if we could take up the — uh — motion for discharge first. Because I think some of the documents that will pertain to the motion to reconsider — uh — I plan to offer during that, as well. If the Court — I guess — technically thought that there was merit to the motion for discharge, then I guess my motion to reconsider probably is moot. Uh, but that was just kind of my thought. I don’t know if — THE COURT: Well, we’re going to hear them all today. [State’s counsel]: Sure. THE COURT: (Laughs.) So, how I decide them may be another story; but I — I think we’re going to take them up all today so that we can get what is pending — uh — taken care of. I don’t particularly care what order you want to do that in. The parties proceeded to address the motion for absolute dis- charge first, then the motion for reconsideration. On February 4, 2019, Judge Nelson entered an order grant- ing Harris’ motion for absolute discharge and ruling moot the State’s motion for reconsideration and Harris’ motion to dis- miss it. Judge Nelson determined that the State was permitted to file a motion for reconsideration, but did not consider the merits of the motion and concluded that the State had failed  - 248 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 to show that any of the days between the September 21, 2017, order and Harris’ motion for discharge on May 10, 2018, were excludable for speedy trial purposes. 5. Present Appeals On February 8, 2019, the State filed a notice of appeal from the district court order entered September 21, 2017, that granted Harris’ motion for new trial and from the order entered February 4, “2018,” that sustained Harris’ motion for absolute discharge and found the State’s motion for reconsideration moot. We docketed this appeal as case No. S-19-133. On the same date, the State filed an application for leave to docket exception proceedings pursuant to Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2018), which we granted. On February 12, 2019, the district court granted the State’s motion to stay the February 4 discharge order pending appeal, “provided the State files any appeal today.” Within 30 days of this court’s approval, on February 21, 2019, the State filed a notice of appeal in the district court pur- suant to § 29-2315.01 from the district court’s orders entered February 4, 2019, and September 21, 2017. We docketed this appeal as case No. S-19-130. On March 11, 2019, Harris moved to dismiss both appeals, which we have consolidated, for lack of jurisdiction. We over- ruled Harris’ motions to dismiss and reserved jurisdictional issues until plenary submission of appeals. The State has addressed both appeals in the same brief, with a single list of assigned errors. Harris has cross-appealed. II. ASSIGNMENTS OF ERROR The State assigns that the district court erred in (1) sustain- ing Harris’ motion for new trial and not sustaining the State’s motion for reconsideration, (2) sustaining Harris’ motion for speedy trial discharge, and (3) sustaining Harris’ objection to the prosecutor’s affidavit at the speedy trial discharge hearing.  - 249 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 On cross-appeal, Harris assigns that the district court erred in (1) finding that Judge Zastera’s order granting Harris’ motion for new trial was a final, appealable order and (2) determining that the State could move for reconsideration of that order and finding that Harris’ motion to dismiss the State’s motion for reconsideration was moot. III. STANDARD OF REVIEW [1,2] A question of jurisdiction is a question of law. State v. Uhing, 301 Neb. 768 , 919 N.W.2d 909 (2018). Appellate courts independently review questions of law decided by a lower court. Id. [3] The construction of a mandate issued by an appellate court presents a question of law, on which an appellate court is obligated to reach a conclusion independent of the determina- tion reached by the court below. State v. Henk, 299 Neb. 586 , 909 N.W.2d 634 (2018). IV. ANALYSIS [4] As noted above, the validity of the State’s appeals is in question, a matter we now must decide. 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. State v. Fredrickson, 305 Neb. 165 , 939 N.W.2d 385 (2020). This case comes to us under unusual circumstances. The State attempts to challenge the new trial order and the discharge order by filing not one but two notices of appeal, invoking two different mechanisms for review: first, a con- ventional direct appeal pursuant to Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018), which we docketed as case No. S-19-133, and, later, exception proceedings pursuant to § 29-2315.01, docketed as case No. S-19-130. For reasons we will now explain, we conclude that the direct appeal conferred jurisdiction on this court as to both the new trial order and the discharge order, and we consider both orders on the merits in case No. S-19-133. Consequently, we  - 250 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 dismiss as moot the exception proceedings, docketed as case No. S-19-130. 1. Case No. S-19-133: Direct Appeal (a) New Trial Order (i) State’s Right to Direct Appeal The first question that confronts us in this case is whether the State can appeal when a trial court grants a defendant’s motion for new trial after the time for direct appeal of a crimi- nal conviction has expired. The statutory scheme governing motions for new trial in criminal cases does not speak to the matter, see Neb. Rev. Stat. § 29-2101 et seq. (Reissue 2016), and neither party has directed us to any cases in which we have addressed this specific issue. We are thus faced with an issue of first impression. Harris contends that we need not spend much time on this issue, because the State is precluded from appealing by a well-established principle: that absent specific statutory autho- rization, the State generally has no right to appeal an adverse ruling in a criminal case. See State v. Thalken, 299 Neb. 857 , 911 N.W.2d 562 (2018). This principle bars the State’s appeal, Harris asserts, because the district court granted him a new criminal trial and the State can point to no specific statute authorizing an appeal. As we will explain, however, although the district court purported to grant Harris a new criminal trial, it does not follow that the new trial order itself was issued in a criminal case. In a number of contexts, we have held that the State may mount a direct appeal to challenge adverse rulings when an individual convicted and sentenced for a crime collaterally attacks his or her conviction and sentence. We have held that the State may appeal in habeas corpus proceedings, postcon- viction proceedings, and cases arising under the DNA Testing Act. See, e.g., State v. Thieszen, 295 Neb. 293 , 887 N.W.2d 871 (2016) (postconviction); Meyer v. Frakes, 294 Neb. 668 , 884 N.W.2d 131 (2016) (habeas corpus); State v. Pratt, 273 Neb. - 251 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 817, 733 N.W.2d 868 (2007) (DNA Testing Act). See, also, State v. Jerke, 302 Neb. 372 , 923 N.W.2d 78 (2019) (reviewing State’s appeal from district court order granting defendant’s motion to vacate sentence and withdraw plea). The foregoing proceedings are civil in nature. From the earliest days of our state Constitution, habeas corpus pro- ceedings have been designated as civil, see Morrill v. Taylor, 6 Neb. 236 (1877), and that has remained unchanged, see, e.g., Sanders v. Frakes, 295 Neb. 374 , 888 N.W.2d 514 (2016). Similarly, postconviction proceedings are termed civil by statute and may be appealed as provided for appeals in civil cases. See Neb. Rev. Stat. §§ 29-3001(2) and 29-3002 (Reissue 2016). See, also, State v. Stewart, 242 Neb. 712 , 496 N.W.2d 524 (1993) (citing U.S. Supreme Court opinion for proposition that postconviction proceedings are civil). By analogy, we have determined proceedings under the DNA Testing Act are also civil in nature because, like postconvic- tion proceedings, they too are a collateral attack on a convic- tion, not part of the criminal proceeding itself. See, State v. Pratt, supra; State v. Poe, 271 Neb. 858 , 717 N.W.2d 463 (2006). Recognizing the civil nature of proceedings under the DNA Testing Act and the absence of any restrictions on the State’s right to appeal under that act, we have held that the State may appeal from an adverse ruling in such a proceeding. See State v. Pratt, 287 Neb. 455 , 842 N.W.2d 800 (2014). As we will explain, the same reasoning leads us to conclude that the order that granted Harris’ motion for new trial based on newly discovered evidence was appealable by the State pursu- ant to § 25-1912. Like habeas corpus proceedings, postconviction proceed- ings, and proceedings under the DNA Testing Act, Harris’ motion for new trial based on newly discovered evidence was a collateral attack on a final criminal judgment and not part of the criminal proceeding itself. When a judgment is attacked in a way other than by proceeding in the original action to have it vacated, reversed, or modified, or by a proceeding in equity to  - 252 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 prevent its enforcement, the attack is a collateral attack. State v. Barnes, 303 Neb. 167 , 927 N.W.2d 64 (2019). The frame- work under which Harris brought his motion for new trial fits this description. Harris sought a new trial pursuant to § 29-2101(5), under which relief may be granted based on “newly discovered evi- dence material for the defendant which he or she could not with reasonable diligence have discovered and produced at the trial” and which materially affects the defendant’s substantial rights. A motion for new trial alleging newly discovered evi- dence must be filed “within a reasonable time after the dis- covery of the new evidence” and “cannot be filed more than five years after the date of the verdict, unless the motion and supporting documents show the new evidence could not with reasonable diligence have been discovered and produced at trial and such evidence is so substantial that a different result may have occurred.” § 29-2103(4). In response to a motion for new trial under § 29-2101(5) and following a hearing, a court may “vacate and set aside the judgment and release the person from custody or grant a new trial as appropri- ate.” § 29-2102(3). Under § 29-2101(5), as in other collateral attacks, Harris sought to have the existing judgment vacated. Harris’ motion did not occur in the original criminal proceeding: Harris could and did move for new trial after the time for direct appeal had expired. Thus, like habeas corpus proceedings, postconviction proceedings, and proceedings under the DNA Testing Act, Harris’ motion for new trial based on newly discovered evi- dence was a collateral attack on a conviction, not part of the criminal proceeding itself, and therefore civil in nature. And like the law concerning other collateral attacks, no provision in the statutes governing new criminal trials restricts the State’s right to appeal. Accordingly, we conclude that the State has a right to file a direct appeal from an order granting a new trial in a criminal case based on newly discovered evidence after the time for direct appeal has expired.  - 253 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 Harris asserts that motions for new trial based on newly dis- covered evidence under § 29-2101(5), even when filed after the time to challenge the conviction and sentence on direct appeal has passed, are more similar to other motions for new trial than they are to proceedings under the DNA Testing Act. He cites State v. Bronson, 267 Neb. 103 , 672 N.W.2d 244 (2003), in which we noted the similarities between motions for new trial based on newly discovered evidence under § 29-2101(5) and those based on newly discovered DNA evidence under § 29-2101(6). In Bronson, we held that these motions were separate and distinct from the proceedings under Neb. Rev. Stat. § 29-4123(2) (Reissue 2016) of the DNA Testing Act such that an appeal arising from a motion to vacate and set aside a judgment under § 29-4123(2) does not deprive a trial court of jurisdiction to consider a motion for new trial filed under § 29-2101(6). However, we do not believe this holding makes motions for new trial based on newly discovered evidence any less collateral in nature. Harris also disputes that motions for new trial based on newly discovered evidence are civil in nature. He points out that the Legislature has adopted separate statutes governing motions for new trial in civil and criminal contexts and that the new trial statutes in chapter 29 of the Nebraska Revised Statutes are written in terms reflecting its criminal law appli- cation. See, Neb. Rev. Stat. § 25-1144 et seq. (Reissue 2016); § 29-2101 et seq. But the same could be said about postcon- viction proceedings and proceedings under the DNA Testing Act, and in the case of postconviction proceedings, we have stated that they are “not . . . ordinary civil action[s].” See State v. Robertson, 294 Neb. 29 , 41, 881 N.W.2d 864 , 875 (2016). Harris posits that this statement calls into question the ongoing validity of our previous determinations that proceedings under the DNA Testing Act are civil in nature. However, we disagree. Our holding in Robertson that civil pleading rules did not apply to postconviction proceedings did not make postconviction  - 254 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 proceedings or proceedings under the DNA Testing Act any less civil in nature. Harris argues that even if his motion for new trial was a civil proceeding, once it was granted, the matter reverted to a criminal proceeding, from which the State could not file a direct appeal. To illustrate, he points out that a defendant has no right to counsel during a collateral attack, see State v. Pratt, 273 Neb. 817 , 733 N.W.2d 868 (2007), but does have a right to counsel in any new trial resulting therefrom. We agree that under such circumstances, any new trial following a collateral attack is criminal in nature, but the same is not true of the order granting the new trial. Indeed, in appeals involving col- lateral attacks, we have treated the resulting order as civil in nature. See, e.g. , id. Harris also relies on State v. Taylor, 179 Neb. 42 , 136 N.W.2d 179 (1965), for the proposition that there is no author- ity for an appellate court to reinstate a guilty verdict upon a State’s appeal from a new trial order and argues that therefore, the rights attending criminal matters should reattach. But as we explain in more detail in the next section, Harris misconstrues Taylor, an exception proceedings case in which we spoke of the necessity of rendering an advisory opinion, not the prac- ticalities of reinstating a conviction such as would arise in this case. Finally, Harris argues that this is not actually a case of first impression and that our precedent forecloses any possibility of review of his motion for new trial. Again, he points to State v. Taylor, supra , and the cases that followed it, State v. Martinez, 198 Neb. 347 , 252 N.W.2d 630 (1977), and State v. Linn, 192 Neb. 798 , 224 N.W.2d 539 (1974). In those cases, we did not allow the State to appeal from an order granting new trial in a criminal case. However, unlike the instant case, none of the three cases upon which Harris relies involved a judgment, because the appeals in those cases were filed in the original criminal proceedings before the defendants were sentenced. See State v. Jackson, 291 Neb. 908 , 870 N.W.2d 133 (2015) (final judgment in criminal case means sentence).  - 255 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 In Taylor, the district court sustained the defendant’s motion for new trial following an adverse verdict; but significantly, Taylor does not reflect that the defendant was sentenced before this ruling. The State sought review under § 29-2315.01 (Reissue 1964), and we dismissed the State’s appeal. In doing so, we discussed the necessity of a final order and character- ized the order in Taylor as interlocutory because further action was required: “It is apparent that an order setting aside a verdict and requiring a retrial does not dispose of the cause.” 179 Neb. at 46 , 136 N.W.2d at 182. In Linn, we applied the same rationale in dismissing the State’s exception proceed- ings challenging a new trial order that followed a defendant’s conviction, again with no mention of any sentence. And again, in Martinez, the defendant had not been sentenced for the con- viction for which he was granted a new trial, and under Taylor, we dismissed the State’s cross-appeal in the matter for lack of a final order. Because Taylor, Linn, and Martinez did not involve a collateral attack on a final criminal judgment, they do not govern the State’s right to appeal the order in this case. In sum, the State has the right to appeal an order granting a motion for new trial based on newly discovered evidence that has been filed after the time for direct appeal has expired. Yet our analysis of the validity of the State’s appeal of the new trial order is not at an end. We must next consider whether the State appeals from a final, appealable order. (ii) Final, Appealable Order [5,6] For an appellate court to acquire jurisdiction of an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken. State v. Paulsen, 304 Neb. 21 , 932 N.W.2d 849 (2019). Among the three types of final orders which may be reviewed on appeal is an order affecting a substantial right made during a special proceeding. See Neb. Rev. Stat. § 25-1902 (Reissue 2016). For the reasons below, we conclude that the order granting Harris’ motion for new trial based on newly discovered evidence was this type of final order.  - 256 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 [7] First, the order granting Harris’ motion for new trial based on newly discovered evidence was made in a special pro- ceeding. Special proceedings entail civil statutory remedies not encompassed in chapter 25 of the Nebraska Revised Statutes and have also been described as every special statutory remedy which is not in itself an action. See State v. Pratt, 287 Neb. 455 , 842 N.W.2d 800 (2014). An action involves prosecuting the alleged rights between the parties and ends in a final judg- ment, whereas a special proceeding does not. State v. Loyd, 269 Neb. 762 , 696 N.W.2d 860 (2005). Where the law confers a right, and authorizes a special application to a court to enforce it, the proceeding is special, within the ordinary meaning of the term “special proceeding.” Id. A special proceeding is not an integral part of or a step in the action; it is not part of what is sometimes referred to as the “main case.” See State v. Vela, 272 Neb. 287 , 721 N.W.2d 631 (2006). Under these principles, Harris’ motion for new trial initi- ated a special proceeding. As we have explained in the sec- tion above, Harris’ motion was civil in nature, not part of the criminal proceeding itself. That is, having been filed long after judgment, it was not part of the main case. And it bore other hallmarks of a special proceeding. Section 29-2101(5) confers a right to a new trial upon the discovery of new evidence that fits certain criteria and also authorizes a special application to a court to enforce the right. Harris’ motion requested a new trial and alleged facts to support the claim that a new trial was war- ranted. He did not seek a final judgment. Harris argues that a motion for new trial does not fit the description of a special proceeding, because it is in itself an action. He refers to cases in which we have determined that the district court may exercise jurisdiction over motions for new trial based on § 29-2101(5) and (6) at the same time as this court exercises jurisdiction over a direct appeal or an appeal under the DNA Testing Act. See, State v. Bronson, 267 Neb. 103 , 672 N.W.2d 244 (2003); Smith v. State, 167 Neb. 492 , 93 N.W.2d 499 (1958). However, we do not understand  - 257 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 how the separate and independent nature of these types of proceedings could alter the character of a motion for new trial based on newly discovered evidence. [8-10] Second, the order that granted Harris’ motion for new trial based on newly discovered evidence affected a substantial right of the State. Whether an order affects a substantial right for purposes of appeal depends on a number of factors. See State v. Fredrickson, 305 Neb. 165 , 939 N.W.2d 385 (2020). The inquiry focuses on whether the right at issue is substantial and whether the court’s order has a substantial impact on that right. Id. Regarding the importance of the right affected, we often state that a substantial right is an essential legal right, not merely a technical right. See State v. Paulsen, 304 Neb. 21 , 932 N.W.2d 849 (2019). Whether an order affects a substantial right depends on whether it affects with finality the rights of the parties in the subject matter. State v. Fredrickson, supra . It also depends on whether the right could otherwise effectively be vindicated. Id. An order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review. Id. We conclude that because the State had already obtained a criminal judgment, the order that granted Harris’ motion for new trial based on newly discovered evidence affected a substantial right of the State. Both this court and the U.S. Supreme Court have recognized the State’s interest in the finality of criminal judgments of conviction. See, e.g., Ramos v. Louisiana, ___ U.S. ___, 140 S. Ct. 1390 , 206 L. Ed. 2d 583 (2020); United States v. Frady, 456 U.S. 152 , 102 S. Ct. 1584 , 71 L. Ed. 2d 816 (1982); State v. Louthan, 257 Neb. 174 , 595 N.W.2d 917 (1999); State v. Lee, 251 Neb. 661 , 558 N.W.2d 571 (1997). This finality interest is premised in part on the significant expenditure of the State’s time and resources required to secure a criminal conviction. “‘“Society’s resources have been concentrated at [the time of trial] in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens.”’” State v. Lotter, 278 Neb. 466 , 481, 771 N.W.2d 551 , 563 (2009), quoting Herrera v.  - 258 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 Collins, 506 U.S. 390 , 113 S. Ct. 853 , 122 L. Ed. 2d 203 (1993). It also rests on the fact that “with the passage of time and the erosion of memory and the dispersion of witnesses, there is no guarantee that the truth-seeking function of a new trial would be any more exact than the first trial.” Id. at 481, 771 N.W.2d at 563. And courts have observed that without finality, the criminal law is deprived of much of its deterrent effect. See, e.g., McCleskey v. Zant, 499 U.S. 467 , 111 S. Ct. 1454 , 113 L. Ed. 2d 517 (1991) (superseded by statute on other grounds as stated in Banister v. Davis, ___ U.S. ___, 140 S. Ct. 1698 , 207 L. Ed. 2d 58 (2020)). We further determine that the order granting Harris’ motion for new trial had a substantial impact on the State’s right. An order granting new trial following a conviction significantly undermines the State’s interest in finality. The State cannot recoup the costs occasioned by a new trial, and if the defendant is ultimately acquitted, the State cannot lodge a direct appeal to seek reinstatement of the conviction. See State v. Thalken, 299 Neb. 857 , 911 N.W.2d 562 (2018) (generally, State has no right to appeal adverse ruling in criminal case). At oral argument, Harris asserted that criminal new trial statutes do not expressly address the State’s substantial rights, only the defendant’s. See § 29-2101(5). While this is true, it does not negate the State’s substantial right as we have described it. Furthermore, our finding that the State has a substantial right in the finality of a criminal conviction, and therefore the ability to appeal following the grant of a new trial based on newly discovered evidence, does not impinge on a defendant’s right to seek a new trial; it only allows for the possibility of appellate review to ensure a grant of a new trial is properly ordered. Harris claims we have previously held that an order grant- ing a motion for new trial in a criminal case is not a final, appealable order. He relies on three cases mentioned above: State v. Taylor, 179 Neb. 42 , 136 N.W.2d 179 (1965); State v. Linn, 192 Neb. 798 , 224 N.W.2d 539 (1974); and State v. Martinez, 198 Neb. 347 , 252 N.W.2d 630 (1977). In each of  - 259 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 those cases, we rejected the State’s appellate challenge of an order granting a motion for new trial, stating in each case that the order appealed from was not final and appealable. But as we describe in more detail in the previous section, Taylor, Linn, and Martinez are distinguishable from this case, partly because, unlike Harris’ motion for new trial, the motions for new trial in those cases were not collateral attacks on a final criminal judgment. Taylor and Linn are further distinguishable from this case because they were decided under exception proceedings. In part, Taylor based its decision, which Linn followed, on rea- soning that were it to find the new trial order in error, the district court could be bound by that decision. This would run contrary to the legislative mandate that our holdings in excep- tion proceedings are advisory when the defendant has already been placed in jeopardy in the trial court. See Neb. Rev. Stat. § 29-2316 (Reissue 2016). This is not a concern in the instant case, because we have concluded that the State may challenge the new trial order in its direct appeal, a review process that cannot result in an advisory opinion. See State v. Molina, 271 Neb. 488 , 713 N.W.2d 412 (2006) (stating that in direct appeal, it is not function of appellate court to render advi- sory opinions). Having determined that the new trial order is a final, appeal- able order, we proceed to consider the remaining requirements of appellate jurisdiction. (iii) Timely Perfection of Direct Appeal As we have explained, the State appeals from a final, appealable order, but there is one more hurdle to clear before we can reach the merits of the State’s challenge to the new trial order. We next must assess whether the State’s direct appeal from the new trial order was timely perfected. We con- clude that it was. As an initial matter, we take up Harris’ position that the State did not fulfill two of the basic requirements to perfect an appeal in case No. S-19-133: a notice of appeal and a  - 260 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 docket fee. First, Harris points out that the notice of appeal identifies the orders appealed from as having been filed on September 21, 2017, and February 4, “2018.” The new trial order was in fact entered on September 21, 2017, but the discharge order was entered on February 4, 2019. However, this error is not fatal to the State’s appeal. Section 25-1912, which governs the filing of an appeal, does not require that the order appealed from be correctly identified to confer appel- late jurisdiction. See Dominguez v. Eppley Transp. Servs., 277 Neb. 531 , 763 N.W.2d 696 (2009). Second, Harris claims that the record does not contain any indication that the docket fee for case No. S-19-133 has been paid as required to perfect an appeal. See, § 25-1912(1); Neb. Ct. R. App. P. § 2-101(A) (rev. 2015). But upon an examination of our records, we are satis- fied that the docket fee has been timely deposited. With an adequate notice of appeal having been filed and the docket fee deposited, we need only examine whether the State’s notice of appeal was timely filed. See id. Generally, appeals must be filed within 30 days after the entry of the judgment, decree, or final order. § 25-1912(1). However, that period may be terminated by filing a motion to alter or amend within 10 days of the judgment. §§ 25-1329 and 25-1912(3). See, also, State v. Sims, 277 Neb. 192 , 761 N.W.2d 527 (2009). A new period of 30 days for filing a notice of appeal com- mences when the terminating motion is ordered dismissed. Id. Here, the State filed a valid terminating motion in the form of a “Motion for Reconsideration.” Typically, a motion for reconsideration does not terminate the time for appeal and is considered nothing more than an invitation to the court to consider exercising its inherent power to vacate or modify its own judgment. See State v. Lotter, 301 Neb. 125 , 917 N.W.2d 850 (2018), citing Kinsey v. Colfer, Lyons, 258 Neb. 832 , 606 N.W.2d 78 (2000). For this reason, we have held that once a notice of appeal is filed, any pending motions to reconsider that have not been ruled upon become moot. See Kinsey v. Colfer, Lyons, supra . Harris asserts that is what happened to the State’s motion for reconsideration  - 261 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 when the State filed its initial unsuccessful appeal, which we dismissed for lack of jurisdiction. But Harris is mistaken, as we will explain. In some contexts, a motion for reconsideration may also be treated as a motion to alter or amend a judgment for purposes of terminating the appeal period. State v. Lotter, supra . To be treated as a motion to alter or amend a judgment, a motion for reconsideration must be filed no later than 10 days after the entry of judgment and seek substantive alteration of the judg- ment. See id. See, also, State v. Gibilisco, 279 Neb. 308 , 778 N.W.2d 106 (2010). The State’s motion for reconsideration meets the criteria to be treated as a terminating motion. It was filed on September 29, 2017, less than 10 days after the new trial order was entered on September 21. The motion for reconsideration sought sub- stantive alteration of the new trial order by asking that the court alter, amend, or vacate it because it was “based on precepts and legal standards reserved for Motions for Post-Conviction Relief and not on the requisite standards and precepts required to be considered, analyzed and addressed in an order granting or denying a Motion for New Trial.” The State’s motion for reconsideration remained pending, even when the State filed its first appeal to this court, which we dismissed for lack of jurisdiction. Under § 25-1912(3), a notice of appeal filed before a pending terminating motion has been dismissed shall have no effect. But the terminating motion continues to operate until it is dismissed, even if the proponent attempts to appeal in the meantime. See § 25-1912(3). With the motion for reconsideration operating as a terminat- ing motion pursuant to § 25-1912, the State’s 30-day appeal period commenced when the district court dismissed the motion for reconsideration as moot on February 4, 2019. The State filed its notice of appeal in case No. S-19-133 on February 8. Therefore, the State’s direct appeal was timely. Harris challenges the validity of the State’s motion for reconsideration as a terminating motion on two bases. First, he argues that such a terminating motion is reserved for civil  - 262 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 cases and thus could not serve as a terminating motion in this matter. Second, Harris claims that by not obtaining an earlier ruling, the State waived or abandoned the motion or filed it in bad faith. We reject both of these arguments. In support of his first point, Harris mainly asserts that because the statutes relating to terminating motions are located in the chapter addressing civil procedure, they cannot apply to the new trial order arising from a motion filed under § 29-2101(5), which is located in the chapter addressing crimi- nal procedure. Like Harris’ previous arguments that the motion for new trial based on newly discovered evidence is not civil in nature, this argument also fails, and for the same reasons. As we have explained, such motions are civil in nature, simi- lar to habeas corpus proceedings, postconviction proceedings, and proceedings under the DNA Testing Act. And we have previously allowed motions to alter or amend under § 25-1329 in postconviction proceedings, including when filed by the State. See, State v. Gibilisco, 279 Neb. 308 , 778 N.W.2d 106 (2010) (State’s motion for reconsideration treated as motion to alter or amend); State v. Sims, 277 Neb. 192 , 761 N.W.2d 527 (2009) (defendant filed motion to alter or amend); State v. Bao, 269 Neb. 127 , 690 N.W.2d 618 (2005) (defendant’s motion to alter or amend treated as terminating motion). While our postconviction statutes do specifically provide that appeals may be taken from the district court as provided for appeals in civil cases, see § 29-3002, that provision did not dissuade us from allowing a civil appeal path in cases involving pro- ceedings under the DNA Testing Act, even though that statu- tory scheme contains no comparable provision and is located in chapter 29 of the Nebraska Revised Statutes. See, State v. Pratt, 287 Neb. 455 , 842 N.W.2d 800 (2014); Neb. Rev. Stat. § 29-4116 et seq. (Reissue 2016). Today, we reach the same conclusion regarding an order granting a motion for new trial based on newly discovered evidence that has been filed after the time for direct appeal has expired. It logically follows that the appeal process in this case would allow for terminat- ing motions.  - 263 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 We discern no provision of law that would preclude the State from filing a motion for reconsideration that operates as a terminating motion in this case. Indeed, we have recognized that “[j]udicial efficiency is served when any court . . . is given the opportunity to reconsider its own rulings, either to supple- ment its reasoning or correct its own mistakes.” See State v. Hausmann, 277 Neb. 819 , 827, 765 N.W.2d 219 , 225 (2009), overruled on other grounds, McEwen v. Nebraska State Coll. Sys., 303 Neb. 552 , 931 N.W.2d 120 (2019) (statute governing motions to alter or amend judgment applies to judgment of dis- trict court acting as intermediate appellate court). We are also unpersuaded by the arguments Harris makes in support of his position that the motion to reconsider was waived, was abandoned, or was pursued in bad faith. Harris argues that the State waived the right to rely on the motion for reconsideration as a terminating motion by not setting the matter for hearing and securing a ruling before its initial unsuc- cessful attempt to appeal. For support, Harris relies on State v. Aldaco, 271 Neb. 160 , 710 N.W.2d 101 (2006). In Aldaco, the defendant filed a pro se notice of appeal after his motion for speedy trial discharge was orally overruled and the mat- ter proceeded to trial. The appeal was dismissed for lack of jurisdiction because no file-stamped order had been entered by the trial court. The defendant did not seek further review. The trial court subsequently entered a written order, which the defendant appealed within 30 days. We concluded that regard- less of whether the first appeal should have been dismissed, the 30-day period to appeal began to run after the trial court orally overruled the motion and proceeded to trial, and that the second notice of appeal was filed out of time. We do not understand how the holding in Aldaco warrants a waiver of the motion for reconsideration in this case. Aldaco did not deal with a terminating motion, and our jurisprudence concerning terminating motions does not address waiver. Harris also asserts that the motion for reconsideration should have no effect because the State abandoned it by failing to  - 264 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 pursue it once it was filed. Harris relies on the proposition that a motion which is never called to the attention of the court is presumed to have been waived or abandoned by the moving party and that where no ruling appears to have been made on a motion, the presumption is, unless it otherwise appears, that the motion was waived or abandoned. See, ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 , 896 N.W.2d 156 (2017); Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc., 235 Neb. 207 , 454 N.W.2d 671 (1990). Harris seems to characterize observations made by Judge Nelson that the State failed to obtain a hearing date in compli- ance with local rules as a finding that the State abandoned the motion for reconsideration. We do not read the discharge order that way, and we do not believe the State abandoned its motion for reconsideration. Failure to set a hearing date in accordance with a local rule does not invalidate a terminating motion; the statutes governing terminating motions do not require it. See Lombardo v. Sedlacek, 299 Neb. 400 , 908 N.W.2d 630 (2018). Further, the State did bring the motion for reconsideration to the district court’s attention. The district court held a hearing on the motion before ultimately dismissing it as moot. This is not a case where the motion was never brought to the attention of the court. Similarly, we are not convinced by Harris’ argument that the State’s motion for reconsideration should not operate as a terminating motion due to the State’s “dubious actions” or bad faith. See brief for appellee on cross-appeal at 83. Harris cites State v. Bao, 269 Neb. 127 , 690 N.W.2d 618 (2005), where we treated the defendant’s motion for reconsideration as a terminating motion, even though the defendant had with- drawn it. Citing to a similar federal case, we concluded that a new 30-day appeal period began after the withdrawal because there was no indication that the terminating motion was filed and withdrawn in bad faith. In the present case, the State never withdrew its terminating motion, and we do not discern bad faith on the part of the State.  - 265 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 In short, none of the arguments raised by Harris on this sub- ject have merit. The State’s direct appeal in case No. S-19-133 was timely perfected and has met the other requirements for our appellate jurisdiction to review the new trial order. (iv) Merits: New Trial Order’s Noncompliance With This Court’s Mandate As we have established, we have appellate jurisdiction to review the new trial order. Even so, Harris makes one last argument that we should not consider the State’s arguments regarding it. According to Harris, comments by the State’s counsel at the hearing on the State’s motion for reconsidera- tion and Harris’ motion to discharge waived as invited error any opposition to the district court’s ruling that the motion for reconsideration was denied as moot. At the hearing, counsel for the State, during a discussion about which order should be addressed first, remarked, “If the Court — I guess — technically thought that there was merit to the motion for discharge, then I guess my motion to reconsider probably is moot. Uh, but that was just kind of my thought. I don’t know if — [.]” It is true that a party cannot complain of error which he or she has invited the court to commit. State v. Dixon, 286 Neb. 157 , 835 N.W.2d 643 (2013). But we do not consider a party’s equivocal suggestion of the possibility of an adverse ruling, during a discussion about the order in which matters would be addressed at the hearing, to be the equivalent of inviting error. Turning now to the State’s arguments regarding the new trial order, the State contends that the new trial order was erroneous because the district court did not receive any evidence to sup- port it, because the court applied the wrong standard in grant- ing it, and because the motion for new trial is meritless. The State’s arguments may be correct, but we need not and, in fact, cannot decide them because of a more fundamental problem with the district court’s new trial order identified by the State: In granting Harris’ motion for new trial, the district court did not comply with our mandate in Harris V.  - 266 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 [11-13] In appellate procedure, a “remand” is an appellate court’s order returning a proceeding to the court from which the appeal originated for further action in accordance with the remanding order. TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493 , 941 N.W.2d 145 (2020). After receiving a man- date, a trial court is without power to affect rights and duties outside the scope of the remand from an appellate court. Id. When a lower court is given specific instructions on remand, it must comply with the specific instructions and has no dis- cretion to deviate from the mandate. See id. To carry out its unqualified duty to follow the mandate issued by an appellate court, a lower court may not modify a judgment directed by an appellate court; nor may it engraft any provision on it or take any provision from it. State v. Payne, 298 Neb. 373 , 904 N.W.2d 275 (2017). Guided by these principles, we turn now to the question of whether the district court’s new trial order was in accordance with the specific mandate of Harris V. Where the mandate incorporates the appellate court’s opinion by reference, we examine the opinion in conjunction with the mandate to deter- mine how the lower court should have proceeded. See State v. Payne, supra . In Harris V, our mandate ordered the district court to “proceed to enter judgment in conformity with the judgment and opinion of this court.” Our opinion in Harris V instructed the district court, upon remand, to clarify whether it had addressed Harris’ second postconviction motion or third amended postconviction motion and to apply the correct stan- dard to Harris’ claims concerning the suppression of Allgood’s statements, an issue raised in both motions. Finally, we directed the district court to rule, if necessary, on Harris’ claims raised in the third amended motion for postconviction relief regarding Hicks’ plea agreement. On remand, the district court clarified that its previous order pertained to the second postconviction motion, but its compliance with our mandate stopped there. After identifying the second postconviction motion as the subject of its previ- ous order, the district court did not address the suppression of  - 267 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 Allgood’s statements in the context of that motion, as clearly directed by Harris V. Instead, it took up that analysis in the context of Harris’ later-filed motion for new trial. Because it disposed of the matter based on the motion for new trial, the district court dismissed the third amended postconviction motion without prejudice. This was not in compliance with our mandate. Harris argues that the new trial order was not beyond the scope of our mandate in Harris V. He bases this argument on the premise that the motion for new trial was completely separate and independent from any postconviction proceed- ings. Harris primarily relies on Smith v. State, 167 Neb. 492 , 93 N.W.2d 499 (1958), where we held that the trial court should consider a motion for new trial based on newly discovered evidence at the same time as direct appellate review of the criminal conviction. We determined that the two proceed- ings “should be conducted separately and independently of each other” and that neither the Legislature nor our case law regarded this situation as an invasion of the appellate court’s jurisdiction. Id. at 494, 93 N.W.2d at 500. See, also, State v. Bronson, 267 Neb. 103 , 672 N.W.2d 244 (2003) (based on Smith, lower court had jurisdiction to consider motion for new trial based on newly discovered exculpatory DNA testing evi- dence under § 29-2101(6) (Cum. Supp. 2002) during pendency of appeal of denial of motion to vacate and set aside judgment under DNA Testing Act). Harris asserts not only that the dis- trict court was permitted by Smith to consider his motion for new trial separately from the postconviction issues on remand, but that our holding in Harris IV required the court to con- sider the motion for new trial first. In Harris IV we held that a court presented with a postconviction motion simultaneously with a motion seeking relief under another remedy must first determine whether the defendant is entitled to relief under the nonpostconviction remedy. However, unlike the present case, neither Smith and its prog- eny nor Harris IV involved the lower court’s implementation  - 268 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 of an appellate court’s mandate on remand. In Smith, we observed that the trial court was not required to delay the exercise of its original jurisdiction to consider the motion for new trial because “no such restriction of power is declared” by the Legislature or by our jurisprudence. 167 Neb. at 494 - 95, 93 N.W.2d at 501 . But our mandate in the instant case introduced restrictions that barred the district court from con- sidering Harris’ motion for new trial before it carried out our mandate. Our mandate jurisprudence is clear: A trial court is with- out power to affect rights and duties outside the scope of the remand from an appellate court. See State v. Payne, 298 Neb. 373 , 904 N.W.2d 275 (2017). And, as noted above, we have consistently held that when a lower court is given specific instructions on remand, it must comply with the spe- cific instructions and has no discretion to deviate from the mandate. TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493 , 941 N.W.2d 145 (2020). Allowing expansion of the issues on remand in this manner would not serve the public interest in finality of the litigation process. See Jurgensen v. Ainscow, 160 Neb. 208 , 69 N.W.2d 856 (1955). We applied these principles in State v. Henk, 299 Neb. 586 , 909 N.W.2d 634 (2018), where our mandate required the district court to conduct an evidentiary hearing on a single postconviction claim. On remand, the district court gave the defendant leave to amend his motion for postconviction relief to add an addi- tional claim, conducted an evidentiary hearing on both claims, and denied postconviction relief. On appeal, we held that a defendant cannot be allowed to assert new claims on remand when he or she is entitled to an evidentiary hearing on other claims and that the district court acted outside the scope of our mandate. See, also, State v. Shelly, 279 Neb. 728 , 782 N.W.2d 12 (2010). For the same reasons, the district court in this case was required to follow the directives of our Harris V mandate first, before entertaining any subsequent motions. This it did not do.  - 269 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 As we have explained, Harris V required the district court to clarify whether its previous order had addressed the second motion or third amended motion for postconviction relief; to consider Allgood’s statements in the context of the postconvic- tion motion from which Harris had appealed; and, if necessary, to rule on Harris’ claims raised in the third amended motion for postconviction relief regarding Hicks’ plea agreement. The district court clarified that its previous order addressed Harris’ second motion, but failed thereafter to comply with our man- date. It did not consider Allgood’s statements in the context of a postconviction motion as we directed, and it did not rule on Harris’ claims raised in the third amended motion for postcon- viction relief regarding Hicks’ plea agreement. [14,15] Because everything in the district court’s September 21, 2017, order, aside from the court’s clarification that its pre- vious order addressed Harris’ second postconviction motion, did not comply with our mandate in Harris V, we have no choice but to vacate it. The district court’s subject matter juris- diction immediately upon remand was limited to carrying out our mandate. See State v. Payne, supra . And “[n]o judgment or order different from, or in addition to, the appellate mandate can have any effect.” Id. at 379, 904 N.W.2d at 280. Because a trial court is without power to affect rights and duties outside the scope of the remand from an appellate court, any order attempting to do so is entered without jurisdiction and is void. Id. In breaching our mandate, the district court acted outside its jurisdiction and entered a void order, which we have the power to vacate. See In re Interest of Trey H., 281 Neb. 760 , 798 N.W.2d 607 (2011). Based on the reasons above, we vacate the September 21, 2017, order, with the exception of the finding that the order appealed from in Harris V addressed the second motion for postconviction relief, and remand the cause for ­compliance with this court’s mandate in Harris V. To comply with our mandate in Harris V and this opinion, the district court shall consider Harris’ postconviction claim based on Allgood’s  - 270 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 statements and the claim in his third amended motion regard- ing Hicks’ plea agreement. With the aforementioned exception, the vacated portion of the order encompasses every factual and legal finding made by the district court, including those per- taining to the motion for new trial; and because none of these vacated findings were within the district court’s subject matter jurisdiction to decide, they shall not operate as the law of the case on remand. (b) Discharge Order (i) State’s Right to Direct Appeal We now turn to the order granting Harris’ motion for dis- charge on speedy trial grounds. As with the new trial order, we must first determine whether the State has the right to chal- lenge it with a direct appeal. We conclude that it does. As with the new trial order, Harris relies on the principle that absent specific statutory authorization, the State generally has no right to appeal an adverse ruling in a criminal case. Harris claims this precludes the State’s direct appeal of the discharge order. But whatever merit Harris’ argument might have if the State were appealing an ordinary order granting a defendant’s motion for absolute discharge, it must be recalled that the order that purported to grant the new trial in this case was void. Because a void order has no legal effect, this did not effectively become a criminal case, and thus the principle Harris invokes is inapplicable. As we have explained, the district court was permitted to act within a limited scope on remand from Harris V. The only matter properly before the court at that time was the resolu- tion of Harris’ postconviction claims. That is, the district court was conducting postconviction proceedings. Because the new trial order was void and had no effect, it could not effectively change the nature of the postconviction proceedings. We have allowed the State to file a direct appeal from postconviction proceedings. State v. Thieszen, 295 Neb. 293 , 887 N.W.2d 871 (2016). Therefore, we conclude that the discharge order is  - 271 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 reviewable on direct appeal by the State, provided it is a final, appealable order and is timely appealed. (ii) Timely Appeal of Final, Appealable Order As we have already said, for an appellate court to acquire jurisdiction of an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken. State v. Paulsen, 304 Neb. 21 , 932 N.W.2d 849 (2019). We conclude that like the new trial order, the order granting dis- charge is a type of final order: an order affecting a substantial right made during a special proceeding. See § 25-1902. The district court purported to grant discharge in what was, in reality, still a postconviction proceeding. And we have long held that postconviction proceedings are special proceedings. See, State v. Thieszen, supra; State v. Silvers, 255 Neb. 702 , 587 N.W.2d 325 (1998). Furthermore, we conclude that an order granting discharge on speedy trial grounds affects a substantial right of the State. When the State has invested the time and resources to charge an individual with a crime, it has an interest in the accused’s proceeding to trial and not being discharged improperly. See State v. Sumstine, 239 Neb. 707 , 478 N.W.2d 240 (1991) (recognizing public interest in obtaining convictions of per- sons who have committed criminal offenses against State). Absent an appeal from the order granting discharge, this right of the State could not otherwise be vindicated, see State v. Fredrickson, 305 Neb. 165 , 939 N.W.2d 385 (2020), because the State cannot bring the same charges again. See Neb. Rev. Stat. § 29-1208 (Reissue 2016) (providing for “absolute dis- charge from the offense charged”). Accordingly, the order granting discharge was a final order under § 25-1902 because it was made during a special proceeding and affected a substan- tial right of the State. We further determine that the State timely appealed the dis- charge order. The discharge order was entered on February 4,  - 272 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 2019. The State filed its notice of appeal on February 8, well within the 30-day period prescribed by § 25-1912(1), and as we have already noted, the required docket fee was timely deposited. Thus, as to the discharge order, the State timely per- fected its direct appeal. We note that we are not persuaded by Harris’ argument that the discharge order is not final based on the order that granted the State’s request for a stay. He asserts that “to the extent that the February 4, 2019[,] order has stayed the implementa- tion of Harris’ discharge past the date of filing the appeal or is conditioned upon the filing of an appeal, the February 4th order remains stayed and is not a final, appealable order.” Brief for appellee at 6. However, when the district court purported to discharge Harris, no further action was required to completely dispose of the cause; the order was final. Compare State v. Warner, 290 Neb. 954 , 863 N.W.2d 196 (2015) (order sus- taining defendant’s motion to quash gave State 7 days to file amended information; State appealed, and we determined that order was not final because order did not discharge defendant). This argument lacks merit. (iii) Disposition of Discharge Order Having determined that we have jurisdiction to review the discharge order, we now consider it. Generally, a trial court’s determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. State v. Lovvorn, 303 Neb. 844 , 932 N.W.2d 64 (2019). But in this case, as we will explain, there is a legal issue we must address first. When the order granting Harris’ absolute discharge is con- sidered in light of everything we have already said, it quickly becomes clear that we must vacate it. Under § 29-1207, a defendant may be discharged if he or she is not brought to trial for a charged offense within a certain time period following, among other things, an order for a new trial. Here, however, we have already concluded that the order granting the new trial was void. Harris cannot claim a right to discharge for not  - 273 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 being speedily tried when the order that purported to grant him a new trial was a nullity. If that were not enough, the order of discharge itself was also outside the scope of our mandate in Harris V. As explained above, after receiving a mandate, a trial court is without power to affect rights and duties outside the scope of the remand from an appellate court. TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493 , 941 N.W.2d 145 (2020). Even when Harris moved for absolute discharge, the district court was still subject to the strictures of our mandate in Harris V. It clearly acted outside of that mandate when, rather than following our instructions regarding Harris’ claims for postconviction relief, it purported to grant absolute discharge based on a new trial order that was issued outside the scope of our mandate. So, like the bulk of the new trial order, the discharge order was void. See TransCanada Keystone Pipeline v. Tanderup, supra . The foregoing illustrates the error made by the district court when it concluded the State’s challenge to the order granting Harris a new trial was moot in light of its ruling on Harris’ motion for absolute discharge. Harris’ right to discharge depended on the validity of the order granting him a new trial. At the time of Harris’ motion for discharge, the issue of whether the new trial order was valid continued to exist and required resolution. See State v. Dunster, 278 Neb. 268 , 769 N.W.2d 401 (2009) (case becomes moot when issues initially presented cease to exist or when litigants seek to determine question which does not rest upon existing facts or rights). For these reasons, we vacate the order that granted Harris absolute discharge and remand the cause with instructions to reinstate his convictions and sentences. 2. Case No. S-19-130: Exception Proceedings Having resolved all the relevant issues presented by the par- ties in the appeal docketed as case No. S-19-133, we dismiss case No. S-19-130 as moot. See State v. Dunster, supra.  - 274 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HARRIS Cite as 307 Neb. 237 V. CONCLUSION Litigation regarding Harris’ convictions and sentences has lasted many years. And, for a number of reasons, it has become complex. Under these circumstances, one might won- der whether our decision today—which vacates multiple orders entered over the course of several years and largely returns this case to where it stood when we remanded it to the district court in 2017—contributes to advancing the matter to a resolution of some kind. While perhaps an understandable question, it is not a legally relevant one. As we have explained, the district court entered void orders under our law and we are obligated to vacate them. See DeLima v. Tsevi, 301 Neb. 933 , 946, 921 N.W.2d 89 , 98 (2018) (“[s]o while it is certainly regrettable that the significant time and energy devoted to litigating [an issue] was all for naught, upon its correct determination that it never had subject matter jurisdiction, the district court had no choice but to vacate its prior custody orders”). Accordingly, in case No. S-19-133, we vacate the district court’s order granting Harris a new trial and remand the cause for further proceedings in compliance with this deci- sion and our mandate in Harris V. We also vacate the order granting absolute discharge and remand the cause with direc- tions to reinstate Harris’ convictions and sentences. In case No. S-19-130, we dismiss the State’s exception proceedings as moot. In light of these dispositions, we need not address the parties’ remaining arguments. Appeal in No. S-19-130 dismissed. Judgment in No. S-19-133 vacated, and cause remanded with directions. Heavican, C.J., and Freudenberg, J., not participating.

2020-12-04 06:08:50.730187+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007371PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 89 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports THOMAS v. PETERSON Cite as 307 Neb. 89 Trina L. Thomas, appellant, v. The Honorable Douglas J. Peterson, Attorney General of the State of Nebraska, in his official capacity, and the Honorable Robert B. Evnen, Secretary of State of the State of Nebraska, in his official capacity, appellees, and Albert Davis III et al., intervenors-appellees. ___ N.W.2d ___ Filed September 10, 2020. No. S-20-596. 1. Judgments: Jurisdiction. A jurisdictional question which does not involve a factual dispute is a matter of law. 2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an inde- pendent conclusion irrespective of the decision made by the court below. 3. Initiative and Referendum. Whether a ballot title is insufficient or unfair is a question of law. 4. Judgments: Appeal and Error. On questions of law, an appellate court is obligated to reach a conclusion independent of the decision by the trial court. 5. Appeal and Error. When reviewing the trial court’s factual findings, an appellate court reviews for clear error. 6. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to inter- pretation to ascertain the meaning of words which are plain, direct, and unambiguous. 7. Statutes: Jurisdiction. Jurisdictional statutes must be strictly construed. 8. Legislature: Intent. The intent of the Legislature is generally expressed by omission as well as by inclusion. 9. Statutes: Appeal and Error. An appellate court is not at liberty to add language to the plain terms of a statute to restrict its meaning.  - 90 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports THOMAS v. PETERSON Cite as 307 Neb. 89 10. Appeal and Error. An appellate court will not consider an issue on appeal that was not passed upon by the trial court. 11. Evidence. Unless an exception applies, only a preponderance of evi- dence is required in civil cases. 12. Public Officers and Employees: Presumptions. Absent contrary evi- dence, public officers are presumed to faithfully perform their offi- cial duties. 13. Initiative and Referendum: Proof. A deferential standard is to be applied to a ballot title prepared by the Attorney General, and a dissatis- fied person must prove by the greater weight of the evidence that the ballot title is insufficient or unfair. 14. Initiative and Referendum. A ballot title is sufficient if it recites the general purposes of the proposed law and if the ballot title contains enough information to sufficiently advise voters of the true contents of the proposed law. Appeal from the District Court for Lancaster County: Lori A. Maret, Judge. Affirmed. J.L. Spray and Stephen D. Mossman, of Mattson Ricketts Law Firm, for appellant. Douglas J. Peterson, Attorney General, Ryan S. Post, and L. Jay Bartel, for appellees. Mark C. Laughlin and Daniel J. Gutman, of Fraser Stryker, P.C., L.L.O., for intervenors-appellees. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Per Curiam. Trina L. Thomas appealed to the district court from the Attorney General’s submission of an explanatory statement and ballot title for an initiative petition that would amend provisions of the Delayed Deposit Services Licensing Act (the Act), Neb. Rev. Stat §§ 45-901 to 45-931 (Reissue 2016 & Cum. Supp. 2018). The court found that it lacked jurisdiction to review the explanatory statement, and it certified the bal- lot title prepared by the Attorney General. Thomas appeals, requesting that this court hold that the inclusion of the phrase  - 91 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports THOMAS v. PETERSON Cite as 307 Neb. 89 “payday lenders” creates an insufficient and unfair ballot title. We affirm. BACKGROUND Albert Davis III; Thomas A. Wagoner, Jr.; and Fr. Damian Zeurlein are the sponsors of an initiative petition that would establish a 36-percent statutory cap on the annual percentage rate that may be charged by delayed deposit services licens- ees. 1 To achieve its objective of reducing the amount that licensees can charge, the initiative petition seeks to amend Nebraska statutes to prohibit licensees from evading the new rate cap and to deem any transaction in violation void and uncollectible. On June 25, 2020, the sponsors submitted signatures to the Secretary of State for validation. In accordance with Neb. Rev. Stat. § 32-1410(1) (Reissue 2016), on July 8, the Secretary of State transmitted a copy of the measure to the Attorney General. On July 20, the Attorney General transmitted to the Secretary of State the explanatory statement and ballot title to be placed on Nebraska’s November 3 general election ballot. The text of the explanatory statement and ballot title prepared by the Attorney General is as follows: [EXPLANATORY STATEMENT] A vote “FOR” will amend Nebraska statutes to: (1) reduce the amount that delayed deposit services licensees, also known as payday lenders, can charge to a maximum annual percentage rate of thirty-six percent; (2) prohibit payday lenders from evading this rate cap; and (3) deem void and uncollectable any delayed deposit transaction made in violation of this rate cap. A vote “AGAINST” will not cause the Nebraska statutes to be amended in such manner. [(Emphasis in original.)] [BALLOT TITLE] Shall Nebraska statutes be amended to: (1) reduce the amount that delayed deposit services licensees, also 1 See § 45-902.  - 92 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports THOMAS v. PETERSON Cite as 307 Neb. 89 known as payday lenders, can charge to a maximum annual percentage rate of thirty-six percent; (2) prohibit payday lenders from evading this rate cap; and (3) deem void and uncollectable any delayed deposit transaction made in violation of this rate cap? Dissatisfied with the Attorney General’s submission, on July 27, 2020, Thomas, a resident of Lancaster County, a taxpayer, a registered voter, and an operator of Paycheck Advance, a delayed deposit services business, filed a “Complaint and Ballot Title Appeal,” pursuant to § 32-1410(3), in the dis- trict court for Lancaster County. Thomas named the Attorney General and the Secretary of State, in their official capacities, as defendants. Thomas alleged that the explanatory statement and ballot title are insufficient and unfair, because they use “the slang term ‘payday lenders.’” Thomas alleged that the term “payday lenders” is not contained within § 45-918 or § 45-919, the provisions of the Act which the initiative peti- tion seeks to amend. Thomas alleged the explanatory state- ment and ballot title are “deceptive to the voters as [they] unfairly cast[] the measure in a light that would prejudice the vote in favor of the initiative.” Thomas prayed that the court remove the phrase “also known as payday lenders” and cer- tify a modified explanatory statement and ballot title to the Secretary of State. The Attorney General and Secretary of State filed a joint answer. They alleged that under § 32-1410(3), the court is authorized to review only the ballot title and lacks jurisdic- tion to alter the explanatory statement. They alleged that the ballot title provided by the Attorney General is sufficient, fair, and not misleading and that thus, a different ballot title is not warranted. The court granted a complaint in intervention filed by the sponsors. The sponsors alleged that the term “payday lenders” is sufficient and fair and that it provides an accurate description of what the initiative petition would accomplish. They alleged that the payday loan industry identifies licensees as “payday  - 93 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports THOMAS v. PETERSON Cite as 307 Neb. 89 lenders” and that the term is used by Nebraska’s Department of Banking and Finance (DBF) and the general public. They stated that Thomas did not allege that the general public knows the meaning of the term “delayed deposit services licensee.” Therefore, the sponsors contended, Thomas’ alternative lan- guage would increase the likelihood of voter confusion. The court held a hearing on the matter on August 10, 2020. The court received affidavits with attached exhibits from Thomas, the Attorney General and the Secretary of State, and the sponsors. Thomas argued that the term “payday lenders” is not present in the measure and, except for one provision, 2 is not present in the Act. Thomas argued that according to the DBF’s interpretive opinion No. 8 filed in 2014, which she offered into evidence, licensees do not offer loans. She argued that licensees are not lenders, because they charge a fee, and therefore including the phrase “also known as payday lenders” would be unfair because it makes the initiative petition “some- thing else than what it is.” On August 19, 2020, the court issued a written order enter- ing judgment in favor of the Attorney General, the Secretary of State, and the sponsors. That court found that it lacked jurisdiction to review the explanatory statement prepared by the Attorney General, because § 32-1410(3) states that “[a]ny person who is dissatisfied with the ballot title provided by the Attorney General for any measure may appeal from his or her decision to the district court . . . .” (Emphasis supplied.) The court also found that a deferential standard applied to its review of the ballot title prepared by the Attorney General. In doing so, the court relied upon previous orders from the district court for Lancaster County which found that in cases brought under § 32-1410(3), the court will not alter a ballot title absent clear evidence that the proposed language is insuf- ficient or unfair. 2 § 45-920(2).  - 94 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports THOMAS v. PETERSON Cite as 307 Neb. 89 The court found no legal support for Thomas’ argument that the term “payday lenders” “is not part of the statute being amended by the initiative petition.” The court further found that the Attorney General satisfied the requirement under § 32-1410(1) that the ballot title “shall express the purpose of the measure in not exceeding one hundred words.” The court determined that the term “payday lenders” is not improper, as it is familiar to the general public. The court relied upon the DBF’s interpretive opinion No. 8, which states in rel- evant part: The definition of “delayed deposit services business” does not include offering loans. The [DBF] interprets this to mean that delayed deposit transactions are not recog- nized as loans, and therefore, should not be represented as loans by the licensee. In order to operate in accordance with the Act, a licensee may use the phrase “payday loan” in its advertis- ing, signage, coupons, contracts, or other customer con- tacts, but may not use the term “loan” by itself for any purpose. . . . Licensees may not be listed, or advertise, in a telephone book under the Loans section. Permissible telephone book sections include: Cash Advance Services, Payday Loan, and Payroll Advancement. The court found that Thomas “failed to meet her burden to demonstrate that the Attorney General’s ballot title is clearly insufficient or unfair.” The court’s order stated: The ballot title clearly expresses that the purpose of the measure is to prevent the licensees from imposing an annual percentage rate greater than thirty-six percent by rendering any transaction in violation of this requirement void and uncollectable, and to prohibit the licensees from evading this requirement. The Court cannot perceive how the inclusion of the term “payday lenders,” which is used by the licensees, the [DBF], and the general public alike, would deceive or mislead voters into supporting the ini- tiative. Thus, the Court finds that the Attorney General’s ballot title is sufficient and fair.  - 95 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports THOMAS v. PETERSON Cite as 307 Neb. 89 Thomas timely appealed. We moved the case to our docket and granted expedited review. ASSIGNMENTS OF ERROR Thomas assigns, restated, that the district court erred in (1) concluding that it lacked jurisdiction to review the explanatory statement, (2) relying upon evidence other than the initiative measure, (3) applying a deferential standard in reviewing the Attorney General’s proposed ballot title, and (4) failing to find that the explanatory statement and ballot title are insufficient or unfair. STANDARD OF REVIEW [1-5] A jurisdictional question which does not involve a factual dispute is a matter of law. 3 Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. 4 Whether a ballot title is insufficient or unfair is a question of law. 5 On questions of law, an appellate court is obligated to reach a conclusion inde- pendent of the decision by the trial court. 6 When reviewing the trial court’s factual findings, we review for clear error. 7 ANALYSIS No Jurisdiction Over Explanatory Statement This court has not previously had occasion to address the legal standards governing ballot title challenges under § 32-1410. Before reaching the legal issues presented for 3 Christensen v. Gale, 301 Neb. 19 , 917 N.W.2d 145 (2018). 4 Hargesheimer v. Gale, 294 Neb. 123 , 881 N.W.2d 589 (2016). 5 See Humane Society of Missouri v. Beetem, 317 S.W.3d 669 (Mo. App. 2010). 6 See Stewart v. Advanced Gaming Tech., 272 Neb. 471 , 723 N.W.2d 65 (2006). 7 See Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462 , 748 N.W.2d 1 (2008).  - 96 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports THOMAS v. PETERSON Cite as 307 Neb. 89 review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. 8 Here, the district court determined that it lacked jurisdiction to review the explanatory statement prepared by the Attorney General, reasoning that under § 32-1410(3), the Legislature did not provide the courts the authority to review anything other than the ballot title. On appeal, the Attorney General, the Secretary of State, and the sponsors agree with the district court’s interpretation. Thomas disagrees and argues that a ballot title and explanatory statement are inextricably linked under § 32-1410 and that thus, the district court had jurisdic- tion to review both. Upon de novo review, we conclude that under the plain text of § 32-1410, the district court’s jurisdic- tion extends only to the ballot title and not to the explana- tory statement. [6-9] Statutory language is to be given its plain and ordi- nary meaning, and an appellate court will not resort to inter- pretation to ascertain the meaning of words which are plain, direct, and unambiguous. 9 Jurisdictional statutes must be strictly construed. 10 The intent of the Legislature is generally expressed by omission as well as by inclusion. 11 We are not at liberty to add language to the plain terms of a statute to restrict its meaning. 12 Section 32-1410 indicates that any person who is dissatis- fied with the ballot title provided by the Attorney General for any measure may appeal from his or her decision to the dis- trict court. Nothing within the text of the statute authorizes an appeal when a person is dissatisfied with an explanatory state- ment. As such, § 32-1410 did not authorize the district court to consider Thomas’ challenge to the explanatory statement. We 8 Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810 , 920 N.W.2d 268 (2018). 9 Chambers v. Lautenbaugh, 263 Neb. 920 , 644 N.W.2d 540 (2002). 10 Lombardo v. Sedlacek, 299 Neb. 400 , 908 N.W.2d 630 (2018). 11 Id. 12 Id.  - 97 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports THOMAS v. PETERSON Cite as 307 Neb. 89 express no opinion as to whether Thomas had any other path to assert an appeal based on the explanatory statement, nor have we been asked to consider another path. If there truly is no mechanism to challenge the Attorney General’s explanatory statement, that could lead to a curious result. If, for instance, the district court found that the ballot title contained language which was insufficient or unfair and that same language was contained within the explanatory state- ment, the district court would lack authority under § 32-1410 to address the offending language in the explanatory statement. When possible, an appellate court will try to avoid a statutory construction that would lead to an absurd result. 13 However, based on our disposition of this matter more fully discussed below, we cannot say in this case that the potential for a hypo- thetical insufficient or unfair explanatory statement that is unalterable is so absurd that the Legislature could not possibly have intended it. Accordingly, we believe it best to leave any corrective action regarding § 32-1410 to the Legislature. 14 Evidence Argument Not Presented [10] Thomas’ next argument is that the court erred in receiv- ing and considering evidence beyond the initiative petition measure. However, it is clear that Thomas did not assert this argument during the proceedings in district court. Thomas herself requested that the court consider evidence beyond the measure, and the court granted that request and relied upon evidence adduced by Thomas. While Thomas lodged eviden- tiary objections to other exhibits, she did not argue that a court is prohibited from considering evidence outside the measure in a ballot title appeal. We will not consider Thomas’ argument. An appellate court will not consider an issue on appeal that was not passed upon by the trial court. 15 13 First Nat. Bank of Omaha v. Davey, 285 Neb. 835 , 830 N.W.2d 63 (2013). 14 See Lombardo, supra note 10. See, also, Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 234-39 (2012). 15 Siedlik v. Nissen, 303 Neb. 784 , 931 N.W.2d 439 (2019).  - 98 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports THOMAS v. PETERSON Cite as 307 Neb. 89 Burden of Proof The next issue before this court is the appropriate burden of proof for a court to apply in a ballot title challenge under § 32-1410. This raises a matter of first impression under Nebraska law. [11] Section 32-1410(3) states that the person who has appealed the Attorney General’s decision to the district court “shall file a petition asking for a different title and setting forth the reasons why the title prepared by the Attorney General is insufficient or unfair.” Section 32-1410(3) establishes that in a ballot challenge proceeding, the burden of proof is on the challenger to prove that the ballot title is insufficient or unfair. The trial court here relied upon decades of unchallenged rul- ings in the Lancaster County District Court and found that a challenger to a ballot title fails to sustain its burden of proof unless it can establish that a ballot title is clearly insufficient or unfair. Thomas argues on appeal that the court erred by adding “clearly” to § 32-1410(3). We agree. Although § 32-1410(3) does not specify a burden of proof to be applied by a court, unless an exception applies, only a preponderance of evidence is required in civil cases. 16 [12] Section 32-1410(3) begins with the presumption that the ballot title prepared by the Attorney General is valid, and it places the burden upon the dissatisfied party to dispel this presumption. This is consistent with the long-held principle in Nebraska that, absent contrary evidence, public officers are pre- sumed to faithfully perform their official duties. 17 “The process of producing a 100 word purpose statement that constitutes a ‘true and impartial explanation’ of the measure ‘involves a 16 In re Application No. OP-0003, 303 Neb. 872 , 932 N.W.2d 653 (2019). 17 County of Webster v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 751 , 896 N.W.2d 887 (2017). See, also, In re App. No. C-4973 of Skrdlant, 305 Neb. 635 , 942 N.W.2d 196 (2020); Johnson v. Neth, 276 Neb. 886 , 758 N.W.2d 395 (2008); State v. Gales, 269 Neb. 443 , 694 N.W.2d 124 (2005); Nye v. Fire Group Partnership, 263 Neb. 735 , 642 N.W.2d 149 (2002); State v. Hess, 261 Neb. 368 , 622 N.W.2d 891 (2001).  - 99 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports THOMAS v. PETERSON Cite as 307 Neb. 89 degree of discretion entrusted to the Attorney General by the Legislature that we will not overturn absent noncompliance with the statute.’” 18 Other states have adopted similar standards. The Supreme Court of South Dakota has explained, because the Attorney General is charged with the statutory duty of preparing a ballot title, a court’s review of a challenge to the Attorney General’s submission serves a limited function. 19 “‘We merely deter- mine if the Attorney General has complied with his statutory obligations and we do not sit as some type of literary editorial board.’” 20 Similarly, the Supreme Court of North Dakota has aptly stated that “[i]f the ballot title is neither misleading nor unfair, it is not our responsibility to draft a better one.” 21 [13] As a matter of first impression, we hold that a defer- ential standard is to be applied to a ballot title prepared by the Attorney General and that a dissatisfied person must prove by the greater weight of the evidence that the ballot title is insuf- ficient or unfair. Ballot Title Not Insufficient or Unfair Turning to the merits, Thomas contends that the ballot title prepared by the Attorney General and certified by the district court is insufficient and unfair under § 32-1410(3) and that the ballot title should be modified to remove the phrase “also known as payday lenders.” Thomas argues that the term “pay- day lenders” is not found in the measure nor the Act, that the term “lenders” is misleading because licensees do not offer loans, and that the term “payday lenders” is a slang term 18 Montana Consumer Finance Ass’n v. State, 357 Mont. 237 , 243, 238 P.3d 765 , 768 (2010). 19 Ageton v. Jackley, 878 N.W.2d 90 (S.D. 2016). 20 Id. at 96, quoting Schulte v. Long, 687 N.W.2d 495 (S.D. 2004) (superseded by statute as stated in SD AFL-CIO v. Jackley, 786 N.W.2d 372 (S.D. 2010)). 21 Municipal Services Corp. v. Kusler, 490 N.W.2d 700 , 703 (N.D. 1992).  - 100 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports THOMAS v. PETERSON Cite as 307 Neb. 89 which prejudices voters. Based on the record before us, and applying our newly adopted burden of proof, we agree with the district court that none of Thomas’ arguments have any merit. Therefore, Thomas failed to carry her burden to prove that the ballot title prepared by the Attorney General is insuf- ficient or unfair. Section 32-1410(1) provides that the ballot title “shall express the purpose of the measure in not exceeding one hundred words” and “shall be so worded that those in favor of adopting the measure shall vote For and those opposing the adoption of the measure shall vote Against.” Section 32-1410(3) pro- vides that “[a]ny person who is dissatisfied with the ballot title provided by the Attorney General” may appeal to the district court and file a petition setting forth the reasons why the ballot title is “insufficient or unfair.” The word “insufficient” means “‘“inadequate; especially lacking adequate power, capacity, or competence.”’” 22 The word “unfair” means to be “‘“marked by injustice, partiality, or deception.”’” 23 [14] A ballot title is sufficient if it recites the general pur- poses of the proposed law and if the ballot title contains enough information to sufficiently advise voters of the true contents of the proposed law. 24 A court’s task is not to require or draft the perfect proposed ballot title in an initiative election, but merely to determine if the title presented is legally sufficient. 25 In reviewing a ballot title, the court must not concern itself with the merit or lack of merit of the proposed measure, because that determination rests with the electorate. 26 22 Beetem, supra note 5, 317 S.W.3d at 673 . 23 Id. 24 See, In re Initiative Petition No. 347 State Question No. 639, 813 P.2d 1019 (Okla. 1991); 82 C.J.S. Statutes § 173 (2009). 25 Cox v. Daniels, 374 Ark. 437 , 288 S.W.3d 591 (2008); 42 Am. Jur. 2d Initiative and Referendum § 45 (2020); 82 C.J.S., supra note 24, § 172. 26 Kusler, supra note 21.  - 101 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports THOMAS v. PETERSON Cite as 307 Neb. 89 In Brown v. Carnahan, 27 the Supreme Court of Missouri considered a ballot challenge to a payday loan initiative that would limit the annual percentage rate for payday, title, install- ment, and other high-cost consumer credit and small loans to 36 percent annually. Because the summary statement stated only that the initiative would “‘limit the annual rate of inter- est’” without specifying the rate, the trial court found that the statement was not fair or sufficient. 28 The trial court found that it was necessary to rewrite the statement to qualify that the limitation would be 36 percent. The appellate court reversed, finding that the summary statement was not mis- leading because it accurately communicated the purpose of the initiative, which was to limit the permissible interest rate for payday loans. The court found that even if the language provided by the trial court is more specific, and even if that level of specificity might be preferable, whether the summary statement prepared by the public official is the best language is not the test. Rather, all that is required is that the public official prepare a statement which adequately states the con- sequences of the initiative without bias, prejudice, deception, or favoritism. 29 Here, Thomas argues that the phrase “payday lenders” cre- ates an insufficiency, because the phrase is not part of the measure, or the Act, and because licensees do not offer loans. However, the phrase “also known as payday lenders” appears in the objective statement of the draft initiative petition in our record. Moreover, as Thomas acknowledges, § 45-920(2) refers to “delayed deposit services businesses, payday lenders, or similar entities.” (Emphasis supplied.) In addition, § 45-917 requires that every licensee, at the time any delayed deposit transaction is made, give to the maker of the check a written notice which states, in part, “THE LAW DOES NOT ALLOW THIS TYPE OF TRANSACTION TO BE MORE THAN FIVE 27 Brown v. Carnahan, 370 S.W.3d 637 (Mo. 2012). 28 Id. at 663. 29 See Brown, supra note 27.  - 102 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports THOMAS v. PETERSON Cite as 307 Neb. 89 HUNDRED DOLLARS ($500) IN TOTAL, INCLUDING FEES AND CHARGES, FROM ONE LENDER.” (Emphasis supplied.) Additionally, Paycheck Advance’s own deferred deposit agreement, offered into evidence by Thomas, refer- ences the agreement as a “Truth-In Lending Act Disclosure.” Lastly, the DBF’s interpretive opinion No. 8 offered into evi- dence by Thomas provides that licensees are permitted to use the term “payday loan” in advertising. Thomas has not asserted any other reasons why the ballot title does not provide an accurate description of the initiative petition’s purpose, which is to prevent licensees from imposing an annual percentage rate greater than 36 percent and to enforce this requirement by rendering any transaction in violation of this requirement void and uncollectible. Thomas argues that the term “payday lenders” creates an unfairness, because it is a slang term. However, Thomas has not offered any evidence to support this position. This is not a case where a colloquial term is substituted for a statutory term; rather, it supplements the statutory term with a commonly used term. We agree with the district court that the term “payday lenders” would not deceive or mislead voters regarding the ini- tiative petition, because the record shows “payday lenders” is a term commonly known by the general public and used within the payday loan industry. We further agree with the district court that the Attorney General’s decision to use “payday lend- ers” clarifies the measure, because no evidence was presented that the general public knows the meaning of the term “delayed deposit services licensees.” As a result, Thomas has failed to carry her burden. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court, which certified the ballot title prepared by the Attorney General. Affirmed.

2020-12-04 06:08:52.330016+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007373PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 142 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 State of Nebraska ex rel. Terry Wagner, relator, v. Robert B. Evnen, Secretary of State of the State of Nebraska, respondent, and Nebraskans for Sensible Marijuana Laws, also known as Nebraskans for Medical Marijuana, et al., intervenors. ___ N.W.2d ___ Filed September 10, 2020. No. S-20-623. 1. Constitutional Law: Justiciable Issues: Appeal and Error. Questions of justiciability and of constitutional interpretation that do not involve factual dispute are questions of law. 2. Appeal and Error. An appellate court reviews questions of law de novo, drawing independent conclusions irrespective of any decision made below. 3. Mandamus: Words and Phrases. Mandamus is a law action and repre- sents an extraordinary remedy, not a writ of right. 4. Mandamus. Whether to grant a writ of mandamus is within a court’s discretion. 5. Courts: Justiciable Issues. Before reaching the legal issues presented for review, courts must determine whether the issues presented are justiciable. 6. ____: ____. Ripeness is a justiciability doctrine that courts consider in determining whether they may properly decide a controversy. 7. Courts. The fundamental principle of ripeness is that courts should avoid entangling themselves, through premature adjudication, in abstract disagreements based on contingent future events that may not occur at all or may not occur as anticipated. 8. Initiative and Referendum: Justiciable Issues. A challenge to a voter ballot initiative based on substantive provisions of law is not ripe before an election because an opinion on the substantive challenge based on the contingent future event of the measure’s passage would be merely advisory.  - 143 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 9. ____: ____. A preelection challenge based on the procedural require- ments to a voter ballot initiative’s placement on the ballot is ripe for resolution. 10. Initiative and Referendum. A challenge to the legal sufficiency of a ballot initiative is a claim based on procedural requirements. 11. Constitutional Law: Statutes: Initiative and Referendum: Appeal and Error. Because the voter ballot initiative power is precious to the people, an appellate court construes statutory and constitutional provi- sions dealing with voters’ power of initiative liberally to promote the democratic process. 12. Constitutional Law: Statutes: Initiative and Referendum. By peti- tion, the initiative power may be invoked and, if the appropriate procedures are followed, used to propose statutory or constitutional amendments to the state’s voters without resorting to the Nebraska Legislature. 13. Constitutional Law: Initiative and Referendum. The people’s reserved power of the initiative and their self-imposed requirements of procedure in exercising that power are of equal constitutional significance. 14. ____: ____. The single subject rule under Neb. Const. art. III, § 2, was adopted by voter ballot initiative to avoid, among other things, logrolling. 15. Initiative and Referendum: Words and Phrases. Logrolling is the practice of combining dissimilar propositions into one voter initiative so that voters must vote for or against the whole package even though they only support certain of the initiative’s propositions. 16. Courts: Initiative and Referendum. Courts in Nebraska follow the natural and necessary connection test for determining whether a voter ballot initiative violates the single subject rule. 17. Initiative and Referendum. Under the natural and necessary connec- tion test, where the limits of a proposed law, having natural and neces- sary connection with each other, and, together, are a part of one general subject, the proposal is a single and not a dual proposition. 18. ____. The controlling factors in an inquiry under the natural and neces- sary connection test are the initiative’s singleness of purpose and the relationship of other details to its general subject. 19. ____. An initiative’s general subject is defined by its primary purpose. 20. Courts: Initiative and Referendum. A court’s analysis under the single subject rule begins by characterizing the general subject. 21. Constitutional Law: Initiative and Referendum. A general subject must not be characterized too broadly when considering an amendment to the constitution.  - 144 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 22. Initiative and Referendum. A general subject must be characterized at a level of specificity that allows for meaningful review of the natural and necessary connection between it and the initiative’s other purposes. 23. Constitutional Law: Initiative and Referendum. The single subject requirement may not be circumvented by selecting a general subject so broad that the rule is evaded as a meaningful constitutional check on the initiative process. 24. Words and Phrases. Necessary means something on which another thing is dependent or contingent. 25. Declaratory Judgments: Justiciable Issues. The function of declara- tory relief is to determine a justiciable controversy that is either not yet ripe by conventional remedy or, for other reasons, is not conveniently amenable to usual remedies. 26. Declaratory Judgments. Although declaratory judgment actions are permitted by statute, in certain circumstances under the Uniform Declaratory Judgments Act, a declaratory judgment will generally not lie where another equally serviceable remedy is available. 27. Mandamus: Declaratory Judgments. If a writ of mandamus would be adequate and equally serviceable, then a declaratory judgment will not lie. 28. Mandamus: Proof. Mandamus relief is available if the movant can show (1) a clear right to the relief sought, (2) a corresponding clear duty to perform the act requested, and (3) no other plain and adequate remedy is available in the ordinary course of law. 29. Public Officers and Employees: Initiative and Referendum. Nebraska law imposes on the Secretary of State a nondiscretionary duty to deter- mine the legal sufficiency of ballot measures and withhold any legally insufficient measure from the ballot. 30. Initiative and Referendum. The single subject rule was adopted by voters to protect against voter ballot initiatives that failed to give voters an option to clearly express their policy preference. 31. Constitutional Law: Courts: Initiative and Referendum. Just as courts must respect and give effect to the power the people have reserved to themselves to amend the constitution through initiative measures, courts are obliged to give meaningful effect to the people’s self-imposed limitations on that power. Original action. Writ of mandamus granted. Mark A. Fahleson, of Rembolt Ludtke, L.L.P., for relator.  - 145 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 Jason W. Grams and Michael L. Storey, of Lamson, Dugan & Murray, L.L.P., and Teri L. Vukonich-Mikkelsen, of Reisinger Booth & Associates, P.C., L.L.O., for intervenors. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Per Curiam. I. INTRODUCTION The Nebraska Secretary of State certified a voter ballot initiative to create a constitutional right for persons with seri- ous medical conditions to produce and medicinally use can- nabis, subject to a recommendation by a licensed physician or nurse practitioner. A Nebraska resident challenged the deci- sion, claiming the initiative violated the single subject rule under Neb. Const. art. III, § 2, and should be withheld from the November 2020 general election ballot. We reverse the Secretary of State’s decision and issue a writ of mandamus directing him to withhold the initiative from the November 2020 general election ballot. II. FACTUAL BACKGROUND A voter ballot initiative petition to create a constitutional right for persons with serious medical conditions to produce and medicinally use cannabis, subject to a recommendation by a licensed physician or nurse practitioner, was filed with the Secretary of State, Robert B. Evnen, on February 5, 2019, to certify it for inclusion on the November 2020 general elec- tion ballot. Nebraskans for Sensible Marijuana Laws, a bal- lot question committee, as well as two state senators, Adam Morfeld and Anna Wishart, sponsored the petition. The objec- tive of the petition was “to amend the Nebraska Constitution to provide the right to use, possess, access, and safely pro- duce cannabis, and cannabis products and materials, for seri- ous medical conditions as recommended by a physician or nurse practitioner.”  - 146 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 To accomplish this objective, the sponsors proposed the “Nebraska Medical Cannabis Constitutional Amendment” (NMCCA), an addition of Neb. Const. art. XIX, § 1. If approved, the NMCCA would, in nine subsections, (1) estab- lish a constitutional right for adults 18 years or older with serious health conditions “to use, possess, access, purchase, and safely and discreetly produce” medicinal cannabis as rec- ommended by a licensed physician or nurse practitioner; (2) establish the same right for minors younger than 18 years of age, provided they obtain the consent of a parent or legal guardian; (3) provide that private entities “may grow, cultivate, process, possess, transport, sell, test, or transfer possession of cannabis, cannabis products, and cannabis-related equipment for sale or delivery to an individual authorized” under the first two subsections; (4) decriminalize the medicinal use of canna- bis for persons who qualify under the first two subsections; (5) subject persons’ rights to use cannabis under the first two sub- sections to reasonable laws, rules, and regulations; (6) set forth certain limitations on the expansion of medicinal cannabis; (7) provide that employers are not required to allow employees to work while impaired by cannabis; (8) provide that insurance providers are not required to provide coverage for the use of cannabis; and (9) define cannabis. Evnen transmitted the NMCCA to the Nebraska Attorney General, Douglas J. Peterson, to prepare a statement explaining the NMCCA and the effect of a vote for or against it. Peterson then provided the NMCCA’s sponsors with a proposed ballot title and explanatory statement. According to Peterson, the NMCCA, if included on the November 2020 general election ballot, should be presented to voters by the following text: [EXPLANATORY STATEMENT] A vote “FOR” will amend the Nebraska Constitution to: (1) Provide individuals the right to use, possess, access, purchase, and produce cannabis, cannabis prod- ucts, and cannabis-related equipment for serious medi- cal conditions if recommended by a licensed physician  - 147 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 or nurse practitioner, subject to certain exceptions and reasonable laws, rules, and regulations; and (2) Allow private entities and their agents operating in Nebraska to grow, cultivate, process, possess, transport, sell, test, or transfer possession of cannabis, cannabis products, or cannabis-related equipment for sale or delivery to autho- rized individual users, subject to reasonable laws, rules, and regulations, including licensing. A vote “AGAINST” will not cause the Nebraska Constitution to be amended in such a manner. [(Emphasis in original.)] [BALLOT TITLE] Shall the Nebraska Constitution be amended to: (1) Provide individuals the right to use, possess, access, purchase, and produce cannabis, cannabis products, and cannabis-related equipment for serious medical condi- tions if recommended by a licensed physician or nurse practitioner, subject to certain exceptions and reasonable laws, rules, and regulations; and (2) Allow private entities and their agents operating in Nebraska to grow, cultivate, process, possess, transport, sell, test, or transfer posses- sion of cannabis, cannabis products, or cannabis-related equipment for sale or delivery to authorized individual users, subject to reasonable laws, rules, and regulations, including licensing? Peterson also transmitted a copy of his proposed explanatory statement and ballot title to Evnen to determine whether to cer- tify the NMCCA for inclusion on the November 2020 general election ballot. On August 26, 2020, Terry Wagner, a Nebraska resident, filed an objection with Evnen, claiming the NMCCA was legally insufficient. The NMCCA’s sponsors filed letters dis- puting Wagner’s claim. Both parties also submitted additional briefing to Evnen in the form of emails. On August 27, 2020, Evnen issued a written determination that the NMCCA was legally sufficient. He found that the  - 148 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 NMCCA had only one general subject—“to legalize the use of cannabis in this state for persons with serious medical condi- tions”—and that any other purposes were naturally and neces- sarily connected to that primary purpose. Accordingly, Evnen wrote that the NMCCA did not violate the single subject rule under Neb. Const. art. III, § 2, and that he would “not withhold it from the ballot unless otherwise ordered by a court of com- petent jurisdiction.” On August 28, 2020, Wagner filed with this court an appli- cation for leave to commence an original action. According to Wagner, this court’s review of Evnen’s decision was neces- sary because only 14 days remained until the deadline set by Neb. Rev. Stat. § 32-801 (Reissue 2016) for Evnen to certify the issues appearing on the November 2020 general elec- tion ballot. We granted Wagner leave to commence an original action. Based on Wagner’s verified petition for writ of mandamus, we issued an alternative writ of mandamus directing Evnen to show cause why the NMCCA should not be withheld from the November 2020 general election ballot. The NMCCA’s spon- sors intervened and essentially aligned their arguments with Evnen’s decision in defense of the NMCCA’s legal sufficiency under the single subject rule. We note at the outset that the parties do not dispute that the NMCCA petition garnered sufficient signatures and complied with all procedural requirements, except the single subject rule. We therefore presume such other requirements were met and would not prevent placement of the NMCCA on the general election ballot. III. ASSIGNMENTS OF ERROR Wagner (1) contends that Evnen erred in failing to find the NMCCA legally insufficient for violating the single subject rule under Neb. Const. art. III, § 2, and (2) prays that this court enter a declaratory judgment finding the NMCCA legally insufficient and issue a writ of mandamus directing Evnen to withhold it from the November 2020 general election ballot.  - 149 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 IV. STANDARD OF REVIEW [1,2] Questions of justiciability and of constitutional inter- pretation that do not involve factual dispute are questions of law. 1 An appellate court reviews questions of law de novo, drawing independent conclusions irrespective of any decision made below. 2 [3,4] Mandamus is a law action and represents an extraor- dinary remedy, not a writ of right. 3 Whether to grant a writ of mandamus is within a court’s discretion. 4 V. ANALYSIS 1. Justiciability [5-7] Before reaching the legal issues presented for review, courts must determine whether the issues presented are justi- ciable. 5 Ripeness is a justiciability doctrine that courts con- sider in determining whether they may properly decide a controversy. 6 The fundamental principle of ripeness is that courts should avoid entangling themselves, through premature adjudication, in abstract disagreements based on contingent future events that may not occur at all or may not occur as anticipated. 7 [8,9] A challenge to a voter ballot initiative based on substantive provisions of law is not ripe before an election because “[a]n opinion on the substantive challenge based on the contingent future event of the measure’s passage would be 1 See, State v. Said, 306 Neb. 314 , 945 N.W.2d 152 (2020) (constitutional interpretation); State ex rel. Peterson v. Ebke, 303 Neb. 637 , 930 N.W.2d 551 (2019) (justiciability). 2 See State v. Said, supra note 1. 3 See State ex rel. BH Media Group v. Frakes, 305 Neb. 780 , 943 N.W.2d 231 (2020). 4 See id. 5 See In re Interest of Giavonni P., 304 Neb. 580 , 935 N.W.2d 631 (2019). 6 Christensen v. Gale, 301 Neb. 19 , 917 N.W.2d 145 (2018). 7 Id. - 150 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 merely advisory.” 8 In contrast, a preelection challenge based on “the procedural requirements to [a voter ballot initiative’s] placement on the ballot” is ripe for resolution. 9 [10] Here, Wagner challenges only the legal sufficiency of the NMCCA. We have held that a challenge to the legal suf- ficiency of a ballot initiative is a claim based on procedural requirements. 10 Hence, Wagner’s claim is ripe for our review before the election. 2. Legal Sufficiency Wagner’s claim is that Evnen erred in finding the NMCCA legally sufficient. According to Wagner, the NMCCA violates the single subject rule under Neb. Const. art. III, § 2, because its general subject and various other provisions lack any natu- ral and necessary connection with each other. We agree. (a) Single Subject Rule [11-13] Under the Nebraska Constitution, the voter ballot initiative is “[t]he first power reserved by the people . . . .” 11 Because the voter ballot initiative power is precious to the people, we construe statutory and constitutional provisions dealing with voters’ power of initiative liberally to promote the democratic process. 12 By petition, the initiative power may be invoked and, if the appropriate procedures are followed, used to propose statutory or constitutional amendments to the state’s voters without resorting to the Nebraska Legislature. 13 “The people’s reserved power of the initiative and their 8 Id. at 35, 917 N.W.2d at 158. 9 Id. 10 See State ex rel. Loontjer v. Gale, 288 Neb. 973 , 853 N.W.2d 494 (2014). 11 Neb. Const. art. III, § 2. 12 See State v. Jenkins, 303 Neb. 676 , 931 N.W.2d 851 (2019), cert. denied ___ U.S. ___, ___ S. Ct. ___, 206 L. Ed. 2d 844 (2020). 13 See id. - 151 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 self-imposed [requirements of procedure in exercising that power] are of equal constitutional significance.” 14 [14,15] One constitutional requirement of the voter bal- lot initiative procedure is the single subject rule. Under the Nebraska Constitution, “[i]nitiative measures shall contain only one subject.” 15 This requirement was adopted by voter ballot initiative in 1998 to avoid, among other things, logrolling. 16 Logrolling is the practice of combining dissimilar propositions into one voter initiative so that voters must vote for or against the whole package even though they only support certain of the initiative’s propositions. 17 [16-19] We follow the natural and necessary connection test for determining whether a voter ballot initiative violates the single subject rule. 18 Under the test, “‘“[W]here the limits of a proposed law, having natural and necessary connection with each other, and, together, are a part of one general subject, the proposal is a single and not a dual proposition.”’” 19 The controlling factors in this inquiry are the initiative’s singleness of purpose and the relationship of other details to its general subject. 20 An initiative’s general subject is defined by its pri- mary purpose. 21 Although we have applied similar natural and necessary connection tests based in the common law to municipal voter ballot initiatives and legislatively proposed constitutional 14 State ex rel. Lemon v. Gale, 272 Neb. 295 , 304, 721 N.W.2d 347 , 356 (2006). 15 Neb. Const. art. III, § 2. 16 See 1997 Neb. Laws, L.R. 32CA, § 1; Christensen v. Gale, supra note 6. 17 Christensen v. Gale, supra note 6. 18 Id. 19 Id. at 32, 917 N.W.2d at 156 (quoting State ex rel. Loontjer v. Gale, supra note 10). See, also, Munch v. Tusa, 140 Neb. 457 , 300 N.W. 385 (1941). 20 Christensen v. Gale, supra note 6. 21 Id. - 152 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 amendments, 22 we have only applied the test based in the single subject rule, Neb. Const. art. III, § 2, to a voter ballot initiative once before, in Christensen v. Gale. 23 At issue in Christensen was a voter ballot initiative to amend the Medical Assistance Act 24 to (1) expand Medicaid coverage to certain lower income adults in Nebraska and (2) direct the Nebraska Department of Health and Human Services to take actions necessary to maximize federal funding for medical assistance in the State. 25 Objectors claimed that these objec- tives qualified as impermissible dual purposes. 26 We upheld the voter ballot initiative. 27 First, we determined from the initiative’s text that its general subject was “the expansion of Medicaid.” 28 Second, we found that although the initiative’s text indicated a secondary purpose was maximiz- ing federal funding, the secondary purpose did not violate the single subject rule because it “ha[d] a natural and necessary connection” to expansion of Medicaid, 29 namely, increased federal funding would enable the State to pay to expand Medicaid coverage. 30 Therefore, “maximizing federal funding for that expansion [wa]s a detail related to the singleness of purpose of expanding Medicaid.” 31 While some voters might 22 See, e.g., State ex rel. Loontjer v. Gale, supra note 10 (legislatively proposed constitutional amendment to allow certain horse track wagers); City of Fremont v. Kotas, 279 Neb. 720 , 781 N.W.2d 456 (2010) (municipal voter ballot initiative to regulate undocumented immigrants), abrogated on other grounds, City of North Platte v. Tilgner, 282 Neb. 328 , 803 N.W.2d 469 (2011). 23 Christensen v. Gale, supra note 6. 24 See Neb. Rev. Stat. §§ 68-901 to 68-994 (Reissue 2018 & Supp. 2019). 25 Christensen v. Gale, supra note 6. 26 Id. 27 Id. 28 Id. at 34, 917 N.W.2d at 157. 29 Id. 30 See id. 31 Id.  - 153 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 have been in favor of Medicaid expansion but not expand- ing federal funding, the dissimilarity between these purposes was not so great that they “create[d] a risk of confusion and logrolling.” 32 (b) Right to Produce and Medicinally Use Cannabis [20-23] Our analysis here under the single subject rule begins by characterizing the NMCCA’s general subject. We have stated before that a general subject must not be charac- terized too broadly when considering an amendment to the constitution. 33 An overly broad general subject might allow any secondary purpose to arguably be naturally and necessarily connected to it. 34 Instead, a general subject must be character- ized at a level of specificity that allows for meaningful review of the natural and necessary connection between it and the ini- tiative’s other purposes. As two other jurisdictions have stated in a similar context, “‘the single subject requirement may not be circumvented by selecting a [general subject] so broad that the rule is evaded as a meaningful constitutional check’” on the initiative process. 35 At an appropriate level of specificity, then, the NMCCA’s general subject is to create a constitutional right for persons with serious medical conditions to produce and medicinally use an adequate supply of cannabis, subject to a recommenda- tion by a licensed physician or nurse practitioner. This primary 32 Id. at 35, 917 N.W.2d at 158. 33 See State ex rel. Loontjer v. Gale, supra note 10. 34 Id. See, e.g., Richard Briffault, The Single-Subject Rule: A State Constitutional Dilemma, 82 Alb. L. Rev. 1629, 1637 (2019) (noting, with disapproval, that “some state courts have approved as constitutionally permissible subjects such broad topics as ‘land,’ ‘education,’ ‘transportation,’ ‘utilities,’ ‘state taxation,’ ‘public safety,’ ‘capital projects,’ and ‘operations of state government’”). 35 Gregory v. Shurtleff, 299 P.3d 1098 , 1112 (Utah 2013) (quoting Wirtz v. Quinn, 2011 IL 111903 , 953 N.E.2d 899 , 352 Ill. Dec. 218 (2011)).  - 154 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 purpose is evident from the text of subsections (1) and (2) of the NMCCA: (1) An individual who is eighteen years of age or older, if recommended by a licensed physician or nurse practi- tioner, has the right to use, possess, access, purchase, and safely and discreetly produce an adequate supply of canna- bis, cannabis products, and cannabis-related equipment to alleviate a serious medical condition. Such individual may be assisted by a caregiver in exercising these rights. (2) An individual who is under eighteen years of age, if recommended by a licensed physician or nurse practi- tioner and with the permission of a parent or legal guard- ian with responsibility for health care decisions of such individual, has the right to use cannabis, cannabis prod- ucts, and cannabis-related equipment to alleviate a serious medical condition. Such individual may be assisted by a parent, legal guardian, or caregiver, who may ­possess, access, purchase, and safely and discreetly produce an adequate supply of cannabis, cannabis products, and cannabis-related equipment on behalf of the individual. Also in support of this primary purpose, subsection (5) del- egates authority to the Legislature and administrative agen- cies to promulgate laws, rules, and regulations. Subsection (9) defines the term “cannabis.” Further evidence that this is the NMCCA’s general subject is found in the object statement submitted by the NMCCA’s spon- sors: “The object of this petition is to: Amend the Nebraska Constitution to provide the right to use, possess, access, and safely produce cannabis, and cannabis products and materials, for serious medical conditions as recommended by a physi- cian or nurse practitioner.” Peterson also identified this as the NMCCA’s primary purpose when he stated in his ballot title and explanatory statement that the NMCCA would “[p]rovide individuals the right to use, possess, access, purchase, and pro- duce cannabis, cannabis products, and cannabis-related equip- ment for serious medical conditions if recommended by a  - 155 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 licensed physician or nurse practitioner, subject to certain exceptions and reasonable laws, rules, and regulations . . . .” (Emphasis omitted.) These statements characterize the NMCCA’s general subject accurately and at an adequate level of specificity to provide for meaningful review. A constitutional right to produce and medicinally use cannabis is not so broad as to evade the single subject rule as a constitutional check on voter ballot initiatives. Rather, it can be tested against other provisions without risk that every secondary purpose could reasonably be argued as naturally and necessarily connected to it. Accordingly, we find the general subject of the NMCCA is to create a constitutional right for persons with serious medical conditions to produce and medicinally use cannabis, subject to a recommendation by a licensed physician or nurse practitioner. (c) Right to Grow and Sell Cannabis As Evnen found, the NMCCA also states a secondary pur- pose. Subsections (3) and (4) state: (3) The rights protected in subsections (1) and (2) of this section include the right to access or purchase can- nabis, cannabis products, and cannabis-related equipment from private entities. Private entities and agents operating on the entities’ behalf in the State of Nebraska may grow, cultivate, process, possess, transport, sell, test, or transfer possession of cannabis, cannabis products, and cannabis- related equipment for sale or delivery to an individual authorized to use cannabis under subsection (1) or (2) of this section. (4) Individuals or entities engaged in actions allowed by, or exercising rights protected by this section shall not be subject to arrest, prosecution, or civil or criminal penalties under state or local law, except that reasonable  - 156 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 penalties may be imposed for any violation of reasonable laws, rules, and regulations enacted pursuant to subsec- tion (5) of this section. By this text, subsections (3) and (4) express a different pri- mary purpose than subsections (1) and (2). Instead of affording certain persons a constitutional right to produce and medici- nally use cannabis, subsection (3) would afford private entities in Nebraska a constitutional property right to legally grow and sell the substance to persons who qualify under subsections (1) and (2). And subsection (4) would civilly and criminally immu- nize any private entity engaging in actions allowed or protected by subsection (3). Though he found the “difficulty” posed by subsections (3) and (4) under the single subject rule “substantial,” Evnen decided the secondary purpose was sufficiently in support of the general subject to be naturally and necessarily connected. Similar to Christensen 36 and City of Fremont v. Kotas, 37 where the secondary purpose was upheld because it would signifi- cantly support the initiative’s general subject, Evnen reasoned, the constitutional right to grow and sell cannabis here, too, was in support of the constitutional right to produce and medici- nally use the substance. We disagree. This case is distinguishable from both Christensen and Kotas. Kotas is distinguishable because it was decided under our common-law single subject rule. We have applied the common-law rule to municipal voter ballot initiatives since at least 1939. 38 Under that rule, we have stated that a proposed municipal ballot measure is invalid if it would (1) compel voters to vote for or against distinct propo- sitions in a single vote—when they might not do so if presented separately; (2) confuse voters on the issues they 36 See Christensen v. Gale, supra note 6. 37 See City of Fremont v. Kotas, supra note 22. 38 See Drummond v. City of Columbus, 136 Neb. 87 , 285 N.W. 109 (1939).  - 157 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 are asked to decide; or (3) create doubt as to what action they have authorized after the election. 39 But the single subject rule as applied to voter ballot initia- tives has a much shorter and simpler history. Voters adopted the single subject rule for voter ballot initiatives in 1998. 40 And they placed, in Neb. Const. art. III, § 2, only a seven-word requirement: “Initiative measures shall contain only one sub- ject.” Accordingly, this case is controlled by those seven words and not by the three-part test applied in Kotas. We have only applied the single subject rule under Neb. Const. art. III, § 2, once before, in Christensen, but that case is factually distinguishable here. 41 In Christensen, the initiative’s secondary purpose (maximizing federal funding for Medicaid) was naturally and necessarily connected to its general subject (expanding Medicaid coverage in the State). The nature of expanding Medicaid coverage was clearly connected to its funding source, and federal funding was necessary for the State to expand Medicaid coverage. 42 The similarity between these two purposes demonstrated a singleness of purpose and a lack of logrolling concerns. 43 Although not explicitly stated in Christensen, an implied further reason that logrolling was not a concern was that it was the federal government, and not the initiative’s sponsors, that tied federal funding to state programs of Medicaid expansion. This indicated that the secondary purpose was not one borne purely of tactical convenience—that is, to persuade voters “to vote for the primary purpose of expanding Medicaid in order to obtain, more generally, federal funds.” 44 39 City of North Platte v. Tilgner, supra note 22, 282 Neb. at 349 , 803 N.W.2d at 487. 40 See 1997 Neb. Laws, L.R. 32CA, § 1. 41 Christensen v. Gale, supra note 6. 42 Id. 43 Id. 44 Id. at 35, 917 N.W.2d at 158.  - 158 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 In contrast, here, the NMCCA’s secondary purpose is not naturally and necessarily connected to its general subject. First, subsection (3) lacks any natural connection to subsec- tions (1) and (2). While subsections (1) and (2) concern a personal constitutional right of patients with serious medical conditions to produce and use cannabis for themselves, sub- section (3) concerns a constitutional right of private entities to grow and sell cannabis to others. This constitutional right to sell cannabis, and its accompanying expectation of profit, is a property right. We have long distinguished between the nature of use and property rights in other contexts. 45 We have also distinguished between the nature of rights held by an individual and by a business or other legal entity. 46 The personal, individual rights that would be conferred by subsections (1) and (2) are fundamentally distinct from the property rights conferred by subsection (3). Meanwhile, subsection (4) would enforce those property rights by conferring civil and criminal immunity to persons exercising them. Accordingly, neither subsection (3) nor subsection (4) is naturally connected to the NMCCA’s gen- eral subject. [24] Second, the NMCCA’s secondary purpose is not neces- sarily connected to its general subject. The term “necessary” means something “on which another thing is dependent or 45 See, e.g., Cappel v. State, 298 Neb. 445 , 456, 905 N.W.2d 38 , 48 (2017) (“[t]he right to appropriate surface water is not an ownership of property”); Strode v. City of Ashland, 295 Neb. 44 , 62-63, 886 N.W.2d 293 , 307 (2016) (noting, in an inverse condemnation action, that “‘“‘[t]he right to full and free use and enjoyment of one’s property in a manner and for such purposes as the owner may choose . . . is a privilege [of owning property rights] protected by law’”’”). 46 See, e.g., State v. Stanko, 304 Neb. 675 , 685, 936 N.W.2d 353 , 361 (2019) (business that “holds a portion of its property open to the public” impliedly gives right to others to enter it under a limited privilege). See, also, Neb. Rev. Stat. § 21-145 (Reissue 2012) (providing limited liability company right, which no individual has, to legally dissolve).  - 159 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 contingent.” 47 In no sense is authorization in subsection (3) for private entities to grow and sell cannabis necessary for patients with serious medical conditions to use the substance medici- nally. Subsections (1) and (2) provide for patients to obtain cannabis by producing it themselves or with the help of a caregiver. If patients could legally produce their own medicinal cannabis, their legal use of the substance would not depend or be contingent upon it being grown and sold by private entities. Subsections (3) and (4) would create a market to unnecessarily bolster the supply of medicinal cannabis, despite subsections (1) and (2) already providing an adequate means of meeting any demand. In this way, subsection (3) would go far beyond any necessary connection, and subsection (4) would broaden this already unnecessarily connected purpose still further by conferring any private entity acting under the color of constitu- tional right under subsection (3) with immunity from any civil or criminal liability, even arrest. Suppose that a voter were in favor of there being in this state a constitutional right to produce and medicinally use cannabis, but not a constitutional right to grow and sell the substance; he or she could not express that preference with a vote for or against the NMCCA in November. Instead, in its first and second pairs of subsections, the NMCCA combines dissimilar propositions into one proposed amendment “so that voters must vote for or against the whole package even though they would have voted differently had the propositions been submitted 47 “Necessary,” Oxford English Dictionary Online, http://oed.com/view/ Entry/125629 (last visited Sept. 8, 2020). See, also, “Necessary,” Merriam- Webster.com, http://www.merriam-webster.com/dictionary/necessary (last visited Sept. 8, 2020) (“absolutely needed” or “logically unavoidable”); “Necessary,” Cambridge English Dictionary Online, http://dictionary. cambridge.org/us/dictionary/english/necessary (last visited Sept. 8, 2020) (“needed in order to achieve a particular result”); Black’s Law Dictionary 1192 (10th ed. 2014) (“[t]hat is needed for some purpose or reason; essential”).  - 160 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 separately.” 48 This demonstrates precisely the logrolling sce- nario that Nebraska’s voters sought to avoid by adopting the single subject rule in Neb. Const. art. III, § 2. We hold that subsections (3) and (4) of the NMCCA exhibit an impermissible secondary purpose because they are not natu- rally and necessarily connected to subsections (1) and (2). (d) Limitations on Right to Produce and Medicinally Use Cannabis At oral arguments, Wagner also maintained that some six other purposes of the NMCCA render it in violation of the single subject rule. Specifically, Wagner points to the following language in subsections (6), (7), and (8): (6) This section shall not be construed to: (a) Allow the smoking of cannabis in public; (b) Require detention or correctional facilities to allow the possession or use of cannabis in such facilities; (c) Allow the operation of a motor vehicle while impaired by cannabis; or (d) Otherwise allow engaging in conduct that would be negligent to undertake while impaired by cannabis. (7) This section does not require an employer to allow an employee to work while impaired by cannabis. (8) This section does not require any insurance provider to provide insurance coverage for the use of cannabis. We agree with Wagner that the clauses in these subsec- tions represent distinct constitutional rights and policies not naturally and necessarily connected to the general subject of the NMCCA. The NMCCA’s general subject bears no natural relation to the four objects expressed in subsection (6) that would amend, with respect to medicinal cannabis use, the law of public space, correctional facilities, motor vehicles, and negligence. Nor does the production and medicinal use of cannabis naturally relate to the objects in subsections (7) and (8) that would amend the law of employment decisions 48 Christensen v. Gale, supra note 6, 301 Neb. at 31 , 917 N.W.2d at 156.  - 161 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 and insurance coverage. These objects of limitation are not in any way necessary for a constitutional right to produce and medicinally use cannabis. There is nothing about the makeup or constitution of the production and medicinal use of can- nabis that naturally relates to these objects, nor would the constitutional right of producing and medicinally using can- nabis be dependent or contingent on its exclusion from certain locations or situations. Rather, by our existing law, there is strong evidence that each of these objects of limitation needed to be included in separate voter ballot initiatives to amend the Nebraska Constitution. Nebraska’s Constitution and statutes are separated by many of the objects of limitation the NMCCA would impose on existing law. For example, the use of public spaces, operation of motor vehicles, regulation of correctional facilities, and law of negli- gence are regulated by numerous other statutes. 49 The same is true of employment and insurance law. 50 That our laws have naturally separated these limitations provides strong evidence that they are their own general subjects and not naturally or necessarily connected to the production and medicinal use of cannabis. Indeed, a constitutional right to produce and medici- nally use cannabis, if properly put to and approved by voters, would likely also result in the promulgation of new sections and chapters of laws regulating the production and medicinal use of cannabis. But the issue with respect to subsections (6), (7), and (8) is the same as it is with respect to subsections (3) and (4). In voting on the NMCCA, a voter who approved or disap- proved of a constitutional right to produce and medicinally use 49 See, e.g., Neb. Rev. Stat. ch. 25, art. 21(o) (Reissue 2016) (“Certain Cases Involving Negligence”); Neb. Rev. Stat. ch. 37 (Reissue 2016) (“Game and Parks”); Neb. Rev. Stat. ch. 51 (Reissue 2010) (“Libraries and Museums”); Neb. Rev. Stat. ch. 60 (Reissue 2010) (“Motor Vehicles”); Neb. Rev. Stat. ch. 83, art. 4 (Reissue 2014) (“Penal and Correctional Institutions”). 50 See, e.g., Neb. Rev. Stat. ch. 44 (Reissue 2010) (“Insurance”); Neb. Rev. Stat. ch. 48 (Reissue 2010) (“Labor”).  - 162 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 cannabis cannot express a contrary view as to the additional subjects presented in subsections (6), (7), and (8) on the law of public space, correctional facilities, motor vehicles, negli- gence, employment decisions, and insurance coverage. On its face, the NMCCA indicates that these subjects of constitutional amendment were included only for tactical convenience, not any natural and necessary connection. This is again an example of logrolling. We hold that subsections (6), (7), and (8) of the NMCCA also exhibit an impermissible secondary purpose because they are not naturally and necessarily connected to subsections (1) and (2). 3. Writ of Mandamus Based on the legal insufficiency of the NMCCA, Wagner prays for this court to issue two forms of relief: first, a declara- tory judgment finding that the NMCCA is legally insufficient, and second, a writ of mandamus requiring Evnen to withhold it from the November 2020 general election ballot. [25,26] The function of declaratory relief is to determine a justiciable controversy that is either not yet ripe by con- ventional remedy or, for other reasons, is not conveniently amenable to usual remedies. 51 Thus, although declaratory judg- ment actions are permitted by statute in certain circumstances under the Uniform Declaratory Judgments Act, 52 we have held that a declaratory judgment will generally not lie where another equally serviceable remedy is available. 53 An applica- tion for a writ of mandamus is another such equally service- able remedy. 54 [27] Under this rule, then, Wagner cannot have relief in the form of both a declaratory judgment and a writ of mandamus. 51 Cain v. Lymber, 306 Neb. 820 , ___ N.W.2d ___ (2020). 52 Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016). 53 Cain v. Lymber, supra note 51. 54 See id. - 163 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 If a writ of mandamus would be adequate and equally service- able, then a declaratory judgment will not lie. [28] Mandamus relief is available if Wagner can show (1) that there exists a clear right to the relief sought, (2) that Evnen has a corresponding clear duty to perform the act requested, and (3) that no other plain and adequate remedy is available in the ordinary course of law. 55 [29] Here, because Wagner’s legal insufficiency argument has merit, his prayer for a writ of mandamus also has merit. Nebraska law imposes on the Secretary of State a nondiscre- tionary duty to determine the legal sufficiency of ballot meas­ ures and withhold any legally insufficient measure from the ballot. 56 Noting that this was “a close case,” Evnen wrongly determined to certify the NMCCA, a legally insufficient voter ballot initiative, for the November 2020 general election bal- lot. Thus, Wagner’s right is clear and mandamus relief is his only adequate remedy. Accordingly, we deny Wagner’s prayer for a declaratory judgment, but grant his prayer for a writ of mandamus. VI. CONCLUSION [30,31] The single subject rule was adopted by voters to pro- tect against voter ballot initiatives that failed to give voters an option to clearly express their policy preference. 57 “Just as we must ‘respect and . . . give effect to the power the people have reserved to themselves’ to amend the constitution . . . through initiative measures, we are obliged to give meaningful effect to their ‘self-imposed limitations’ on that power . . . .” 58 Here, that means giving meaningful effect to the single subject rule in Neb. Const. art. III, § 2. 55 See State ex rel. Wieland v. Beermann, 246 Neb. 808 , 523 N.W.2d 518 (1994). 56 See id. 5 7 See State ex rel. Loontjer v. Gale, supra note 10. 58 State ex rel. Lemon v. Gale, supra note 14, 272 Neb. at 304 , 721 N.W.2d at 356.  - 164 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 As proposed, the NMCCA contains more than one subject— by our count, it contains at least eight subjects. In addition to enshrining in our constitution a right of certain persons to pro- duce and medicinally use cannabis under subsections (1) and (2), in subsections (3) and (4), the NMCCA would enshrine a right and immunity for entities to grow and sell cannabis; and in subsections (6), (7), and (8), it would regulate the role of cannabis in at least six areas of public life. These sec- ondary purposes are not naturally and necessarily connected to the NMCCA’s primary purpose. As such, they constitute logrolling. If voters are to intelligently adopt a State policy with regard to medicinal cannabis use, they must first be allowed to decide that issue alone, unencumbered by other subjects. The decision of the Secretary of State is reversed. We issue a writ of mandamus directing him to withhold the NMCCA from the November 2020 general election ballot. Writ of mandamus granted. Papik, J., dissenting. I respectfully dissent from the opinion of the court to the extent it concludes that the Nebraska Medical Cannabis Constitutional Amendment (NMCCA) should not be placed on the ballot and voted upon by the people. I agree with the Secretary of State that the NMCCA does not violate the single subject requirement of Neb. Const. art. III, § 2. Under Neb. Const. art. III, § 2, “[t]he first power reserved by the people is the initiative whereby laws may be enacted and constitutional amendments adopted by the people inde- pendently of the Legislature.” We have long recognized that “[t]he right of initiative is precious to the people and one which courts are zealous to preserve to the fullest tenable measure of spirit as well as letter.” Christensen v. Gale, 301 Neb. 19 , 27, 917 N.W.2d 145 , 153 (2018). See, also, State ex rel. Stenberg v. Moore, 258 Neb. 199 , 602 N.W.2d 465 (1999). We have also said that the power of initiative must be liberally construed to promote the democratic process and  - 165 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 that provisions authorizing the initiative should be construed in such a manner that the legislative power reserved in the people is effectual. Stewart v. Advanced Gaming Tech., 272 Neb. 471 , 723 N.W.2d 65 (2006). The people’s power to amend the constitution or enact leg- islation through initiative is not unlimited. The single subject rule at issue in this case is one such limitation. The single subject requirement arises out of the following seven words in art. III, § 2: “Initiative measures shall contain only one sub- ject.” As the majority opinion describes, we have traditionally followed what we have dubbed the natural and necessary con- nection test for determining whether a ballot initiative violates the single subject rule. See Christensen, supra . Under that test, “‘“[w]here the limits of a proposed law, having natural and necessary connection with each other, and, together, are a part of one general subject, the proposal is a single and not a dual proposition.”’” Id. at 32, 917 N.W.2d at 156 (quoting State ex rel. Loontjer v. Gale, 288 Neb. 973 , 853 N.W.2d 494 (2014)). See, also, Munch v. Tusa, 140 Neb. 457 , 300 N.W. 385 (1941). The controlling factors in this inquiry are the initiative’s single- ness of purpose and the relationship of the details to its general subject. Christensen, supra . An initiative’s general subject is defined by its primary purpose. Id. Under the foregoing test, the first step in any single subject rule inquiry is to determine the general subject or primary pur- pose of the initiative measure. And, as it turns out, everyone involved in this case—the initiative’s sponsors, the relator, the Secretary, and the majority of this court—more or less agrees as to the NMCCA’s primary purpose. As the majority puts it, the NMCCA’s purpose is “to create a constitutional right for persons with serious medical conditions to produce and medic- inally use cannabis, subject to a recommendation by a licensed physician or nurse practitioner.” I agree that is a fair statement of the NMCCA’s primary purpose. With the general subject or primary purpose of the NMCCA established, the question is whether the various provisions  - 166 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 thereof have a natural and necessary connection to that pri- mary purpose. It is on this question that I part company with the majority. For reasons I will explain, I find that when the natural and necessary connection test is applied to the NMCCA in the manner in which we have done so in previous cases, no single subject rule violation emerges. All the details of the NMCCA relate to the same general subject—providing a right to individuals with serious medical conditions to use cannabis to alleviate those conditions. Right to Produce Cannabis and Sell It to Those Given Right to Use. The majority finds that the NMCCA first violates the single subject rule by providing private entities a right to produce can- nabis for and sell cannabis to those authorized to use cannabis to alleviate a serious medical condition, as well as conferring certain legal immunities on those private entities when they do so. I disagree that this right to produce and sell cannabis to those authorized to use it and related immunities constitute additional subjects under the natural and necessary relation- ship test. Instead, I agree with the analysis of the Secretary on this point. The Secretary found there was a natural and necessary con- nection between the legalized production and sale of medical cannabis and the primary purpose of the NMCCA—individual use of cannabis by those with serious medical conditions. As he explained, “[i]t is inherent in the legalization of medical cannabis that someone or some category of persons must be granted the right or authority to produce, sell and distribute the medical cannabis.” I agree with this assessment. A right of individuals to use cannabis for medicinal purposes is meaning- ful only if individuals can access cannabis. Some means of access is naturally and necessarily related to use. The NMCCA proposes to provide that access through both allowing indi- viduals to grow their own cannabis and allowing production and sale by third parties.  - 167 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 The majority finds otherwise, reasoning that the right to sell cannabis is a property right and that individuals given the right to use cannabis could access it by means other than allowing third parties to produce and sell it. I am not convinced. First, it is not clear to me what property right has been created or bestowed by giving unspecified entities the right to produce and sell cannabis to authorized users, but, in any event, I also do not see what relevance that has to the natural and necessary connection test. As for the notion that there is a single subject problem because authorized users could get access to cannabis in some other way, that runs counter to our precedent applying the natural and necessary connection test. Last election cycle in Christensen v. Gale, 301 Neb. 19 , 917 N.W.2d 145 (2018), we rejected an argument that an initiative measure to expand Medicaid in Nebraska violated the single subject rule because it could have been proposed without also proposing that federal funding be maximized. We said that the single subject inquiry was not whether the measure could have been proposed with- out federal funding or “the strict necessity of any given detail to carry out the general subject,” but, rather, the controlling consideration was the measure’s “singleness of purpose and relationship of the details to the general subject.” Id. at 34, 917 N.W.2d at 157 (emphasis supplied). Neither did we inquire in City of Fremont v. Kotas, 279 Neb. 720 , 781 N.W.2d 456 (2010), whether each of the individual elements of a proposed municipal ordinance to regulate illegal immigration were indispensable to achieve the measure’s gen- eral purpose. There, we concluded that a proposed ordinance imposing different requirements on a variety of different enti- ties—landlords, tenants, the city police department, and local businesses—constituted a single subject because the various components “had a natural and necessary connection with each other and were part of the general subject of regulating illegal aliens” in the city. Id. at 728, 781 N.W.2d at 463. The major- ity suggests that Kotas has no bearing on this case because  - 168 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 municipal initiatives are not governed by the art. III, § 2, single subject rule, but Kotas is not so easily cast to the side. Although Kotas did involve a municipal initiative, we cited and applied the same natural and necessary connection test that governs here. In fact, this court subsequently abrogated Kotas precisely for applying a state constitutional provision to a municipal ordinance. See City of North Platte v. Tilgner, 282 Neb. 328 , 803 N.W.2d 469 (2011). Furthermore, we relied on the reasoning of Kotas in Christensen, which involved the single subject rule at hand here. Not only is the majority’s application of the natural and nec- essary test in tension with our prior cases, it is difficult to see how it would ever allow an initiative measure to include the means by which an initiative measure seeks to accomplish its general purpose. In almost any case, a challenger will be able to point to some alternative way in which the general purpose could be pursued and thereby argue that the means proposed by the initiative’s sponsors are not “necessary” and thus intro- duce a prohibited second subject. And yet our articulation of the natural and necessary connection test expressly contem- plates that a measure may contain both a primary purpose and the details by which that purpose will be achieved. See, e.g., Christensen, supra . So what work does the word “necessary” do in the natu- ral and necessary connection test? I read Christensen to say that rather than asking whether a particular detail is strictly necessary or whether other details could have been provided, we are to ask whether the purpose of the included details are naturally and necessarily connected to the general purpose. In Christensen, the provision regarding maximizing federal fund- ing passed the natural and necessary connection test because funding of some kind is a natural and necessary part of the expansion of a government program. In a similar way, as the Secretary reasoned here, providing individuals authorized to use cannabis medicinally a means of access is a natural and necessary part of granting a right to use.  - 169 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 Finally, I disagree with the majority’s assertion that the NMCCA’s inclusion of both a right to use cannabis medicinally and a right of others to produce and sell it to authorized users is a single subject violation because it amounts to logrolling. We have said that the prevention of logrolling is a purpose of the single subject rule, but we have defined logrolling as “the practice of combining dissimilar propositions into one proposed amendment so that voters must vote for or against the whole package even though they would have voted differ- ently had the propositions been submitted separately.” State ex rel. Loontjer v. Gale, 288 Neb. 973 , 995, 853 N.W.2d 494 , 510 (2014) (emphasis supplied). Logrolling is not a separate test apart from our familiar natural and necessary inquiry; and if the features are naturally and necessarily related, it is not appropriate to examine the proposal for logrolling. Because I believe the provisions at issue are related, rather than dissimi- lar, logrolling has no application here. Limitations on Rights Conferred. I also disagree with the majority’s conclusion that the limi- tations contained within subsections (6), (7), and (8) of the NMCCA are not naturally and necessarily connected to the general subject. According to the majority, these limitations on the scope of the amendment represent “distinct constitutional rights and policies” that would change the existing law of pub- lic space, motor vehicles, correctional facilities, negligence, employment, and insurance coverage. However, rather than introducing a second subject, the limitations define the rights conferred by the NMCCA by stating what the amendment does not require. They make clear that the areas of law identified by the majority would, in fact, not change if the NMCCA were to become law. These provisions bear a natural and neces- sary connection to giving individuals a constitutional right to use medical cannabis because they define the parameters of that right. In analyzing these limitations, the majority finds more log- rolling. Again, I do not believe this fits our definition of  - 170 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 logrolling because the rights granted and the exceptions to those rights are related, rather than dissimilar. In addition, while presenting the provisions together is not logrolling, the alternative of requiring these related provisions to be presented separately could result in other problems for voters. There are some measures containing multiple, related policy details where voters’ support for one policy detail might depend on whether another detail becomes law. Suppose, for example, that citizens of a municipality that has previously banned dog own- ership propose an initiative to allow for dog ownership with the exception of pit bulls. If the general authorization of dog own- ership and the pit bull exception must be presented separately, a voter favorably inclined to dogs generally but opposed to pit bulls cannot reliably express his or her preferences. Similarly, here, there may be voters whose support for legal- izing medical cannabis depends on whether the right will be limited as in the NMCCA. Requiring the limitations to be sub- mitted as separate ballot propositions will not prevent logroll- ing; it would only prevent those voters from being able to cast an informed vote. Conclusion. Courts and commentators have observed that the term “sub- ject” as used in a single subject rule and any verbal tests that attempt to define it are malleable. See, e.g., Advisory Opinion to the Atty. Gen., 592 So. 2d 225 (Fla. 1991) (Kogan, J., con- curring in part, and in part dissenting); Oregon Educ. Ass’n v. Phillips, 302 Or. 87 , 727 P.2d 602 (1986) (Linde, J., concur- ring); Robert D. Cooter & Michael D. Gilbert, A Theory of Direct Democracy and the Single Subject Rule, 110 Colum. L. Rev. 687 (2010). This presents courts with a challenge. As one court described the quandary, if the rule is applied too loosely, it “would render the safeguards of [a single subject rule] inert. Conversely, the requirements of [a single subject rule] must not become a license for the judiciary to ‘exercise a pedantic tyranny’” over efforts to change the law. PA Against Gambling Expansion Fund v. Com., 583 Pa. 275 , 296, 877 A.2d 383 ,  - 171 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. WAGNER v. EVNEN Cite as 307 Neb. 142 395-96 (2005) (quoting City of Philadelphia v. Com., 575 Pa. 542 , 838 A.2d 566 (2003)). To be clear, I do not believe any- one on this court wishes to exercise a tyranny of any kind over the initiative process. But, for the reasons I have discussed, I am concerned that today’s decision has squeezed the concept of single subject in art. III, § 2, such that the people’s right to initiative has been diminished. Obviously, nothing I have said should be taken as commen- tary on the policy merits of legalizing cannabis for medicinal use or whether the NMCCA is a sound means of doing so. It would not be consistent with the role of the judiciary to express a view on such matters. See State ex rel. Johnson v. Gale, 273 Neb. 889 , 896, 734 N.W.2d 290 , 298 (2007) (“[t]his court makes no attempt to judge the wisdom or the desirability of enacting initiative amendments”). When legally sufficient, however, it is the right of the people to express their views on initiative measures by voting. Because I believe the Secretary correctly rejected the relator’s arguments that the NMCCA was legally insufficient, I would not keep it from the ballot. Miller-Lerman, J., joins in this dissent.

2020-12-04 06:08:34.111353+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007408PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 400 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DENTON Cite as 307 Neb. 400 State of Nebraska, appellee, v. Elijah W. Denton, appellant. ___ N.W.2d ___ Filed October 2, 2020. No. S-19-939. 1. Appeal and Error. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. 2. Constitutional Law: Statutes: Appeal and Error. The constitutionality of a statute presents a question of law, which an appellate court indepen- dently reviews. 3. Constitutional Law: Rules of the Supreme Court: Statutes: Appeal and Error. An appellant challenging the constitutionality of a statute must strictly comply with Neb. Ct. R. App. P. § 2-109(E) (rev. 2014). 4. Constitutional Law: Rules of the Supreme Court: Statutes: Notice: Appeal and Error. Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) requires that a party presenting a case involving the federal or state constitution- ality of a statute must file and serve notice thereof with the Supreme Court Clerk by separate written notice or in a petition to bypass at the time of filing such party’s brief. 5. Constitutional Law: Rules of the Supreme Court: Statutes: Appeal and Error. Strict compliance with Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) is necessary whenever a litigant challenges the constitutional- ity of a statute, regardless of how that constitutional challenge may be characterized. Appeal from the District Court for Lancaster County, Jodi L. Nelson, Judge, on appeal thereto from the County Court for Lancaster County, Joseph E. Dalton, Judge. Judgment of District Court affirmed. David Tarrell, of Berry Law Firm, for appellant.  - 401 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DENTON Cite as 307 Neb. 400 Robert E. Caples, Assistant Lincoln City Prosecutor, for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Cassel, J. INTRODUCTION Elijah W. Denton implicitly attacks the constitutionality of a state statute 1 prohibiting jury trials for criminal cases arising under city ordinances. Denton was denied a jury trial for the alleged violation of a municipal ordinance prohibiting battery, 2 despite a separate ordinance 3 imposing a 10-year ban upon possession of firearms by a person convicted of violating the battery ordinance. On appeal to this court from his convic- tion and sentence under the battery ordinance, Denton failed to comply with the procedural rule governing constitutional challenges to statutes. 4 Because we strictly apply the rule, we affirm the judgment. BACKGROUND Denton’s legal challenge does not rely upon any facts under- lying his conviction. Thus, we need not summarize them. Instead, Denton relies upon three city ordinances. The bat- tery ordinance 5 defined the crime of which he was con- victed. For a conviction under the battery ordinance, a pen- alty ordinance 6 prescribed a maximum penalty of 6 months’ ­imprisonment, a $500 fine, or both, 7 and directed that the 1 Neb. Rev. Stat. § 25-2705 (Reissue 2016). 2 Lincoln Mun. Code § 9.12.010(b) (1997) (battery ordinance). 3 See Lincoln Mun. Code § 9.36.100 (2008) (firearm ban ordinance). 4 See Neb. Ct. R. App. P. § 2-109(E) (rev. 2014). 5 See § 9.12.010(b) (“[i]t shall be unlawful for any person intentionally, knowingly, or recklessly to: 1. Cause bodily injury to another person; or 2. Strike another person”). 6 Lincoln Mun. Code § 1.24.010 (2006) (penalty ordinance). 7 § 1.24.010(a).  - 402 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DENTON Cite as 307 Neb. 400 penalty be “­cumulative with and in addition to . . . any other penalty, punishment, or sentence specified by this code.” 8 The firearm ban ordinance stated in relevant part: “It shall be unlawful for any person to possess any firearm within the corporate limits or on any property of the City of Lincoln outside the corporate limits when that person has been con- victed of any one of the following offenses within the last ten years: . . . the [battery ordinance].” 9 Prior to trial, Denton filed a written motion for jury trial. After a hearing, the county court pronounced a denial of the motion. The court’s written order overruled the motion, because “any possible collateral consequences under the Lincoln Municipal Code does not make the instant offense a serious offense thus entitling [Denton] to a trial by jury under either the U.S. or Nebraska Constitutions.” Following a bench trial, the county court convicted Denton of violating the battery ordinance. The court imposed only a $250 fine. Denton timely appealed the county court judgment to the district court. The district court relied in part upon § 25-2705, which states in pertinent part that “[e]ither party to any case in county court, except criminal cases arising under city . . . ordinances, . . . may demand a trial by jury.” The district court affirmed the county court’s judgment. Denton filed a timely appeal to the Nebraska Court of Appeals. At the time he filed his appellate brief, he did not file or serve either “a separate written notice or [a] notice in a Petition to Bypass” regarding “the federal or state consti- tutionality” of § 25-2705. 10 We moved Denton’s appeal to our docket. 11 8 § 1.24.010(c). 9 § 9.36.100. 10 See § 2-109(E). 11 Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).  - 403 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DENTON Cite as 307 Neb. 400 ASSIGNMENT OF ERROR Denton’s brief on appeal assigns only one error: The district court erred in affirming the county court’s denial of his motion for a jury trial. [1] Prior to filing his brief in the Court of Appeals, Denton filed a “Notice of Errors.” In that document, Denton also assigned that the district court erred in affirming the county court’s denial of his disclosure motion. But to be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party assert- ing the error. 12 Denton does not assign nor argue the alleged disclosure motion error in his brief, and therefore, we will not address it. STANDARD OF REVIEW [2] The constitutionality of a statute presents a question of law, which an appellate court independently reviews. 13 ANALYSIS [3,4] An appellant challenging the constitutionality of a stat- ute must strictly comply with § 2-109(E). 14 Section 2-109(E) requires that a party presenting a case involving the federal or state constitutionality of a statute must file and serve notice thereof with the Supreme Court Clerk by separate written notice or in a petition to bypass at the time of filing such par- ty’s brief. 15 The party must also provide the Attorney General with a copy of its brief. 16 Without strict compliance with 12 State v. Dixon, 306 Neb. 853 , 947 N.W.2d 563 (2020). 13 State v. Jenkins, 303 Neb. 676 , 931 N.W.2d 851 (2019), cert. denied ___ U.S. ___, 140 S. Ct. 2704 , 206 L. Ed. 2d 844 (2020). 14 See, State v. Epp, 299 Neb. 703 , 910 N.W.2d 91 (2018); State v. Boche, 294 Neb. 912 , 885 N.W.2d 523 (2016). 15 Epp, supra note 14. 16 See Boche, supra note 14.  - 404 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DENTON Cite as 307 Neb. 400 § 2-109(E), this court will not address a constitutional chal- lenge to a statute. 17 Section 2-109(E) ensures that this court has notice of a con- stitutional challenge. 18 As the Nebraska Constitution empowers this court to declare a legislative act unconstitutional only by a supermajority of at least five judges, the court must secure a full court to hear an appeal regarding the constitutionality of a statute. 19 Section 2-109(E) assists the court to do so. Section 2-109(E) also guarantees that notice of a consti- tutional challenge to a statute is provided to the Attorney General. The statutes may not precisely articulate the Attorney General’s duty to defend the constitutionality of state stat- utes. 20 But in State v. Douglas, 21 we recognized that the Attorney General has some duties which are not purely statu- tory and are sometimes referred to as the “common-law duties of the office.” There, we cited a treatise which articulates the common-law duties of the Attorney General, including that he or she must defend duly adopted statutory enactments that are not unconstitutional. 22 Because the Attorney General cannot defend the constitutionality of a statute if the Attorney General has not been notified of the challenge, strict compliance with § 2-109(E) is necessary to ensure that the appeal may be staffed and handled accordingly. 23 [5] Because notice is needed, strict compliance with § 2-109(E) is necessary whenever a litigant challenges the 17 See, Epp, supra note 14; Boche, supra note 14. 18 See Boche, supra note 14. 19 See id. See, generally, Neb. Const. art. V, § 2. 20 See, Neb. Rev. Stat. § 84-203 (Reissue 2014) (“authorized to . . . defend . . . any . . . matter . . . in which the state may be . . . interested”); Neb. Rev. Stat. § 84-205(10) (Reissue 2014). 21 State v. Douglas, 217 Neb. 199 , 349 N.W.2d 870 (1984). 22 See, id.; 7 Am. Jur. 2d Attorney General § 5 (2017) (citing Com. ex rel. Beshear v. Com. ex rel. Bevin, 498 S.W.3d 355 (Ky. 2016)). 23 See Boche, supra note 14.  - 405 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DENTON Cite as 307 Neb. 400 constitutionality of a statute, regardless of how that consti- tutional challenge may be characterized. 24 It does not mat- ter if the litigant explicitly challenges a statute, as this court remains bound to the requirements of article V of the Nebraska Constitution. 25 Therefore, as long as this court must deter- mine the constitutionality of a statute in deciding an appeal, § 2-109(E) applies. 26 Here, Denton implicitly challenges the constitutionality of § 25-2705, which precludes a defendant from obtaining a jury trial for the criminal prosecution of an ordinance. 27 Denton argues that § 25-2705 cannot apply to him because his con- stitutional right to a jury trial was triggered by the additional penalties he will suffer from being convicted of violating the assault ordinance. 28 Even if we agree with Denton, we cannot provide him a jury trial without declaring § 25-2705 unconsti- tutional as applied in his case, because the statute leaves no discretion for a court to grant a jury trial for the criminal pros- ecution of a city ordinance violation. 29 Because Denton implicitly challenged the constitutionality of § 25-2705, he needed to comply with § 2-109(E). Denton did not provide a separate notice or a petition to bypass to the Supreme Court Clerk. 30 On appeal to this court, the State is represented by an assistant city attorney. Our record does not show that the Attorney General received a copy of Denton’s brief. 31 Consequently, Denton failed to provide notice to this court and the Attorney General. He did not strictly comply 24 See Smith v. Wedekind, 302 Neb. 387 , 923 N.W.2d 392 (2019). 25 See id. See, generally, Neb. Const. art. V, § 2. 26 See Wedekind, supra note 24. 27 See State v. Cozzens, 241 Neb. 565 , 490 N.W.2d 184 (1992). 28 See § 9.36.100(a). 29 See Cozzens, supra note 27. 30 See § 2-109(E). 31 See id. - 406 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DENTON Cite as 307 Neb. 400 with § 2-109(E), and therefore, we cannot consider Denton’s only assigned error. CONCLUSION Denton implicitly challenged the constitutionality of a stat- ute, but he failed to provide notice as required by § 2-109(E). Because we are unable to reach the merits of his appeal, we affirm the judgment of the district court. Affirmed.

2020-12-04 06:08:54.109845+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007398PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 103 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 State of Nebraska ex rel. M. Lynne McNally and Keep the Money in Nebraska, relators, and Nebraska Horsemen’s Benevolent & Protective Association, Inc., et al., relators-intervenors, v. Robert B. Evnen, Secretary of State of the State of Nebraska, respondent, and Dr. Richard Loveless, and Ann Zohner and Todd Zohner, wife and husband, respondents-intervenors. ___ N.W.2d ___ Filed September 10, 2020. No. S-20-612. 1. Constitutional Law: Initiative and Referendum. The right of initia- tive is precious to the people and one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter. 2. ____: ____. The power of initiative must be liberally construed to pro- mote the democratic process, and provisions authorizing the initiative should be construed in such a manner that the legislative power reserved in the people is effectual. 3. Constitutional Law. A constitution represents the supreme written will of the people regarding the framework for their government. 4. Constitutional Law: Initiative and Referendum. The people of Nebraska may amend their Constitution in any way they see fit, pro- vided the amendments do not violate the federal Constitution or conflict with federal statutes or treaties. 5. Initiative and Referendum: Appeal and Error. The Nebraska Supreme Court makes no attempt to judge the wisdom or the desirability of enact- ing initiative amendments. 6. Initiative and Referendum: Intent. The interests that propel both proponents and opponents of initiative petitions may often involve self- interest rather than the public interest. But a court’s focus in deciding whether an initiative petition reaches the voters must be on the actual law proposed by the petition, not on the motives that may lie behind  - 104 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 it; the voters may consider those motives in deciding how they vote on the petition. 7. Constitutional Law: Initiative and Referendum. A purpose of the language in Neb. Const. art. III, § 2, that “[i]nitiative measures shall contain only one subject” is to avoid logrolling, which is the practice of combining dissimilar propositions into one proposed amendment so that voters must vote for or against the whole package even though they would have voted differently had the propositions been submit- ted separately. 8. Initiative and Referendum. Where the limits of a proposed law, hav- ing natural and necessary connection with each other, and, together, are a part of one general subject, the proposal is a single and not a dual proposition. 9. Constitutional Law: Initiative and Referendum: Intent. The control- ling consideration in determining the singleness of a subject for pur- poses of article III, § 2, of the Nebraska Constitution is its singleness of purpose and relationship of the details to the general subject, not the strict necessity of any given detail to carry out the general subject. The general subject is defined by its primary purpose. 10. Initiative and Referendum. When initiatives are presented separately, even if on the same ballot, a voter has the option to vote for one initia- tive but not the other, even if the initiatives have some connection to one another. Because voters can vote differently on each separate initia- tive, single subject review should focus on the specific initiative being reviewed without reference to the content of another initiative that is submitted separately. Original action. Writ of mandamus granted. Andre R. Barry and John F. Zimmer, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for relators. Douglas J. Peterson, Attorney General, James A. Campbell, Solicitor General, Ryan S. Post, L. Jay Bartel, and Lynn A. Melson for respondent. David A. Lopez and Kyle J. Gilster, of Husch Blackwell, L.L.P., for intervenor Dr. Richard Loveless. Stephen D. Mossman, J.L. Spray, and Joseph A. Wilkins, of Mattson Ricketts Law Firm, for intervenors Ann Zohner and Todd Zohner.  - 105 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 Jefferson Downing, of Keating, O’Hara, Nedved & Peter, P.C., L.L.O., for amicus curiae Gambling With the Good Life, Inc. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Freudenberg, JJ., and Welch, Judge. Miller-Lerman, J. NATURE OF CASE M. Lynne McNally and Keep the Money in Nebraska (col- lectively McNally), along with other sponsors, filed three proposed ballot initiative petitions with Nebraska Secretary of State Robert B. Evnen (the Secretary). Generally, the first initiative would amend the prohibition against gambling con- tained in Nebraska Const. art. III, § 24, by permitting enact- ment of an exception which would authorize games of chance conducted within licensed racetrack enclosures; the second initiative would enact certain statutes and amend certain exist- ing statutes to regulate games of chance operated by licensed gaming operators within licensed racetrack enclosures; and the third initiative would enact statutes that impose a tax on rev- enues from games of chance and specify how such taxes would be distributed. After signatures had been collected, the Secretary received letters objecting to the initiatives and asking that they be withheld from the ballot due to claimed legal insufficiencies. Separate letters were received from Dr. Richard Loveless and from Ann Zohner and Todd Zohner. The Secretary requested and received additional letters from the sponsors and from the objectors, and the Secretary there- after granted the objectors’ request to withhold the proposed initiatives from the November 3, 2020, general election bal- lot. The Secretary generally determined that each initiative was facially invalid under the “single subject” provision of Neb. Const. art. III, § 2. The Secretary further determined that even if either the regulatory initiative or the tax initiative was  - 106 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 in itself legally sufficient, both initiatives should be withheld because all three initiatives have a common primary purpose. After the Secretary announced his decision to withhold the initiatives from the ballot, McNally applied for leave to com- mence an original action in this court for a writ of mandamus requiring the Secretary to place the initiatives on the ballot. We granted leave, and based on McNally’s verified petition for writ of mandamus, we issued an alternative writ of mandamus requiring the Secretary to place the initiatives on the ballot or show cause why they should not be placed on the ballot. We expedited the proceeding and set a briefing schedule and date for oral argument. During the pendency of this case, several parties inter- vened. Loveless and the Zohners intervened and essentially aligned with the Secretary. Nebraska Horsemen’s Benevolent & Protective Association, Inc.; Ho-Chunk, Inc.; and Omaha Exposition and Racing, Inc., intervened and essentially aligned with McNally. We have considered the arguments and claims of all parties, and within our disposition with respect to issues identified as raised by McNally and the Secretary, we have also considered arguments of all intervenors. Our disposition disposes of all claims asserted before us. We exercise original jurisdiction under Neb. Const. art. V, § 2, because this is a cause of action relating to revenue, in which the State has a direct interest, and because McNally has requested a writ of mandamus. See State ex rel. Loontjer v. Gale, 288 Neb. 973 , 853 N.W.2d 494 (2014). As we explain, we conclude that none of the initiatives is legally insufficient and that all three should be placed on the ballot. By separate order, the alternative writ is vacated; a writ of mandamus is issued by separate order ordering the Secretary to place all three initiatives on the ballot. STATEMENT OF FACTS Three Initiatives. In the verified petition for writ of mandamus, McNally alleges that the sponsors of the three initiatives at issue in this  - 107 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 case are Keep the Money in Nebraska, Nebraska Horsemen’s Benevolent & Protective Association, Ho-Chunk, and Omaha Exposition and Racing. McNally alleges that Keep the Money in Nebraska is a registered ballot question committee and that M. Lynne McNally is a resident of Lancaster County, Nebraska, who is a member of Keep the Money in Nebraska and the executive vice president of Nebraska Horsemen’s Benevolent & Protective Association. McNally alleges that on April 10, 2019, the sponsors filed with the Secretary the text of the three proposed ballot initiatives, along with the required object statements and sworn statements of sponsors, and that on July 3, 2020, the sponsors submitted sufficient and valid signatures for the petitions. McNally further alleges that in late July 2020, the Nebraska Attorney General sent the Secretary letters setting forth the ballot title and explanatory statement for each of the initiatives. The first initiative, hereinafter referred to as “the Constitutional Initiative,” included the following object state- ment: “The object of this petition amends the Nebraska Constitution to state that laws may be enacted allowing for the licensing, authorization, taxation, and regulation of all forms of games of chance to be conducted by authorized gaming opera- tors within licensed racetrack enclosures in the state.” The text of the Constitutional Initiative was set forth as proposing that Neb. Const. art. III, § 24, be amended to add a subsection (5), which would provide: This section shall not apply to any law which is enacted contemporaneously with the adoption of this subsection or at any time thereafter and which provides for the licens- ing, authorization, regulation, or taxation of all forms of games of chance when such games of chance are con- ducted by authorized gaming operators within a licensed racetrack enclosure. The second initiative, hereinafter referred to as “the Regulatory Initiative,” included the following object state- ment: “The object of this petition enacts a statute allowing all games of chance to be conducted by authorized gaming  - 108 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 operators within licensed racetrack enclosures in Nebraska and establishes a Nebraska Gaming Commission to regulate such gaming in Nebraska.” The text of the Regulatory Initiative was set forth as proposing the enactment of “the Nebraska Racetrack Gaming Act,” which included enactment of various statutory provisions to, inter alia, permit operation of games of chance by authorized gaming operators within licensed race- track enclosures, define terms used within the proposed act, set forth regulations regarding operation of such games, create the “Nebraska Gaming Commission,” and set forth author- ity and duties of such commission. The text of the initiative also proposed to amend various existing statutes to include references to “games of chance,” “the Nebraska Racetrack Gaming Act,” “the Nebraska Gaming Commission,” and other language relevant to regulation of games of chance. Of par- ticular note in this original action, the initiative proposed to amend existing Neb. Rev. Stat. § 77-2704.20 (Reissue 2018), which currently provides: “Sales and use taxes shall not be imposed on the gross receipts from the sale, lease, or rental of and the storage, use, or other consumption in this state of purchases made by licensees of the State Racing Commission.” The Regulatory Initiative proposed to amend § 77-2704.20 by adding “or of purchases made by licensees of the Nebraska Gaming Commission.” The Regulatory Initiative also pro- posed to revise Neb. Rev. Stat. § 77-3001 (Supp. 2019), which defines the term “mechanical amusement device” for purposes of the Mechanical Amusement Device Tax Act and which includes a list of devices that are excluded from the defini- tion. The Regulatory Initiative proposed to amend § 77-3001 to include in the list of exclusions, and therefore exclude from the definition, “gaming devices or limited gaming devices as defined in and operated pursuant to the Nebraska Racetrack Gaming Act.” The third initiative, hereinafter referred to as “the Tax Initiative,” included the following object statement: “The object of this petition enacts a statute establishing an annual tax on gross gaming revenue generated by authorized gaming  - 109 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 operators of games of chance within licensed racetrack enclo- sures and directs the collection, enforcement, and distribution of revenue from such gaming tax.” The text of the Tax Initiative was set forth as proposing statutory language to, among other things, impose an annual gaming tax; define statutory terms; set the tax at 20 percent of gross gaming revenue; authorize the Nebraska Gaming Commission to collect, account for, and remit the tax; and provide that specific percentages of the tax imposed be remitted to the Compulsive Gamblers Assistance Fund, the State’s General Fund, the Property Tax Credit Cash Fund, and the county and/or the city or village in which the licensed racetrack enclosure is located. Of particular note to this original action, the Tax Initiative provided that 70 percent of the tax imposed was to be credited to the Property Tax Credit Cash Fund. Secretary of State. As indicated above, on August 7, 2020, the Secretary received separate letters from the objectors asking that the three initiatives be withheld from the ballot due to claimed legal insufficiency. After requesting and receiving additional letters from the objectors and from McNally and the other sponsors, the Secretary issued a letter dated August 25, 2020, in which he determined that the three initiatives should be withheld from the ballot, generally for the reason that the ini- tiatives violated the single subject rule set forth in Neb. Const. art. III, § 2. The Secretary set forth the reasoning for his decision in the letter. He began the analysis by determining that “the primary purpose for each [of the three initiatives] is the same: to per- mit previously prohibited games of chance to be conducted in the State of Nebraska.” He further stated that “without the Constitutional Initiative, neither the Regulatory Initiative nor the Tax Initiative serves any purpose.” But, he stated, even if there were separate primary purposes for each of the initia- tives, the outcome would be the same. The Secretary then set forth law relating to the single subject rule. He stated that  - 110 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 in prior cases involving a single initiative, the question was whether the single initiative contained more than a single subject. But he noted that this case presented “a novel situa- tion that has not been present in any case heretofore decided by the Supreme Court,” namely, a situation in which “a single general subject constitutes the primary purpose of all three of the initiatives.” The Secretary then reviewed each of the initia- tives individually. Regarding the Constitutional Initiative, the Secretary rejected certain arguments advanced by the objectors, but the Secretary found merit to an alternate argument advanced by the objectors regarding the Constitutional Initiative: that it contained a “‘hidden authorization’” of certain types of gambling on tribal lands in Nebraska. The Secretary agreed with the objectors’ reasoning that under the federal Indian Gaming Regulatory Act, permitting gaming activities by any organization in the State would require the State to negotiate with tribes to allow that type of gambling activity on tribal lands. The Secretary reasoned that the Constitutional Initiative would “likely . . . mislead voters into thinking that they are voting for an initiative that would prohibit the conduct of games of chance anywhere but at racetracks” but that instead, if the initiative were adopted, “gambling would not be limited to racetracks.” The Secretary determined that if the initiative were adopted, the legal implications under the Indian Gaming Regulatory Act were not merely speculative, and he noted that there were three tribal casinos in the State that could engage in additional types of gaming and that one of the sponsors of the initiatives was “affiliated with a tribal . . . casino in Iowa within a few miles of the Nebraska border that is not operating within a racetrack.” The Secretary found that the Constitutional Initiative creates the appearance that games of chance could be conducted only in racetrack enclosures. However, referring to State ex rel. Loontjer v. Gale, 288 Neb. 973 , 853 N.W.2d 494 (2014), the Secretary reasoned that given the implications under the Indian Gaming Regulatory Act, the Constitutional Initiative was “likely to confuse voters,” “likely  - 111 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 to materially mislead voters,” and “create[] doubt about what action would be authorized.” The Secretary concluded that the Constitutional Initiative “effectively puts forth dual proposals: (1) authorizing expanded gambling at tribal casinos and (2) authorizing expanded gam- bling at racetracks by authorized operators.” The Secretary stated that the first purpose was “hidden from the voters and impossible to ascertain from the text of the proposal.” He concluded that the Constitutional Initiative violated the single subject rule by “[p]utting forth dual propositions in a single proposal” and “not permit[ting] voters to express a clear pref- erence on dual propositions.” Referring to the first proposal, the Secretary concluded that the Constitutional Initiative was “legally insufficient and for that reason [he would] withhold it from the ballot.” Although the Secretary rested his decision regarding the Constitutional Initiative on the reasoning set forth above, he noted an additional argument by the objectors that the initiative violated the single subject rule because it had “two subjects, which are, first, permitting the conduct of games of chance by authorized operators, and second, that such activity is permit- ted only at racetracks.” The Secretary stated that this was a “strong argument” and that limiting gambling to racetracks was “not a benign purpose” but was “misleading.” However, the Secretary did not explicitly reject or accept this argument as a basis for his decision to withhold the Constitutional Initiative from the ballot. Regarding the Regulatory Initiative, the Secretary noted that the opponents argued that the initiative violated the sin- gle subject rule by including multiple purposes, including authorizing games of chance at racetracks, creating a gaming commission, imposing a license fee, providing tax breaks to operators, and decriminalizing gaming activities. The Secretary reviewed precedent regarding initiatives setting forth a regula- tory scheme and reviewed each of the parts of the Regulatory Initiative based on such precedent. As to most of the parts of the Regulatory Initiative, the Secretary determined that “[t]he  - 112 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 regulatory requirements set forth in the Regulatory Initiative have a natural and necessary connection to the general sub- ject” of permitting previously prohibited games of chance. The Secretary specifically addressed the imposition of the $1 mil- lion licensing fee and determined it had a natural and neces- sary connection. The Secretary, however, also reviewed portions of the initia- tive that provided “[t]ax breaks . . . which exempt purchases by licensees of the gaming commission from sales and use taxes and the mechanical amusement device tax.” The Secretary stated it was a “close question” whether such tax exemptions constituted a separate subject from the regulatory measures in the initiative. But the Secretary concluded that the “tax breaks [did] not have a natural and necessary connection to” a primary purpose of regulating gambling. The Secretary also noted that the tax exemptions were “not mentioned in the object state- ment” and that the sales and use tax exemption was “incorrectly stated in the introduction to the bill” as applying to the gaming commission rather than to licensees of the gaming commission. The Secretary stated that the descriptions were “misleading.” The Secretary further noted that the Tax Initiative provided for taxation of newly expanded gaming activities. He reasoned that “dividing the tax proposals between two initiatives, and by failing to disclose the tax breaks contained in the Regulatory Initiative,” the Regulatory Initiative created a condition confus- ing to voters and creating doubt as to the effect of the initia- tives. The Secretary therefore concluded that the Regulatory Initiative was “not legally sufficient.” The Secretary then stated that there was “an additional, separate basis for the legal insufficiency” of the Regulatory Initiative. He reasoned that because he had determined that the Constitutional Initiative must be withheld from the ballot, the Regulatory Initiative, which shared a primary purpose with the Constitutional Initiative and which had a natural and neces- sary connection to that primary purpose, would have “no pur- pose at all.” The Secretary concluded that if the Constitutional  - 113 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 Initiative were not on the ballot, adoption of the Regulatory Initiative “would be an idle act.” Regarding the Tax Initiative, the Secretary noted that the objectors argued that it violated the single subject rule because it had two distinct and independent proposals: (1) to raise revenue by imposing an annual gaming tax and (2) to “distrib- ute the bulk of the tax revenue for property tax relief.” The Secretary noted that the objectors indicated that other distribu- tions of tax revenue “had a natural and necessary connection with the tax proposed, but that property tax relief is a separate topic included only to entice voters to vote in favor of the gam- ing tax.” In reaction, the Secretary noted precedent in which this court determined that provisions for property tax relief included in other initiatives violated the single subject rule. The Secretary reasoned that “[w]ere the contents of the Tax Initiative con- tained in the Constitutional Initiative, the initiative would be legally insufficient and would be withheld from the ballot as logrolling.” The Secretary stated that the sponsors of the initia- tives “attempt[ed] to avoid the prohibition against logrolling by setting forth the logrolling provisions in one of the Initiatives but not the others.” The Secretary rejected McNally’s argument that “the prop- erty tax enticement” was proper because it was “contained in a separate initiative from that which expands gambling.” The Secretary instead reasoned that the primary purpose of all three initiatives was the same and that the provisions of the Tax Initiative, other than the property tax feature, had a natural and necessary connection to the extension of gam- bling. The Secretary reasoned that property tax relief had no natural and necessary connection to the expansion of gam- bling. The Secretary reasoned that whether the Tax Initiative had the same primary purpose as the other initiatives, or whether its primary purpose was taxation of gambling rev- enues, “the property tax relief provisions contained in the Tax Initiative constitute logrolling and violate the single subject rule.” Similar to his reasoning with regard to the Regulatory  - 114 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 Initiative, the Secretary reasoned that taxation provisions are “confusingly split between the Regulatory Initiative and the Tax Initiative.” The Secretary concluded that the Tax Initiative was legally insufficient. Also similar to his reasoning with regard to the Regulatory Initiative, the Secretary concluded that there was an additional separate basis for the legal insufficiency of the Tax Initiative. He reasoned that because he had decided the Constitutional Initiative must be withheld, that without the Constitutional Initiative, adoption of the Tax Initiative “would be an idle act.” The Secretary finally noted that the opponents raised cer- tain constitutional challenges to the initiatives. However, the Secretary determined that it was not clear whether such chal- lenges were “within the purview of a legal sufficiency review by the Secretary of State” and that the issues did not appear to be ripe for decision. He therefore expressed no opinion on those objections. The Secretary stated in conclusion that “[p]art of the protec- tion of the right of initiative is to assure that such petitions are neither misleading nor manipulative.” He concluded that based on his review and the reasons set forth in his letter, he would withhold all three initiatives from the ballot “unless otherwise ordered by a court of competent jurisdiction.” Original Action for Writ of Mandamus. After the Secretary withheld the three initiatives from the ballot, McNally filed this original action for writ of mandamus. We accepted jurisdiction and issued an alternative writ of man- damus requiring the Secretary to place the three initiatives on the ballot or show cause why they should not be placed on the ballot. We set schedules for briefing and oral argument. Several parties identified previously in the opinion intervened. Summary of Issues Presented in This Action. In response to our alternative writ of mandamus, the Secretary asserts that the issues presented in this original action are whether he correctly concluded that (1) the Constitutional  - 115 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 Initiative violates the single subject rule; (2) because the Constitutional Initiative must be withheld from the ballot, the Regulatory Initiative and the Tax Initiative must also be with- held from the ballot because they will have no effect without the Constitutional Initiative; (3) the Regulatory Initiative vio- lates the single subject rule; and (4) the Tax Initiative violates the single subject rule. McNally asserts that the Secretary incorrectly (1) applied the single subject rule by considering all three initiatives together, even though voters will vote on each separately; (2) determined that the Constitutional Initiative violates the single subject rule; (3) determined that the Regulatory Initiative violates the single subject rule; (4) determined that the Tax Initiative violates the single subject rule; and (5) determined that adoption of the Regulatory Initiative and the Tax Initiative without the simul- taneous adoption of the Constitutional Initiative would be an “idle act.” We note that the Secretary does not appear to dispute that the initiative petitions garnered sufficient signatures, nor does he appear to dispute the validity of the initiatives with respect to any other issue such as verification or submission by a specific date. We therefore presume such requirements were met and would not prevent placement of the initiatives on the ballot. ANALYSIS As set forth above, we issued an alternative writ of man- damus requiring the Secretary to place the three initiatives on the ballot or show cause why a peremptory writ requiring such action should not issue. The Secretary has responded to our alternative writ, and therefore, we must determine whether the Secretary has shown cause why we should not issue a peremp- tory writ requiring him to place any or all of the initiatives on the ballot. The Secretary contends that all three initiatives should not be placed on the ballot. In his response to the alternative writ, the Secretary argues that the Constitutional Initiative violates the single subject rule because it has two subjects: (1) authorizing  - 116 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 games of chance and (2) limiting such activity to licensed racetrack enclosures. As an alternative second argument, the Secretary maintains that the Constitutional Initiative has the hidden purpose of authorizing games of chance on tribal lands. The Secretary argues that because the Constitutional Initiative must be withheld from the ballot, the Regulatory Initiative and the Tax Initiative must also be withheld from the ballot for the reason that they could not stand on their own because they would directly conflict with the current constitutional provision generally prohibiting games of chance. The Secretary alternatively argues that if we determine the Regulatory Initiative and the Tax Initiative need not be withheld for this reason, each initiative in itself violates the single subject rule. The Secretary argues that the Regulatory Initiative, like the Constitutional Initiative, violates the single subject rule because it both authorizes games of chance and limits their operation to licensed racetrack enclosures. The Secretary also argues that the Regulatory Initiative violates the single subject rule because it includes provisions that would exempt licensees from sales and use tax and that would exempt authorized gaming devices from the Mechanical Amusement Device Tax Act; he argues that these tax-related topics do not have a natural and necessary connection to regulation of games of chance. In considering the Tax Initiative, the Secretary maintains that because the sponsors have inextricably bound the Tax Initiative and the Regulatory Initiative together by including taxation issues in both, the propriety of putting the Tax Initiative on the ballot is entirely dependent on the placement of the Regulatory Initiative. The Secretary argues that because the Tax Initiative must be analyzed with the Regulatory Initiative, the Tax Initiative presents a problem of “logrolling” because voters who want to vote for the Tax Initiative in order to pro- vide property tax relief would be forced to also vote for the Regulatory Initiative, which authorizes the activity to be taxed to provide funds for such property tax relief.  - 117 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 In response, McNally generally argues that the single sub- ject rule provides that voters must be allowed to cast sepa- rate votes on separate subjects and that because voters could vote for or against each separate initiative, the legal suffi- ciency of each initiative must be evaluated separately without reference to the other initiatives. McNally argues that if any initiative is legally sufficient in itself, it must be placed on the ballot whether or not either or both of the other ballot issues are legally sufficient. McNally argues that, viewed individ­ ually, none of the three initiatives violates the single subject rule and that therefore, each of the three initiatives must be placed on the ballot. Summary of Legal Determinations. Immediately below, we set forth standards related to the sin- gle subject rule. As set forth below, we determine that each ini- tiative must be analyzed individually for its legal sufficiency, and we thereafter analyze each initiative separately. Based on such analysis, we conclude that neither the Constitutional Initiative, nor the Regulatory Initiative, nor the Tax Initiative violates the single subject rule. We therefore conclude that the Secretary has not shown cause why we should not issue a peremptory writ requiring him to place the Constitutional Initiative, the Regulatory Initiative, and the Tax Initiative on the ballot. Our Precedent Generally Sets Forth a Natural and Necessary Connection Test for the Single Subject Rule Found in Neb. Const. art. III, § 2. [1,2] The people have the power to amend the Nebraska Constitution and enact statutes by the initiative process pursu- ant to Neb. Const. art. III, § 2, which provides in part: “The first power reserved by the people is the initiative whereby laws may be enacted and constitutional amendments adopted by the people independently of the Legislature.” We have repeatedly said that the right of initiative is precious to the people and one which the courts are zealous to preserve to the  - 118 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 fullest tenable measure of spirit as well as letter. Christensen v. Gale, 301 Neb. 19 , 917 N.W.2d 145 (2018); Hargesheimer v. Gale, 294 Neb. 123 , 881 N.W.2d 589 (2016); Stewart v. Advanced Gaming Tech., 272 Neb. 471 , 723 N.W.2d 65 (2006); State ex rel. Lemon v. Gale, 272 Neb. 295 , 721 N.W.2d 347 (2006); Loontjer v. Robinson, 266 Neb. 902 , 670 N.W.2d 301 (2003); State ex rel. Stenberg v. Moore, 258 Neb. 199 , 602 N.W.2d 465 (1999). The power of initiative must be liberally construed to promote the democratic process, and provisions authorizing the initiative should be construed in such a manner that the legislative power reserved in the people is effectual. Stewart v. Advanced Gaming Tech., supra . [3-6] A constitution represents the supreme written will of the people regarding the framework for their government. State ex rel. Johnson v. Gale, 273 Neb. 889 , 734 N.W.2d 290 (2007). The people of Nebraska may amend their Constitution in any way they see fit, provided the amendments do not violate the federal Constitution or conflict with federal statutes or trea- ties. State ex rel. Johnson v. Gale, supra . This court makes no attempt to judge the wisdom or the desirability of enacting initiative amendments. Id. We agree with the statement else- where that the interests that propel both proponents and opponents of initiative petitions may often involve self-interest rather than the public interest. But our focus in deciding whether an initiative petition reaches the voters must be on the actual law proposed by the petition, not on the motives that may lie behind it; the voters may consider those motives in deciding how they vote on the petition. Bogertman v. Attorney General, 474 Mass. 607 , 618-19, 53 N.E.3d 627 , 636 (2016). [7] Among other matters related to initiatives, Neb. Const. art. III, § 2, provides that “[i]nitiative measures shall contain only one subject.” We have stated that a purpose of this lan- guage is to avoid logrolling, which is the practice of combin- ing dissimilar propositions into one proposed amendment so  - 119 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 that voters must vote for or against the whole package even though they would have voted differently had the propositions been submitted separately. Christensen v. Gale, supra . [8,9] Like the majority of jurisdictions, we follow the natu- ral and necessary connection test which we have set forth as follows: Where the limits of a proposed law, having natural and necessary connection with each other, and, together, are a part of one general subject, the proposal is a single and not a dual proposition. Id. The controlling consideration in determin- ing the singleness of a subject for purposes of article III, § 2, of the Nebraska Constitution is its singleness of purpose and relationship of the details to the general subject, not the strict necessity of any given detail to carry out the general subject. Christensen v. Gale, supra . The general subject is defined by its primary purpose. Id. Here, because the parts of the proposed Constitutional Initiative all relate to the same general subject, the expanding of games of chance, the Constitutional Initiative does not violate the single subject rule nor logrolling. We note that this case appears to present an issue of first impression regarding application of the single subject rule when separate but related initiatives are reviewed for legal sufficiency. The Secretary argues in this case that because the three initiatives share a common primary purpose, they must be considered with one another when determining whether any or all of the initiatives violate the single subject rule. McNally disputes that the three initiatives have the same primary pur- pose, but argues that, in any event, each initiative must be ana- lyzed individually to determine whether it violates the single subject rule. The parties appear to agree that our precedent does not address that issue. [10] As noted above, a purpose of the single subject rule is to avoid forcing voters to vote for or against the whole pack- age even though they would have voted differently had the propositions been submitted separately. When initiatives are presented separately, even if on the same ballot, a voter has the option to vote for one initiative but not the other, even if the initiatives have some connection to one another. Because  - 120 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 voters can vote differently on each separate initiative, we con- clude and hold that single subject review should focus on the specific initiative being reviewed without reference to the con- tent of another initiative that is submitted separately. Finally, we note that the Secretary’s arguments rely in large part on language in an opinion in which we stated: “a proposed municipal ballot measure is invalid if it would (1) compel voters to vote for or against distinct propositions in a single vote—when they might not do so if presented separately; (2) confuse voters on the issues they are asked to decide; or (3) create doubt as to what action they have authorized after the election.” State ex rel. Loontjer v. Gale, 288 Neb. 973 , 1000, 853 N.W.2d 494 , 513 (2014) (quoting City of North Platte v. Tilgner, 282 Neb. 328 , 803 N.W.2d 469 (2011)). The Secretary’s arguments focus in large part on asserting that the initiatives in this case are misleading and that they would “confuse voters” and “cre- ate doubt.” We take this opportunity to clarify the quoted lan- guage in State ex rel. Loontjer v. Gale, supra . As is clear from the language quoted above, we were quot- ing City of North Platte v. Tilgner, supra , which set forth stan- dards related to municipal ballot measures and the common- law rules that have been applied to such standards. In State ex rel. Loontjer v. Gale, supra , we were considering constitutional amendments proposed by the Legislature and the separate vote requirement of Neb. Const. art. XVI, § 1, which governs constitutional amendments proposed by the Legislature. We referred to Tilgner, which described a natural and necessary test for the single vote requirement set forth in subsection (1) of the quoted language regarding municipal ballot measures. We concluded that the natural and necessary test for the single vote requirement for municipal ballot measures should also be used in connection with the separate vote provisions of Neb. Const. art. XVI, § 1, governing constitutional amendments proposed by the Legislature. In State ex rel. Loontjer v. Gale, supra , we recognized that among the reasons for a single subject rule is that including  - 121 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 multiple subjects could confuse voters and create doubt, but we have not said that confusion or doubt are separate requirements for a legally insufficient measure or that they are required ele- ments of the test to determine whether a measure violates the single subject requirement. As we noted above, in Christensen v. Gale, 391 Neb. 19 , 917 N.W.2d 145 (2018), we said that the natural and necessary test described in State ex rel. Loontjer v. Gale, supra , for the separate vote requirement under Neb. Const. art. XVI, § 1, for constitutional amendments proposed by the Legislature is also an applicable framework to consid- eration of the single subject rule for initiatives brought under Neb. Const. art. III, § 2. Therefore, the natural and necessary test governs our single subject analysis in this case. We apply the foregoing principles regarding the single sub- ject rule to review the Secretary’s arguments regarding each of the three initiatives at issue in this case and to determine whether or not each initiative violates the single subject rule and is therefore legally insufficient. Constitutional Initiative Does Not Violate Single Subject Rule. In his response to the alternative writ, the Secretary argues that the Constitutional Initiative violates the single subject rule in two different ways, because (1) it both authorizes games of chance and limits them to racetrack enclosures and (2) in addition to authorizing games of chance at racetrack enclo- sures, it authorizes games of chance on tribal lands. Because we conclude that there is no violation of the single subject rule, we reject the Secretary’s arguments and conclude that the Secretary has not shown cause why the Constitutional Initiative should not be placed on the ballot. In reviewing the Secretary’s arguments regarding the Constitutional Initiative, we note that a review for legal suf- ficiency should focus on the actual text of the initiative. We therefore repeat the text of the Constitutional Initiative at this point. The initiative proposes to amend the existing Neb. Const. art. III, § 24, by adding another exception to the  - 122 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 prohibition against gambling by providing the following new subsection (5): This section shall not apply to any law which is enacted contemporaneously with the adoption of this subsection or at any time thereafter and which provides for the licens- ing, authorization, regulation, or taxation of all forms of games of chance when such games of chance are con- ducted by authorized gaming operators within a licensed racetrack enclosure. That is the entirety of the amendment proposed by the Constitutional Initiative. The text of the amendment refers to games of chance within a licensed racetrack enclosure. The dissent is concerned that the racetrack where games of chance are located would serve as host and could profit therefrom. Regarding profit, we note that other subsections in art. III, § 24, such as subsection 2, limit the scope to charitable and community betterment; this Constitutional Initiative does not. We limit our analysis to the text of the Constitutional Initiative, which simply specifies the place of games of chance. We first address the Secretary’s assertion that the Constitutional Initiative contains two subjects. With respect to the first manner of alleged violation, Neb. Const. art. III, § 2, the Secretary asserts the Constitutional Initiative contains two subjects: (1) authorizing all forms of games of chance and (2) restricting those new forms of gambling to racetracks. The Secretary generally argues that authorizing games of chance is the primary purpose and that restricting games of chance to racetrack enclosures does not have a natural and neces- sary connection to authorizing games of chance. We find the Secretary’s reading of the one sentence proposed to be added to the Constitution to be an inaccurate application of the single subject rule. By reviewing the proposed amendment in context, we believe the Secretary’s characterization of the initiative as having two subjects is inaccurate. Article III, § 24, of the Nebraska Constitution, which the Constitutional Initiative  - 123 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 proposes to amend, begins: “[e]xcept as provided in this sec- tion, the Legislature shall not authorize any game of chance or any lottery . . . .” (Emphasis supplied.) This is an invitation to authorize expanded gambling by way of exceptions and, indeed, that has occurred. Both the people (through initia- tive) and the Legislature (by authorization) have accepted the invitation in art. III, § 24(1), to expand gambling. See art. III, § 24(2) through (4). Art. III, § 24, has been amended to include exceptions which permit, inter alia, wagering on horses at race- tracks and, separately, lotteries. The proposed Constitutional Initiative exception accepts the constitutional offer to expand gambling and would permit games of chance at racetracks. By definition, an exception to art. III, § 24, is an expan- sion of gambling. When gambling is expanded, it naturally follows that the enlarged activity shall occur somewhere, hence the description “within a licensed racetrack enclo- sure.” See Bogertman v. Attorney General, 474 Mass. 607 , 53 N.E.3d 627 (2016) (discussing location in the context of expanded gambling). Gambling, i.e., wagering on horses, is already located “within a licensed racetrack enclosure.” Art. III, § 24(4)(a). We do not read the Constitutional Initiative to prevent games of chance being located at additional places by later amendments. In the present case, the sponsors of the Constitutional Initiative concluded that the new gambling exception activ- ity—which art. III, § 24(1), invites—should occur at racetracks where other gambling already occurs as a result of a previous exception. The Constitutional Initiative asks voters if they want games of chance to be permitted within racetrack enclosures. Voters who want games of chance nearby or elsewhere can vote against it. Identifying and limiting the location of a new activity is a detail naturally and necessarily connected to its creation and not a separate subject. Christensen v. Gale, supra . Voters naturally want to know the locale of expanded gambling. We have said that provisions in a proposal must be closely related to be presented to the electorate for a single vote. State ex rel.  - 124 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 Loontjer v. Gale, 288 Neb. 973 , 853 N.W.2d 494 (2014). The Constitutional Initiative meets these tests. The Secretary argues that logrolling is occurring because there may be voters who might support authorization of new games of chance but who dislike the “favored treatment” given to racetracks and would be forced to vote for the racetrack limitation in order to authorize new games of chance. We do not read the proposal as vulnerable to the claim of logrolling. In State ex rel. Loontjer v. Gale, 288 Neb. at 995 , 853 N.W.2d at 510, we said that logrolling is the practice of combining dissimilar proposi- tions into one proposed amendment so that voters must vote for or against the whole package even though they would have voted differently had the propositions been submitted separately. It is sometimes described as includ- ing favored but unrelated propositions in a proposed amendment to ensure passage of a provision that might otherwise fail. The premise of these descriptions of logrolling is that the two propositions are unrelated. Logrolling has no application when propositions are related. Under the Constitutional Initiative, each voter gets to decide whether authorization of games of chance is a sufficiently important goal that he or she will support the incremental expansion provided by this initiative. If so, he or she could vote for it. Or he or she could decide that the racetrack limita- tion is an unfavorable feature and therefore he or she could vote against it. When the parts have a natural and necessary connection, there is no logrolling. When an unattractive feature is paired with an attractive feature and they do not have a natu- ral and necessary connection to one another, then logrolling is a problem. No logrolling occurs here. We have observed that the provisions authorizing the initia- tive should be construed in such a manner that the legislative power reserved in the people is effectual. State ex rel. Loontjer v. Gale, supra ; State ex rel. Lemon v. Gale, 272 Neb. 295 , 721 N.W.2d 347 (2006). Elsewhere, discussing the single subject  - 125 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 rule, it has been cautioned that “defining the constitutionally- valid topic too broadly would render the safeguards of [a single subject rule] inert. Conversely, the requirements of [a single subject rule] must not become a license for the judiciary to ‘exercise a pedantic tyranny’” over efforts to change the law. PA Against Gambling Expansion Fund v. Com., 583 Pa. 275 , 296, 877 A.2d 383 , 395-96 (2005). We have stated that the power of initiative must be liber- ally construed to promote the democratic process. State ex rel. Loontjer v. Gale, supra ; State ex rel. Lemon v. Gale, supra . Whether or not games of chance conducted at racetracks should become the law is for the people to decide. We next consider the Secretary’s argument that the Constitutional Initiative violates the single subject rule because in addition to authorizing games of chance at racetrack enclo- sures, it also authorizes games of chance on tribal lands. We reject this argument. As we stated above, a legal sufficiency review should focus on the actual text of the proposed initia- tive. The Secretary’s argument rests on the notion that there is a “hidden” subject in the Constitutional Initiative that simply is not present in the text of the proposal. That is, the Secretary concludes that the initiative violates the single subject rule because it contains this second hidden subject. When reviewing legal sufficiency, we do not speculate on the hidden motives or self-interest of the sponsors. By that same token, we do not speculate on the potential motives or self-interest of those who object to placing the initiative on the ballot. To the extent the proposed initiative might have repercussions that are not apparent from the text of the initia- tive, whether such repercussions are unintended consequences or ulterior motives, is an argument that should be made to the voters rather than to the Secretary or to a court conducting a legal sufficiency review. See Hargesheimer v. Gale, 294 Neb. 123 , 881 N.W.2d 589 (2016) (noting that referendum statutes provide for disclosure of sponsors and financial contributors so that voters can know who is backing the proposal and based on  - 126 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 that information make their own decisions whether the motives of the backers will affect their vote). We need not delve into federal or tribal law in order to deter- mine whether the amendment proposed by the Constitutional Initiative could have the effect on gaming in tribal casinos that the Secretary asserts. Such analysis is beyond the scope of preelection single subject review. It is not a subject set forth by the text of the initiative. To the extent the repercussions are as the Secretary asserts, that is a matter for opponents to pre­ sent to voters who may decide the likelihood and desirability of such repercussions. Having rejected the arguments of the Secretary and also those of intervenors, we conclude that the Secretary has not shown cause why the Constitutional Initiative should not be placed on the ballot. We therefore will issue a peremptory writ of mandamus requiring the Secretary to place the Constitutional Initiative on the ballot. Regulatory Initiative Does Not Violate Single Subject Rule. The Secretary argues that the Regulatory Initiative vio- lates the single subject rule for the same reason that the Constitutional Initiative does and for the additional reason that provisions addressing taxation have no natural and necessary connection to the regulatory scheme set forth in the initiative. We conclude that the Regulatory Initiative does not violate the single subject rule and that the Secretary has not shown cause why the Regulatory Initiative should not be placed on the ballot. Below we consider various provisions of the Regulatory Initiative, but we initially quote section 4(2). Section 4(2) provides: No more than one authorized gaming operator license shall be granted for each licensed racetrack enclosure within the state; provided that, it shall not be a require- ment that the person or entity applying for or be granted such authorized gaming operator license hold a racing license or be the same person or entity who operates the  - 127 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 licensed racetrack enclosure at which such authorized gaming operator license shall be granted. This language in the Regulatory Initiative indicates that although games of chance are to be located within a racetrack enclosure, the entity who operates such enclosure will not nec- essarily be the operator of games of chance. The Secretary first argues that the Regulatory Initiative violates the single subject rule for the same reason he asserted in connection with the Constitutional Initiative, that is, it violates the single subject rule—because it both (1) autho- rizes games of chance and (2) limits operation of such games of chance to racetrack enclosures. However, the Regulatory Initiative does not in itself “authorize games of chance.” Instead, it states in part that “to the full extent permitted by the Constitution of Nebraska, including amendments to the Constitution of Nebraska adopted contemporaneously . . . , the operation of games of chance is permitted only by authorized gaming operators within licensed racetrack enclosures.” The Regulatory Initiative does not itself authorize games of chance and instead it recognizes that such authorization comes from the constitution and that the operation of the regulatory scheme it sets forth is effective only to the extent it is authorized by the constitution. The subject of the Regulatory Initiative is a regulatory scheme for operation of games of chance that may at some time be authorized by the constitution, and among the features of that regulatory scheme is limiting operation of such games to racetrack enclosures. Because authorization of games of chance is not a subject of the Regulatory Initiative, the limitation to racetracks is not a second subject and instead is to be consid- ered as one of the components of the regulatory scheme. The Secretary does not argue, and we do not find, that the limitation to racetrack enclosures does not have a natural and necessary connection to regulation of games of chance. The Regulatory Initiative includes various other provisions related to regulation of games of chance, and in other cases, we have found that an initiative that purports to regulate a  - 128 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 specific subject may include diverse components related to that single subject. We recently made this observation in Christensen v. Gale, 301 Neb. 19 , 33, 917 N.W.2d 145 , 157 (2018), where we said: [I]n City of Fremont v. Kotas, [ 279 Neb. 720 , 781 N.W.2d 456 (2010), abrogated on other grounds, City of North Platte v. Tilgner, 282 Neb. 328 , 803 N.W.2d 469 (2011),] we held that an initiative petition did not violate the single subject rule. Despite several components of the proposed measure dealing with the subjects of occupancy, licens- ing, electronic verification, government uses, resources, and penalties, and the application to both landlords and employers, we held that these subjects had a natural and necessary connection with each other and were part of the general subject of regulating illegal immigration. In his letter, the Secretary rejected the objectors’ arguments that certain of the components of the Regulatory Initiative were not related to regulation of games of chance, and he does not assert in his response to our alternative writ that those compo- nents or other components of the Regulatory Initiative, other than those discussed below, caused the initiative to violate the single subject rule. The Secretary does argue that the Regulatory Initiative violates the single subject rule because it contains provi- sions which (1) exempt licensees of the Nebraska Gaming Commission from sales and use tax, and (2) exclude gaming devices from the Mechanical Amusement Device Tax Act. He argues that these “tax breaks” do not have a natural and nec- essary connection to regulation of games of chance and that the sponsors recognized that taxation issues are not related to regulation because they included other tax-related issues in the separate Tax Initiative. We disagree. Both tax-related provisions within the Regulatory Initiative have a natural and necessary connection to the regulation of games of chance. Whether operators and licensees are subject to sales and use tax and whether gaming devices authorized in the regulatory scheme are subject to the  - 129 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 mechanical amusement device tax are both issues relevant to regulation of games of chance. In the Regulatory Initiative, the sales and use tax exemption for licensees of the gam- ing commission is accomplished by amending a statute that already exempts licensees of the racing commission to include licensees of the gaming commission. See § 77-2704.20. The exclusion of gaming devices from the Mechanical Amusement Device Tax Act is accomplished by adding “gaming devices” defined in the gaming act to a list of items that are not subject to the tax and that list already includes “pickle card dispens- ing devices.” See § 77-3001. We think this indicates that these provisions are related to the regulation of games of chance in the same sense that the statutes proposed to be amended are part of the regulatory schemes for other forms of gambling—­ horseracing and pickle cards, respectively. We also reject the argument that including these tax-related provisions in the Regulatory Initiative rather than the Tax Initiative implicates the single subject rule. The mere fact that the provisions might also have some connection to the general subject of taxation does not mean that they do not also have a natural and necessary connection to the regulation of games of chance. In fact, if these provisions were included in the Tax Initiative, it would be arguable that they have even less connection to the purpose of that initiative than they do the Regulatory Initiative. Whether licensees are exempted from sales and use tax and whether gaming devices are subject to the Mechanical Amusement Device Tax Act are issues that seem to have only tangential connection to a tax initiative whose purpose is to impose a tax on the revenue of games of chance and provide for allocation for the revenue. Furthermore, the fact that a provision may have some connection to another subject, such as “taxation,” does not mean it does not have a natural and necessary connection to the subject of a specific initiative, such as “regulation.” Our analysis is not whether the provisions could better have been included elsewhere; we only consider whether they have a natural and necessary connection  - 130 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 to the regulatory purpose of the initiative, and we conclude that they do. We reject the Secretary’s argument that the Regulatory Initiative violates the single subject rule, and we conclude that the Secretary has failed to show cause why the Regulatory Initiative should not be placed on the ballot. We will therefore issue a peremptory writ requiring the Secretary to include the Regulatory Initiative on the ballot. Tax Initiative Does Not Violate Single Subject Rule. The Secretary argues that the Tax Initiative violates the sin- gle subject rule. He generally argues that the Tax Initiative is “interwoven with—and entirely dependent on—the Regulatory Initiative.” We reject this argument and conclude that the Secretary has not shown cause why the Tax Initiative should not be placed on the ballot. The Secretary argues that the Tax Initiative and the Regulatory Initiative are so “tightly intertwined” that they must be considered together for single subject analysis. However, as we discussed above, the purpose of the single subject rule is to allow voters to vote separately on different subjects. Because the voters can vote individually and differently on each initia- tive presented, a single subject review focuses on the specific initiative at issue. Viewed in that manner, as we discussed in connection with the Regulatory Initiative, the fact that the tax-related provi- sions of the Regulatory Initiative and the Tax Initiative both have a connection to the general subject of taxation does not mean that by necessity they must, or even can, be included in a single initiative. Single subject analysis focuses on the subjects and provisions actually included in an initiative and not on provisions that might have been included or that are included in a separate initiative. Therefore, the fact that some tax-related provisions are included in the Regulatory Initiative is not rel- evant to our review of the Tax Initiative.  - 131 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 The Tax Initiative imposes a tax on revenues from games of chance and sets forth how the tax collections will be dis- tributed. The imposition of a tax and the distribution of that tax have an obvious natural and necessary connection to one another. If a voter is asked to approve a new tax, it is natural and necessary that the voter would want to know and control how the taxes so collected will be used. A voter is unlikely to support a tax if he or she does not know how the proceeds will be used. Therefore, viewing the Tax Initiative alone, it does not violate the single subject rule. The Secretary argues that certain distributions provided in the Tax Initiative, particularly that 70 percent of the collected tax be distributed for property tax relief, constitute what single subject precedent has characterized as impermissible “logroll- ing.” For example, in State ex rel. Loontjer v. Gale, 288 Neb. 973 , 853 N.W.2d 494 (2014), we held that a proposed ballot measure violated the separate-vote provision of article XVI, § 1, of the Nebraska Constitution, which governs propos- als by the Legislature to amend the Constitution and which Christensen v. Gale, 301 Neb. 19 , 32, 917 N.W.2d 145 , 156 (2018), concluded “imposes the same requirements as the single subject provision under article III, § 2.” The measure at issue in State ex rel. Loontjer would have amended the Constitution by way of one proposal to permit slot-machine- type gambling on replayed horseraces and would direct tax revenue from that activity, as well as from live horseracing which was already allowed by the Constitution, to property tax relief and education funding. We determined in State ex rel. Loontjer that constitutional authorization of a new form of wagering lacked a natural and necessary connection to the measure’s proposal to the use tax revenues for property tax relief and education and that the only purpose of including such property tax relief in the same measure “was to enhance the odds that voters would approve the new form of wagering,” which effect we described as “logrolling.” 288 Neb. at 1004 , 853 N.W.2d at 515.  - 132 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 As noted above in this opinion, we have described logrolling as “the practice of combining dissimilar propositions into one proposed amendment so that voters must vote for or against the whole package even though they would have voted differently had the propositions been submitted separately.” Christensen v. Gale, 301 Neb. at 31 , 917 N.W.2d at 156. The Secretary’s log- rolling argument requires that we look at all three initiatives, or at least both the Regulatory Initiative and the Tax Initiative, together and determine that inclusion of property tax relief in the Tax Initiative serves as an incentive for voters to approve the other initiatives in order to achieve such relief. We reject the Secretary’s argument. As described above, logrolling means a situation in which voters are required to vote for or against the whole package even though they would have voted differently had the propo- sitions been submitted separately. This concern is not present when, as here, the initiatives are submitted separately and vot- ers may vote on each individually and can choose to vote for all three or only for those of which they approve. For example, a voter might not want to authorize expanded gambling and therefore vote against authorization and/or regulation, but vote for the tax initiative on the thought that if games of chance are authorized by the general electorate, the voter wants those activities taxed and the proceeds used for, among other things, property tax relief. The voter is not forced to vote for authori- zation in order to achieve property tax relief unless the voter believes authorizing games of chance is an acceptable way to achieve property tax relief. The distribution of a tax has an obvious natural and neces- sary connection to the imposition of that tax and therefore both features are part of a single subject. Clearly, a voter would be highly unlikely to vote for a tax unless he or she knew and sup- ported the purpose to which tax proceeds would be directed. We do not believe that including an attractive disposition of proceeds of the tax authorized by the initiative which imposes the tax can be viewed as a ploy to trick a voter into voting for imposition of the tax.  - 133 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 We conclude that the Tax Initiative does not violate the single subject rule and that therefore, the Secretary has not shown cause why it should not be placed on the ballot. We will therefore issue a peremptory writ of mandamus requiring the Secretary to place the Tax Initiative on the ballot. CONCLUSION The people have the power to amend the Nebraska Constitution and enact statutes by the initiative process pursu- ant to Neb. Const. art. III, § 2, which provides in part: “The first power reserved by the people is the initiative whereby laws may be enacted and constitutional amendments adopted by the people independently of the Legislature.” We have repeatedly said that the right of initiative is precious to the people and one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter. We con- clude that in response to our alternative writ, the Secretary has not shown cause why either the Constitutional Initiative, the Regulatory Initiative, or the Tax Initiative should not be placed on the ballot. We therefore vacate our alternative writ and by separate order issue a peremptory writ of mandamus ordering the Secretary to place the Constitutional Initiative, the Regulatory Initiative, and the Tax Initiative on the November 2020 ballot. Writ of mandamus granted. Funke, J., and Welch, Judge, join in this opinion. Papik, J., not participating. Cassel, J., concurring. In the lead opinion, I join the sections entitled “Nature of Case” and “Statement of Facts,” and the judgment of the court. The court’s decision today is dictated by the seven words of article III, § 2, of the Nebraska Constitution stating, “Initiative measures shall contain only one subject.” That same section of the state Constitution reserves the power of initiative to the people. While this court has stated that the  - 134 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 power of initiative must be liberally construed to promote the democratic process, 1 it has also recognized that a pro- cedural requirement found in the same section of the state Constitution in which the people reserved to themselves the power of initiative serves to define the scope of the initiative power. 2 This court must give “meaningful effect” to the self- imposed limitation on that power. 3 The words in a constitutional provision must be interpreted and understood in their most natural and obvious meaning unless the subject indicates or the text suggests that they are used in a technical sense. 4 It is also appropriate and helpful to consider the evil and mischief attempted to be remedied, the objects sought to be accomplished, and the scope of the rem- edy its terms imply. 5 A purpose of these seven words is to avoid voter confusion and logrolling, which is the practice of combining dissimi- lar propositions into one proposed amendment so that voters must vote for or against the whole package even though they would have voted differently had the propositions been submit- ted separately. 6 I believe all members of the court agree with this purpose. Where the limits of a proposed law, having natural and necessary connection with each other, and, together, are a part of one general subject, the proposal is a single and not a dual proposition. 7 The controlling consideration in determining the singleness of a proposed amendment is its singleness of 1 See Stewart v. Advanced Gaming Tech., 272 Neb. 471 , 723 N.W.2d 65 (2006). 2 See State ex rel. Lemon v. Gale, 272 Neb. 295 , 721 N.W.2d 347 (2006). 3 See id. 4 Id. 5 See id. 6 Christensen v. Gale, 301 Neb. 19 , 917 N.W.2d 145 (2018). 7 Id. - 135 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 purpose and the relationship of the details to the general sub- ject. 8 The general subject is defined by its primary purpose. 9 The proposed amendment to article III, § 24, of the Nebraska Constitution states in relevant part, “This section shall not apply to any law . . . which provides for . . . all forms of games of chance when such games of chance are conducted by authorized gaming operators within a licensed racetrack enclosure.” Fundamentally, a majority of this court concludes that this language prescribes “what” (gaming) and “where” (racetracks), while our dissenting colleagues view the words as dictating “what” (gaming) and “who” (racetrack hosts). But I do not read “authorized gaming operators within a licensed racetrack enclosure” synonomously with either existing licens- ees or existing racetracks. Further, I do not read any of my dis- senting colleagues to agree with the reasoning of the Secretary of State analyzing the Constitutional Initiative, the Regulatory Initiative, and the Tax Initiative as a single proposal. Nor do I view any member of this court as thinking it proper to con- sider, for purposes of article III, § 2, the effect of adoption of the initiative upon tribal gaming. The primary purpose of the proposal is to provide another exception to the basic prohibition of games of chance, lotter- ies, and gift enterprises under article III, § 24(1). The detail of “where” is naturally and necessarily related to the “what.” Expansion of gaming presumes some location. The racetrack limitation merely specifies the place. This dictates that the pro- posal contains only one “subject” within the meaning of article III, § 2. That is all the Secretary of State was required to deter- mine, and our scope goes no further. The arguments for and against the wisdom and desirability of the proposal are for the people of this state to decide. Because only one subject was 8 Id. 9 Id.  - 136 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 specified in the Constitutional Initiative, that proposal must go to the voters. I join the reasoning of my colleagues in the lead opin- ion regarding application of the single subject rule to the Regulatory Initiative and the Tax Initiative. Heavican, C.J., Stacy, and Freudenberg, JJ., dissenting. To the extent the plurality concludes there is just one subject presented in the Constitutional Initiative, we respectfully dis- agree. Because we discern two separate subjects with separate purposes, we conclude the initiative violates the single subject requirement of Neb. Const. art. III, § 2. We would deny the writ and allow the Secretary of State to withhold the Constitutional Initiative from the November 2020 ballot. A constitution represents the supreme written will of the people regarding the framework for their government, and the people may amend their Constitution in any way they see fit, provided the amendments do not violate the fed- eral Constitution or conflict with federal statutes or treaties. 1 In 1998, the people of Nebraska amended art. III, § 2, to add the requirement that “[i]nitiative measures shall contain only one subject.” 2 The peoples’ power of initiative, and the self- imposed single subject limitation on that power, are of equal constitutional significance. 3 Just as courts must respect and give effect to the power the people have reserved to themselves to amend the constitution or enact legislation through initiative measures, courts must also give meaningful effect to the single subject requirement in art. III, § 2. When analyzing the single subject requirement for voter initiatives under art. III, § 2, we apply the natural and 1 State ex rel. Johnson v. Gale, 273 Neb. 889 , 734 N.W.2d 290 (2007). 2 See 1997 Neb. Laws, L.R. 32CA. 3 See, e.g., State ex rel. Lemon v. Gale, 272 Neb. 295 , 721 N.W.2d 347 (2006) (right to initiative and resubmission clause limiting that right have equal constitutional significance).  - 137 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 necessary connection test. 4 Under that test, the inquiry is whether all of the provisions of an initiative have a “‘“natural and necessary connection with each other, and, together, are a part of one general subject.”’” 5 When there are separate pro- visions in a proposed constitutional amendment, they “must be closely related in purpose to be presented to the electorate for a single vote.” 6 This is so because “[w]ithout a unifying purpose, separate proposals in a ballot measure necessarily present independent and distinct proposals that require a sepa- rate vote.” 7 When analyzing the single subject requirement, we are mindful that its purpose is to “avoid voter confusion and logrolling.” 8 We have described logrolling as “the practice of combining dissimilar propositions into one proposed amend- ment so that voters must vote for or against the whole package even though they would have voted differently had the propo- sitions been submitted separately.” 9 We also have described logrolling as “including favored but unrelated propositions in a proposed amendment to ensure passage of a provision that might otherwise fail.” 10 Generally speaking, logrolling is criticized because it leads to the adoption of measures which, when considered separately, do not enjoy true majority sup- port, and it presents voters with the “Hobson’s choice” of either choosing to vote for a measure they dislike in order to secure passage of a measure they favor or, conversely, being 4 See Christensen v. Gale, 301 Neb. 19 , 917 N.W.2d 145 (2018). 5 Id. at 32, 917 N.W.2d at 156. 6 State ex rel. Loontjer v. Gale, 288 Neb. 973 , 1000-01, 853 N.W.2d 494 , 513 (2014). 7 Id. at 1003, 853 N.W.2d at 515. 8 Christensen v. Gale, supra note 4, 301 Neb. at 31, 917 N.W.2d at 156 . 9 State ex rel. Loontjer v. Gale, supra note 6, 288 Neb. at 995, 853 N.W.2d at 510 . 10 Id. - 138 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 forced to vote against a measure they favor because it has been joined with a measure they disfavor. 11 The plurality and dissenting opinions do not reach separate results because they disagree on any of these fundamental principles of our constitutional single subject jurisprudence. Instead, we reach different results because we have different views regarding the “subject” of the initiative. We have observed that “whether a proposed amendment’s provisions deal with a single subject matter depends on how narrowly or broadly the subject matter is defined.” 12 Consequently, the judicial exercise of defining the subject of a ballot initiative is a critical first step. To do so, a court must discern the “primary purpose” 13 of the initiative. As it regards the Constitutional Initiative, the plurality appears to have accepted the sponsors’ framing of the initia- tive’s primary purpose. The sponsors describe their objective as amending the constitution to authorize “all forms of games of chance . . . within licensed racetrack enclosures in the state.” Similarly, the plurality defines the subject of the Constitutional Initiative as “ask[ing] voters if they want games of chance to be permitted within racetrack enclosures.” We reject the notion that a sponsor’s articulation of an initiative’s purpose must control the court’s definition of the initiative’s subject. To give meaningful effect to the single subject requirement under art. III, § 2, courts cannot allow the general subject of a voter initiative measure to be defined at such a high level of abstraction that the primary purpose of the single subject requirement—to prevent logrolling—is frustrated. 11 See Richard Briffault, The Single-Subject Rule: A State Constitutional Dilemma, 82 Alb. L. Rev. 1629 (2019). 12 State ex rel. Loontjer v. Gale, supra note 6, 288 Neb. at 1001 , 853 N.W.2d at 514. 13 Christensen v. Gale, supra note 4, 301 Neb. at 32, 917 N.W.2d at 156 .  - 139 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 Courts and commentators alike have acknowledged the dif- ficulty inherent in defining the subject of voter initiatives, 14 and we do not intend to suggest there is a simple mathematical or linguistic formula to correctly identify the subject of every initiative. Indeed, it has been suggested that when applying single subject rules, neither judges nor scholars have been able to define a “subject” with precision. 15 We do not write separately to propose any new test for discerning the subject of an initiative. Rather, we faithfully apply our precedent which states that “the general subject of a proposed ballot measure is defined by its primary purpose.” 16 When we review the Constitutional Initiative through this lens, we discern more than one purpose, and thus more than one subject. The primary purpose of the ballot initiative is to amend the constitution to authorize “all games of chance” in Nebraska. This necessarily means it would authorize casino-style gam- ing. A secondary purpose of the amendment is to restrict that expanded gaming to only “licensed racetracks.” The plurality does not appear to disagree there are multiple proposals inher- ent in the text of the initiative, but it concludes there is a natu- ral and necessary connection between authorizing expanded casino-style gaming on the one hand, and deciding where such expanded gaming should be located on the other hand. If the purpose of the provision to restrict expanded casino-style gam- ing to racetracks was only to identify a geographic location for such gaming, we would agree with our colleagues. But the purpose of the provision restricting expanded casino- style gaming to “within licensed racetracks” is not about geog- raphy. It is about money. This initiative does more than just 14 See, e.g., Briffault, supra note 11. 15 Robert D. Cooter & Michael D. Gilbert, A Theory of Direct Democracy and the Single Subject Rule, 110 Colum. L. Rev. 687 (2010). 16 State ex rel. Loontjer v. Gale, supra note 6, 288 Neb. at 1002 , 853 Neb. at 514. Accord Christensen v. Gale, supra note 4.  - 140 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 identify the location where expanded gaming will occur; it also limits the type of businesses that can profit from hosting such gaming in Nebraska, and thus creates in licensed racetracks a constitutionally protected monopoly on hosting expanded gaming. Hidden in the folds of the question whether to autho- rize expanded casino-style gaming in Nebraska is the separate question whether only racetracks should be given an exclusive constitutional right to host such gaming. That separate question has neither a natural nor a necessary connection to whether expanded casino-style gaming should be authorized in the first instance. It presents a separate subject which, under art. III, § 2, must be put to the voters separately. Combining the proposal to authorize expanded gaming with the proposal to limit such gaming to only licensed race- tracks is a classic example of logrolling. Voters who may favor expanded casino-style gaming but oppose allowing only licensed racetracks to host and thus profit from such gaming are faced with an all or nothing proposition. Either they are forced to vote for something they oppose in order to obtain passage of what they support or, conversely, they are forced to vote against something they support in order to prevent pas- sage of something they oppose. The plurality finds a natural and necessary connection between expanded gaming and racetracks, because one form of gaming (horseracing) is already authorized at racetracks. Reasonable people can debate whether there is a natural con- nection between casino-style gaming and horseracing. But we can conceive of no natural and necessary connection between the proposal to authorize expanded casino-style gaming in Nebraska and the proposal to grant racetracks the exclusive constitutional right to host and thus profit from that gaming. Just as the favorable tax proposal in State ex rel. Loontjer v. Gale 17 was found to be a separate subject with no natural and necessary connection to expanded horse wagering, the 17 State ex rel. Loontjer v. Gale, supra note 6.  - 141 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE EX REL. McNALLY v. EVNEN Cite as 307 Neb. 103 favorable racetrack proposal here has no natural and neces- sary connection to expanded casino-style gaming. Simply put, the Constitutional Initiative here violates the single subject requirement because it fails the natural and necessary test, and is quintessential logrolling. We would hold that the Constitutional Initiative violates the single subject rule and would find the Secretary of State has shown cause why the Constitutional Initiative should not be placed on the November 2020 ballot.

2020-12-04 06:08:07.6679+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007463PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 12:08 AM CST - 702 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. SENTENEY Cite as 307 Neb. 702 State of Nebraska, appellee, v. Larry B. Senteney, appellant. ___ N.W.2d ___ Filed November 6, 2020. No. S-19-690. 1. Appeal and Error. An appellate court may find plain error on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fair- ness of the judicial process. Generally, an appellate court will find plain error only when a miscarriage of justice would otherwise occur. 2. Sentences: Appeal and Error. An appellate court will not disturb a sen- tence imposed within the statutory limits absent an abuse of discretion by the trial court. 3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unrea- sonable or if its action is clearly against justice or conscience, reason, and evidence. 4. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in con- sidering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. 5. Sentences. In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant’s (1) age, (2) men- tality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law abiding conduct, and (6) moti- vation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime. 6. ____. The appropriateness of a sentence is necessarily a subjective judg- ment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.  - 703 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. SENTENEY Cite as 307 Neb. 702 7. Sentences: Probation and Parole: Appeal and Error. Whether proba- tion or incarceration is ordered is a choice within the discretion of the trial court, whose judgment denying probation will be upheld in the absence of an abuse of discretion. Appeal from the District Court for Scotts Bluff County: Andrea D. Miller, Judge. Affirmed. Harry A. Moore, Scotts Bluff County Public Defender, for appellant. Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee. Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Miller‑Lerman, J. NATURE OF CASE Larry B. Senteney appeals his convictions and sentences in the district court for Scotts Bluff County for two counts of third degree sexual assault of a child, one count of attempted incest, and one count of attempted first degree sexual assault. Senteney claims on appeal that the court committed plain error when it allowed an investigator to testify regarding indicators of deception exhibited by Senteney in an interview. He also claims that the court imposed excessive sentences when it sen- tenced him to imprisonment rather than probation. We affirm Senteney’s convictions and sentences. STATEMENT OF FACTS In late 2017, a social services agency reported to law enforce- ment agencies in Scottsbluff, Nebraska, that a 19‑year‑old woman, A.B., had disclosed that when she was 14 years old, she had been sexually abused multiple times by her grand­ father, Senteney. A.B. reported that the incidents occurred in and around Scottsbluff, as well as Gering, Nebraska, and Guernsey, Wyoming, where Senteney lived at the time of the report. Investigators interviewed A.B. regarding the incidents,  - 704 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. SENTENEY Cite as 307 Neb. 702 and it was determined that the Scotts Bluff County sheriff’s office would take the lead in further investigation. An investi- gator contacted Senteney by telephone, and Senteney said that he would be in Nebraska in July 2018 and would contact the sheriff’s office at that time. On July 25, 2018, because Senteney had not yet contacted the sheriff’s office, Investigator Robert Hackett and another investigator drove to Wyoming to contact Senteney at his residence. Hackett and his partner contacted Senteney shortly before noon and interviewed him at his front door regarding A.B.’s allegations. Hackett noted that Senteney “appeared to be very nervous and acted strangely,” that he would only talk to the investigators through the storm door, and that several times he walked away. Senteney denied having had any “‘improper or perverted’” contact with A.B., but toward the end of the interview, he stated that A.B. would not lie and that if she said something had happened, she likely believed it had happened. Senteney asked the investigators to tell A.B. that he was sorry and that he asked her to forgive him. Hackett interviewed A.B. on July 27, 2018, and she detailed three incidents of sexual contact by Senteney that occurred in Scotts Bluff County and three other incidents that occurred in Wyoming. Hackett thereafter obtained a warrant for Senteney’s arrest on charges of third degree sexual assault of a child. Law enforcement officers arrested Senteney in Wyoming, and he was transported to Nebraska. In the operative information, Senteney was charged with two counts of third degree sexual assault of a child, one count of attempted incest with a person under 18 years of age, and one count of attempted first degree sexual assault. A.B. testified at trial, and she generally testified regard- ing the incidents that formed the basis for the charges against Senteney. She testified that when she was around 13 or 14 years old, Senteney began to frequently talk to her about sexual matters and her body, would hug her in a manner that was “gropey,” and tried to kiss her on the mouth. A.B.  - 705 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. SENTENEY Cite as 307 Neb. 702 testified regarding two specific incidents that occurred when Senteney was living in Gering. The first incident occurred in Senteney’s residence in Gering when A.B. was “between 14 and 15” years old and they were watching a movie. A.B. was lying on the couch when Senteney pulled up her shirt, pulled down her bra, and put his mouth on her breasts. He also touched her breasts with his hands. The second incident occurred when the two were at a movie theater in Scottsbluff. Senteney “kept rubbing his hand up and down” her inner thighs throughout “[a]bout half of the movie off and on.” A.B. also testified regarding incidents that had occurred after Senteney moved to Wyoming. A.B. would visit Senteney’s residence in Wyoming, and he would often pick her up from and return her to her home in Gering. After one of these visits, when A.B. was “about 15, almost 16,” Senteney was driving her back to Gering. On a road near the Scotts Bluff National Monument, Senteney “pulled over on the side of the road” and asked A.B. “if [she] wanted to do anything there.” Based on “the way he was acting and the way he was moving towards” her, A.B. interpreted Senteney’s question as a “sexual innu- endo.” She told him “[N]o,” and he drove her home. A.B. testified regarding two incidents that occurred in Senteney’s residence in Wyoming. The first incident occurred when A.B. was 16 years old and Senteney groped her breasts. The second incident occurred a few months later when A.B. was still 16 years old. Senteney told A.B. he wanted to draw some tattoos on her legs; she allowed him to do so, and as he was drawing on her thigh, he moved the marker and his hand up her shorts and “ended up penetrating [her] slightly with the marker.” Senteney then unbuttoned his overalls and took A.B.’s hand and placed it on his penis. A.B. pulled her hand away and told him to stop. While driving A.B. back home, Senteney told A.B. “he couldn’t wait until [she] turned 18.” Prior to trial, the State had filed notice of its intent to offer evidence from witnesses regarding other instances of uncharged sexual assaults under Neb. Rev. Stat. § 27 ‑414  - 706 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. SENTENEY Cite as 307 Neb. 702 (Reissue 2016). This evidence included A.B.’s testimony regarding the incidents that had occurred in Wyoming, as well as testimony by other women who asserted that they had been sexually assaulted by Senteney. A preliminary hearing was held prior to trial for the purpose of informing Senteney of the evidence the State intended to offer, but the court delayed ruling on admissibility until the trial, when it would hear the offered testimony outside the presence of the jury. A.B.’s tes- timony regarding the incidents that occurred in Wyoming was ruled admissible under this process. The court also allowed testimony by two women regarding incidents the court found to be sufficiently similar to the incidents involving A.B. The first witness was M.F., who testified that she was Senteney’s stepdaughter and that when she was 10 or 11 years old, he put his hand inside her shorts and fondled her vagina while she was sitting on his lap. The second witness was T.C., who testi- fied that she was a friend of M.F.’s and that when she was 11 years old and stayed overnight with M.F. in Senteney’s house, Senteney had, inter alia, pinned her on the couch and groped her breasts and vaginal area. The court heard testimony outside the presence of the jury from one other woman, but the court ruled her testimony inadmissible because the situation she described was too dissimilar. The State also called Hackett as a witness. Hackett gener- ally testified regarding his employment by the Scotts Bluff County sheriff’s office and his investigation of A.B.’s allega- tions against Senteney. Hackett testified, inter alia, regarding his and his partner’s July 25, 2018, interview of Senteney at Senteney’s residence in Wyoming. As part of Hackett’s testi- mony, the court received into evidence a recording made from Hackett’s body camera showing the interview of Senteney. After providing foundation through Hackett and having the recording received into evidence, the State questioned Hackett regarding his training with regard to conducting interviews. Hackett testified that he was trained that when conducting interviews, one should pay attention not only to what the  - 707 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. SENTENEY Cite as 307 Neb. 702 person was saying but also to factors such as body language and tone of voice, because those factors could be indicators of deception. He testified that one would look for whether the person was being cooperative and for actions that would indi- cate deception, including avoiding eye contact, “go[ing] into retreat positions,” and actions he described as “tension reliev- ers,” such as “big body movements, stretching, covering the mouth, [and] crossing the arms.” The State then published the recording of Hackett’s inter- view of Senteney to the jury. Afterward, the State ques- tioned Hackett regarding various aspects of what the recording showed, including questions regarding specific examples of indicators of deception that Senteney displayed during the interview. Hackett referenced his prior testimony regarding “retreat positions” and noted that Senteney “walked away several times retreating, generally when there was a tough question that was asked.” He clarified that by “tough” ques- tions he meant “[q]uestions pertaining to the sexual assault of [A.B.]” Hackett referred to a portion of the interview in which Senteney stated that he drew tattoos on A.B.’s feet, rather than on her thighs as she had reported. Hackett testified that this was a form of “retreating” and “want[ing] to get as far away from whatever it is . . . as they can.” Hackett also noted that “when you’re talking about specifically [A.B.], that’s where there’s big body movements, big pain, walking away, [and] crouching down,” and that “if you go into something that he’s comfortable talking about, . . . his voice changed [and] was more relaxed, there’s no moaning, no large body movements.” Hackett also testified that when an interviewee is “comfortable talking about [an event], they’ll remember a lot of details.” Hackett noted that Senteney gave “minimal detail” regard- ing specific incidents with A.B. but that he provided “a lot of detail [regarding] something that [Hackett] thought [Senteney] was comfortable talking about.” Hackett also testified on redi- rect examination that he “felt that [Senteney] was being decep- tive in some admissions that were given.” Senteney did not  - 708 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. SENTENEY Cite as 307 Neb. 702 object to any of Hackett’s testimony set forth above regarding indicators of deception. After Hackett’s testimony, the State rested its case. Senteney testified in his defense and, inter alia, denied the allegations of sexual assault raised by A.B. and the other women. Senteney presented testimony by a character witness and then rested his defense. Among the instructions the court gave to the jury was a general instruction that the jurors were the sole judges of the credibility of witnesses and the weight to be given to their tes- timony. The court gave no limiting instruction, and Senteney requested no limiting instruction regarding Hackett’s testimony about indicators of deception displayed by Senteney in the July 25, 2018, interview. The jury found Senteney guilty on the four counts charged. The court thereafter sentenced Senteney to imprisonment for 3 to 5 years for each of the four convictions and ordered the sentences to be served consecutively. Senteney appeals his convictions and sentences. ASSIGNMENTS OF ERROR Senteney claims that the district court committed plain error when it allowed Hackett to testify regarding indicators of deception shown by Senteney in the July 25, 2018, interview. He also claims that the court imposed excessive sentences when it sentenced him to imprisonment rather than probation. STANDARDS OF REVIEW [1] An appellate court may find plain error on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s sub- stantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. State v. Price, 306 Neb. 38 , 944 N.W.2d 279 (2020). Generally, we will find plain error only when a miscarriage of justice would otherwise occur. Id. [2,3] An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by  - 709 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. SENTENEY Cite as 307 Neb. 702 the trial court. Id. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or con- science, reason, and evidence. Id. ANALYSIS Testimony Regarding Indicators of Deception Was Not Plain Error. Senteney first claims that the district court committed plain error when it allowed Hackett to testify regarding indicators of deception shown by Senteney in the July 25, 2018, inter- view. Senteney acknowledges that he did not object to the testimony that he now contends should not have been allowed. Regardless of whether an objection to the testimony if timely made should have been sustained, we do not find plain error as urged by Senteney. Senteney contends that Hackett’s testimony at trial concern- ing indicators of deception that Senteney showed during the interview was improper. Senteney cites cases in which we have said that the credibility of witnesses is a determination within the province of the trier of fact and that therefore, under our rules of evidence, “‘it is totally improper for one witness to testify as to the credibility of another witness.’” State v. Rocha, 295 Neb. 716 , 733, 890 N.W.2d 178 , 195 (2017) (quoting State v. Beermann, 231 Neb. 380 , 436 N.W.2d 499 (1989)). Despite this general rule, we concluded in Rocha that it was not an abuse of discretion for the trial court to admit, for the purpose of providing context to the defendant’s state- ments, a recorded interview between an interrogating officer and the defendant in which the defendant denied possessing illegal drugs and the officer said the defendant was not being truthful. Senteney argues that the present case is different from Rocha because “Hackett’s statements on video are not at issue” and instead “[i]t is [Hackett’s] testimony in court” that is at issue. Brief for appellant at 30. Senteney acknowledges that his trial counsel failed to object to Hackett’s testimony,  - 710 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. SENTENEY Cite as 307 Neb. 702 but he asks that plain error be noticed because he claims the testimony prejudicially affected his right to a fair trial. The State in its brief “acknowledges that portions of Hackett’s testimony” violated the rule set forth in Rocha to the effect that it is improper for a witness to testify whether another person may or may not have been telling the truth in a specific instance. Brief for appellee at 13. Nevertheless, the State asserts that the presentation of such testimony did not constitute plain error. The State initially notes that portions of the challenged testimony were admissible because Hackett “could have testified to his observations of Senteney during the interview without running afoul of” the rule in Rocha. Brief for appellee at 13. The State acknowledges, however, that Hackett’s testimony went a “step too far” when he “tied those observations to being possible ‘indicators of deception’ and then opined that he felt that Senteney was being decep- tive in certain of his statements.” Id. Next, the State notes that “the jury had the opportunity to weigh Senteney’s credibility for itself because he testified at trial.” Id. And finally, refer- ring to the testimony of A.B. and the other alleged victims, the State asserts that other, properly admitted evidence “effectively attacked Senteney’s credibility and demonstrated his guilt.” Id. at 14. We agree with the State that any error in the presentation of Hackett’s testimony with respect to signs of deception did not rise to the level of plain error. As Senteney concedes, he did not object to any of the testimony he now asserts was improper. Without an objection by Senteney, the court was not asked to rule on the admissibility of Hackett’s testimony or the portion thereof, and therefore, it cannot be said that the court made an erroneous ruling. Our review on appeal is not to speculate whether such an objection, if made, should have been sustained. Instead, we review for plain error. Compare, Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993) (con- sidering expert opinion on signs of deception of complainant and citing John E.B. Meyers et al., Expert Testimony in Child  - 711 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. SENTENEY Cite as 307 Neb. 702 Sexual Abuse Litigation, 68 Neb. L. Rev. 1 (1989)); Cortes‑Puga v. State, No. 03‑17‑00713‑CR, 2019 WL 3680135 (Tex. App. Aug. 7, 2019) (unpublished opinion) (concluding admission of detective’s testimony regarding defendant’s signs of deception was harmless error). We have said that generally, we will find plain error only when a miscarriage of justice would otherwise occur. State v. Price, 306 Neb. 38 , 944 N.W.2d 279 (2020). Error must be plainly evident from the record, and it must be such that it prejudicially affects a litigant’s substantial right and, if uncor- rected, would result in damage to the integrity, reputation, and fairness of the judicial process. See id. In this case, Senteney claims that the court erred when it “allowed” testimony that violated the rules of evidence. As a general matter, during a trial a court is not obligated to rule sua sponte on the admissibility of testimony, and therefore without an objection it is difficult to say a court committed plain error when it allowed specific testimony. See State v. Pointer, 224 Neb. 892 , 894, 402 N.W.2d 268 , 270 (1987) (“[w]ithout an objection by defendant at trial, the trial court has no obligation to interject itself into the proceedings to make rulings not requested. Such actions might well trample on defendant’s trial tactics not known to the court”). See, also, State v. Herrera, 289 Neb. 575 , 856 N.W.2d 310 (2014). Even when a question or answer is arguably improper, for strategic reasons the nonproponent may choose not to raise an objec- tion because to do so would unduly emphasize the question or answer and cause the jury to speculate as to the answer to a challenged question or to consider an answer despite being instructed to ignore it. State v. Pointer, supra. We are not inclined to readily find plain error in testimony to which the opposing party did not object. With the foregoing principles in mind, we do not find that Hackett’s testimony constitutes a miscarriage of justice or that leaving it uncorrected would result in damage to the integrity, reputation, and fairness of the judicial process. We note that  - 712 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. SENTENEY Cite as 307 Neb. 702 Hackett’s testimony regarding indicators of deception and his observations during the July 25, 2018, interview was a rela- tively small part of Hackett’s testimony and that the prosecutor did not emphasize that testimony during closing arguments. Instead, the prosecutor emphasized to the jury during closing arguments that it was the sole judge of witness credibility, and the court similarly instructed the jury that it was the sole judge of witness credibility. Considering the challenged testimony in the context of the entire trial, we do not find that the testimony constituted a mis- carriage of justice or that leaving it uncorrected would result in damage to the integrity, reputation, and fairness of the judi- cial process. We conclude that regardless of whether the court would have or should have sustained an objection to the testi- mony if such objection had been made, it was not plain error for the court to allow the testimony in this case. In connection with his claim of plain error, although he did not assign it as error, Senteney also argues that his trial counsel provided ineffective assistance when counsel failed to object to Hackett’s testimony. We note that although the attorney who represented Senteney in this direct appeal was not the same attorney who represented him at trial, both attorneys worked for the Scotts Bluff County public defender’s office. We have said that when a defendant was “represented by the public defender’s office at trial and on direct appeal, he is not proce- durally barred from asserting a claim of ineffective assistance of counsel in his motion for postconviction relief.” State v. Davlin, 265 Neb. 386 , 391, 658 N.W.2d 1 , 6 (2003). We do not consider Senteney’s argument that his trial counsel provided ineffective assistance. Sentences of Imprisonment Were Not an Abuse of Discretion. Senteney claims that the court imposed excessive sentences when it sentenced him to imprisonment rather than probation. We find that the sentences were within statutory limits and that the court did not abuse its discretion.  - 713 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. SENTENEY Cite as 307 Neb. 702 [4‑7] Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. State v. Price, 306 Neb. 38 , 944 N.W.2d 279 (2020). In determining a sentence to be imposed, relevant factors cus- tomarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime. Id. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. Id. Whether probation or incarceration is ordered is a choice within the discretion of the trial court, whose judgment denying probation will be upheld in the absence of an abuse of discretion. State v. Cerritos‑Valdez, 295 Neb. 563 , 889 N.W.2d 605 (2017). Senteney was convicted of two counts of third degree sexual assault of a child, one count of attempted incest, and one count of attempted first degree sexual assault. The convictions were based on incidents that occurred between 2011 and 2014. At that time, third degree sexual assault of a child was a Class IIIA felony under Neb. Rev. Stat. § 28 ‑320.01 (Reissue 2008), attempted incest was a Class IIIA felony under Neb. Rev. Stat. § 28 ‑201(4)(c) (Cum. Supp. 2014) and Neb. Rev. Stat. § 28 ‑703 (Reissue 2008), and attempted first degree sexual assault was a Class III felony under § 28‑201(4)(b) and Neb. Rev. Stat. § 28 ‑319 (Reissue 2008). At that time, under Neb. Rev. Stat. § 28 ‑105 (Cum. Supp. 2014), the sentencing range for a Class III felony was imprisonment for a minimum of 1 year and a maximum of 25 years and the sentencing range for a Class IIIA felony was imprisonment for a maximum of  - 714 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. SENTENEY Cite as 307 Neb. 702 5 years with no minimum. The court sentenced Senteney to imprisonment for 3 to 5 years for each of the four convictions and ordered the sentences to be served consecutively to one another. Therefore, the sentences were within statutory limits, and we review the sentences for an abuse of discretion. Senteney argues that his sentences were excessive and asserts that “he should have been given probation by the court, instead of a lengthy prison term, because he is innocent of the charges for which he was convicted, he has only two speeding tickets in the past, and he is 68 years old.” Brief for appellant at 31. He also asserts the sentences are longer than necessary to address his rehabilitative needs. At the sentencing, the court stated that it had considered each of the relevant factors set forth above and the court specifically acknowledged Senteney’s age and his “relatively nonexistent prior [criminal] record.” However, the court also noted that the record indicated that Senteney had not taken responsibility or shown remorse, and the court cited specific examples from the presentence report. This assessment by the court is consistent with the fact that on appeal, despite a jury’s having found him guilty, Senteney argues his sentences were excessive because he is innocent of the charges. With respect to the appropriate sentences, the court also specifically addressed the possibility of probation and noted that Senteney had “rebuke[d]” the option of probation because he said he would accept probation but on the condition that the probation officer “treated him respectfully” and was not “a power‑hungry probation officer.” The court determined that such comments indicated that probation was not an option in this case. The court also discussed relevant factors such as the nature of the offenses and the risk Senteney posed to society generally and to family members specifically. Having reviewed the court’s comments at sentencing, we determine that the court did not consider improper factors and instead considered and based its sentencing on sufficient relevant factors. We therefore find no abuse of discretion in  - 715 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. SENTENEY Cite as 307 Neb. 702 the sentences imposed by the court and specifically in the deci- sion to impose sentences of imprisonment rather than proba- tion. We reject Senteney’s claim of excessive sentences. CONCLUSION We conclude that the district court did not commit plain error when it allowed Hackett’s testimony. We also conclude that the sentences were not an abuse of discretion. We therefore affirm Senteney’s convictions and sentences. Affirmed.

2020-06-05 14:08:46.119181+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_03107.htm

Matter of Bryce L. (David B.) (2020 NY Slip Op 03107) Matter of Bryce L. (David B.) 2020 NY Slip Op 03107 Decided on June 3, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 3, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department JOHN M. LEVENTHAL, J.P. SHERI S. ROMAN JEFFREY A. COHEN JOSEPH J. MALTESE, JJ. 2019-07078 (Docket Nos. N-7281-19, N-7282-19) [*1]In the Matter of Bryce L. (Anonymous). Administration for Children's Services, respondent; David B. (Anonymous), appellant. (Proceeding No. 1.) In the Matter of Harley B. (Anonymous). Administration for Children's Services, respondent; David B. (Anonymous), appellant. (Proceeding No. 2) Brooklyn Defender Services, Family Defense Practice, Brooklyn, NY (Piyali Basak and Kathryn V. Lissy of counsel), for appellant. James E. Johnson, Corporation Counsel, New York, NY (Deborah A. Brenner and Julia Bedell of counsel), for respondent. Janet E. Sabel, New York, NY (Dawne A. Mitchell and Judith Stern of counsel), attorney for the children. DECISION & ORDER In related proceedings pursuant to Family Court Act article 10, the father appeals from an order of the Family Court, Kings County (Ilana Gruebel, J.), dated June 12, 2019. The order, after a hearing, found that the father willfully violated a temporary order of protection issued on March 18, 2019, and committed him to a three-month term of incarceration. By decision and order on motion of this Court dated July 8, 2019, enforcement of the order dated June 12, 2019, was stayed pending the hearing and determination of the appeal. ORDERED that the order is reversed, on the law, without costs or disbursements. The failure of the Family Court to personally serve the appellant with the order to show cause upon initiation of the contempt proceeding was a jurisdictional defect (see Matter of Howard T.P. v Maria B. , 237 AD2d 443; Matter of Minter , 132 AD2d 701). Accordingly, we reverse the order. LEVENTHAL, J.P., ROMAN, COHEN and MALTESE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-04 10:07:13.683368+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20201203_C353051_66_353051.OPN.PDF

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS UNPUBLISHED In re FLOYD, Minor. December 3, 2020 No. 353051 Genesee Circuit Court Family Division LC No. 12-129129-NA Before: JANSEN, P.J., and FORT HOOD and RONAYNE KRAUSE, JJ. PER CURIAM. Respondent appeals as of right the trial court’s order terminating her parental rights to the minor child, CF, under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (c)(ii) (failure to rectify other conditions), (g) (failure to provide proper care and custody), (i) (parental rights to sibling terminated due to serious and chronic neglect or abuse), and (j) (reasonable likelihood of harm if returned to the parent). We affirm. I. BACKGROUND Respondent’s parental rights to all seven of her other children were previously terminated. DF was the legal father of three of these children. In February 2019, petitioner, the Department of Health and Human Services (the DHHS) filed a petition requesting the removal of CF from respondent’s home on the basis that CF was at risk of harm in her care because respondent continued to maintain a relationship with DF, CF’s legal father, even though the relationship was characterized by severe domestic violence. Petitioner alleged that DF previously stabbed respondent in the head with a screwdriver and that respondent was living with DF’s mother even though, during proceedings in a prior termination case, she and DF’s father had verbally threatened to kill respondent’s ex-husband. Petitioner agreed to not seek termination at initial disposition and to allow CF to remain in respondent’s care as long as respondent successfully completed “baby court”—a docket designed to provide intensive services to at-risk families—and did not have contact with DF and his family. Respondent found independent housing, which petitioner deemed to be appropriate. At the plea and initial disposition hearing, respondent admitted that she previously lived with DF’s mother and that it was not appropriate for CF to be around DF and his family. -1-  Throughout the baby court proceedings, the caseworker and baby court coordinator reported that respondent was doing well in the program and that she was on track to graduate in December 2019. However, respondent never graduated from the program. Instead, petitioner filed a termination petition after learning that respondent was still in contact with DF. At the termination trial, testimony and 911 calls established that in October 2019, DF struck respondent near her ear, that DF cut her finger with a kitchen knife, and that CF was present when this incident occurred. Respondent had told the 911 operator that the “live-in father of her child” assaulted her. Subsequent 911 calls also established that respondent continued to maintain contact after the October 2019 incident. This appeal followed. II. REASONABLE EFFORTS First, respondent argues that petitioner failed to provide reasonable efforts to reunify her with CF because it did not provide her services to address her domestic violence issues. We disagree. Respondent did not object or indicate that the services provided were inadequate until the termination trial, so respondent’s issue is unpreserved. See In re Frey, 297 Mich. App. 242 , 247; 824 NW2d 569 (2012). We review respondent’s unpreserved issue for “plain error affecting substantial rights.” In re Utrera, 281 Mich. App. 1 , 8; 761 NW2d 253 (2008). Generally, “the [DHHS] has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights.” In re Hicks/Brown, 500 Mich. 79 , 85; 893 NW2d 637 (2017), citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). In order to make reasonable efforts, the DHHS adopts a service plan aimed at rectifying the conditions that caused the child’s removal. In re Fried, 266 Mich. App. 535 , 542; 702 NW2d 192 (2005). See also MCL 712A.18f(3)(d) (stating that the service plan shall include a “[s]chedule of services to be provided to the parent . . . to facilitate the child’s return to his or her home”). Although the DHHS “has a responsibility to expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of the respondent[] to participate in the services that are offered” and “demonstrate that [he or she] sufficiently benefited from the services provided.” In re Frey, 297 Mich. App. at 248 . In this case, contrary to respondent’s argument, the record reflects that respondent was offered services to address her domestic violence issues. Respondent addressed her history of domestic violence during her individual therapy sessions at Infant Mental Health. Respondent was also offered, and even participated in, services to address her domestic violence issues in her prior termination cases. However, respondent failed to benefit from these services because she continued to maintain contact with DF. Accordingly, the trial court did not plainly err by concluding that petitioner made reasonable efforts to preserve and reunify the family, including by offering domestic violence services. III. STATUTORY GROUNDS Next, respondent argues that the trial court erred when it found statutory grounds to terminate her parental rights. We disagree. -2-  “This Court reviews for clear error the trial court’s factual findings and ultimate determinations on the statutory grounds for termination.” In re White, 303 Mich. App. 701 , 709; 846 NW2d 61 (2014). “A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made.” In re Schadler, 315 Mich. App. 406 , 408; 890 NW2d 676 (2016) (quotation marks and citation omitted). Contrary to respondent’s argument, the trial court did not err by terminating her parental rights under MCL 712A.19b(3)(c)(i). Termination under MCL 712A.19b(3)(c)(i) is proper when “182 or more days have elapsed since the issuance of an initial dispositional order” and “[t]he conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age.” Here, more than 182 days elapsed since the initial disposition order was entered at the time of termination. See MCL 712A.19b(3)(c)(i). The conditions that led to adjudication were respondent’s admissions that she was living with DF’s parents and that DF previously stabbed respondent in the head with a screwdriver. At the plea hearing, respondent indicated that she understood that she needed to “stay away” from DF. However, not only did respondent maintain contact with DF, but she allowed DF to live with her. Given the history of severe domestic violence between respondent and DF and respondent’s failure to benefit from domestic violence services, there was no reasonable likelihood that the conditions that led to adjudication would be rectified within a reasonable time considering CF’s age. See id. Accordingly, we are not left with a definite and firm conviction that a mistake has been made with respect to the trial court’s determination that termination was proper under MCL 712A.19b(3)(c)(i).1 See In re Schadler, 315 Mich. App. at 408 . IV. BEST INTERESTS Finally, respondent argues that the trial court clearly erred by finding that termination of her parental rights was in CF’s best interests. We disagree. We review the trial court’s determination that termination is in a child’s best interests for clear error. Id. “A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made.” Id. (quotation marks and citation omitted). When determining whether termination is in the best interests of the child, the trial court should place its “focus on the child rather than the parent.” Id. at 411. “[T]he court may consider the child’s bond to the parent, the parent’s parenting ability, the child’s need for permanency, 1 Because only one statutory ground is required to terminate a respondent’s parental rights, we will not address respondent’s argument that the trial court erred by terminating her parental rights under MCL 712A.19b(3)(c)(ii). See In re Frey, 297 Mich. App. at 244 . Further, because respondent raises arguments only with respect to MCL 712A.19b(3)(c)(i) and (c)(ii), she has abandoned any arguments with respect to MCL 712A.19b(3)(g), (i), and (j). See Martin v Martin ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 349261); slip op at 10 (stating that “[a]bsent any meaningful discussion of [an] issue, there simply is nothing for this Court to review”). -3- stability, and finality, and the advantages of a foster home over the parent’s home.” In re Olive/Metts Minors, 297 Mich. App. 35 , 41-42; 823 NW2d 144 (2012) (citations omitted). “The trial court may also consider a parent’s history of domestic violence, the parent’s compliance with his or her case service plan, the parent’s visitation history with the child, the children’s well-being while in care, and the possibility of adoption.” In re White, 303 Mich. App. at 714 . Although respondent had a bond with CF and there was no indication that he was ever physically harmed while he was in her care, the trial court focused on respondent’s history of being in a domestic violence relationship with DF and CF’s need for permanency and stability. The trial court stated, “[S]ince I’ve been doing this, the ebb and flow has changed with the recognition that trying to maintain intact familial relationships is better than rushing to termination, maybe better than foster care, may work out better than some adoptions.” By not seeking termination at initial disposition and agreeing to allow CF to remain in respondent’s home, petitioner did not rush to termination and instead tried to keep respondent’s relationship with CF intact. However, not only did respondent maintain contact with DF, but as the trial court stated, she actively tried to conceal the fact that she was allowing DF to live with her. The caseworker testified that she did not know DF was living with respondent because respondent would “send him away or hide him in the home.” Respondent’s continued contact with DF was also the reason that she did not graduate from the baby court program. As the trial court stated, CF was at risk of emotional harm by witnessing the ongoing domestic violence between respondent and DF, and DF needed stability and freedom from this domestic violence. Based on the record evidence, we discern no clear error in these findings or the trial court’s determination that termination of respondent’s parental rights was in CF’s best interests. Affirmed. /s/ Kathleen Jansen /s/ Karen M. Fort Hood -4-

2020-12-04 10:07:14.351805+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20201203_C347713_49_347713.OPN.PDF

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS WESTFIELD INSURANCE COMPANY, UNPUBLISHED December 3, 2020 Plaintiff/Counterdefendant-Appellant, v No. 347713 Washtenaw Circuit Court BRITTNEY COLE, LYLE WILSON, and TAMIKA LC No. 17-000648-NF WILLIAMS, Defendants/Counterplaintiffs/Cross- Plaintiffs-Appellees, and MICHIGAN AUTOMOBILE INSURANCE PLACEMENT FACILITY1 and BRANDON JAMAL YOUNG, Cross-Defendants-Appellees. Before: JANSEN, PJ., and FORT HOOD and RONAYNE KRAUSE, JJ. PER CURIAM. In this first-party no-fault insurance action, plaintiff, Westfield Insurance Company, appeals by leave granted2 the trial court’s order granting partial summary disposition pursuant to MCR 2.116(C)(10) in its favor against defendants, Brittney Cole, Lyle Wilson, and Tamika Williams. We reverse and remand with instruction to the trial court to grant summary disposition 1 Modified from Michigan Assigned Claims Plan to Michigan Automobile Insurance Placement Facility, pursuant to trial court’s March 2, 2018 order of substitution of parties. 2 Westfield Ins Co v Cole, unpublished order of the Court of Appeals, entered July 25, 2019 (Docket No. 347713). -1- to plaintiff in its entirety as it pertains to defendants Cole and Wilson, but to more fully explore a balancing of the equities as it pertains to Defendant Williams. I. FACTUAL BACKGROUND This declaratory action arises out of plaintiff’s rescission of an insurance policy that otherwise would have provided coverage for two motor vehicle accidents that occurred on April 11, 2017, during which Williams, Cole, and Wilson were injured. On April 7, 2017, Cole and Wilson went to the J.P. McKeone Insurance Agency, an independent agency not owned or operated by plaintiff, to obtain insurance for a 2006 Dodge Charger and a 2007 Ford Crown Victoria. Only Cole was the named insured on the policy. The insurance application contained a section titled, “Auto Eligibility Questions.” The box was marked next to the statement that “[n]one of the Auto Eligibility Questions are applicable.” The fourth statement in the section was: “An insured vehicle is not solely owned by and registered to the applicant (other than encumbrances, trusts or leases).” The insurance application also contained a declaration from the applicant that the information provided in the application was true: APPLICANT’S STATEMENT: I have read the above application and any attachments. I declare that the information provided in them is true, complete and correct to the best of my knowledge and belief. This information is being offered to the company as an inducement to issue the policy for which I am applying. The application further included the statement that in “making this application for insurance, it is understood that as a part of our underwriting procedures, an investigative consumer report containing driving record information may be obtained for each driver in the household.” Cole signed the application. Cole later asserted that she told the insurance agent that Wilson was to be on the policy, that Wilson should also be a covered driver, and that she was not the sole owner of either car. Wilson noted that she showed the agent both titles of the vehicles, which demonstrated that Cole was not the sole owner of either vehicle. Cole stated that the agent “was supposed to put” Wilson on the application, that the agent had asked Cole to return on April 10, 2017, so that he could add Wilson as a driver of the vehicle, but that she got in the car accident and was not able to make it back.3 In reliance on the representations in the application for insurance, plaintiff issued policy number WNP 5520261, providing coverage for both vehicles. Three days after obtaining the insurance, Cole loaned her Ford Crown Victoria to Williams, who lost control of the vehicle on wet pavement. Wilson was a passenger in the car at the time. Upon learning of the crash, Cole drove her Dodge Charger to the scene. She parked on the shoulder of the highway. Another driver, Brandon Jamal Young, also hit the wet pavement, lost control of his vehicle, and rear-ended the Charger. 3 Defendants got into the car accidents on Tuesday, April 11, 2017, one day after Cole testified that she was “supposed to” return to the insurance agent to add Wilson to the policy. -2-  In the course of investigating the accidents, plaintiff discovered that Wilson had been living with Cole since at least 2011, and was living with her at the time of the accident. Cole testified to the same. Cole further admitted that the insurance application was incorrect because it reflected that she was the sole owner of the Dodge Charger and the Ford Crown Victoria. Plaintiff obtained information from the Michigan Secretary of State’s Office showing that the vehicles were not solely owned by or registered to Cole, and that contrary to Cole’s representations in her application for insurance, the Crown Victoria was co-owned by Cole with Wilson and the Dodge Charger was co-owned by Cole with her mother. Additionally, both Cole and Wilson admitted that, although the application did not list Wilson as a driver of either vehicle, he frequently drove both vehicles. Plaintiff obtained Wilson’s driving record from the Michigan Secretary of State’s Office, which indicated that Wilson’s driving status was listed as “ineligible.”4 With the above in mind, plaintiff sought declaratory relief in the trial court to rescind the insurance agreement. Plaintiff’s Master Underwriter submitted an affidavit stating that, had the true facts been known, plaintiff would not have issued the policy: That if these facts had been made known to [plaintiff] at the time of the application, [plaintiff] would not have issued policy number WNP 5520261, as our underwriting guidelines, approved by the State of Michigan, do not permit the insuring of motor vehicles owned by and available for the use of individuals who are ineligible to possess a Michigan Driver’s License. Additionally, plaintiff’s insurance policy included a fraud section allowing plaintiff to void coverage under certain circumstances, specifically stating that the “insurance was issued in reliance on the information provided in [the] insurance application;” that plaintiff “may void coverage under [the] policy if [an applicant] or an insured . . . knowingly concealed or misrepresented any material fact or circumstances, or engaged in fraudulent conduct, at the time application was made for insurance or at any time during the policy period;” that plaintiff “may void [the] policy for fraud or material misrepresentation even after the occurrence of an accident or loss[,] . . . mean[ing] that [plaintiff] will not be liable for any claims or damages which would otherwise be covered;” and that if plaintiff voided the policy, “it shall be void from its inception as if this policy never took place.” Plaintiff moved for summary disposition under MCR 2.116(C)(10), arguing that no genuine issue of material fact existed regarding its ability to rescind the policy based upon the numerous misrepresentations and omissions committed by Cole during the application process. The trial court granted plaintiff partial summary disposition, concluding that Cole made a material misrepresentation in her application because the cars were not solely owned by and registered to her, holding as a matter of law that plaintiff would not have issued the policy as to the Ford Crown Victoria because it was co-owned by Wilson. The trial court did not conclude the same as to the Dodge Charger, however, noting that it could not find as a matter of law that plaintiff 4 The report from the Michigan Bureau of Driver and Vehicle Records obtained by plaintiff reflected that, as of May 8, 2017, Wilson’s driving status was “ineligible.” -3- would have refused to insure the Charger. The court therafter ordered reformation of the insurance policy to rescind coverage for the Crown Victoria but not for the Charger. On appeal, plaintiff contends that the material misrepresentations made in the application for insurance rendered the policy voidable in its entirety with respect to Cole and Wilson. However, plaintiff concedes that this matter should be remanded for the trial court to determine whether rescission of the contract is appropriate as to Williams, who was by all accounts, innocent of the misrepresentations made by her codefendants. We agree. II. ANALYSIS This Court reviews a trial court’s ruling on a motion for summary disposition de novo. Zaher v Miotke, 300 Mich. App. 132 , 139; 832 NW2d 266 (2013). “All well-pleaded allegations are viewed in the light most favorable to the nonmoving party unless documentary evidence is provided that contradicts them.” Hakslouto v Mt Clemens Regional Med Ctr, 500 Mich. 304 , 309; 901 NW2d 577 (2017). “In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Zaher, 300 Mich. App. at 139 (quotation marks and citations omitted). This Court also reviews de novo issues involving equitable principles, such as arguments for rescission. Kaftan v Kaftan, 300 Mich. App. 661 , 665; 834 NW2d 657 (2013). A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim. Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” Zaher, 300 Mich. App. at 139 (quotation marks and citations omitted). This Court has also held that courts “may not resolve factual disputes or determine credibility in ruling on a summary disposition motion.” Burkhardt v Bailey, 260 Mich. App. 636 , 646-647; 680 NW2d 453 (2004). “[A]n insurer has a reasonable right to expect honesty in the application for insurance . . . .” Bazzi v Sentinel Ins Co, 502 Mich. 390 , 407; 919 NW2d 20 (2018), citing Jacobs v Queen Ins Co, 183 Mich. 512 , 520; 150 N.W. 147 (1914) (noting that “a contract of insurance is one in which the utmost good faith is required of the insured”). A “representation” in the law of insurance, is an oral or written statement by the insured or his authorized agent to the insurer or its authorized agent, made prior to the completion of the contract, giving information as to some fact or state of facts with respect to the subject of the insurance, which is intended or necessary for the purpose of enabling the insurer to determine whether it will accept the risk, and at what premium. [Keys v Pace, 358 Mich. 74 , 82; 99 NW2d 547 (1959) (quotation marks and citation omitted).] A statement in an application for insurance is material if it affects the insurance provider’s acceptance of the risk or the hazard assumed by the insurer; said another way, a misrepresentation is material if the insurer would have rejected the risk or charged an increased premium and not -4- have issued the same contract had it been given the correct information. Oade v Jackson Nat’l Life Ins Co of Mich, 465 Mich. 244 , 255, 261; 632 NW2d 126 (2001). “It is the well-settled law of this state that where an insured makes a material misrepresentation in the application for insurance, including no-fault insurance, the insurer is entitled to rescind the policy and declare it void ab initio.” Lake States Ins Co v Wilson, 231 Mich App 327, 331; 586 NW2d 113 (1998). Rescission is an appropriate remedy when the contract would not have been made if the particular circumstance had been expected or contemplated. Rosenthal v Triangle Dev Co, 261 Mich. 462 , 463; 246 N.W. 182 (1933). “Rescission is justified without regard to the intentional nature of the misrepresentation, as long as it is relied upon by the insurer. Reliance may exist when the misrepresentation relates to the insurer’s guidelines for determining eligibility for coverage.” Lake States Ins Co, 231 Mich. App. at 331 . Notably, however, our Supreme Court recently reiterated that, “[b]ecause a claim to rescind a transaction is equitable in nature, it ‘is not strictly a matter of right,’ but is granted only in ‘the sound discretion of the court.’ ” Bazzi, 502 Mich. at 409 , quoting Amster v Stratton, 259 Mich. 683 , 686; 244 N.W. 201 (1932). With specific respect to no-fault insurance policies, “rescission does not function by automatic operation of the law.” Id. at 411. “Fraud in the application for insurance” does not “imbue an insurer with an absolute right to rescission of the policy with respect to third parties.” Id. That is, even where an insurance contract is void ab initio as to certain parties on the basis of the “fraudulent manner in which it was acquired,” courts should nonetheless consider within their discretion whether that contract should also be voided as it pertains to innocent third parties. See Bazzi, 411-412. Courts should do so on a case-by-case basis in light of a balancing of the equities between the innocent parties. Id. at 411. An automobile insurer may seek to rescind an automobile insurance policy and declare the policy void ab initio if that policy was procured through the insured’s intentional, material misrepresentation, i.e., fraud. To demonstrate fraud, the insurer must establish with a reasonable degree of certainty: (1) that the insured made a material misrepresentation, (2) that the representation was false, (3) that when the insured made the representation he or she knew it was false or made it with reckless disregard as to its truth or falsity, (4) that the misrepresentation was made with the intent that the insurer would act upon it, (5) that the insurer acted on the misrepresentation, and (6) injury was suffered as a result. Titan Ins Co v Hyten, 491 Mich. 547 , 571-572; 817 NW2d 562 (2012). Upon rescission, “[i]n effect, the insurance policy is considered never to have existed.” Bazzi, 502 Mich. at 408 . First, we conclude that, in keeping with the trial court’s factual determinations, plaintiff should have been permitted to rescind its policy as it pertained to Cole and Williams in its entirety. The policy was procured through Cole’s material misrepresentation: (1) Cole’s omission ad misrepresentation were material; (2) the representations were false, as Cole was not the sole owner of either vehicle and Cole testified that she knew Wilson was not on the policy5; (3) Cole knew 5 We acknowledge but are not persuaded by Cole’s deposition testimony that she provided the vehicles’ titles to the independent agent and told him that Wilson drove the vehicles. Cole nevertheless signed the policy acknowledgement that listed her as the sole owner of the vehicles -5- that she was not the sole owner of the vehicles; (4) Cole made the misrepresentation with the intent that she would obtain insurance, as demonstrated by her signing the insurance application that contained the statement, “This information is being offered to the company as an inducement to issue the policy for which I am applying”; and (5) and (6) plaintiff acted upon the misrepresentation to its detriment by providing insurance where it otherwise would not have according to its underwriting guidelines and for a decreased premium not contemplating the actual risk of providing the insurance. See Titan Ins Co, 491 Mich. at 555 , 571-572. Moreover, the manner in which the trial court elected to only partially rescind the policy in this case was erroneous. After it concluded that Cole committed fraud in obtaining the policy, the trial court elected to effectively piecemeal the policy on the basis of its finding that there was a question of fact as to whether plaintiff would have provided coverage for the Dodge Charger, but there was no question of fact regarding whether plaintiff would have provided coverage for the Ford Crown Victoria. Our Supreme Court has made clear that whether a misrepresentation is material with respect to an insurer’s right to rescind a contract is determined with reference to the policy at issue, and that it would be an error to focus on whether the insurer would have issued a policy irrespective of the misrepresentation. Oade, 465 Mich. at 254 . Where the undisputed evidence makes clear that the misrepresentation “would have led the insurer to charge an increased premium, hence a different contract,” “the proper materiality question . . . is whether ‘the’ contract issued, at the specific premium rate agreed upon, would have been issued notwithstanding the misrepresented facts.” Id. Moreover, MCL 257.520(a) of the motor vehicle code relevantly provides the definition of a motor vehicle liability policy to “mean an owner’s or an operator’s policy of liability insurance . . . as proof of financial responsibility, and issued . . . by an insurance carrier duly authorized to transact business in this state, to or for the benefit of the person named therein as insured.” The “owner’s policy of liability insurance” “[s]hall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby to be granted.” MCL 257.520(b). That is, the motor vehicle code provides that multiple vehicles may be covered under one policy. Likewise, Cole submitted one application for insurance coverage, paid one premium, and was issued one policy, with one policy number, which provided coverage for both of her vehicles. The policy specifically stated that it would be rescinded in its entirety if Cole knowingly concealed or misrepresented any material fact or circumstance or engaged in fraudulent conduct. Plaintiff further asserted that its underwriting guidelines would not have allowed for it to provide the insurance coverage to Cole because Wilson did not have a valid driver’s license. And, even if and the only insured driver. Further, Cole and Wilson both testified at their depositions that they knew Wilson was not a covered driver on the application and that the agent asked them to return to the agency to add him, but that they failed to do so. Lastly, an independent agent is deemed to be an agent of the insured/policy holder and not the insurer. See Genesee Food Servs v Meadowbrook, Inc, 279 Mich. App. 649 ; 760 NW2d 259 (2008). Therefore, the agent was a representative of Cole, not plaintiff, and any fault of the agent’s cannot be construed against plaintiff. -6- plaintiff, knowing of the correct state of facts, would have issued a policy with an increased premium or issued a policy for coverage only for the Dodge Charger, it would have been a different policy. See Oade, 465 Mich. at 254 . Accordingly, the trial court’s piecemealing of the policy in this case was erroneous. Lastly, we agree with plaintiff that, to the extent that the trial court’s piecemealing of the policy was partially done on the basis of a balancing of the equities as provided in Bazzi, that analysis should not have been applied to Cole and Wilson. Cole and Wilson were not innocent third parties and defendants and cross-defendant make no argument to the contrary. On the other hand, it is undisputed that Williams was an innocent third party in this case, and to that end, we conclude that, while the policy should be considered void ab initio as it pertains to Cole and Wilson, the trial court should further determine within its discretion whether that same result should be equitably applied to Williams. See Bazzi, 502 Mich. at 411-412 . With all of the above in mind, when viewing the allegations in the light most favorable to defendants, summary disposition against defendants Cole and Wilson is proper because no genuine issue of material fact exists regarding their innocence with respect to the misrepresentations made in this case, nor whether plaintiff would have issued the policy in question had it been aware of the same. However, the trial court should balance the equities as they pertain to plaintiff and Williams, an innocent third party, and determine within its discretion whether plaintiff is entitled to rescind the contract as it pertains to Williams. See Bazzi, 502 Mich. at 412 . Reversed and remanded for the trial court to grant summary disposition in favor of plaintiff with respect to defendants Cole and Wilson, and to determine whether the same is appropriate with respect to defendant Williams on the basis of the equities. We do not retain jurisdiction. /s/ Kathleen Jansen /s/ Karen M. Fort Hood /s/ Amy Ronayne Krause -7-

2020-12-04 10:07:14.99482+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20201203_C348380_53_348380.OPN.PDF

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS RONNIE MOUSSA EL-ACHKAR, UNPUBLISHED December 3, 2020 Plaintiff, and OAKWOOD HEALTHCARE, INC., PHYSIOMATRIX, INC., GENEX PHYSICAL THERAPY, INC., ELITE CHIROPRACTIC CENTER, PC, and PRIME CARE CHIROPRACTIC, PC, Intervening-Plaintiffs, v No. 348380 Wayne Circuit Court SENTINEL INSURANCE COMPANY, LTD., LC No. 13-005965-NI Defendant/Third-Party Plaintiff- Appellant, and HARTFORD INSURANCE COMPANY OF ILLINOIS, Defendant, and HALA BAYDOUN BAZZI and MARIAM BAZZI, Third-Party Defendants, and CITIZENS INSURANCE COMPANY, Appellee. -1- Before: REDFORD, P.J., and RIORDAN and TUKEL, JJ. PER CURIAM. Defendant-Third-Party Plaintiff-Appellant, Sentinel Insurance Company, Ltd. (Sentinel) appeals by right the trial court’s final order requiring it to reimburse Defendant-Appellee Citizens Insurance Company (Citizens) the amount it paid plaintiff Ronnie El-Achkar to settle his claims for no-fault benefits. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND El-Achkar suffered injuries as a passenger in a motor vehicle accident on August 8, 2012, that occurred near the Ford Road and Mercury Drive intersection in Dearborn. A white Honda driven by El-Achkar’s friend, Ali Bazzi, traveled over 100 miles per hour on westbound Ford Road and collided with a black Dodge pickup that had lawfully completed a left turn onto the roadway. Ali and El-Achkar were ejected from the Honda. Ali and El-Achkar each suffered injuries and sought PIP benefits from Sentinel, the insurer of the Honda. In Bazzi v Sentinel Ins Co (Bazzi I), 315 Mich. App. 763 , 768-769; 891 NW2d 13 (2016), aff’d in part and rev’d in part Bazzi v Sentinel Ins Co (Bazzi II), 502 Mich. 390 ; 919 NW2d 20 (2018) (footnote omitted), this Court summarized the pertinent facts as follows: Plaintiff, Ali Bazzi (plaintiff), is seeking to recover personal protection insurance (PIP) benefits for injuries he sustained in an automobile accident while driving a vehicle owned by third-party defendant Hala Bazzi (plaintiff’s mother).[] Intervening plaintiffs, Genex Physical Therapy, Inc., Elite Chiropractic Center, PC, and Transmedic, LLC, are healthcare providers who provided services to plaintiff as a result of those injuries and are seeking payment for those services. The vehicle driven by Bazzi was insured under a commercial automobile policy issued by defendant Sentinel Insurance to Mimo Investments, LLC.4 4 Defendant Citizens Insurance Company’s involvement and potential liability in this case is as the servicing insurer under the Michigan Assigned Claims Plan. See MCL 500.3172(1). Sentinel maintains that the policy was fraudulently procured by Hala Bazzi and third-party defendant Mariam Bazzi (plaintiff’s sister and the resident agent for Mimo Investments) in order to obtain a lower premium because of plaintiff’s involvement in a prior accident. Sentinel maintains that the vehicle was actually leased to Hala Bazzi for personal and family use, not for commercial use by Mimo, and, in fact, that Mimo was essentially a shell company, which had no assets or employees or was not otherwise engaged in actual business activity. Sentinel also alleges as fraud that the third-party defendants failed to disclose plaintiff would be a regular driver of the vehicle. In fact, Sentinel pursued a third-party complaint against Hala and Mariam Bazzi, seeking to rescind the policy on the basis of fraud in the application.5 -2-  5 The trial court entered a default judgment against the third-party defendants in favor of Sentinel. Sentinel thereafter moved for summary disposition of plaintiff’s claim against Sentinel for PIP benefits, as well as the intervening plaintiffs’ claims because the policy was rescinded on the basis of fraud. The trial court denied the motion, concluding that plaintiff had a claim because of the innocent-third-party rule. In the Bazzi case, Sentinel sought summary disposition but the trial court denied the motion which prompted Sentinel to seek leave to appeal that decision to this Court which denied leave. 1 Sentinel then sought leave to appeal to our Supreme Court which, in lieu of granting leave, remanded the case to this Court for consideration as on leave granted. 2 Because our Supreme Court directed this Court to hear Sentinel’s appeal, the parties in this case stipulated to the entry of an order staying further proceedings pending the resolution of Sentinel’s pending appeal in the Bazzi case. On remand of Sentinel’s appeal in the Bazzi case, this Court reversed the trial court’s ruling and held that Sentinel could rescind the policy covering the vehicle in which Ali and El-Achkar were injured because of fraud in the policy’s procurement, and therefore, Sentinel had no obligation to pay PIP benefits for Ali, an innocent third party to the policy fraud. Bazzi I, 315 Mich. App. at 767-769 . Ali appealed this Court’s decision to our Supreme Court to consider “whether the judicially created innocent-third-party rule, which precludes an insurer from rescinding an insurance policy procured through fraud when there is a claim involving an innocent third party, survived [our Supreme] Court’s decision in Titan Ins Co v Hyten, 491 Mich. 547 ; 817 NW2d 562 (2012), which abrogated the judicially created easily-ascertainable-fraud rule.” Bazzi II, 502 Mich. at 396 . Our Supreme Court held “that Titan abrogated the innocent-third-party rule but that the Court of Appeals erred when it concluded that Sentinel was automatically entitled to rescission in this instance.” Id. Our Supreme Court affirmed in part, reversed in part, and remanded to the trial court to consider whether, in its discretion, rescission is an available remedy. Id. Following remand of the Bazzi case, the trial court in this case ordered a Bazzi hearing and required interested parties to file briefs and appear for the hearing. Sentinel moved to rescind its insurance policy and Citizens opposed Sentinel’s motion. The trial court held a hearing on Sentinel’s motion on February 28, 2019. In the Bazzi case, after conducting the equitable balancing directed by our Supreme Court in Bazzi II, the trial court entered a final order that its previous decision rescinding the Sentinel policy would not change and remained effective resulting in holding Sentinel not responsible for 1 See Bazzi v Sentinel Ins Co, unpublished order of the Court of Appeals entered May 21, 2014 (Docket No 320518). 2 See Bazzi v Sentinel Ins Co, 497 Mich. 886 ; 854 NW2d 897 (2014). -3- any claims made by Ali. The trial court ordered further that Sentinel not reimburse Citizens or any Michigan Automobile Insurance Placement Facility for any claims related to Ali. After the hearing, the trial court ordered the stay lifted in this case, and it entered a final order ruling that the equities weighed against Sentinel in the balancing of the equities analysis prescribed by our Supreme Court in Bazzi II, ordered Sentinel responsible for El-Achkar’s no-fault claims, and ordered Sentinel to reimburse Citizens $125,000, the amount that Citizens paid to settle El-Achkar’s claims. Sentinel now appeals. II. STANDARD OF REVIEW We review for an abuse of discretion a trial court’s decision to grant or deny a motion for rescission of an insurance contract. Bazzi II, 502 Mich. at 409 . An abuse of discretion occurs when the decision falls outside the range of reasonable and principled outcomes. Berryman v Mackey, 327 Mich. App. 711 , 717; 935 NW2d 94 (2019). An abuse of discretion necessarily occurs when the trial court makes an error of law. Id. The trial court’s factual findings are reviewed for clear error, and a finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. III. ANALYSIS Sentinel argues that, because it validly rescinded its no-fault insurance policy because of Hala’s fraudulent procurement of it, the policy was void ab initio as to all claimants for PIP benefits under it, requiring no balancing of the equities as between Sentinel and El-Achkar, and if equities balancing was required, the trial court erred by ruling that the equities favored El-Achkar so that Sentinel’s rescission did not apply to him. We disagree. The burden of establishing a right to rescission lies with the party seeking rescission. Gardner v Thomas R Sharp & Sons, 279 Mich. 467 , 469; 272 N.W. 871 (1937). In Mendelson Orthopedics PC v Everest Nat’l Ins Co, 328 Mich. App. 450 , 458-460; 938 NW2d 739 (2019) (quotation marks and citations omitted), this Court analyzed Bazzi II and explained that our Supreme Court reaffirmed the right of insurers to raise common law defenses such as fraud in the procurement to seek rescission of a no-fault insurance policy to avoid liability, but clarified that insurers are not categorically entitled to rescission because “a claim to rescind a transaction is equitable in nature, it is not strictly a matter of right but is granted only in the sound discretion of the court, and when a party seeks rescission, the trial court must balance the equities to determine whether the party is entitled to the relief it seeks.” In Mendelson, this Court faced a factual scenario very similar to this case. A third party sought PIP benefits from a no-fault insurer that discovered its insured had procured a policy through fraud, and the insured then rescinded the policy. Id. at 461. This Court explained that Bazzi II confirmed that an insurer may rescind and treat a policy as void ab initio as between the insurer and the insured; however, Bazzi II directed that, “when two equally innocent parties are affected, the court is required, in the exercise of [its] equitable powers, to determine which blameless party should assume the loss[.]” Id. at 460 (quoting Bazzi II, 502 Mich. at 410 ) (quotation marks and citations omitted). In Mendelson, this Court determined that the trial court appropriately recognized the insurer’s right to rescind the policy and treat it as void ab initio respecting the insured, but the trial court failed to hold a hearing and to balance the equities as between the injured third party and the insurer which required a distinct and separate -4- analysis. Consequently, this Court reversed and remanded to the trial court for further proceedings to balance the equities as between the injured third party and the insurer. Id. at 462. In Pioneer State Mutual Ins Co v Wright, ___ Mich App ___, ___; ___ NW2d ___ (2020), slip op at 2-3, lv application pending, a case involving an injured third party who sought PIP benefits under a no-fault insurance policy procured by a family member who made a material misrepresentation in her application for insurance, this Court again addressed the issue of the balancing of the equities as between two innocent parties, the insurer and the injured third party. To facilitate its review and clarify how courts must balance the equities, this Court adopted and distilled the essence of JUSTICE MARKMAN’S five-factor test stated in his concurrence in Farm Bureau Gen Ins Co of Mich v ACE American Ins Co, 503 Mich. 903 , 906-907; 919 NW2d 394 (2018) (MARKMAN, J., concurring), as follows: Reduced to their essence, five factors were identified and they address: (1) the extent to which the insurer could have uncovered the subject matter of the fraud before the innocent third party was injured; (2) the relationship between the fraudulent insured and the innocent third party to determine if the third party had some knowledge of the fraud; (3) the nature of the innocent third party’s conduct, whether reckless or negligent, in the injury-causing event; (4) the availability of an alternate avenue for recovery if the insurance policy is not enforced; and (5) a determination of whether policy enforcement only serves to relieve the fraudulent insured of what would otherwise be the fraudulent insured’s personal liability to the innocent third party. [ Id. at ___, slip op at 7.] This Court considered and applied the five-factor test. Id. at ___, slip op at 8-9. This Court explained that “[b]alancing the equities is not concerned with laying blame, but determining which of the innocent parties should bear a loss.” Id. at ___, slip op at 9, citing Bazzi II, 502 Mich. at 411 . This Court concluded that the “trial court’s analysis was specific to the facts and circumstances of the case and went no farther than what was equitable. Therefore, we cannot conclude that the trial court abused its discretion by refusing to grant rescission.” Id. In this case, application of the five-factor test to the facts supports the trial court’s decision. The trial court properly considered the equities as between Sentinel and El-Achkar and correctly ruled that Sentinel failed to carry its burden of establishing the right to rescind the policy as between Sentinel and El-Achkar. Respecting the first factor, whether Sentinel could have uncovered the fraud before El- Achkar sustained injury, the record reflects that Sentinel issued the subject policy on April 29, 2012, to Mimo Investments, LLC for commercial coverage for a one-year period based on payment of a $3,467 premium to cover three vehicles including the Honda involved in the August 8, 2012 accident, without conducting any real investigation regarding the company, the ownership of the insured vehicles, or who the intended drivers of the vehicles would be. The record does not reflect that Sentinel engaged in any investigation after issuance of the policy up to the time of the accident. Whether investigation before the accident would have revealed the fraud is unclear from this record and the perpetrators of the fraud may have been able to keep the truth concealed from Sentinel. The record reveals, however, that after the accident Sentinel investigated and discovered the fraud without much difficulty because Ali drove the Honda involved in the accident. The trial court -5- concluded that Sentinel could have done more to discover the fraud before the accident. We do not find that the trial court clearly erred in this regard, but because the perpetrators of the fraud may have concealed their subterfuge from Sentinel we conclude that this factor neither weighs for nor against rescission. Regarding the second factor, whether the injured third party had a relationship with the fraudulent insured, the record reflects that El-Achkar had no relationship with Hala, Mariam, or Mimo Investments, LLC, and he had no knowledge of the fraud. El-Achkar lacked a familial relationship with any of Ali’s family and knew nothing about the procurement of the subject insurance policy. This factor, therefore, favors El-Achkar and weighs against rescission of the policy as between him and Sentinel. The third factor also weighs against rescission of the policy as between El-Achkar and Sentinel. The record reflects that Ali drove the vehicle and picked up El-Achkar to go to a bakery for something to eat around midnight. No evidence in the record indicates that El-Achkar acted recklessly or negligently in the injury causing event. The record establishes that El-Achkar rode as a passenger in the Honda and lacked control over the ensuing events including the crash caused by Ali’s reckless driving. Respecting the fourth factor, the record reflects that El-Achkar lacked another insurance policy under which he could claim no-fault benefits. He had no insurance policy of his own. El- Achkar sued Hartford, the insurer of his father’s vehicle, after his claim for benefits had been denied, apparently believing that he could claim benefits from that policy. His father’s vehicle, however, was covered under a commercial insurance policy that did not cover family members residing in the family household.3 The fourth factor, therefore, weighs against rescission. Sentinel argues that El-Achkar is entitled to recover through the Michigan Assigned Claims Plan (MACP)/Michigan Automobile Insurance Placement Facility under MCL 500.3171 et seq., and this fact should be considered in the equities balancing if its proposed two-factor test is not adopted by this Court. Under Belcher v Aetna Cas & Surety Co, 409 Mich. 231 , 251; 293 NW2d 594 (1980), however, our Supreme Court explained that “before recovery of benefits may be obtained through an assigned claims plan, it must be determined that no personal protection insurance is ‘applicable to the injury’.” Further, as explained by this Court in Spectrum Health Hosp v Michigan Assigned Claims Plan, 330 Mich. App. 21 , 31-32; 944 NW2d 412 (2019): the “owner or registrant of a motor vehicle required to be registered in this state” to purchase PIP insurance to cover injuries to persons caused by motor vehicles. MCL 500.3101(1). The Legislature provided that the policies required under MCL 500.3101(1) must cover more than just the named insured; policies must also cover injuries incurred in motor vehicle accidents by the named individual's spouse and any relative of either domiciled in the same household. MCL 500.3114(1). When an injured person is not covered by his or her own insurance policy or a policy owned by a relative, the Legislature provided that the insurers of the various 3 The record indicates that, similar to the subject policy in this case, the commercial policy covering El-Achkar’s father’s vehicle may have been procured by fraud and subject to rescission. -6-  vehicles involved or occupied during the accident, or the insurers of persons operating such vehicles, must cover the loss. See MCL 500.3114(2) through (5); MCL 500.3115. Even when there does not appear to be any applicable PIP coverage, the Legislature provided that an injured person could obtain PIP benefits through the MACP. See MCL 500.3172(1). All self-insurers or insurers writing insurance as provided by the no-fault insurance act are required to participate in the MACP, with the associated costs being “allocated fairly among insurers and self- insurers.” MCL 500.3171(2). In this way, the Legislature ensured that every person injured in a motor vehicle accident would have access to PIP benefits unless one of the limited exclusions in the no-fault act applies, and the losses suffered by uninsured persons injured in motor vehicle accidents could be indirectly passed on to the owners and registrants of motor vehicles through insurance premiums. Belcher and Spectrum Health make clear that the MACP provides coverage as a last resort. Therefore, only if El-Achkar was not otherwise covered by a no-fault policy against which he could make a claim would he be eligible to seek coverage through the MACP. The equities balancing test as between an insurer and injured third party determines whether an injured third party may claim coverage under a no-fault policy. That determination, therefore, must be made first before the injured third party may seek coverage provided by the MACP. Accordingly, the fact that an injured third person can seek PIP benefits from the MACP as a last resort should not and cannot be factored into the equities balancing test’s fourth-factor inquiry because that factor would be rendered nugatory since the availability of coverage under the MACP if considered would always require concluding that the factor favors rescission. Accordingly, the availability of coverage through the MACP should not be considered as part of the five-factor test adopted by this Court in Pioneer. Sentinel’s argument, therefore, lacks merit. The fifth factor requires consideration whether policy enforcement only serves to relieve the fraudulent insured of personal liability to the innocent third party. JUSTICE MARKMAN explained in his concurrence in Farm Bureau that courts conducting equities balancing must determine: whether enforcement of the insurance policy would subject the insurer to coverage for tort liability for an at-fault insured. In such a case, equity may weigh in favor of rescission because enforcement of the policy would transfer liability to the innocent third party from the insured who committed the fraud to the insurer that did not commit wrongdoing. [Farm Bureau, 503 Mich. at 906 .] In this case, Ali constituted the party at fault for the accident’s occurrence because of his reckless driving. Ali was not insured under the commercial policy issued to Mimo Investments, LLC even if that policy had not been procured through fraud by Hala and Mariam. Enforcement of the policy would not transfer Ali’s tort liability to El-Achkar from the insured, Mimo Investments, LLC, to the innocent insurer. Further, the record reveals that the insured, Mimo Investments, LLC, was nothing more than a shell company with no assets or employees and was formed primarily to perpetrate the fraud. Even if El-Achkar sued the LLC and Ali for tort liability, it is doubtful that he could obtain any relief. Under the circumstances presented in this case, the fifth factor weighs against rescission. -7-  Weighing the equities between Sentinel and El-Achkar under the five-factor test adopted in Pioneer establishes that the equities weigh against rescission. The record reflects that the trial court considered the five factors and, although it did not fully articulate its reasoning, found that the factors weighed against rescission. Further, it gave Sentinel an opportunity to persuade it otherwise but Sentinel failed to do so. The trial court essentially found that Sentinel could have done a better job of investigating and uncovering the fraud of the LLC, and it found that, although Ali and El-Achkar were friends, no evidence established that El-Achkar had any knowledge about the procurement of the subject insurance policy because he had not lived in the Bazzi household and lacked any relationship with Hala, Mariam, or the LLC. The trial court, did not clearly err in this regard and it correctly concluded that Sentinel failed to meet its burden to establish a right to rescind the policy as to El-Achkar. Sentinel argues that the trial court erred by not adopting its two-factor test. Sentinel contends that trial courts may consider two factors alone for equities balancing determinations: (1) whether fraud or misrepresentation existed at the inception of the insurance contract that was material to Sentinel’s decision to issue the policy, and (2) whether the facts established that the insurer failed to rescind and/or continued to collect premiums after it had actual knowledge of the true facts. We disagree. The trial court correctly rejected the two-factor test advocated by Sentinel because it completely fails to take into consideration any of the equities as related to El-Achkar, the injured third party. Analysis of Sentinel’s test reveals that, so long as an insurer may rescind a policy for fraud in the procurement by the insured, no other parties or equities need be considered and weighed. Sentinel’s two-factor test does not comport with Bazzi II’s directive. Our Supreme Court held that the equities must be weighed as between an innocent insurer and an innocent injured third party to determine whether the insurer may rescind its policy in relation to claims made by the injured third party for coverage, despite the fact that the insurer may validly rescind the policy as between the insurer and the insured. The trial court correctly rejected Sentinel’s two-factor test because it focuses solely on the insurer without any regard for the injured third party. Application of the five-factor test adopted in Pioneer, however, fulfills the Bazzi II directive and permits a just and equitable outcome. Therefore, we hold that the trial court did not abuse its discretion by denying Sentinel’s motion to rescind the subject policy because Sentinel failed to establish its entitlement to rescission of the policy based upon a balancing of the equities as between itself and El-Achkar. Affirmed. /s/ James Robert Redford /s/ Michael J. Riordan /s/ Jonathan Tukel -8-

2020-12-04 14:08:42.873922+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007506PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:08 AM CST - 893 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 In re Estate of Gale H. Marsh, deceased. Sarah J. Marsh and Carla M. Marsh, Cotrustees of the Gale H. Marsh Revocable Trust Agreement, appellees, v. County of Richardson, Nebraska, appellant. ___ N.W.2d ___ Filed December 4, 2020. No. S-20-102. 1. Decedents’ Estates: Taxation: Appeal and Error. On appeal of an inheritance tax determination, an appellate court reviews the case for error appearing on the record. 2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 3. Decedents’ Estates: Appeal and Error. In reviewing a judgment of the probate court in 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 suc- cessful party, who is entitled to every reasonable inference deducible from the evidence. 4. ____: ____. The probate court’s factual findings have the effect of a verdict and will not be set aside unless clearly erroneous. 5. Statutes: Appeal and Error. Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obli- gation to resolve the questions independently of the conclusions reached by the trial court. 6. Motions for Continuance: Appeal and Error. A motion for contin­ uance is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion. 7. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.  - 894 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 8. ____: ____. If the court from which an appeal was taken lacked jurisdic- tion, then the appellate court acquires no jurisdiction. 9. Jurisdiction. One who invokes the power of the court on an issue other than the court’s jurisdiction over one’s person makes a general appear- ance so as to confer on the court personal jurisdiction over that person. 10. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. 11. Decedents’ Estates: Taxation: Jurisdiction. Neb. Rev. Stat. § 77-2018.02(1) (Supp. 2019) confers upon the county court subject matter jurisdiction of an independent proceeding brought for the sole purpose of determining Nebraska inheritance tax. 12. Statutes. Basic principles of statutory interpretation require a court to give statutory language its plain and ordinary meaning. 13. Decedents’ Estates: Taxation: Jurisdiction: Notice. Published notice is not a prerequisite of a county court’s subject matter jurisdiction of an independent proceeding for the sole purpose of determining Nebraska inheritance tax; rather, such jurisdiction is invoked by the filing of a petition to initiate the proceeding. 14. Appeal and Error. Error without prejudice is not a ground for reversal. 15. Gifts: Intent. To make a valid inter vivos gift, there must be an inten- tion to transfer title to property, delivery by the donor, and acceptance by the donee. 16. Gifts. Ordinarily, actual delivery is necessary where the subject of the gift is capable of manual delivery, but where actual manual delivery can- not be made, the donor may do that which, under the circumstances, will in reason be considered equivalent to actual delivery. 17. ____. The exercise by the donee of dominion over the property which is the subject of a gift, or an assertion of a right to the property by the donee, generally will constitute an acceptance. 18. Deeds: Intent. Whether a deed or other instrument conveying an inter- est in property has been delivered is largely a question of intent to be determined by the facts and circumstances of the particular case. Appeal from the County Court for Richardson County: Curtis L. Maschman, Judge. Affirmed. Douglas E. Merz, Richardson County Attorney, Samantha K. Scheitel, and Thomas J. Gist for appellant.  - 895 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 Steven J. Mercure and Lindy L. Mahoney, of Nestor & Mercure, for appellees. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Cassel, J. I. INTRODUCTION After Gale H. Marsh died, his daughters brought a proceed- ing to determine the amount of inheritance tax due. The dispute centered on the ownership interest of Marsh’s revocable trust in a limited liability company valued at over $12 million. The county court determined that assignments signed by Marsh rather than the trustees were valid. The County of Richardson (County) appeals. Finding no error by the county court in the respects alleged, we affirm. II. BACKGROUND 1. Procedural Background Marsh, a domiciliary of Richardson County, Nebraska, died on April 6, 2017. On March 22, 2018, his daughters, Sarah J. Marsh and Carla M. Marsh, filed in the county court for Richardson County a petition for determination of inheritance tax. The petition alleged that Sarah and Carla (collectively cotrustees) were cotrustees of the Gale H. Marsh Revocable Trust Agreement, that they had a legal interest in the prop- erty involved in the determination of inheritance tax, that they were the beneficiaries of the trust property, and that they were the only persons against whom an inheritance tax may be assessed. Together with the petition, the cotrustees filed a number of documents, including an inventory and an inheritance tax work- sheet. The inventory stated that the Gale H. Marsh Revocable Trust owned a 15.62152-percent interest in Marcasa, LLC; that the total value of Marcasa was $12,914,162; and that the  - 896 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 trust’s interest amounted to $1,412,171.88. The inheritance tax worksheet showed assets of the estate of $1,476,720.88 and total deductions of $585,250.26, for a net value of property subject to Nebraska inheritance tax of $891,470.62. According to the inheritance tax computation, Sarah owed $4,081.22 and Carla owed $4,033.49. On March 26, 2018, the cotrustees filed an application and moved the court for an order allowing payment of tentative inheritance tax by Sarah and by Carla in the amounts computed on the worksheet. 1 The County filed an objection to the inheritance tax work- sheet. According to the County, the worksheet did not reflect the fair market value of the assets owned by Marsh. 2. Hearing Nearly 11⁄2 years later, the court commenced an evidentiary hearing. The hearing was held on two dates in 2019: August 14 and September 20. (a) Revocable Trust Evidence was adduced concerning the trust. Marsh, identi- fied as the settlor, created the inter vivos revocable trust on November 4, 1988. As mentioned, he designated his daughters as cotrustees. Sarah testified that she did not actually serve as a trustee or cotrustee during Marsh’s lifetime, explaining that “he managed his own affairs.” Article II of the trust agreement addressed trust property. It stated that trust property was listed on an attached “Schedule ‘A’” and that insurance policies were listed on an attached “Schedule ‘B’”; however, Sarah was unable to find either doc- ument. Marsh “reserve[d] the right to add property to the trust or to withdraw property from the trust in the manner provided for alteration of the trust in ARTICLE IV.” Article IV of the trust agreement dealt with changes to the trust. It stated that Marsh “reserve[d] the right at any time 1 See Neb. Rev. Stat. § 77-2018.07(1) (Reissue 2018).  - 897 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 . . . to amend, alter, revoke or terminate this trust . . . by an instrument in writing signed by the Settlor and delivered to the Trustee in the lifetime of the Settlor, or by the Settlor’s Last Will and Testament at his death.” The trust was never amended or revoked. (b) Marsh Company, Limited In 1998, Marsh created Marsh Company, Limited, a part- nership used for ownership of his property. He transferred all of his real estate holdings in Richardson County to Marsh Company. Initially, Marsh owned 100 percent of Marsh Company. In 1998 and 1999, he gave to each of the cotrustees, their spouses, and to a grandson an undivided “65/100ths” of 1 percent lim- ited partnership interest in Marsh Company. Marsh reported these transfers on gift tax returns. In 2001, Marsh made sev- eral assignments of an undivided “40/100[ths]” of 1 percent limited interest in Marsh Company to family members. On December 31, 2001, Marsh owned a 91.6-percent interest in Marsh Company. In 2002, Marsh gave Sarah and Carla each an undivided 26.63-percent limited partnership interest in Marsh Company. He filed a gift tax return with respect to those gifts. He also gave a .456-percent interest to the cotrustees’ spouses and to trusts for three of his grandchildren. Marsh’s percentage of ownership at the end of 2002 was 36.1 percent. Marsh trans- ferred small amounts of his interest in 2003, 2004, and 2005. On December 31, 2006, Marsh owned a 34.17-percent interest in Marsh Company. During the August 2019 hearing, Sarah testified that the gifts in Marsh Company came from the trust. But during the September hearing, Sarah testified that when her attorney “pulled out the deeds,” she learned that Marsh’s ownership in Marsh Company was his individually and was not placed in the trust. She clarified that the trust never held an interest in Marsh Company.  - 898 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 (c) Marcasa In 2007, Marsh created Marcasa, a limited liability com- pany. The operating agreement showed members of Marcasa to be Marsh, the cotrustees, the cotrustees’ spouses, and the ­cotrustees in their capacity as trustees of qualified trusts for their respective children. The operating agreement stated that “any Member may transfer all or any part of his or her inter- est in the Company by gift, in trust or otherwise, to or for the benefit of himself or herself, his or her spouse or his or her descendants.” Sarah was not aware of any modifications to the Marcasa operating agreement. On March 21, 2007, Marsh Company merged into Marcasa and ceased to exist. The membership interests of Marsh, the cotrustees, the cotrustees’ spouses, and the trusts for the chil- dren of the cotrustees in Marsh Company were converted to membership interests in Marcasa. Sarah was not aware of any additional contributions to Marcasa other than what was in Marsh Company. Approximately 1 month after the merger, Marsh and his wife executed a quitclaim deed to Marcasa, but Sarah stood by her testimony that no additional contribu- tions to Marcasa were made after the merger. She testified that after that transfer, there was no change in Marsh’s ownership interest. On December 31, 2007, Marsh held approximately a 34.17-percent interest in Marcasa, just as he had held in Marsh Company at the end of 2006. On January 2, 2008, Marsh assigned interests of approxi- mately .382 percent in Marcasa to each of the cotrustees, their spouses, and their children’s trusts. On May 27, Marsh signed a memorandum of action concerning the trust. With that instru- ment, he assigned to the trust the ownership of various proper- ties, including Marsh’s interest in Marcasa. Each year from 2009 to 2013, when Marsh assigned a per- centage ownership of Marcasa to the cotrustees, their spouses, and their children’s trusts, he signed the document as grantor of the trust. From January 31, 2014, to December 31, 2016, the  - 899 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 trust owned a 15.62-percent interest in Marcasa, the ­cotrustees each owned a 27.92-percent interest, and their spouses and children’s trusts each owned a 4.76-percent interest. (d) Motion for Continuance During the August 2019 hearing, the County requested a con- tinuance. The County stated that it needed research on recently discovered deeds. The court continued the hearing from August 14 to September 20. On September 10, 2019, the County filed a motion to con- tinue. According to the motion, the County needed to engage in formal discovery because certain requested documents had not been provided. The County asserted that it was necessary to have the complete ledger of ownership interests for all years of Marsh Company. The cotrustees objected to a continuance. The court took the motion under advisement and later denied it. (e) County’s Witnesses The County adduced testimony from three attorneys and a certified public accountant. One attorney testified that the cotrustees were the only people who could transfer from the trust and that the provisions to effectuate a gift would apply if there were transfers being made by Marsh as grantor of his own trust. The second attorney testified that “[t]he trust prop- erty would be under the title or authority of the co-trustees.” The third attorney testified that “[a]ssets that are in the trust would be subject to the power over title of the Co-Trustees.” In other words, the attorneys testified that the cotrustees were the people who could transfer assets in the trust. The certified public accountant reviewed a number of docu- ments for Marcasa. The documents included Schedule L forms for tax years 2007 through 2013, the complete 2014 tax return, and two pages of bank statements from 2006. The accountant testified that to properly determine capital contributions, she would need the full tax returns and all bank statements.  - 900 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 3. Court’s Order The county court reasoned that although the trust was the legal owner of Marcasa’s interests, Marsh was the beneficial owner of those interests. It noted that Marsh retained authority to change the terms of the trust and that trustees are bound by duties of the Nebraska Uniform Trust Code. After reciting the elements of a gift, the court determined that tax filings and other documentation showed the transfers were completed and consented to by the legal owner of the interests—the trust. The court overruled the County’s objec- tions to the worksheet and stated that the transfers of interests signed by Marsh should be considered. However, the court reduced the valuation discount on Marcasa from 30 percent to 25 percent, thereby increasing the value of the estate by $98,720.50 and the inheritance tax by $987.21. The County filed a timely appeal, which we moved to our docket. 2 III. ASSIGNMENTS OF ERROR The County alleges, reordered, that the court erred by (1) failing to order published notice, (2) failing to allow a con- tinuance for the County’s expert to review the capital contribu- tions made to Marsh Company and Marcasa, (3) determining that certain attempted transfers of ownership shares of Marsh Company and Marcasa were valid transfers that reduced the taxable value of the estate for inheritance tax purposes, and (4) failing to determine that Marsh retained possession or enjoy- ment of the property he claimed to have transferred to Marsh Company and Marcasa during his lifetime. IV. STANDARD OF REVIEW [1,2] On appeal of an inheritance tax determination, an appellate court reviews the case for error appearing on the 2 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).  - 901 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 record. 3 When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 4 [3,4] In reviewing a judgment of the probate court in a law action, an appellate court does not reweigh evidence, but considers the evidence in the light most favorable to the suc- cessful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. 5 The probate court’s factual find- ings have the effect of a verdict and will not be set aside unless clearly erroneous. 6 [5] Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obliga- tion to resolve the questions independently of the conclusions reached by the trial court. 7 [6] A motion for continuance is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion. 8 V. ANALYSIS 1. Publication of Notice [7,8] The County asserts that the county court failed to order published notice of the proceeding and that the court thus lacked jurisdiction and “any rulings by the [c]ourt are invalid.” 9 It relies on Neb. Rev. Stat. § 77-2018.02 (Supp. 3 In re Estate of Hasterlik, 299 Neb. 630 , 909 N.W.2d 641 (2018). See, also, In re Estate of Baer, 273 Neb. 969 , 735 N.W.2d 394 (2007). 4 In re Estate of Hasterlik, supra note 3. 5 In re Estate of Karmazin, 299 Neb. 315 , 908 N.W.2d 381 (2018). 6 Id. 7 In re Estate of Reed, 271 Neb. 653 , 715 N.W.2d 496 (2006). 8 Eddy v. Builders Supply Co., 304 Neb. 804 , 937 N.W.2d 198 (2020). 9 Brief for appellant at 19.  - 902 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 2019). The County’s argument in brief consists of only 97 words and amounts to little more than a bare recital of its assignment of error, which would ordinarily preclude us from considering the argument. 10 But 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. 11 If the court from which an appeal was taken lacked jurisdic- tion, then the appellate court acquires no jurisdiction. 12 Thus, in order to determine that we have jurisdiction of this appeal, we must determine whether the county court had jurisdiction of the proceeding below. We conclude that it did. [9] Although the County does not say so, it must be arguing that the statute requires publication to confer subject matter jurisdiction upon the county court. Here, all of the parties were plainly before the court. One who invokes the power of the court on an issue other than the court’s jurisdiction over one’s person makes a general appearance so as to confer on the court personal jurisdiction over that person. 13 The cotrustees, who were the petitioners, were also the sole beneficiaries of Marsh’s trust. They clearly invoked the court’s power. The County sought a determination that the entire value of Marcasa was subject to inheritance tax. It thereby invoked the court’s power on an issue other than personal jurisdiction. The County does not identify, nor does the record disclose, any other party hav- ing an interest in Marsh’s estate or in the property of the trust. Because the county court clearly had personal jurisdiction of all of the parties, only the matter of subject matter jurisdic- tion remains. 10 See Marcuzzo v. Bank of the West, 290 Neb. 809 , 862 N.W.2d 281 (2015) (appellate court will not address argument that does little more than restate assignment of error). 11 Cinatl v. Prososki, ante p. 477, 949 N.W.2d 505 (2020). 12 State v. Irish, 298 Neb. 61 , 902 N.W.2d 669 (2017). 13 Hunt v. Trackwell, 262 Neb. 688 , 635 N.W.2d 106 (2001).  - 903 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 [10,11] In a general sense, the county court had subject mat- ter jurisdiction. Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. 14 The statute at issue here authorizes an “independent proceeding for the sole purpose of determining the [inheritance] tax.” 15 It specifies that the “independent proceeding . . . may be instituted in the county court.” 16 We hold that § 77-2018.02(1) confers upon the county court subject matter jurisdiction of an independent pro- ceeding brought for the sole purpose of determining Nebraska inheritance tax. Here, the cotrustees initiated this type of proceeding. The only remaining question of subject matter jurisdiction is whether the statute requires such jurisdiction to be invoked in a particular manner that specifically demands published notice. We conclude that it does not. Our opinion does not address the nature of publication required by the general notice statute under the probate code. 17 [12] Applying the usual standard of statutory interpreta- tion, the pertinent language dictates only the method of giving notice of hearing. Basic principles of statutory interpretation require a court to give statutory language its plain and ordinary meaning. 18 Upon the filing of a petition to initiate this type of independent proceeding, the statute requires the court to “order the petition set for hearing” and to “cause notice thereof to be given to all persons interested in the estate of the deceased and the property described in the petition . . . in the man- ner provided for in subsection (3).” 19 Subsection (3), in turn, 14 Benjamin M. v. Jeri S., ante p. 733, ___ N.W.2d ___ (2020). 15 § 77-2018.02(1). 16 Id. 17 See Neb. Rev. Stat. § 30-2220 (Reissue 2016). 18 State v. Amaya, 305 Neb. 36 , 938 N.W.2d 346 (2020). 19 § 77-2018.02(2).  - 904 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 requires the notice “provided for by subsection (2)” to be given by “one publication in a legal newspaper of the county.” 20 In subsection (2), “notice thereof ” refers to the “hearing.” Properly understood, publication under this statute is required only to give notice of the hearing. Section 77-2018.02(2) specifically provides that notice may be dispensed under certain circumstances. Notice is not neces- sary when no assessment of inheritance tax could result. 21 Nor is published notice required when the county attorney “has executed a waiver of notice upon him or her to show cause, or of the time and place of hearing, and has entered a voluntary appearance in such proceeding in behalf of the county and the State” and either all persons against whom an inheritance tax may be assessed “are either a petitioner or have executed a waiver of notice upon them to show cause, or of the time and place of hearing, and have entered a voluntary appearance” or a party has agreed to pay the full inheritance tax determined. 22 By adding provisions in which notice may be dispensed with, the Legislature signaled that notice is not a jurisdictional prerequisite. Moreover, the statute requires that the “county attorney of each county in which the property described in the peti- tion is located” be given “personal service of notice of the hearing.” 23 This reinforces our understanding of the publica- tion requirement. [13] In contrast, the first clause of § 77-2018.02(2) plainly mandates “the filing of a petition to initiate such an independent proceeding.” In other words, the proceeding is “initiate[d]” by “the filing of a petition.” We hold that published notice is not a prerequisite of a county court’s subject matter jurisdiction 20 § 77-2018.02(3). 21 See § 77-2018.02(4). 22 § 77-2018.02(5). 23 § 77-2018.02(3).  - 905 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 of an independent proceeding for the sole purpose of deter- mining Nebraska inheritance tax; rather, such jurisdiction is invoked by the filing of a petition to initiate the proceeding. Because that was precisely what happened here, the County’s assertion that the county court lacked jurisdiction fails. [14] Even if notice was not published, any error in failing to do so was harmless. Error without prejudice is not a ground for reversal. 24 Here, the county attorney and the cotrustees— the only persons against whom an inheritance tax may be assessed—were actively involved in this matter from the time of filing of the petition and all appeared at the hearing. The County suffered no prejudice by any lack of published notice of the hearing. 2. Failure to Continue Matter The County argues that the court should have sustained its motion for a continuance. On September 10, 2019, the County filed the motion, asserting that it needed to engage in formal discovery and that “it is necessary to have the complete ­ledger of ownership interests for all years of Marsh Company.” In the County’s brief, it argues that a continuance was nec- essary so that the certified public accountant could deter- mine if the capital accounts of Marsh Company and Marcasa were accurate. The cotrustees objected to the motion for several reasons. First, they had made arrangements based on the court’s sched- uling of the second day of trial, including Sarah’s application of leave from her employment and Carla’s purchase of a non- refundable airline ticket. Next, they noted that for over 1 year, the attorney representing the County had not served any formal discovery. Finally, in urging against further delay, they pointed out that any additional inheritance taxes assessed would draw interest at 14 percent from April 6, 2018. 24 Connolly v. Connolly, 299 Neb. 103 , 907 N.W.2d 693 (2018).  - 906 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 We find no abuse of discretion by the court in denying a continuance. We are mindful that the petition was filed on March 22, 2018; that such a petition should be set for hearing within 2 to 4 weeks 25; and that the County’s motion was filed nearly 11⁄2 years after the filing of the petition. This assignment of error lacks merit. 3. Whether Attempted Transfers Were Effective The County contends that any attempted transfers of owner- ship interest in Marsh Company and Marcasa were ineffective. The County’s witnesses testified that for transfers to be valid, they had to be executed by the cotrustees, as prescribed by the terms of the trust. The County focuses on the fact that the transfers were executed by Marsh, not the cotrustees. The evidence established that Marsh conveyed interests in Marsh Company to his family. It also established that the trust never held an ownership interest in Marsh Company. Thus, the County’s argument that assignments of ownership interests in Marsh Company were ineffective because they were not made by the cotrustees lacks merit. The situation differs with respect to Marsh’s assignments of interest in Marcasa beginning in 2009. In January 2008, Marsh executed eight assignment forms in his individual capacity. Then, in May, Marsh assigned his interest in Marcasa to his trust. Thereafter, the assignment forms executed between 2009 and 2013 showed that they were signed by Marsh as grantor of the trust. [15,16] To make a valid inter vivos gift, there must be an intention to transfer title to property, delivery by the donor, and acceptance by the donee. 26 The first two elements relate to intent and actions of the donor. The donor must have a present donative intent and a clear and unmistakable intent to 25 See § 77-2018.02(2). 26 Zelenka v. Pratte, 300 Neb. 100 , 912 N.W.2d 723 (2018).  - 907 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 make a gift. 27 Ordinarily, actual delivery is necessary where the subject of the gift is capable of manual delivery, but where actual manual delivery cannot be made, the donor may do that which, under the circumstances, will in reason be considered equivalent to actual delivery. 28 The Ninth Circuit explained that interests in a limited liability company “do not lend themselves to manual delivery. Instead, they are delivered through the execution of papers. As a result, . . . it is somewhat artificial to separate the ‘delivery’ of [a limited liability company] inter- est from the intention to donate it.” 29 Here, intent and delivery are demonstrated by Marsh’s history of assigning interests to his daughters and their family members, his execution of the assignments, and his cessation of acting as the owner of those interests after execution of the assignments. [17] The final element of a gift calls for action by the donee. The exercise by the donee of dominion over the property which is the subject of a gift, or an assertion of a right to the property by the donee, generally will constitute an acceptance. 30 The donees accepted the gifts by acting as the rightful owner of the interests in Marcasa, and their ownership took effect immedi- ately. Their interests were reported on Schedule K-1 tax forms, thereby subjecting them to payment of income taxes attribut- able to their ownership interests. [18] The County contends that no transfer of ownership interests occurred, because the cotrustees never executed any of the transfer documents. But under the trust agreement, Marsh retained authority “to withdraw property from the trust.” The trust agreement provided the manner to do so—“by an instrument in writing signed by the Settlor and delivered to the Trustee in the lifetime of the Settlor.” Here, the assign- ments at issue were all in writing. And the cotrustees, as 27 Id. 28 Id. 29 Linton v. U.S., 630 F.3d 1211 , 1217 (9th Cir. 2011). 30 See Zelenka v. Pratte, supra note 26.  - 908 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 either the recipients or the spouses or parents of the recipients, were aware of the assignments. Further, we have stated that whether a deed or other instrument conveying an interest in property has been delivered is largely a question of intent to be determined by the facts and circumstances of the particular case. 31 Marsh’s parting with the ownership interests given as gifts and the cotrustees and other donees acting as owners of those respective interests manifest evidence of delivery. The court’s decision conforms to the law, is supported by compe- tent evidence, and is not unreasonable. 4. Possession and Enjoyment Post-Transfer The County asserts that Marsh continued to retain an own- ership interest in the claimed transfers and that thus, the total value of Marcasa should be subject to inheritance tax. We disagree. The County relies upon In re Estate of Fries, 32 but that case provides little guidance. In re Estate of Fries concerned whether the value of real property should be part of the dece- dent’s augmented estate in calculating his widow’s elective share. In the decedent’s lifetime, he transferred his entire inter- est in real estate to his children, but he continued to perform management functions for, receive income from, and pay taxes on the properties. We noted that “in the case of real property, the terms ‘possession’ and ‘enjoyment’ have been interpreted to mean ‘the lifetime use of the property.’” 33 Here, Marsh engaged in a pattern of transferring owner- ship interests to his family for nearly 20 years. He, and then his trust, retained an interest in Marcasa. Although Marsh was the manager of Marcasa, neither he nor the trust ever owned a majority interest in the limited liability company. And as his 31 Caruso v. Parkos, 262 Neb. 961 , 637 N.W.2d 351 (2002). 32 In re Estate of Fries, 279 Neb. 887 , 782 N.W.2d 596 (2010). 33 Id. at 894-95, 782 N.W.2d at 603.  - 909 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE ESTATE OF MARSH Cite as 307 Neb. 893 ownership interest decreased, so too did his share of Marcasa’s income. Tax records show that the cotrustees, their spouses, and their children were subject to federal income taxes based upon their interests in Marcasa. Competent evidence supports the court’s decision to not subject 100 percent of Marcasa to inheritance tax. VI. CONCLUSION We conclude that published notice of the hearing was not a prerequisite of the county court’s subject matter jurisdiction and that even if notice was not published, the County suffered no prejudice. We find no abuse of discretion in the overruling of the County’s motion for a continuance. Finally, we con- clude that the court’s determination that ownership interests in Marcasa were validly transferred from the trust conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Affirmed.

2020-12-04 06:15:48.41063+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=833&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa09%5cOrder

IN THE NINTH COURT OF APPEALS _____________________ _____ 09-20-00102-CR 09-20-00103-CR 09-20-00104-CR 09-20-00105-CR __________________________ Andrew David Nelson V. The State of Texas _________________________________________________________________ On Appeal from the 435th District Court of Montgomery County, Texas Trial Cause Nos. 19-01-01183-CR, 19-01-01184-CR, 19-11-15284-CR, 19-11-15285-CR _________________________________________________________________ ORDER Appellant’s counsel filed a motion to withdraw supported by a brief concluding that the instant appeal is frivolous. See Anders v. California, 386 U.S. 738 , 744 (1967). Appellant’s counsel certified that counsel provided copies of the motion and brief to Appellant, advised Appellant of Appellant’s right to examine the appellate record and file a pro se response, and supplied Appellant with a form motion for pro se access to the appellate record. See Kelly v. State, 436 S.W.3d 313 , 319-20 (Tex. Crim. App. 2014). Appellant requested access to the appellate record with this Court. We hereby direct the clerk of the trial court to provide access to a paper copy of the reporter’s record and clerk’s record to appellant, and to provide written verification to this Court of the date and manner in which the appellate record was provided, on or before Monday, December 21, 2020. See id., 436 S.W.3d at 321-22. ORDER ENTERED December 1, 2020 PER CURIAM Before McKeithen, C.J., Horton and Johnson, JJ.

2020-12-04 07:14:42.855149+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=7596&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa09%5cOpinion

In The Court of Appeals Ninth District of Texas at Beaumont __________________ NO. 09-19-00421-CV __________________ IN THE INTEREST OF L.P. AND D.P. __________________________________________________________________ On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 18-09-11813-CV __________________________________________________________________ MEMORANDUM OPINION In this appeal, Father seeks to overturn the trial court’s judgment terminating his parental rights to his children, Tara and Jason. 1 Father filed a brief raising four issues, which we have renumbered for convenience. In issues one and two, Father argues the trial court abused its discretion (1) by resetting the trial date on the case from August 7 to August 28, 2019, without requiring the Department to file a motion to continue and (2) by denying his motion for continuance, which he filed on 1To protect the privacy of the parties involved in the appeal, we identify the parents and their children by using pseudonyms. See Tex. Fam. Code Ann. § 109.002(d). 1 September 6, 2019, regarding a later trial setting, which was on September 9, 2019. In issue three, Father argues the Department failed to produce enough evidence to support the trial court’s finding that it is in Tara’s and Jason’s best interest to terminate his parental rights. 2 In Father’s fourth issue, he argues his trial attorney, whom he retained for the trial, provided him with constitutionally ineffective assistance of counsel. In the same issue, Father also suggests the attorney ad litem, whom the trial court appointed to represent his children, breached the same duty. Because Father’s arguments supporting his issues lack merit, we will affirm. Background The parties tried the case in September 2019. At that time, Tara was fifteen years old and Jason was thirteen. Nine witnesses, including Father, testified in the trial. The testimony shows that Father and Mother separated in 2008, while living in the State of New York. When Mother left Father, she left Tara and Jason with Father.3 Father continued to live, with the children, in New York until 2015, when he left New York, with his children, and moved to Texas. 2 See id. § 161.001(b) (authorizing courts to order a parent’s relationship with a child terminated upon one of the predicate statutory findings listed in section 161.001(b)(1) of the Texas Family Code when that finding is coupled with another finding that terminating the relationship is in the child’s best interest). 3 The trial court also terminated Mother’s parental rights to the children. See id. § 161.001(b)(1)(D), (E), (N), (O), (b)(2). Mother did not file an answer in the 2  The evidence in the trial shows Father abused alcohol for at least twenty years. He acquired five convictions for driving while intoxicated (DWI) before the court tried the parental termination case at issue in this appeal. In 2002, Father was charged and convicted in the State of New York on a DWI. He was convicted of a second DWI in 2007, again in New York. Father received a three-year sentence on his second DWI, but the court then placed him on probation and ordered that he undergo outpatient counseling so that he could receive treatment to help him avoid further problems related to his abuse of alcohol. Father, however, never completed the outpatient treatment required by his order of probation. Instead, Father chose to serve his three-year sentence by reporting to jail on weekends. While in jail, Tara’s and Jason’s grandmother cared for them. Father received a third DWI in 2010. On the third DWI, a court in the State of New York sentenced Father to serve a five-year sentence. Once again, the court probated the sentence and placed Father on probation. And once again, Father chose to serve his sentence by reporting to jail each weekend rather than going through an outpatient treatment program designed to help him stop abusing alcohol. While Father was in jail, Father’s mother-in-law cared for Tara and Jason. In the trial of his suit, and she also did not file a brief to appeal from the judgment terminating her parental rights. 3 parental termination case, Father agreed that when he was not in jail, he continued to drink alcoholic beverages even though he had been convicted of committing three prior DWIs. In 2015, Father was charged in the State of New York with committing a fourth DWI. Shortly after he was arrested, Father moved, with the children, to Texas. Father did not resolve the case arising from his fourth DWI before he moved out of New York. In the trial of the parental termination case, Father testified he thought the State of New York would handle the criminal case arising from his fourth DWI through the mail so he thought he could move out of the state. In 2015, based on a warrant issued by the State of New York, police arrested Father at a convenience store in Galveston, Texas. According to Father’s testimony, a clerk at the convenience store in Galveston called the Galveston Police Department after she saw Father and thought he was “acting funny.” While Father denied anything was wrong with him while he was there, the evidence shows that Tara and Jason were with him when he was arrested. The Department of Family and Protective Services took Tara and Jason and placed them in foster care. Following Father’s arrest in Texas, he was returned to New York and jailed. In New York, the court handling his fourth DWI sentenced him to an indeterminate sentence of one to three years in jail. 4  Father served eleven months of his sentence on his fourth DWI. While in jail, Father completed outpatient treatment and received therapy for problems related to his abuse of alcohol. Father testified he quit drinking. In June 2017, Father completed his parole in New York and moved back to Texas. By October 2017, Father completed a family service plan with the Department, and the Department allowed Tara and Jason to return to Father’s home. According to Father, in December 2017, he started drinking again. Father, however, described the frequency with which he drank as “very seldom[,] [acknowledging that] maybe once” he drank to the point of intoxication. According to Father, after he started drinking again, he drank two or three beers a day. On September 4, 2018, in Montgomery County, Texas, police arrested Father on a fifth DWI. After Father’s arrest, when the Department’s investigator checked to see whether any other adults were present in Father’s home, the Department found Tara and Jason there but no adults. On September 5, 2018, the Department sued Father and obtained a court order, which allowed the Department to remove Tara and Jason from the home. In the suit, the Department alleged that Father’s parental rights to Tara and to Jason should be terminated because he had, based on his conduct, endangered them. 5  Father retained an attorney to represent him against the Department in the suit. Father hired the same attorney to represent him against the Department as he hired to represent him on the criminal charge involving his fifth DWI. In October 2018, Father, along with his attorney, appeared in two preliminary hearings the trial court conducted on the Department’s suit. In the first hearing, the trial court stated that, based on the information it had reviewed at that time, it would take “a complete and utter turnaround for [Father] to not get [his parental rights] terminated in this case[.]” In the same hearing, the trial court told Father the trial of the Department’s case would take place “in nine months” so the children would not have to “languish and wait around for [him] for one more extra day.” In January 2019, Father’s attorney of record in the suit filed by the Department filed a motion to withdraw. The motion alleges Father’s attorney did not believe he could effectively represent Father in both a criminal and a civil case. That said, the motion offers no further factual allegations explaining why Father’s attorney of record could not represent Father in both suits. Additionally, the record shows that (1) Father did not sign the motion to withdraw, (2) the certificate of service accompanying the motion does not show that Father was ever served with the motion, and (3) Father’s attorney never obtained a hearing or ruling on the motion before the trial court in the suit filed by the Department called the case to trial. Even 6 so, after filing the motion, Father’s attorney apparently assumed he had no further duties to Father and failed to attend any subsequent hearings or the trial. Consequently, as of January 2019, Father began showing up at hearings the trial court conducted in the suit filed by the Department without an attorney. While Father was present in the January and May 2019 status hearings the trial court conducted on the Department’s case, Father’s attorney did not attend the hearings with his client. In the hearings, Father advised the trial court that his attorney was still representing him in the case even though he was not present. The Department’s attorney advised the trial court that Father was working on completing the requirements of his family service plan, which required Father to attend meetings conducted by Alcoholics Anonymous, to complete a drug and alcohol assessment, and to obtain negative tests for the presence of substances of abuse, which included alcohol. Father’s family service plan also required that Father complete a program, offered by a sponsor, designed to prevent Father from having a relapse. In the January and May status hearings, the Department told the trial court the Department’s goal was to reunite Father with the children, while its secondary goal was adoption. At the conclusion of the May 2019 hearing, the trial court scheduled the case for trial on August 7, 2019, memorializing that ruling in a written order. 7  When the trial court called the case to trial on August 7, 2019, Father’s attorney of record was not present. Once again, Father advised the trial court that his attorney of record was still representing him. The court advised Father to contact his attorney and determine why the attorney was not showing up with Father in connection with the duties the attorney had to represent Father in the lawsuit. On August 7, the Department’s attorney told the trial court the Department was still planning to return Tara and Jason to Father, but that before doing so, Father needed to secure a safe place for them to live. The Department’s attorney acknowledged that Father had taken a step toward that goal, as Father had recently leased an apartment but he had not yet moved in. The Department’s attorney represented to the trial court that Father needed just a few more days to allow him to secure appropriate housing for his children given the fact he had a lease on an apartment that would start on August 18. On its own motion, the trial court chose to allow the parties more time, continuing the case without requiring any party to file a formal motion for continuance. The court also instructed that Father make the apartment available to the Department and to the court appointed special advocate (CASA) for an inspection on August 22. The court then removed the case from the August 7 docket and set it for trial on August 28. 8  On August 28, the trial court called the case to trial. Father appeared again without his attorney. When the Department’s attorney asked Father whether he had an attorney, Father stated he expected his attorney to appear. The Department also announced, for the first time, that it was changing its goal in the case from reunifying the family to terminating Father’s rights. Explaining the decision to change goals, the Department’s attorney told the trial court the Department had recently developed concerns about whether Father could provide Tara and Jason with a safe and stable home. To explain the change in goals, the Department’s attorney stated the Department had recently learned that Father had falsified his lease by including a lessee’s name on the lease who was not actually leasing the apartment so that Father could arrange to have water utility services connected at his apartment. The Department’s attorney also told the trial court that Jason had expressed the desire to return home to Father, but that Tara had expressed her desire to continue living with her foster parents. Under the circumstances, the trial court chose to remove the case from the docket and continue it to September 9. Explaining why it did so, the trial court advised the parties on August 28 that “this is now a very, very serious matter” and that Father needed to sort out the issues he was having with his attorney. The trial court also explained why it did not allow the parties more time, stating it set the trial 9 on September 9 because it is the statutory try or dismiss deadline that, under the Family Code, applied to the suit. 4 On September 6, a new attorney filed a notice to appear as Father’s attorney of record. On that same day, Father’s new attorney moved to continue the case from its September 9 trial setting. The attorney verified the motion to continue, asserting he needed more time to prepare for the impending trial in light of the recent change in the Department’s goals and the fact he had only recently been hired. On the morning of September 9, the trial court heard Father’s motion to continue but denied the motion at the conclusion of the hearing. The trial court found that Father, during the hearing and in his motion, had not proven there were any extraordinary circumstances that justified extending the case beyond the try or dismiss deadline of September 9. 5 While the trial court did not provide the parties with written findings of fact, the court indicated in the hearing that Father failed to rectify the problems he was having with his attorney earlier given the problems first cropped up when the attorney failed to attend the January 2019 status hearing with 4 See id. § 263.401(a) (providing for a mandatory dismissal of termination proceeding after one year if a trial on merits has not started or a proper extension has not been obtained). 5 Id. 10 Father when Father appeared in court in response to the notice of hearing he received in the case. After the trial court denied the motion to continue, the trial began. The Department called just one witness, Alex Garcia, on the first day of the trial. Garcia answered eight questions before the trial court announced the court would be in recess. On September 9, Garcia testified that he is Father’s employer, he has known Father since they were children, and that he could return to court to finish his testimony on October 16. On October 16-17, the trial court heard the remaining testimony in the trial. Father, along with eight other witnesses, testified over the remaining two days of the trial. Tara and Jason were not called as witnesses in the trial. Even so, the attorneys for the parties represented to the court that Jason wanted to return home to his father while Tara did not. Tara’s and Jason’s CASA, James Cain, testified that Jason wanted to return to Father while Tara did not. After the parties presented final arguments, the trial court announced that it was finding that Father had knowingly placed or allowed Tara and Jason to remain in conditions that endangered their well-being and engaged in conduct or knowingly placed Tara and Jason with persons who engaged in conduct that endangered their 11 well-being. 6 The trial court also announced that it was terminating Father’s parental rights and that terminating his rights would be in Tara’s and Jason’s best interest.7 On October 31, 2019, the trial court signed an Order of Termination consistent with the statements the court made on the last day of the trial. Standard of Review-Continuances and Extensions A ruling by a trial court to grant or deny a motion to continue and to grant or deny a motion to extend the statutory try or dismiss deadline are reviewable for abuse of discretion. 8 Under the abuse of discretion standard, the court reviewing the ruling must uphold the trial court’s ruling as long as the ruling was not arbitrary, unreasonable, or made without reference to the guiding rules and principles that apply based on the circumstances in the case. 9 Under the Family Code, trial courts must start the trial of parental-rights termination cases “on the first Monday after the first anniversary of the date the court 6 See id. § 161.001(b)(1)(D), (E). 7 See id. § 161.001(b)(2). 8 Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 , 161 (Tex. 2004) (reviewing a trial court’s order denying a motion for continuance for an abuse of discretion); In re D.W., 249 S.W.3d 625 , 647 (Tex. App.—Fort Worth 2008, pet. denied) (reviewing a motion to extend the dismissal deadline under section 263.401 of the Family Code for an abuse of discretion); see also Tex. Fam. Code Ann. § 263.401(a) (requiring trial courts to start the trial on the first anniversary after the court sings a temporary order appointing the Department as a child’s temporary managing conservator). 9 See In re A.L.M.-F., 593 S.W.3d 271 , 282 (Tex. 2019). 12 rendered a temporary order appointing the [D]epartment as temporary managing conservator[.]”10 Here, the trial court rendered the temporary order naming the Department as Tara’s and Jason’s temporary managing conservator on September 5, 2018. Thus, based on section 263.401(a) of the Family Code, the trial court had to start the trial no later than September 9, 2019, to prevent the case from being automatically dismissed.11 Given the problems created when Father’s attorney failed to discharge the duties that he owed to Father as his attorney by appearing with him for the trial, the trial court continued the case from two trial settings, one on August 7 and the second on August 28. In part, Father complains the trial court did not extend the case past the September 9 try or dismiss deadline. To be sure, the Family Code provides trial courts with some discretion to extend try or dismiss deadlines in parental termination cases for up to 180 days. But courts may do so only if (1) extraordinary circumstances necessitate the Department remaining as temporary managing conservators of the children whose rights are involved in the suit and (2) the circumstances show that continuing the conservatorship beyond the try or dismiss deadline by no more than 180 more days is in the children’s best interest.12 10 Tex. Fam. Code Ann. § 263.401(a). 11 Id. 12 Id. 13  August 7 Continuance In issue one, Father argues that because none of the parties asked to continue the case or filed written motions for continuance, the trial court acted without authority by resetting the trial from August 7 to August 28. Yet this argument lacks merit. Under Texas law, trial courts have wide discretion to manage the needs of their respective dockets, so they have the right to schedule trials in a manner allowing the cases to be disposed of expeditiously.13 Under the Texas Rules of Civil Procedure, trial courts are authorized to create deadlines to control the various phases of the cases on their dockets.14 Even when trial courts sign pretrial orders scheduling deadlines, they may then modify the deadlines “to prevent manifest injustice.” 15 Thus, the Rules of Civil Procedure recognize that trial courts have some rights to change or modify their interlocutory orders until they lose the authority they have over their final judgments. 16 At the August 7 hearing, the Department informed the trial court that Father needed more time to obtain his new residence to allow the Department more time to decide whether to return Tara and Jason to Father’s care. Thus, when the trial court 13 Clanton v. Clark, 639 S.W.2d 929 , 931 (Tex. 1982). 14 Tex. R. Civ. P. 166. 15 Id. 16 In re Estate of Henry, 250 S.W.3d 518 , 526 (Tex. App.—Dallas 2008, no pet.). 14 continued the case from its former setting on August 7, the court exercised its inherent discretion to manage its docket.17 The continuance also gave Father more time to address the problems he was having with the attorney he had retained to represent him in the case. We conclude Father has not shown that the trial court abused its discretion by continuing the case from the setting of August 7 because the court’s decision was reasonable under the circumstances based on the needs of the parties in the case. 18 We overrule Father’s first issue. Denial of Father’s Motion to Continue the September 9 Setting In issue two, Father argues the trial court abused its discretion by refusing to continue the case from its September 9 setting. According to Father, he needed a continuance from the September 9 setting so the attorney he hired in September could have the time he needed to prepare for trial. Given that Father decided to retain another attorney following the August 28 hearing, we assume that Father decided to change counsel after he learned that the Department was formally changing its stated goal from reunifying the family to terminating his rights. In addition to needing more time for his newly retained attorney to prepare for trial, Father argues the trial court 17See Clanton, 639 S.W.2d at 931 . 18Jackson v. Jackson, 556 S.W.3d 461 , 471 (Tex. App.—Houston [1st Dist.] 2018, no pet.). 15 erred by failing to give him the “warning to parents,” as required by section 263.006 of the Family Code. 19 Stated another way, Father suggests that he would have obtained another attorney sooner had the trial court given him the warning required by section 263.006. The parties do not dispute that the try or dismiss deadline that applies to Father’s case is September 9, 2019, unless “extraordinary circumstances” existed that required extending the case beyond that deadline. 20 Father suggests the Department’s change in goals as of August 28 coupled with the fact he had to replace his attorney of record required the trial court to find the circumstances sufficient to justify extending the deadline that applied to the Department’s suit. While the record certainly shows there are delays associated with Father’s original attorney of record, the trial court appears to have blamed Father for them, given Father’s knowledge that his attorney was not attending court with him by at least January 2019. Generally, when it comes to delaying a trial, courts will not infer that an “extraordinary circumstance” exists when the fault for the circumstance leading to 19 See Tex. Fam. Code Ann. § 263.006 (requiring, in cases in which the Department takes a child into temporary custody, the trial court to “inform each parent in open court that parental and custodial rights and duties may be subject to restriction or to termination unless the parent or parents are willing and able to provide the child with a safe environment”). 20 Id. § 263.401(b). 16 the delay lies with the party responsible for causing the delay. 21 On this record, we cannot say the trial court abused its discretion by finding Father at fault for the delays given that Father knew as early as January 2019 that his attorney of record was not discharging the duties he owed Father as his attorney of record in the suit. Moreover, by recessing the case after the Department called its first witness, the trial court allowed Father’s attorney more than thirty additional days to prepare Father’s defense. Father’s argument suggesting the judgment in the trial should be reversed because the trial court should have blamed the Department for the delays associated with the decision it announced on August 28 to change its stated goal to termination is also without merit. The record the Department’s petition alleged that the Department was seeking a judgment terminating Father’s parental rights. The court drove the risk home to Father during the October 2019 hearing, warning Father that “[i]f you are unwilling or unable to demonstrate an ability to provide [Tara and Jason] with a safe, stable environment, it is possible -- in this case highly likely -- that your parental rights will be permanently restricted or terminated.” The temporary order has a similar warning, as the order states in bold print: THE COURT FINDS AND HEREBY NOTIFIES [FATHER] THAT EACH OF THE ACTIONS REQUIRED OF [HIM] 21 In re O.R.F., 417 S.W.3d 24 , 42 (Tex. App.—Texarkana 2013, pet. denied). 17  BELOW ARE NECESSARY TO OBTAIN THE RETURN OF THE CHILDREN, AND FAILURE TO FULLY COMPLY WITH THESE ORDERS MAY RESULT IN THE RESTRICTION OR TERMINATION OF PARENTAL RIGHTS. Father’s signature appears on the temporary order, so he was on notice that his rights as a parent were at risk. The family services plan, which Father signed in October 2019, contains a similar warning, which states: “IF YOU ARE UNWILLING OR UNABLE TO PROVIDE YOUR CHILD WITH A SAFE ENVIRONMENT, YOUR PARENTAL AND CUSTODIAL DUTIES AND RIGHTS MAY BE RESTRICTED OR TERMINATED OR YOUR CHILD MAY NOT BE RETURNED TO YOU.” Father’s argument suggesting he never received the warning to parents required under section 263.006 of the Texas Family Code is unsupported by the record. 22 We conclude Father has not shown the trial court abused its discretion by denying his motion to continue the September 9 trial setting. We overrule Father’s second issue. Best-Interest Findings In Father’s third issue, he argues the evidence admitted during the trial is insufficient to show that terminating his parental rights is in Tara’s and Jason’s best 22 Tex. Fam. Code Ann. § 263.006. 18 interest. “In determining whether the evidence is legally sufficient to support a best- interest finding, we consider the evidence that supports a deemed finding regarding best interest and the undisputed evidence, and ignore evidence a fact-finder could reasonably disbelieve.”23 Under the Family Code, a “rebuttable presumption [exists] that the appointment of the parents of a child as joint managing conservators” will serve the child’s best interest. 24 That said, there is also a rebuttable presumption that a prompt and permanent placement of a child in a safe environment is in the child’s best interest.25 In reviewing a trial court’s best-interest findings, we apply the nine factors described in Holley v. Adams when measuring whether the evidence supports the trial court’s best-interest findings.26 Of note, the Holley factors are not exclusive, so 23 In re E.N.C., 384 S.W.3d 796 , 807 (Tex. 2012) (cleaned up). 24 Tex. Fam. Code Ann. § 153.131(b); see also In re R.R., 209 S.W.3d 112 , 116 (Tex. 2006) (noting that a “strong presumption” exists favoring keeping a child with its parents). 25 Tex. Fam. Code Ann. § 263.307(a). 26 In Holley v. Adams, 544 S.W.2d 367 , 371-72 (Tex. 1976), the Texas Supreme Court applied these factors in its review: • the child’s desires; • the child’s emotional and physical needs, now and in the future; • the emotional and physical danger to the child, now and in the future; • the parenting abilities of the parties seeking custody; • the programs available to assist the parties seeking custody; • the plans for the child by the parties seeking custody; • the stability of the home or the proposed placement; 19 other factors can be considered in deciding whether the evidence supports the trial court’s best-interest finding. 27 In parental termination cases, the evidence need not include evidence on each of the Holley factors, particularly when “the evidence [is] undisputed that the parental relationship endangered the safety of the child.”28 In his appeal, Father has not challenged the trial court’s finding that he engaged in conduct that endangered Tara’s and Jason’s well-being. While the evidence in the record does not address all nine Holley factors, the evidence does address several of them. In reviewing findings in parental termination cases, trial courts, when acting as the factfinder in the case, have the right to weigh the relative evidence on each factor differently on some factors than they weigh evidence on others.29 Thus, no single Holley factor is controlling in our review of an appeal that argues the evidence is insufficient to support a trial court’s best-interest finding.30 Moreover, sometimes evidence on just one of the factors may offer sufficient evidence to support the trial court’s finding terminating a parent’s rights. 31 • the parent’s acts or omissions that reveal the existing parent-child relationship is improper; and • any excuse for the parent’s acts or omissions. 27 In re C.H., 89 S.W.3d 17 , 27 (Tex. 2002). 28 Id. 29 See In re A.P., 184 S.W.3d 410 , 414 (Tex. App.—Dallas 2006, no pet.). 30 Id. 31 Id. 20  As in this case, evidence that a parent engaged in conduct that endangered a child is relevant to the review of the finding that terminating Father’s parental rights is in Tara’s and Jason’s best interest.32 The evidence addressing a child’s best interest may be direct or circumstantial, and may include subjective factors such as the factfinder’s observations of the parents in court. 33 Often, evidence describing a parent’s past conduct may have been highly relevant to the trial court’s finding that terminating the parent’s rights is in the child’s best interest.34 When we review the evidence the trial court considered, we examine it from the standpoint of the child, not from that of the child’s parent.35 Here, the testimony established that Father has a long history—nearly twenty years—showing that he abuses alcohol. The choices Father made to drink and drive ultimately caused instability in Tara’s and Jason’s home, as the evidence shows they were cared for by a relative or placed in foster care on multiple occasions. In his brief, Father acknowledges that he has not provided his children with “stability due to his incarceration[s] which were the result of his drinking alcohol and driving.” At 32 See In re A.M., 495 S.W.3d 573 , 581 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). 33 In re E.D., 419 S.W.3d 615 , 620 (Tex. App.—San Antonio 2013, pet. denied). 34 Id. 35 See In re D.S., 333 S.W.3d 379 , 384 (Tex. App.—Amarillo 2011, no pet.) (citing In re S.A.P., 169 S.W.3d 685 , 707 (Tex. App.—Waco 2005, no pet.)). 21 trial, Father asked the trial court to discount the history of instability he created in the home, suggesting he has now turned the corner on recovering from his dependence on alcohol. According to Father, if given just one more chance, he will provide his children a safe and stable home. Father points to the evidence showing that he and Jason have a strong bond, and he suggests that the trial court should have deferred to Jason’s stated desire to return home in deciding whether terminating his rights would actually serve the best interests of his children. We readily agree the record contains evidence that, if the trial court had found it believable, offers support for Father’s argument he has finally turned the corner on recovering from his dependence on alcohol. For instance, there is evidence in the trial showing that Father completed the requirements of his family service plan, a plan that included a program requiring Father to obtain treatment for his abuse of alcohol. Father has also not tested positive on any of the tests he took to detect alcohol or drugs, he completed a drug and alcohol assessment, he has a sponsor from Alcoholics Anonymous, and he has completed a plan that is designed to reduce his risk of having a relapse. Father also notes he is currently on probation after pleading guilty of a fifth DWI, suggesting he would not risk violating the terms of his probation and risk going back to jail. The probation order on the fifth DWI requires that Father attend DWI court and an outpatient treatment program. Father points to 22 the evidence showing he has worked consistently for the same employer since he returned to Texas after completing the requirements of probation on his fourth DWI. The evidence shows that he earns a sufficient income from his job to allow him to provide for what his children would need. Finally, Father points to the evidence in the trial showing that he is currently living in a three-bedroom apartment, space that would allow Tara and Jason to have their own bedrooms.36 But there is also evidence showing Father has a long history of alcohol abuse, evidence that allowed the trial court to form a firm belief or conviction that Father would return to his old patters of drinking, which would then lead to further instability in Tara’s and Jason’s lives. Boiling it down, Father asks this Court to weigh the evidence differently from the way the trial court weighed it. But that’s not this court’s role, given the trial court’s sole right to decide how much weight to give the testimony adduced on the various Holley factors during a trial. 37 Thus, while Father promises he will not return to his historical pattern, the trial court could reasonably have chosen to disagree given Father’s historical inability over the past two decades to control his need for alcohol. 38 On this record, we cannot say the trial 36 The testimony in the trial shows that Father had water service to the apartment where he was living when the case was tried. 37 See City of Keller v. Wilson, 168 S.W.3d 802 , 819-20 (Tex. 2005). 38 See Tex. Fam. Code Ann. § 263.307(a). 23 court abused its discretion by rejecting the evidence Father relied on to claim he has now turned the corner on his abuse of alcohol so that he can avoid returning to the patterns that resulted in his children being taken by the Department and placed in foster care. There is also other evidence in the record relevant to some of the other Holley factors that offers additional support for the trial court’s best-interest finding. For instance, Tara’s and Jason’s foster parents testified in the trial. They testified they love the children and that both children are thriving in their care. The evidence allowed the trial court to conclude that the children’s foster parents have provided and can continue providing Tara and Jason a safe and stable home along with providing for their needs. Additionally, Tara’s and Jason’s foster parents testified they wanted to adopt them, so the trial court could have viewed the termination of Father’s rights as the first step in a plan that would lead to the siblings being able to stay together. The foster parents also testified that if they were successful in adopting the children, they would still allow Tara and Jason to maintain a relationship with their father. During the trial, Rosalind McCray (the caseworker the Department assigned to the case) addressed the Department’s desire to place Tara and Jason in a safe, stable, and permanent home. According to McCray, the Department’s initial goal 24 was to reunify the children with their Father, but the Department’s goal changed when McCray learned Father had filed a credit application for water service and misrepresented who was leasing the apartment so that a service provider would connect the apartment so that it could be serviced with water. McCray learned that Father falsified the application because he had skipped out on his obligation to pay another water bill. The Department also presented evidence challenging Father’s truthfulness about whether he was complying with the treatment goals required by the Department’s family service plan. On cross-examination, Father admitted he sent a text message to Andy Garcia, his employer, stating that he would “do everything else [the Department] ask[s]. My lawyer said fake the AA to be able to work. So that’s what I was doing. Now they want actual sign-in sheets. So I have no choice but to fake them.” In her testimony, McCray testified that Father had not been honest with her “on things that have been going on.” To be fair, there is testimony in the trial the court could have, in its discretion, chosen to weigh differently. James Cain (the CASA) testified he did not believe that terminating Father’s parental rights was in Jason’s best interest. According to Cain, Father has done an “amazing” job turning his life around and can now provide for his children’s needs. Cain explained that while Tara told him she wanted to remain 25 with her foster parents, Jason and Father have a strong bond and he told Cain that he wants to return to Father’s care. Cain concluded that, in his opinion, terminating Father’s parental rights is in Tara’s best interest but not in Jason’s. When the trial court asked the attorney ad litem to express an opinion, she urged the trial court to name the Department as Tara’s sole managing conservator and allow Jason to return home to Father. We acknowledge the record contains conflicting evidence about the factors relevant to the trial court’s best-interest finding. Even so, it was up to the trial court, as the trier of fact, to weigh the evidence and decide what, in the future, would serve each child’s best interest. Based on the evidence, we conclude the trial court did not abuse it discretion by finding the Department’s plan superior to the plans for the children proposed by others in the case. 39 The testimony in the trial suggests it could harm Tara and Jason should they be separated. Thus, the trial court could not have granted the preferred outcome in the case that each child expressed to the CASA. And the trial court had the right to weigh the need for a prompt, permanent and safe placement over Jason’s expressed preference asking that the court return him to his Father’s care. 40 39 See City of Keller, 168 S.W.3d at 819 . 40 See In re D.M., 58 S.W.3d 801 , 812 (Tex. App.—Fort Worth 2001, no pet.). 26  Given that the trial court’s role as the factfinder in the trial together with its right to weigh the evidence, we hold the record contains sufficient evidence to support the trial court’s best-interest findings. 41 On this record, we cannot say the trial court abused its discretion by striking the balance in favor of its apparent view that the children needed a resolution that promoted stability, safety, and permanence in their lives. We hold the record contains sufficient evidence to allow the trial court, as the trier of fact, to form a reasonably firm belief or conviction that terminating Father’s parental rights is in each child’s best interest. We overrule Father’s third issue. Ineffective Assistance of Counsel In issue four, Father complains his trial counsel and the attorney the trial court appointed to serve as the children’s attorney ad litem provided ineffective assistance by failing to call Tara and Jason to testify during the trial. Before discussing the specifics of Father’s argument, we briefly note the standard that applies to our review of issue four. In parental termination cases, Texas courts follow the test established in Strickland to measure a parent’s allegations claiming the parent received constitutionally ineffective assistance of counsel. 42 To prove an ineffective 41 See In re J.O.A., 283 S.W.3d 336 , 345 (Tex. 2009); In re J.L., 163 S.W.3d 79 , 85 (Tex. 2005); In re J.F.C., 96 S.W.3d 256 , 266 (Tex. 2002). 42 In re M.S., 115 S.W.3d 534 , 544 (Tex. 2003). 27 assistance claim, the party asserting the claim must establish that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. 43 Under Strickland, the parent must “successfully show both prongs of the inquiry.” 44 The parent who is claiming ineffective assistance has the burden of proof on the claim. 45 In considering a claim of ineffective assistance of counsel, we “must take into account all of the circumstances surrounding the case, focusing on whether counsel performed in a ‘reasonably effective’ manner.” 46 Our review of counsel’s performance is highly deferential, and we presume that counsel’s conduct fell within the range of reasonable professional assistance, considering “the possibility that counsel’s actions [were] strategic.” 47 “An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.”48 Since strategy plays a large role when deciding whether to call a witness to testify in a trial, decisions in trials over whether to call a witness 43See Strickland v. Washington, 466 U.S. 668 , 687 (1984); In re J.P.B., 180 S.W.3d 570 , 574 (Tex. 2005). 44 See Strickland, 466 U.S. at 688 , 694; M.S., 115 S.W.3d at 545 . 45 M.S., 115 S.W.3d at 545 . 46 Id. (citing Strickland, 466 U.S. at 687). 47 Id. 48 Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608 , 622- 23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (cleaned up). 28 to testify in the trial are not usually sufficient to prove a claim of ineffective assistance of counsel unless the parent establishes that the failure to call the witness was “so outrageous that no competent attorney would have engaged in it[.]”49 That said, Strickland and the family law cases we have cited addressing claims of ineffective assistance of counsel do not involve a complaint by the defendant against an attorney that did not have an attorney-client relationship with the defendant in the case. 50 Father cites no cases supporting his argument that he may complain about ineffective assistance of counsel when the complaint concerns the conduct of an attorney, in this case the attorney ad litem, with whom he did not have an attorney-client relationship in the case. To decide whether Father can assert a claim for ineffective assistance against someone who was not his lawyer, we must decide whether Father enjoys standing to complain about the conduct of someone who was not his lawyer. Without standing, the court has no case or controversy to decide. Under Texas law, to establish standing, the “plaintiff must allege ‘a concrete injury . . . and real controversy 49 M.S., 115 S.W.3d at 545 (cleaned up). 50 See Strickland, 466 U.S. at 671 (complaint by defendant in a criminal case against the attorney appointed to represent him in the trial); J.P.B, 180 S.W.3d at 574 (complaint by Mother levelled at Mother’s trial counsel); M.S., 115 S.W.3d at 545 (complaints by Mother levelled at Mother’s trial counsel). 29 between the parties that will be resolved by the court.’” 51 The injury must be threatened or actual, not one that is merely hypothetical. 52 Here, Father failed to prove that he had an attorney-client relationship with the attorney ad litem. Thus, Father does not have standing to challenge the choices the attorney ad litem made as to the strategy she followed when she discharged the duties required based on her appointment to serve as the attorney ad litem for the children in the trial. As for Father’s complaint about the attorney he hired to represent him, the Department argues we should not reach Father’s argument asserting his attorney was ineffective because the Texas Supreme Court has not yet recognized whether a parent, who retains an attorney rather than has an attorney appointed for him by the court, has a claim for constitutionally ineffective assistance of counsel based on the strategic decisions the attorney made in the trial. But the intermediate courts of appeals are split on this question. One of our sister courts has recognized that such 51 Farmers Tex. Cty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237 , 241 (Tex. 2020) (quoting Heckman v. Williamson Cty., 369 S.W.3d 137 , 154 (Tex. 2010)); see also In re T.N., 142 S.W.3d 522 , 524 (Tex. App.—Fort Worth 2004, no pet.). 52 Id. 30 claims are cognizable while another intermediate court of appeals found they are not. 53 While the dispute is an interesting legal question, we need not resolve it to resolve Father’s appeal. Instead, we will assume (without deciding) that Father’s complaints about the attorney who represented him in the trial are cognizable and review the record to determine whether Father met his burden to prove his attorney breached the duty he owed Father to provide him with constitutionally effective assistance in the trial. 54 The record shows Father never filed a motion for new trial and his trial attorney did not file an affidavit or testify about why he did not call Tara and Jason as witnesses in the trial. Thus, the record is silent about why the attorney did not call either child to testify. When the record is silent about trial counsel’s strategy, we cannot find that the choice the attorney made not to call a witness in the trial is a choice that no competent attorney would have made. 55 53 See, e.g., In re D.T., 593 S.W.3d 437 , 439-40 (Tex. App.—Texarkana 2019, pet. granted) (concluding parents who retain counsel cannot raise an ineffective assistance challenge to the termination order, while citing cases from other courts of appeals that held the same); but see In re E.R.W., 528 S.W.3d 251 , 261 (Tex. App.— Houston [14th Dist.] 2017, no pet.) (concluding the right to effective counsel extends to non-indigent parents who have retained counsel). 54 See Strickland, 466 U.S. at 687 . 55 Bone v. State, 77 S.W.3d 828 , 833-34 (Tex. Crim. App. 2002). 31  Assuming Father can raise an ineffective assistance of counsel claim against an attorney whom he retained, we conclude Father failed to meet his burden of proving the attorney failed to discharge his duty to provide constitutionally effective assistance of counsel. 56 We overrule Father’s fourth issue. Conclusion Having considered each of Father’s arguments supporting his issues, we conclude that Father has not shown that reversible error occurred. For that reason, the trial court’s Order of Termination is AFFIRMED. _________________________ HOLLIS HORTON Justice Submitted on August 11, 2020 Opinion Delivered December 3, 2020 Before McKeithen, C.J., Kreger and Horton, JJ. 56 Walker, 312 S.W.3d at 622-23 . 32

2020-12-04 07:14:43.262025+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=7591&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa09%5cOpinion

In The Court of Appeals Ninth District of Texas at Beaumont __________________ NO. 09-20-00251-CV __________________ IN RE LONNIE KADE WELSH __________________________________________________________________ Original Proceeding 435th District Court of Montgomery County, Texas Trial Cause No. 15-01-659-CV __________________________________________________________________ MEMORANDUM OPINION In a mandamus petition, Lonnie Kade Welsh complains that Patricia Maginnis, the judge of the 435th District Court of Montgomery County, Texas, abused her authority: (1) by issuing a biennial review order in Welsh’s sexually violent predator (SVP) commitment proceeding while a written motion to recuse was pending; (2) by deciding the biennial review without Welsh being present; and (3) by failing to perform her duty to either recuse from the case or refer the motion to recuse to the regional presiding judge. As relief, Welsh asks this Court to either 1 void or reverse the biennial review order, or to compel Judge Maginnis to comply with her duty to respond to the motion to recuse. Welsh was finally committed as a sexually violent predator in 2015. SVP commitment orders remain in effect until the committed person is no longer likely to engage in a predatory act of sexual violence. See Tex. Health & Safety Code Ann. § 841.081(a). The 435th District Court retains jurisdiction over the commitment and any biennial reviews of the commitment order. See In re Welsh, No. 09-18-00126- CV, 2018 WL 1864729 , at *1 (Tex. App.—Beaumont Apr. 19, 2018, orig. proceeding [mand. denied]) (mem. op.). The trial court conducts a biennial review of the SVP commitment order to determine whether the requirements imposed on the committed person should be modified or whether probable cause exists to believe the person’s behavioral abnormality has changed to the extent that he is no longer likely to engage in a predatory act of sexual violence. See Tex. Health & Safety Code Ann. § 841.102. He is entitled to representation by counsel in a biennial review, but he is not entitled to be personally present. Id. § 841.102(b). Welsh claims he began representing himself in the SVP case on April 28, 2020. On August 25, 2020, Welsh filed an unverified motion to recuse the judge of the 435th District Court. The motion alleged that Judge Maginnis’s impartiality might reasonably be questioned because she had failed to (1) sign a biennial review 2 order in a timely fashion, (2) rule on Welsh’s petition for unauthorized release from SVP commitment, and (3) rule on Welsh’s objections to biennial review. Judge Maginnis signed a biennial review order on October 7, 2020. The order includes a finding that there is no evidence submitted to the trial court to suggest that sex offender treatment has resulted in Welsh’s behavioral abnormality changing to the extent that he is no longer likely to engage in a predatory act of sexual violence. The order does not mention Welsh’s motion to recuse. Welsh attached to his mandamus petition an unsworn declaration in which he states under penalty of perjury that an unnamed deputy district clerk on August 28 or 31, 2020, informed Welsh in a telephone call that she would notify the presiding judge that Welsh had filed a motion to recuse. Welsh argues the biennial review order is void because it was signed while an unresolved motion to recuse was then pending. He argues mandamus relief is available to compel the trial court to vacate a void order. Rule 18a of the Texas Rules of Civil Procedure establishes the procedure for filing and resolving a motion to recuse a trial court judge. See Tex. R. Civ. P. 18a. A motion to recuse: (1) must be verified; (2) must assert a ground listed in Rule 18b; (3) must not be based solely on the judge’s rulings in the case; and (4) must state with particularity facts that would be admissible in evidence and sufficient to justify recusal. Tex. R. Civ. P. 18a(a). When a motion is filed, the clerk of the court has a 3 duty to deliver a copy to the respondent judge and to the regional administrative presiding judge. Tex. R. Civ. P. 18a(e). Regardless of whether the motion complies with Rule 18a, the respondent judge, within three business days after the motion is filed, must either recuse or refer the motion to the regional presiding judge. Tex. R. Civ. P. 18a(f)(1). Whether the respondent judge may proceed depends upon whether the motion is filed before evidence has been offered at trial: the respondent judge must take no further action in the case until a pre-trial motion has been decided, but a judge may proceed if a motion is filed after evidence has been offered at trial, subject to a stay by the regional presiding judge. Tex. R. Civ. P. 18a(f)(2). The movant may notify the regional presiding judge if the respondent judge fails to comply with a duty imposed by Rule 18a. Id. Rule 18a(f)(3). When a trial judge is presented with a motion to recuse, she must either recuse herself or refer the motion to the regional presiding judge. Brousseau v. Ranzau, 911 S.W.2d 890 , 892 (Tex. App.—Beaumont 1995, no writ). But the mandamus record in this case fails to establish that Judge Maginnis refused to recuse or refer the motion to recuse to the regional presiding judge. To the contrary, the record shows that the trial court clerk failed to deliver the motion to recuse to Judge Maginnis. See Tex. R. Civ. P. 18a(e)(1). Under the circumstances, the appropriate action is for the trial court clerk to deliver the motion to recuse to Judge Maginnis so that the judge may perform her duties under Rule 18a(f). Absent evidence that Judge Maginnis was 4 aware of the motion to recuse, we cannot say that she failed to perform a ministerial duty, since no such duty arises without the trial court’s knowledge that the motion was filed. The petition for a writ of mandamus is denied without prejudice. PETITION DENIED. PER CURIAM Submitted on November 12, 2020 Opinion Delivered December 3, 2020 Before McKeithen, C.J., Kreger and Johnson, JJ. 5

2020-12-04 07:14:43.603441+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=7599&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa09%5cOpinion

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-20-00108-CV ________________ CHRISTUS HEALTH SOUTHEAST TEXAS D/B/A CHRISTUS HOSPITAL – ST. ELIZABETH, Appellant V. MYRANDA CARNAHAN AND ALEX YATES, INDIVIDUALLY, AND AS NEXT FRIEND OF M.Y., Appellees ________________________________________________________________________ On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-204,242 ________________________________________________________________________ MEMORANDUM OPINION We decide in this interlocutory appeal whether the trial court abused its discretion by denying Christus Health Southeast d/b/a Christus Hospital – St. Elizabeth’s (“Christus”) motion to dismiss the health care liability claims of Myranda Carnahan and Alex Yates (“the Claimants”). In two issues encompassing various sub-issues, Christus contends that the Claimants’ expert report and expert’s accompanying CV fail to meet the Texas Medical Liability Act’s (hereinafter “the 1 Act”) requirements. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l) (requiring a court to grant a motion challenging the adequacy of an expert’s report if it does not constitute an objective good faith attempt to comply with the Act’s definition of an expert report). Specifically, Christus challenges the expert’s qualifications and the sufficiency of the expert’s opinions. The hospital argues that the expert’s report is so deficient it constitutes “no report at all[.]” For the following reasons, we overrule Christus’s issues and affirm the trial court’s order denying the motion to dismiss. I. Background1 Carnahan and Yates sued the hospital, asserting a vicarious liability theory based on the negligent care and treatment by its nurses during Carnahan’s hospitalizations while pregnant.2 Within 120 days of the hospital filing its answer, the Claimants served the hospital with James Wheeler, MD’s expert report and accompanying CV as required by the Act. See id. § 74.351(a). 1 The expert report at issue in this appeal provides the background facts. The medical records are not part of the appellate record, and we rely on the report’s factual statements for the limited purpose of this appeal. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48 , 52–53 (Tex. 2002). 2 In their first amended petition, the Claimants also named Jurswin Pieternelle, MD, as a defendant; however, the attending doctor is not a party to this appeal. 2  II. Contents of Curriculum Vitae and Expert Report A. Qualifications Dr. Wheeler’s CV notes that he has been a board-certified obstetrician3 and gynecologist 4 since 1989, with his most recent recertification occurring in 2019. His medical employment history from 1995 to the present lists his private practice as a “Reproductive endocrinologist,5 Obstetrician/Gynecologist” and parenthetically notes “Occasional Ob/Gyn Locum tenens placement[.]” 6 His current hospital appointments indicate that since 2006, he has served as a courtesy staff member with admitting and consulting privileges at Woman’s Hospital of Texas, having been renewed most recently in 2018. Prior to that, between 1988 and 1994, he had an 3 An obstetrician is a physician specializing in obstetrics. See https://merriam- webster.com/dictionary/obstetrician last accessed 11/9/2020. “Obstetrics” is defined as “a branch of medical science that deals with pregnancy, childbirth, and the postpartum period[.]” https://merriam-webster.com/dictionary/obstetrics (last accessed 11/19/2020). 4 A gynecologist is a physician specializing in gynecology. See https://merriam-webster.com/dictionary/gynecologist (last accessed 11/9/2020). “Gynecology” is defined as a “branch of medicine that deals with the diseases and routine physical care of the reproductive system of women[.]”https://merriam- webster.com/dictionary/gynecology (last accessed 11/19/2020). 5 The American College of Obstetricians and Gynecologists’ website explains that some ob-gyns have extra training in a focused area of women’s health care, and specifically notes that “reproductive endocrinology” is “focused on the hormones of the reproductive system and helping women who have problems getting pregnant[.]” https://acog.org/womens-health/about-acog (last visited 11/19/2020). 6 “Locum tenens” is defined as “one filling an office for a time or temporarily taking the place of another[.]” https://merriam-webster.com/dictionary/ locum%20tenens (last accessed 11/19/2020). 3 academic practice at Baylor College of Medicine, where he worked from 1988 until 1996 as a reproductive endocrinologist and obstetrician/gynecologist and as a clinical assistant professor and assistant professor in the Departments of Obstetrics/Gynecology and Community Medicine. Dr. Wheeler’s CV also reveals he is a licensed attorney. From 2016 through 2018, he served as a professor of medicine, law, and nursing for Brighton College/The Paralegal Institute, where he taught courses such as “Legal Research – Legal Nurse Consultant Diploma Program[.]” Dr. Wheeler’s expert report states that he has earned a Legal Nurse Consulting diploma, and from 2016 to 2018, he “taught undergraduates, nurses, medical students and doctors in various courses pertaining to consulting in medical and nursing issues within legal cases.” Dr. Wheeler asserts the following in his report, I have worked side-by-side with nurses at various educational levels, nurse-midwi[v]es, and physician assistants. I have taught these professionals a variety of subjects in Ob/Gyn, including topics in Obstetrics. I have worked as a nurse, moonlighting in medical school, in Surgical, Medical and Cardiac ICUs. I have edited and helped with the publication of documents for the Nurses Association of the American College of Obstetricians and Gynecologists (“NAACOG”). I have reviewed hospital policies pertaining to nursing care, including policies and procedures within Labor & Delivery units. B. Review of Carnahan’s and M.Y.’s Medical Records Dr. Wheeler outlines the medical records reviewed in this case, including, among others, Carnahan’s records from the hospital. Of significance, Dr. Wheeler 4 notes Carnahan’s “medical comorbidities.” He mentions Carnahan’s BMI of 41.3 kg/m2, classifying her obesity as “extreme,” and she suffered from hypothyroidism, treated by levothyroxine. She also had a recent “positive history of E. coli UTI.” Dr. Wheeler’s report explains that on May 30, 2017, Carnahan presented to Christus at 26 3/7 weeks’ gestation with complaints of “pelvic pressure” and lower abdominal pain that began the previous day, which she described as “crampy.” A vaginal exam was ordered “per unit standard” and noted by a nurse, but the exam was “deferred.” Dr. Wheeler explains in the report that the notation “per unit standard” means the “exam [w]as part of the routine evaluation of a woman in possible preterm labor; other units have this as a standing order from each Obstetrician.” Dr. Wheeler mentions that fetal heart rate monitoring was ordered as were urinalysis, urine culture, and vaginal nitrazine pH test to assess rupture of amniotic fluid. The urinalysis and urine culture suggested a bacterial infection but was considered contaminated. Dr. Wheeler notes that a Complete Blood Count (“CBC”) was also ordered, but Carnahan was discharged on May 30, 2017, before the results were received.7 Carnahan was discharged on the evening of May 30, 2017, on antibiotics with instructions about contractions. 7 More specifically, the report notes the results were not returned to the chart until June 1, 2017. 5  On June 1, 2017, Carnahan returned to Christus where at 04:58 a nurse responded to an emergency call light in Carnahan’s room. The nurse then observed Carnahan sitting on the toilet with the baby hanging out of her vagina. Nurses retrieved the baby, wrapped her in towels, and a nurse stimulated the baby. Nurses then “rushed [the infant] to the NICU,”8 arriving at 05:05. In his expert report, Dr. Wheeler mentions a history and physical plus delivery note that Carnahan presented complaining of pelvic pressure and Urinary Tract Infection (“UTI”) symptoms continuing. Was seen in triage 5/30/17 with complaints of UTI. The physical exam noted “placenta and cord at the introitus with clamp and foul smell”. Under assessment, “No contractions reported. Admitted for intravenous antibiotics – Rocephin 1 g at 01:20 . . . patient resting and when got up to use bathroom, sat down to seat, felt gush of fluids and baby coming out. Called RN. RN found patient on toilet with baby between legs, face-up above water – grasped baby and called for help. Cord clamped and cut infant rushed to NICU. 2#, 14 ½ inches long – suspect chorioamnionitis.” Dr. Wheeler noted that “[p]lacental pathology demonstrated severe acute chorioamnionitis and moderate acute funisitis of the umbilical cord” and bacterial cultures were positive for “two anaerobic species . . . known to be associated with chorioamnionitis, and preterm labor.” 8 NICU is the acronym for neonatal intensive care unit. See https://merriam- webster.com/dictionary/NICU (last accessed 11/19/2020). 6  Dr. Wheeler writes that M.Y. had “Apgar scores of 2, 2 and 4 at 1, 5, and 10 minutes of life.”9 Dr. Wheeler included in his review the records from Texas Children’s Hospital for minor M.Y. (DOB 06/01/2017). Dr. Wheeler explains that recorded problems associated with M.Y.’s prematurity “included intraventricular hemorrhage, retinopathy of prematurity, bronchopulmonary dysplasia, feeding difficulties, apnea, anemia, and diaper dermatitis.” He further notes Early Childhood Intervention documents M.Y.’s ongoing developmental delay. C. Opinions on Standards of Care and Causation Citing multiple sources, Dr. Wheeler’s report explains that “[p]reterm birth is the leading cause of neonatal mortality in the U.S.,” and the “[d]iagnosis of preterm labor is aided by detecting maternal risk factors.” The report also notes that risk factors for preterm birth and labor “have been published for decades in Ob/Gyn textbooks and include complications like . . . infection including urinary tract infection (“UTI”), and . . . obesity.” (Emphasis original.) Dr. Wheeler states, “Ob nurses have been taught[] that [e]very attempt should be made to detect preterm labor early in its evolution.” (Internal quotations omitted.) 9 Apgar refers to “an index used to evaluate the condition of a newborn infant based on a rating of 0, 1, or 2 for each of the five characteristics of color, heart rate, response to stimulation of the sole of the foot, muscle tone, and respiration with 10 being a perfect score.” https://merriam-webster.com/dictionary/Apgar%20score (last accessed 11/19/2020). 7  Dr. Wheeler outlines the applicable standards of care for the Christus nurses as “those standards of reasonably well-trained and well-experienced labor and delivery nurses caring for patients the same as, or similar to, Ms. Carnahan[,]” which include: (1) the proper assessment of risk factors of preterm labor; (2) recognition of subtle symptoms and signs of preterm labor regardless of risk factor profile; (3) assessing the cervix, “as the very definition of preterm labor requires this assessment, via visual inspection, digital examination, or effecting the performance of ultrasonography[;]” and (4) not discharging the patient incompletely assessed and potentially treated for preterm labor, in order to avoid tragic preterm birth in some precarious setting. As to the nurses’ specific departures from the standards of care, Dr. Wheeler opines that they failed to properly assess Carnahan’s preterm labor risk factors, failed to recognize her symptoms and signs indicative of preterm labor, failed to assess the cervix in possible preterm labor, and discharged a patient in possible preterm labor with a CBC test pending. With respect to damages and proximate cause, Dr. Wheeler opines that if the nurses had satisfied their applicable standards of care, Carnahan would have been found to be in preterm labor, which would have led to hospital admission followed by bedrest, hydration, IV antibiotics, fetal and uterine monitoring, tocolysis 10 with 10 “Tocolysis” is defined as the “inhibition of uterine contractions.” https://merriam-webster.com/medical/tocolysis (last accessed 11/19/2020). 8 magnesium sulfate, beta-mimetics or non-steroidal anti-inflammatories. He further reasons that those therapies can prolong gestation and provide time for the administration of corticosteroids. Dr. Wheeler explains that “the most beneficial intervention for patients in true preterm labor is the administration of corticosteroids[,]” which “significantly reduce[] the incidence and severity of neonatal respiratory distress syndrome . . . intraventricular hemorrhage . . . necrotizing enterocolitis . . . and neonatal mortality.” Ultimately, Dr. Wheeler concludes that “[i]n reasonable medical probability, if Ms. Carnahan had been treated within the standards of care outlined above, she could have carried M.Y. sufficient time such that corticosteroid administration would have reduced the significant medical morbidity with which she suffers to this day.” Moreover, Dr. Wheeler’s report links the breaches in the standard of care that he found to M.Y’s injuries, explaining that “[b]ut for the negligent care Ms. Carnahan received form Christus St. Elizabeth, it is medically probable [M.Y.’s] damages would be prevented, or significantly reduced.” III. Standard of Review In health care liability cases, we review a trial court’s ruling on a motion to dismiss based on the adequacy of an expert report for an abuse of discretion. See Abshire v. Christus Health Southeast Tex., 563 S.W.3d 219 , 223 (Tex. 2018); Van Ness v. ETMC First Physicians, 461 S.W.3d 140 , 142 (Tex. 2015) (per curiam); Am. 9 Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 , 877–78 (Tex. 2001). “A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48 , 52 (Tex. 2002) (per curiam). A trial court’s ruling does not constitute an abuse of discretion simply because the appellate court would have ruled differently under the circumstances. See id.; Hendryx v. Duarte, No. 09-18-00070- CV, 2019 WL 1065052 , at *4 (Tex. App.—Beaumont Mar. 7, 2019, no pet.) (mem. op.). In reviewing a report’s sufficiency under this standard, “we consider only the information contained within the four corners of the report.” Abshire, 563 S.W.3d at 223 (citing Palacios, 46 S.W.3d at 878 ). In determining whether the report contains the requisite information, we view the entirety of the report rather than isolating specific portions or sections. See Baty v. Futrell, 543 S.W.3d 689 , 694 (Tex. 2018); Van Ness, 461 S.W.3d at 144 . Likewise, we use an abuse of discretion standard when reviewing a trial court’s decision that an expert in a health care liability case is qualified to express opinions about whether the patient’s medical care violated the standards applicable to the provider. See Broders v. Heise, 924 S.W.2d 148 , 151 (Tex. 1996) (“The qualification of a witness as an expert is within the trial court’s discretion. We do not disturb the trial court’s discretion absent clear abuse.”); Hendryx, 2019 WL 1065052 , at *5 (applying abuse of discretion standard for an expert’s qualifications 10 to express opinions about whether the medical care a patient received violated the applicable standards). We defer to the trial court on close calls concerning an expert’s qualifications. See Larson v. Downing, 197 S.W.3d 303 , 304–05 (Tex. 2006). An expert’s knowledge cannot be inferred, and the basis for his qualifications must be evident in the report or CV. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458 , 463 (Tex. 2008) (orig. proceeding). IV. Law and Statutory Framework The Act requires a claimant to serve an expert report on each party against whom a health care liability claim is asserted within 120 days of a defendant filing an answer. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The statute defines “expert report” as a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 74.351(r)(6). The report need not marshal all the plaintiff’s proof but must set forth the expert’s opinions on the standard of care, breach, and causation. Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453 , 460 (Tex. 2017). If the defendant challenges the report, the court must decide whether it constituted “a good-faith effort to comply” with the statute. Wright, 79 S.W.3d at 52 . A “good- 11 faith effort” (1) informs the defendants of the specific conduct the plaintiffs call into question and (2) provides a basis for the trial court to conclude the claims have merit. Baty, 543 S.W.3d at 693 –94. Texas Civil Practice and Remedies Code section 74.351(r)(5) provides the following experts are qualified: (B) with respect to a person giving opinion testimony regarding whether a health care provider departed from accepted standards of health care, an expert qualified to testify under the requirements of Section 74.402; (C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence .... Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(B)–(C). Section 74.402 provides in pertinent part: (b) In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person: (1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose; (2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and 12  (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care. (c) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness: (1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and (2) is actively practicing health care in rendering health care services relevant to the claim. Id. § 74.402(b)–(c). The statute further explains that “practicing health care” includes: (1) training health care providers in the same field as the defendant health care provider at an accredited educational institution; or (2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider. Id. § 74.402 (a)(1)–(2). Finally, with respect to an expert qualified to opine on causation, the statute provides, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence. Id. § 74.403(a). 13  The expert offering the opinions in the report must be qualified to render those opinions. To be qualified to opine that an institutional health-care provider breached the applicable standard of care, a person must have “knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim” and be “qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.” Mem’l Hermann Health Sys. v. Heinzen, 584 S.W.3d 902 , 911 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (quoting Tex. Civ. Prac. & Rem. Code Ann § 74.402(b)(2), (b)(3)). Further, [w]hile it is true that for certain medical-negligence claims against non- physicians, a person is qualified to render an expert report only if the person is or was engaged in a field of health-care practice “that involves the same type of care or treatment as that delivered by the defendant health care provider . . . at the time the testimony is given or . . . at the time the claim arose,” that requirement applies only “if the defendant health care provider is an individual.” Id. (quoting Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b)(1)). Because the hospital is not an individual, this provision does not apply to a doctor’s report regarding the care the hospital provided through its nursing staff. See id. at 911–12 (citing Harvey v. Kindred Healthcare Operating, Inc., 578 S.W.3d 638 , 644–46 (Tex. App.— Houston [14th Dist.] 2019, no pet.) (determining subsection inapplicable to an expert report addressing a claim against a hospital for its nursing staff’s conduct)). A person may be qualified to render an expert opinion regarding the applicable standard of 14 care for hospital nursing staff based on previously acquired experience. See, e.g. , id. at 912; see also Zamarripa, 526 S.W.3d at 461 n.37 (noting that the trial court was within its discretion to determine the nurse was qualified to offer opinions on applicable standards of care for labor and delivery nurses based on prior experience, even though she currently worked as a hematology-oncology nurse). “Section 74.351(r)(5)(B) does not require an expert to have the same specialty as the health care provider she evaluates.” Zamarripa, 526 S.W.3d at 461 n.37 (citations omitted). However, an expert offering an opinion on causation in a claim under the Act must be “a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence[.]” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(C). We are “cautioned that while ‘there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question,’ the TMLA’s test for ‘expert qualifications should not be too narrowly drawn.’” Benge v. Williams, 548 S.W.3d 466 , 472 (Tex. 2018) (quoting Larson, 197 S.W.3d at 305 ; Broders, 924 S.W.2d at 152 ). The Texas Supreme Court has explained that obtaining an expert’s opinions early in the litigation is a way to reduce frivolous lawsuits. See Palacios, 46 S.W.3d at 877 ; see also Baty, 543 S.W.3d at 692 . “[T]he purpose of evaluating expert reports is to deter frivolous claims, not to dispose of claims regardless of their merits.” 15 Certified EMS, Inc. v. Potts, 392 S.W.3d 625 , 631 (Tex. 2013) (citation and internal quotations omitted). V. Analysis With the above statutory framework and standard of review in mind, we turn to the hospital’s complaints that Dr. Wheeler is unqualified to render an expert opinion in this case and that his opinions did not constitute a good-faith effort to comply. A. Issue Two: Dr. Wheeler’s Qualifications and “No Report” Christus challenges Dr. Wheeler’s qualifications, arguing “the issue is not whether Dr. Wheeler was qualified as an obstetrician or gynecologist, but whether his expertise renders him an expert regarding the diagnosis, care, or treatment of the condition involved in this case.” Christus asserts that Dr. Wheeler’s report constitutes “no report[.]” While we agree that not every licensed physician will be qualified to testify regarding every medical issue, we note that the test for Dr. Wheeler’s expert qualifications should not be too narrowly drawn. See Benge, 548 S.W.3d at 472 (citations omitted). The four corners of the report and accompanying CV discuss Dr. Wheeler’s extensive obstetrical and gynecological training. Christus disagrees that Dr. Wheeler’s report and CV establish his qualifications to opine on the standard of care applicable to the nurses. Specifically, Christus contends that 16  nothing in his CV or report establishes that he has any training or experience that would form the basis for his opinions as to the standard of nursing care for a preterm obstetrical patient in a hospital setting. Nothing indicates he has worked as an obstetrician treating pregnant women, who present to the hospital with abdominal pain in the second trimester of pregnancy and subsequently deliver babies prematurely. Without offering an opinion regarding whether Christus has tried to construct the expert qualification test too narrowly, we believe the trial court was well within its discretion to conclude, based on the information provided in the report and CV, that Dr. Wheeler’s extensive training and experience practicing as an Ob/Gyn, himself working as a nurse, and working with nurses delivering babies as well as teaching them, rendered him qualified to offer opinions even as the appellants have framed the issues. Essentially, Christus complains that Dr. Wheeler’s focus as a subspecialist in the field of reproductive endocrinology means he is unqualified in the larger field of obstetrics and that the trial court could not determine he was qualified. We disagree. Reproductive endocrinology is part of the larger umbrella of obstetrics and gynecology. Dr. Wheeler’s CV shows that he has continuously been recertified by the American College of Obstetricians and Gynecologists, and in addition to his role as a reproductive endocrinologist, he works as an obstetrician and gynecologist on a locum tenens basis. In his report, Dr. Wheeler describes that he has “edited and helped with the publication of documents for the Nurses Association of the American College of Obstetricians and Gynecologists (“NAACOG”) [and] reviewed hospital policies 17 pertaining to nursing care, including policies and procedures within Labor & Delivery units.” Further, in his report he explains that he has “worked side-by-side with nurses at various educational levels, nurse-midwi[v]es, and physician assistants . . . and taught these professionals a variety of subjects in Ob/Gyn, including topics in Obstetrics.” Dr. Wheeler also wrote in the report that “[t]he depth and breadth of my clinical experiences, in both medicine and nursing, make me a reasonable physician to review the clinical aspects of minor M.Y.’s case.” Christus isolates portions of Dr. Wheeler’s report and CV focusing on reproductive endocrinology while ignoring the rest of his training and practice. Yet, we must view the report and CV in their entirety, rather than examining isolated portions. See Baty, 543 S.W.3d at 694 . Dr. Wheeler’s CV establishes that he continues to practice as an Ob/Gyn with occasional locum tenens placement. Likewise, he is a Diplomat with the American Board of Obstetrics and Gynecology since 1989 and was recertified as recently as 2019. Dr. Wheeler’s CV also reveals that from 2006, he has had consulting privileges at the Woman’s Hospital of Texas. See Tex. Civ. Prac. & Rem. Code Ann. § 74.402(a)(2) (noting that “practicing health care” includes “serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider”). To the extent the hospital argues that Dr. Wheeler is unqualified, and therefore, his report constitutes “no report,” such argument lacks merit. The hospital 18 relies heavily on Scoresby v. Santillan in support of this argument. However, the Texas Supreme Court explained that “[a]n inadequate expert report does not indicate a frivolous claim if the report’s deficiencies are readily curable.” See 346 S.W.3d 546 , 556 (Tex. 2011). The Court further explained that it had “rejected the argument that a deficient report is no report.” Id. at 556 (citing Ogletree v. Matthews, 262 S.W.3d 316 , 320–21 (Tex. 2007)). Based on the foregoing, we cannot say the trial court acted without reference to guiding rules or principles when it determined that Dr. Wheeler was qualified as an expert to render opinions on the standard of care pertaining to nurses, breaches of those standards of care, and how those failures proximately caused the injuries in this case. Accordingly, we disagree with the hospital’s contention that Dr. Wheeler was unqualified, and therefore, his report constituted “no report.” The trial court was well within its discretion in determining Dr. Wheeler is qualified, and we overrule the hospital’s first issue. We defer to the trial court on close calls concerning an expert’s qualifications. See Larson, 197 S.W.3d at 304 –05 (explaining deference given to trial court on close calls concerning expert’s qualifications); see also Wright, 79 S.W.3d at 52 (explaining a trial court’s ruling does not constitute an abuse of discretion simply because an appellate court would rule differently under the circumstances). B. Issue Two: Section 74.351 and Good Faith Effort 19  In their second issue, Christus complains that Dr. Wheeler’s report was “legally and materially deficient and failed to constitute an objective good faith effort to meet the requirements of section 74.351[(a).]”11 In conducting our analysis of whether the expert report constitutes a “good-faith effort,” we must determine whether it (1) informs Christus of the specific conduct the Claimants call into question and (2) provides a basis for the trial court to conclude the claims have merit. See Baty, 543 S.W.3d at 693 –94. Dr. Wheeler provides the standard of care applicable to the nurses, he describes the nurses’ specific conduct that deviated from those standards, and how those deviations proximately caused the injury in question. Therefore, the trial court again acted within its discretion in determining the report reasonably informs Christus of the specific conduct the Claimants complain of and provides a basis for the trial court to conclude the claims have merit; thus, it constitutes a good-faith effort. See id. Dr. Wheeler outlines the factors that placed Ms. Carnahan at a higher risk of preterm labor. He opines that the standards of care applicable to the hospital’s nurses in this case included: (1) the proper assessment of risk factors of preterm labor; (2) recognition of subtle symptoms and signs of preterm labor regardless of risk factor 11 Appellants incorporate two sub-issues with this argument; however, since we have determined that the report and Dr. Wheeler’s accompanying CV provide a basis for the trial court to determine he is qualified as an expert, we focus on the hospital’s primary issue, which is whether the report constituted a good faith effort to comply with the statute. 20 profile; (3) assessing the cervix, as the very definition of preterm labor requires this assessment, via visual inspection, digital examination, or effecting performance of ultrasonography; and (4) not discharging the patient incompletely assessed and potentially treated for preterm labor, in order to avoid tragic preterm birth in some precarious setting. Dr. Wheeler opines that the nurses departed from each of the foregoing standards of care by failing to do each of those things. Dr. Wheeler further explains that if the nurses had satisfied the applicable standards of care, Carnahan would have been found to be in preterm labor, “hospital admission would have followed with bedrest, hydration, intravenous antibiotics, continues [sic] fetal and urine monitoring, and tocolysis with magnesium sulfate, beta-mimetics or non-steroidal anti-inflammatories.” Dr. Wheeler states in his report that this would have “prolonged gestation” and “provide time” for “the most beneficial intervention for patients in true preterm labor [which] is the administration of corticosteroids.” He further explains that the administration of “antenatal corticosteroids significantly reduced the incidence and severity of neonatal respiratory distress syndrome” and “intraventricular hemorrhage[,]” which were some of the complications M.Y. suffered. In sum, Dr. Wheeler’s report specifies the standards of care, the nurses’ departures from those standards by failing to assess for specific key indicators which would have led to the timely identification of Ms. Carnahan’s preterm labor such that there would have been time to administer 21 appropriate care to prolong gestation and to administer corticosteroids, thus preventing or significantly reducing M.Y.’s damages. In Baty v. Futrell, the Texas Supreme Court determined that the expert’s opinions contained in the report satisfied the good-faith effort the statute requires for standard of care, breach, and causation. See id. at 697–98. There, the Court explained the expert does not opine that [the doctor] was negligent merely because the cataract surgery was unsuccessful or because [the plaintiff] suffered permanent nerve damage or vision loss. Inserting the needle into the optic nerve is not a result, good or bad; it is conduct that allegedly caused a bad result in this case. And it is this specific conduct that [the expert] opines falls below the standard of care. ... [The expert]’s report is sufficient for the same reason: it states a specific action—sticking the optic nerve with the retrobulbar needle—[the doctor] was supposed to avoid doing when administering the retrobulbar block. Further, the report highlights the known increased risk associated with the procedure following the initial inadequate block attempt, noting an alternative procedure that may be employed in that situation. The report’s express reference to an alternative method provides some indication of what [the doctor] should have done differently. Additional detail is simply not required at this stage of the proceedings. Id. at 696–97 (citations omitted). Similarly, Dr. Wheeler explains that “[r]isk factors for preterm birth and labor . . . include complications like heart or lung or renal disease, infection including urinary tract infection (“UTI”), and . . . obesity.” Dr. Wheeler outlines the symptoms Carnahan presented with and her increased risk of preterm labor, based on certain factors, which included her extreme obesity and her 22 “positive history of E. coli UTI.” Dr. Wheeler also explains the various methods the nurses should have employed to assess the cervix, the thinning or “effacing” of which is a critical sign of preterm labor. Here, the options were visual inspection using a colposcope, and digital examination, alone or in conjunction with ultrasonography. The report further indicates the nurses did none of these. Rather, it notes the vaginal exam was ordered “per unit standard” and “deferred.” Dr. Wheeler also explains how checking for infection utilizing tests like a CBC, is part of a complete assessment of the patient, and failing to obtain complete results prior to discharging Carnahan likewise departed from the nurses’ standard of care resulting in a missed opportunity to identify the severe chorioamnionitis.12 Despite the 12 In its reply, the hospital is critical of Dr. Wheeler’s opinion that the nurses failed to “not discharge” Ms. Carnahan, because Dr. Wheeler did not identify how they could have intervened in the discharge and argues that is something the doctor controls and that the standards constituted the practice of medicine. Assuming, without deciding that this is true, Dr. Wheeler cites other failures by the nurses, including failure to assess the cervix which resulted in the missed preterm labor. See Certified EMS, Inc. v. Potts, 392 S.W.3d 625 , 630 (Tex. 2013) (holding expert report summarizing the standard of care, its breach, and causation “even if as to one theory only” entitles the claimant to proceed with suit). The report explains that this critical assessment could have been performed by a vaginal exam, which had been ordered “per unit standard” but the nurses failed to do. See Tex. Occ. Code Ann. § 301.002(2)(A), (C), (H) (explaining that nursing includes “observation, assessment, intervention, evaluation, rehabilitation, care and counsel . . . of a person who is ill, injured, infirm, or experiencing a change in normal health processes[,]” administration of physician-ordered treatment, and development of a nursing care plan) (emphasis added). 23 hospital’s arguments to the contrary, “[a]dditional detail is simply not required at this stage of the proceedings.” See id. In its brief, the hospital focuses on an “analytical gap” argument, complaining of Dr. Wheeler’s opinion that “M.Y.’s problems are ‘clearly attributable’ to her ‘markedly preterm delivery’” and faults him for not ruling out other causes for M.Y.’s injuries, like the chorioamnionitis. In Abshire, the Texas Supreme Court rejected similar arguments. See Abshire, 563 S.W.3d at 225 –26 (rejecting notion that an analytical gap existed where report adequately linked expert’s conclusions to the facts). The hospital’s contentions would have us address the merits of Dr. Wheeler’s causation opinions versus alternate causes of M.Y.’s injuries. Courts have been clear that we are not to engage in an analysis of the merits at this preliminary stage. See id. at 226 (noting focus is if the expert has explained how the negligent conduct caused the injury but the believability of the explanation should be litigated later in the proceedings); Hendryx, 2019 WL 1065052 , at *5; see also Baylor Med. Ctr. at Waxahachie v. Wallace, 278 S.W.3d 552 , 562 (Tex. App.—Dallas 2009, no pet.) (explaining “[n]othing in section 74.351 suggests the preliminary report is required to rule out every possible cause of the injury, harm, or damages claimed”). Dr. Wheeler’s report informs the hospital of the specific conduct complained of and provides a basis for the trial court to conclude the claims have merit, constituting a good-faith effort to comply. See Baty, 543 S.W.3d at 693 –94. We 24 further determine the expert report is not materially deficient as to standard of care, breach, and causation as it outlines applicable standards of care, how the nurses breached those standards in this particular case by identifying the specific tasks and assessments they should have undertaken, and how those failures prevented the identification of preterm labor signs that would have allowed for appropriate treatment, including but not limited to administration of antenatal corticosteroids, which would have reduced specific co-morbidities M.Y. now faces as a result of her preterm birth. Since the report sufficiently identifies the applicable standard of care and links the nurses’ alleged breaches with M.Y.’s injuries, we hold the trial court did not abuse its discretion in denying Christus’s motion to dismiss. See Abshire, 563 S.W.3d at 227 . We overrule the hospital’s second issue. VI. Conclusion Because the expert report and accompanying CV listed the expert’s qualifications and linked the nurses’ breaches of the applicable standards of care to M.Y.’s injuries, it allowed the trial court to conclude the report met the Act’s requirements. We overrule the hospital’s issues and uphold the trial court’s order denying the motion to dismiss. AFFIRMED. ________________________________ CHARLES KREGER Justice 25 Submitted on October 20, 2020 Opinion Delivered December 3, 2020 Before McKeithen, C.J., Kreger, and Horton, JJ. 26

2020-12-04 07:14:44.120874+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=7592&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa09%5cOpinion

In The Court of Appeals Ninth District of Texas at Beaumont __________________ NO. 09-18-00384-CR __________________ HUBERT MAX DENNIS, Appellant V. THE STATE OF TEXAS, Appellee __________________________________________________________________ On Appeal from the County Court at Law No. 5 Montgomery County, Texas Trial Cause No. 18-332459 __________________________________________________________________ MEMORANDUM OPINION The State of Texas charged appellant, Hubert Max Dennis, by information, with the Class A misdemeanor offense of terroristic threat – family violence.1 In the trial that followed, the jury found Dennis guilty and assessed his sentence at confinement in the Montgomery County Jail for 275 days along with a $4,000 fine. Dennis appealed. He filed a brief complaining the trial court abused its discretion by 1 Tex. Pen. Code Ann. § 22.07(a)(2), (c). 1 admitting evidence showing he had a prior conviction for murder, suggesting that the evidence about the murder was not relevant and was more prejudicial than probative to whether he made a terroristic threat. For the reasons explained below, we conclude Dennis’s arguments lack merit. Background In 2005, Dennis began a dating relationship with “Robin.”2 Shortly after Dennis began seeing Robin, he told her that he had been to prison for murder. Believing people are capable of change and admiring him for being honest about his past, Robin began a relationship with Dennis that lasted about thirteen years. Eventually, Robin allowed Dennis to move in with her and live in her home. During the relationship, Dennis and Robin sometimes argued with each other. Over the years, their relationship became increasingly contentious. In February 2018, Robin tried to get Dennis to leave her home. Dennis responded angrily—he threatened to cut Robin’s head off and burn down her home. Yet, for several more months, Robin allowed Dennis to stay in her home while considering how she could safely make him leave. 2 We use the pseudonym “Robin” when referring to the person Dennis threatened. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2  In June 2018, Robin notified Dennis, in writing, of her intent to evict him from her home. Dennis threw the notice at her, stating he would not sign the notice. The next day, Dennis signed the notice but told Robin, in a raised tone of voice, that he was not going to leave the house “unless they pulled him out[.]” He also told her he had “killed before and he’d kill again.” After clenching his fists, Dennis looked into Robin’s eyes and told her “he wasn’t going back to prison without a good reason.” When the opportunity presented itself for Robin to leave the home, she drove to the County’s parole office seeking their assistance in getting Dennis out of her home. Analysis On appeal, Dennis claims the trial court erred by overruling his objections to evidence showing that, in 1988, he was convicted of committing a murder. During the trial, Dennis argued the conviction on the 1988 murder was not relevant to whether he threatened Robin, and if his 1988 conviction was relevant, evidence relevant to the 1988 conviction was more prejudicial than probative on the issue of whether he made a terroristic threat to Robin in 2018. Generally, evidence of another crime is inadmissible to prove that a defendant has a prior conviction showing he has a propensity to commit crimes like the one that is at issue in the defendant’s trial.3 But the general rule has many exceptions. At 3 Robb. v . State, 88 S.W.3d 256 , 262-63 (Tex. Crim. App. 2002); Tex. R. Evid. 404(b)(1). 3 trial, the State argued that Rule 404(b)(2) applied to the evidence the State offered to prove Dennis’s conviction for murder. According to the State, Dennis’s conviction for murder was relevant to proving that the statements Dennis made to Robin in June 2018 were intended to, and did, cause Robin to reasonably fear Dennis would cause a serious injury should she follow through on evicting him from her home. 4 But even when evidence showing a prior conviction is made based on an exception to the general rule that would otherwise operate to exclude such evidence, it may still be objectionable (and inadmissible) when the probative value of evidence regarding a prior conviction “is substantially outweighed by the danger of unfair prejudice[.]”5 Dennis argues that the evidence showing that he was convicted of committing murder in 1988 was not relevant to proving that, in June 2018, his statements to Robin amounted to a terroristic threat. Here, the information alleges that on or about June 17, 2018, Dennis threatened Robin with the intent to place her in fear of imminent serious bodily injury.6 To prove that claim, the State produced evidence showing what Dennis meant to convey to Robin given the statements he made to her on June 17, 2018, when she handed him the notice that she was evicting him from 4 Tex. R. Evid. 404(b)(2). 5 Montgomery v. State, 810 S.W.2d 372 , 387 (Tex. Crim. App. 1990) (cleaned up). 6 Tex. Penal Code Ann. § 22.07(a). 4 her home. The statements Dennis made after Robin handed him the eviction notice— that he would not go back to prison and had killed before and would kill again— when placed in context with the statements Dennis made to Robin in February 2018 when he told her he would cut off her head should she evict him, allowed the jury to infer that Dennis intended to threaten Robin with a serious injury should she carry out her plan to evict him from the home. 7 Under Texas law, a person acts with intent when it is the person’s conscious objective or desire to engage in the conduct or to cause the result. 8 In deciding what someone intended, juries may consider the reactions of those who heard what the defendant said to decide what the defendant intended to accomplish through the statements that he made.9 But no matter how the intended victim reacts to the statements the defendant made, the question is whether the defendant, based on the threat the statement communicates, intended the person who learned of it to fear that the defendant would carry out the threat and seriously injure another.10 Accordingly, evidence of both the “desired and sought after reaction of the listener, regardless of whether the threat is carried out, constitutes some evidence of the intent of the protagonist.”11 7 Id. 8 Id. § 6.03(a). 9 Dues v. State, 634 S.W.2d 304 , 305 (Tex. Crim. App. 1982). 10 Id. 11 Zorn v. State, 222 S.W.3d 1 , 3 (Tex. App.—Tyler 2002, pet. dism’d). 5  As here, jurors are often required to infer what the defendant intended from the evidence the trial court admits in the trial that is relevant to the defendant’s acts, words and conduct. 12 So, is evidence showing Dennis had a prior conviction for murder relevant based on the testimony of the circumstances surrounding the events of June 17, 2018? We conclude the answer is yes. The jury heard evidence during the trial showing that shortly after Robin met Dennis, she learned he had been convicted of a murder. In February 2018, when Robin told Dennis that she wanted him to move out of her home, he threatened to cut off her head. Then, when Robin handed Dennis the notice of eviction, he responded by saying he would not go back to prison. He then coupled that statement with another the jury could have reasonably interpreted as an implied threat—he was willing to kill again to avoid going back to prison should she follow through with her threat to evict him. Under the circumstances, we conclude the jury could reasonably infer that Dennis, based on these statements, intended to make Robin fear a serious and imminent injury would result should she follow through with the eviction. Robin’s testimony provides even more support for the jury’s finding. She testified that, after Dennis told her that he’d killed before and he’d kill again, she “didn’t know if [she would] make it out of the house” that day. We hold the trial court did not abuse its discretion by finding the evidence of the murder relevant to 12 Beltran v. State, 593 S.W.2d 688 , 689 (Tex. Crim. App. 1980). 6 proving what Dennis intended to accomplish through the statements he made to Robin around June 17. 13 Next, we turn to Dennis’s argument that the trial court should have sustained his objection to the evidence showing he had a conviction for murder because it was more prejudicial than probative in proving he made a terroristic threat. Under Rule 404(b), trial courts may exclude evidence even when relevant when the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.14 That said, courts start with the presumption that evidence relevant to proving a fact of consequence is more probative than prejudicial. 15 When reviewing a trial court’s decision to admit evidence, we use an abuse of discretion standard.16 In conducting our review, we evaluate whether the trial court balanced the probative value against the danger of unfair prejudice in deciding to admit the evidence. 17 We also evaluate 13 See Tex. R. Evid. 401 (“relevant evidence” means evidence having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence); George v. State, 841 S.W.2d 544 (Tex. App.—Houston [1st Dist.] 1992), aff’d, 890 S.W.2d 73 (Tex. Crim. App. 1994) (evidence that the defendant had committed several violent acts towards his wife in the past was admissible to show that defendant had intended to place wife in fear of imminent serious bodily injury). 14 Tex. R. Evid. 403. 15 Santellan v. State, 939 S.W.2d 155 , 169 (Tex. Crim. App. 1997). 16 Montgomery v. State, 810 S.W.2d 372 , 392 (Tex. Crim. App. 1990). 17 Id. 7 whether the ruling the trial court made admitting the evidence was arbitrary and capricious. 18 Generally, when balancing the probative value of evidence that a party wants to introduce against the danger the evidence is prejudicial in an unfair way, courts examine: 1. The probative value of the evidence; 2. The potential the extraneous offense evidence has to impress the jury in some irrational and indelible way; 3. The time needed to develop the evidence of the extraneous offense; and 4. The proponent’s need for the extraneous transaction evidence. 19 As discussed above, the evidence showing Dennis had been convicted of murder was relevant to proving whether Dennis intended, by his statements, to place Robin in fear of an imminent serious bodily injury. The record reveals that it took only minimal time for the State to establish that Dennis had a prior conviction for murder. The trial court admitted the murder conviction and indictment relevant to it without further evidence describing the detailed circumstances that led to the murder. In closing argument, the prosecutor did not specifically mention the 1988 conviction and instead, focused her argument on the statements Dennis made to 18 Id. 19 Wyatt v. State, 23 S.W.3d 18 , 26 (Tex. Crim. App. 2000). 8 Robin in 2018. The trial court also took preventative measures to avoid the threat of undue prejudice based on the statements in the jury charge, as it instructed the jury that the jury could use the 1988 conviction only to determine Dennis’s intent. Conclusion We conclude the record does not support Dennis’s arguments claiming the trial court admitted the conviction for murder without reference to any guiding rules or principles or that its ruling was arbitrary or capricious. For these reasons, as more fully explained above, we hold the record does not support Dennis’s arguments seeking to reverse his conviction based on the trial court’s ruling to admit the fact that Dennis was convicted of murder in 1988. We overrule Dennis’s issues and affirm the trial court’s judgment. AFFIRMED. _________________________ HOLLIS HORTON Justice Submitted on August 10, 2020 Opinion Delivered December 2, 2020 Do Not Publish Before McKeithen, C.J., Horton and Johnson, JJ. 9

2020-12-04 08:00:22.326051+00

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D12-03/C:20-1687:J:PerCuriam:aut:T:npDp:N:2623031:S:0

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued November 17, 2020 Decided December 3, 2020 Before FRANK H. EASTERBROOK, Circuit Judge DAVID F. HAMILTON, Circuit Judge AMY J. ST. EVE, Circuit Judge No. 20-1687 KATHRYN JO HARRIS, Appeal from the United States District Plaintiff-Appellant, Court for the Southern District of Illinois. v. No. 19-cv-870-DGW ANDREW M. SAUL, Donald G. Wilkerson, Commissioner of Social Security, Magistrate Judge. Defendant-Appellee. ORDER Kathryn Harris, a 50-year-old woman suffering from mental illnesses and anxiety, challenges the denial of her application for disability insurance benefits. She argues that the administrative law judge failed to develop the record, misevaluated the medical opinions, and wrongly discounted her statements about the limiting effects of her symptoms. But because substantial evidence supports the ALJ’s conclusion, we affirm the judgment. No. 20-1687 Page 2 Background For more than a decade before applying for benefits, Harris worked off-and-on as a registered nurse at hospitals, nursing homes, and an in-home healthcare company. But beginning around 2013, Harris began to suffer from depression and anxiety. For three days that year, Harris was hospitalized for increasing depression. Dr. Elbert Lee, her psychiatrist, treated her, noting that while this was her first inpatient psychiatric hospitalization, Harris had a “history of mood disorder” that had been unresponsive to anti-depressive medications. This time, though, medications and therapy helped her symptoms, and she was discharged. (Hospital documents indicate that Harris planned to follow up with Dr. Lee, but the record lacks any treatment records until early 20151—an omission that, she believes, undercuts the ALJ’s decision.) Between early 2015 and mid-2016, Harris saw Dr. Lee monthly for treatment of her mental illnesses with various medications. Dr. Lee usually recorded that Harris was pleasant and cooperative with normal thought processes, judgment, and concentration. In mid-2015, though, Harris was arrested for domestic violence, an episode that Dr. Lee attributed “possibly” to her Adderall, so he discontinued the drug. Harris then reported problems concentrating, but a new medication helped. In late 2015, Dr. Lee wrote in his notes that her concentration and attention were impaired and that she was disabled. Around this time, Harris applied for disability insurance benefits, asserting that she had been unable to work since 2013 because of both back problems and mental conditions, including depression and anxiety. In May 2016, Dr. Jerry Boyd, a licensed clinical psychologist acting as an agency consultant, examined Harris and diagnosed mental illnesses, but Harris indicated that her medication helped “tremendously” with them. His exam showed that Harris had “no significant impairment” in attention and concentration, and while she was distractible with a “minimal tolerance for stress now” and reported an inability to work, she could follow complex instructions if they could be repeated. That same month another consulting psychologist, Dr. Joseph Mehr, reviewed Harris’s record and characterized her professed concentration and social interaction 1 Although the Administration requested Dr. Lee’s records since 2012, when Harris says her treatment with him began, a handwritten notation on the returned request form reads “Over 500 pages. Sent last 2 years. 2015–present.” No. 20-1687 Page 3 limitations as “beyond what would be expected” from the medical evidence. He relied on Dr. Boyd’s opinion as an examining source and concluded that Harris could sustain work involving simple tasks on a continued basis, particularly in settings of low social contact. Two months later, Dr. Ellen Rozenfeld, another consulting psychologist, reviewed Harris’s record and reached similar conclusions as Dr. Mehr. In early July 2016, Dr. Lee wrote a one-page, to “whomever it may concern” letter, reiterating that Harris was disabled and unable to work due to her mental illnesses and chronic pain. In his treatment notes from a visit the same day, Dr. Lee found Harris to have normal thought processes, judgment, and concentration. But later that month, Harris spent three days in the hospital after an acute onset of paranoid delusions, a condition Dr. Lee later confirmed to be caused by some of her medications (which he discontinued). At two follow-up appointments, he noted that her psychosis had “resolved” and she had normal thought processes and concentration. Harris continued to see Dr. Lee through early 2018, and at each appointment he noted that she was pleasant and cooperative with an “okay” mood and affect and normal concentration. In March 2018, Dr. Lee reported that Harris’s severe anxiety and depression would, since 2013, cause her to be absent four or more times from work per month and that her subjective complaints were credible. At a hearing before the ALJ, Harris, represented by counsel, testified about how her stress and anxiety limited her ability to work.2 She described how she could become anxious for no reason. The hearing, for example, put her in a “total panic attack” for the past few months because she had to leave her house that she left only rarely. But seeing a psychiatrist and taking her medication regularly helped, she said. The ALJ asked a vocational expert about available work for a person like Harris who was limited to light, rote work requiring “little independent judgment” in a “stable setting” with only limited interaction with others. That person, the VE testified, would be precluded from Harris’s prior work, but could work as a checker, mail sorter, or laundry folder—as long as she did not need any off-task break longer than 15 minutes beyond normal or more than two days’ absences per month. 2 At the outset, counsel stated that he had no objection to the exhibits in the record. And earlier, counsel had written to the ALJ that he had “filed or made the … Administration aware of all” the medical records he knew of. No. 20-1687 Page 4 Applying the standard five-step process, see 20 C.F.R. § 404.1520, the ALJ concluded that Harris was not disabled. Her depression, personality disorder, anxiety with agoraphobia, and attention deficit hyperactivity disorder were severe impairments, but none, alone or in combination, were a presumptive disability. Harris, the ALJ determined, had the residual functional capacity to perform light, rote work requiring little independent judgment in a stable setting with only occasional interaction with coworkers and her supervisor. And with those limitations, the ALJ concluded, Harris could work in jobs available in the national economy. Concerning the severity of her symptoms, the ALJ concluded that Harris’s statements were “not entirely consistent” with the record. She testified that seeing a psychiatrist and medication helped her anxiety, for example. And although she said she took them as prescribed, at her 2013 hospitalization she had stopped taking the medication (she was “tired” of them), and her doctors were concerned about possible abuse of them after her later arrest. The ALJ also noted that symptoms causing that hospitalization improved with treatment and that her 2016 hospitalization was caused by her medication that since had been discontinued. As for opinion evidence, the ALJ gave “little weight” to Dr. Lee’s reports about Harris being disabled because he had otherwise “consistently found” Harris to be cooperative with normal mood, affect, and concentration. The ALJ gave “limited weight” to Dr. Boyd’s assessment because “[w]hile his clinical observations [we]re instructive, he did not provide objective mental limitations” to help him frame an RFC. And he gave “great weight” to the opinions of Drs. Mehr and Rozenfeld even though more (consistent) evidence was added to the record after their analysis. The Appeals Council denied review, and the district court upheld the ALJ’s decision. Analysis We review the district court’s decision de novo in determining whether the ALJ’s decision was based on substantial evidence. Stephens v. Berryhill, 888 F.3d 323 , 327 (7th Cir. 2018). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148 , 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 , 229 (1938)). On appeal, Harris argues that the ALJ failed to develop the record to include Dr. Lee’s pre-2015 treatment notes, which she says are important to show her history of No. 20-1687 Page 5 a mood disorder that was unresponsive to different medications. But it was reasonable for the ALJ to proceed on a record that Harris’s previous counsel was satisfied with. An ALJ has a duty to fully and fairly develop the record. See 20 C.F.R. § 416.912(b); Thomas v. Colvin, 745 F.3d 802 , 807 (7th Cir. 2014). But a represented claimant, like Harris, “is presumed to have made h[er] best case before the ALJ.” Skinner v. Astrue, 478 F.3d 836 , 842 (7th Cir. 2007). Here, her counsel both wrote to the ALJ that the record was complete and stated that he had no objection to it at the hearing. And as Magistrate Judge Wilkerson explained, that record was adequate to permit an informed decision. Next, Harris challenges the ALJ’s evaluation of the opinion evidence, first arguing that he erred in rejecting Dr. Lee’s opinions that she had been disabled since 2013. But the ALJ reasonably discounted Dr. Lee’s opinions. The ALJ needed to consider the relevant regulatory factors, see 20 C.F.R. § 404.1527(c), and then “minimally articulate” his reasons for affording the opinions less weight. Elder v. Astrue, 529 F.3d 408 , 415 (7th Cir. 2008) (quoting Berger v. Astrue, 516 F.3d 539 , 545 (7th Cir. 2008)). Here, the ALJ was aware that Dr. Lee was Harris’s treating psychiatrist who examined her almost monthly for at least three years, but he reasonably focused on how Dr. Lee’s conclusions were unsupported by, and inconsistent with, his notes in the record. See 20 C.F.R. § 404.1527(c)(1)–(4). Other than in two visits in November and December 2015, Dr. Lee repeatedly documented that Harris’s concentration was “normal” or not grossly impaired and he described her as pleasant and cooperative with normal thought processes, insight, and judgment. Harris also argues that the ALJ erred in ascribing less weight to Dr. Boyd’s opinion while assigning “great weight” to the agency doctors’ opinions that relied on his exam. But the ALJ’s determination was reasonable because, unlike Dr. Boyd, the agency doctors translated their findings into specific RFC assessments. See Johansen v. Barnhart, 314 F.3d 283 , 289 (7th Cir. 2002) (no error for ALJ to rely on only medical expert who made RFC determination). On questions concerning Harris’s ability to sustain concentration and deal with normal pressures at work, for example, Dr. Boyd stated only generally that Harris “is notably distractible” and has a “minimal tolerance” for stress. The agency doctors, though, took Dr. Boyd’s observations a step further, finding that Harris could work on “simple routine tasks … particularly in settings of low social contact” and deal with changes in work setting “if introduced gradually.” Harris also contends that the ALJ impermissibly offered his own medical opinion when finding that the evidence post-dating the agency doctors’ opinions was consistent with the record. An ALJ may not “play[] doctor” and interpret “new and potentially No. 20-1687 Page 6 decisive medical evidence” without medical input. McHenry v. Berryhill, 911 F.3d 866 , 871 (7th Cir. 2018) (quoting Goins v. Colvin, 764 F.3d 677 , 680 (7th Cir. 2014)). But here, the ALJ reasonably reviewed the evidence to determine that, aside from her two hospitalizations, Harris did not experience symptoms supporting greater limits than what the agency doctors found. It showed that her medicine caused the symptoms leading to her 2016 hospitalization (which Dr. Lee discontinued), and that she acted pleasantly at her later exams, exhibiting normal concentration and thought processes. Finally, Harris contends that the ALJ wrongly minimized her statements concerning the effects of her symptoms. He used an incorrect standard, she argues, asking whether her statements were “entirely consistent” with the record instead of whether they “can reasonably be accepted” as consistent with it. But even though the “entirely consistent” language is boilerplate, the ALJ’s recitation of it is harmless because he described (and applied) the correct standard of whether Harris’s statements about her symptoms were substantiated by the objective medical evidence and other evidence in the record. See 20 C.F.R. § 404.1529(c); see also Burmester v. Berryhill, 920 F.3d 507 , 510–11 (7th Cir. 2019). The ALJ highlighted relevant objective medical evidence, noting that aside from her two hospitalizations, Harris’s mental exams were generally normal. He considered her use of medication, reasoning that it appeared to be providing her relief. And although she testified that she took her medications as prescribed, her 2013 hospitalization (where she stated that she had quit taking them) and her arrest (where her doctors were concerned about possible abuse) suggested otherwise. The ALJ also addressed her daily activities, noting that although she testified that she “rarely” drove or left her home, she later stated that she regularly (3–4 times per week) drove to pick up her brother. This analysis was not “patently wrong.” Summers v. Berryhill, 864 F.3d 523 , 528 (7th Cir. 2017) (quoting Eichstadt v. Astrue, 534 F.3d 663 , 667–68 (7th Cir. 2008)). For these reasons, we AFFIRM the judgment.

2020-12-04 09:15:54.300951+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=9456&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa10%5cOpinion

IN THE TENTH COURT OF APPEALS No. 10-18-00243-CR WILLIAM FREDERICK PETTY, III, Appellant v. THE STATE OF TEXAS, Appellee From the 18th District Court Johnson County, Texas Trial Court No. DC-F201700241 MEMORANDUM OPINION William Petty, III appeals from four convictions for sexual assault of a child and two convictions for indecency with a child by contact. TEX. PENAL CODE ANN. 22.021, 21.11. Petty complains that the trial court erred by admitting the audio portion of a video recording of a forensic interview of the victim, erred by refusing to instruct the jury to disregard testimony after a sustained objection, erred by refusing to instruct the jury to disregard improper jury argument by the State after a sustained objection, and that the evidence was insufficient. Because we find no reversible error, we affirm the judgment of the trial court. ADMISSION OF EVIDENCE In his first issue, Petty complains that the trial court erred by admitting the audio portion of the recording of the forensic interview of the alleged victim. The video recording without audio had been admitted previously without objection. During the re- cross examination of the forensic examiner, Petty asked the examiner several questions about whether the alleged victim had made an allegation of physical or sexual abuse of any siblings or whether her mother had also touched her “coochie”. During redirect, the State then sought to introduce the audio portion of the recording. Petty objected on the basis of hearsay. The State argued that the recording was admissible in its entirety because Petty opened the door by asking questions about extraneous matters that were not included in the examiner’s testimony and therefore the entire interview should be admitted. Generally, hearsay statements are not admissible unless the statement falls within a recognized exception to the hearsay rule. Pena v. State, 353 S.W.3d 797 , 814 (Tex. Crim. App. 2011). Texas Rule of Evidence 107, known as the rule of optional completeness, is such an exception: When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to Petty, III v. State Page 2  explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given. TEX. R. EVID. 107; Id. This evidentiary rule is one of admissibility and permits the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter "opened up" by the adverse party. Walters v. State, 247 S.W.3d 204 , 218 (Tex. Crim. App. 2007). It is designed to reduce the possibility of the jury receiving a false impression from hearing only a part of some act, conversation, or writing. Id. Rule 107 does not permit the introduction of other similar, but inadmissible, evidence unless it is necessary to explain properly admitted evidence. Id. It is not invoked by the mere reference to a document, statement, or act. Id. Additionally, to be admitted under the rule, "the omitted portion of the statement must be 'on the same subject' and must be 'necessary to make it fully understood.'" Sauceda v. State, 129 S.W.3d 116 , 123 (Tex. Crim. App. 2004). Petty attempted to attack the victim’s credibility and the mother’s character throughout the trial. The questions asked by Petty to the examiner were of such a nature so as to create a potentially false impression that negatively impacted the victim’s credibility overall and sought to show that the alleged victim had also claimed that the mother had also touched the alleged victim in the same manner as Petty asserted that he had to check the alleged victim for urinary accidents. Thus, the State was entitled to offer any other evidence necessary to make the interview "fully understood." See Credille v. Petty, III v. State Page 3 State, 925 S.W.2d 112 , 117 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd) (because appellant inquired into the videotaped conversation, the State was entitled to offer any other evidence that was necessary to make the conversation fully understood). See also Holman v. State, 2015 Tex. App. LEXIS 10872 at *5 (Tex. App.—Waco Oct. 22, 2015, no pet.)(mem. op.)( not designated for publication); Mick v. State, 256 S.W.3d 828 , 832 (Tex. App.—Texarkana 2008, no pet.) (same). 1 We overrule issue one. FAILURE TO GIVE INSTRUCTIONS TO DISREGARD In issues two and three, Petty complains of two instances where the trial court sustained an objection but refused to give an instruction to disregard. ADMISSION OF EVIDENCE In issue two, Petty complains of the trial court’s refusal to give an instruction to the jury to disregard after the trial court had sustained his non-specific objection to an answer given by the alleged victim’s mother to Petty’s question of why her children, including the alleged victim, were not placed with her by the Department of Family and Protective Services after Petty’s arrest. During cross examination, Petty asked the mother several times why her children were not returned to her, presumably in an attempt to get her to admit that it was due to her neglectful supervision of her children. The first time, the mother answered that she was “afraid for their life and for mine.” The second time, 1 Petty did not argue that the admission of the audio portion of the video should have been limited to the issues raised on his re-cross examination at trial or in this appeal and therefore, we will not address it. See Holman, 2015 Tex. App. LEXIS at fn.2. Petty, III v. State Page 4 the mother answered that she was “afraid for my life and life of my children.” The third time, the mother answered that she took the children to the police because she was “afraid for my life and for my children and they said they will take care of them until he’ll be caught because he ran away.” The mother had previously testified that Petty had run away with two boys after the offenses were reported to law enforcement. Counsel for Petty then pointed out that Petty was arrested the day after the warrant was issued for these offenses. The mother then testified that Petty was in Oklahoma when he was arrested. Petty then asked again why the children were not placed with her by the Department, asking if it was “because of what you said, neglectful supervision?” The mother then answered that “I was afraid for their life. I couldn’t protect them from him. He’s ex-military. He’s a killer. He killed people. He can kill my daughter and not go to jail. He can kill me not to go to jail. I brought my kids there and told them that.” After this answer, Petty objected but did not assert a basis for his objection. The trial court sustained the general, non-specific objection. Petty asked for an instruction to the jury to disregard, but the trial court refused to give an instruction. In his brief, Petty complains that the trial court erred by denying his request for an instruction to disregard because the evidence was inadmissible pursuant to Rule 404 of the Texas Rules of Evidence and because the statement was calculated to inflame the jury. The State argues that Petty did not preserve his complaint because the same or similar testimony was introduced without objection during the rest of the trial. Petty, III v. State Page 5  "An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection." Lane v. State, 151 S.W.3d 188 , 193 (Tex. Crim. App. 2004). Here, the mother testified several times that she was fearful for the lives of her and her children and had expressed that fear was because of Petty. Because substantially similar evidence was admitted without objection, error, if any, relating to the mother’s fear of Petty killing her or her children was cured. 2 See Estrada v. State, 313 S.W.3d 274 , 302 n.29 (Tex. Crim. App. 2010) (noting any error was harmless when "very similar" evidence admitted without objection). Further, Petty testified later in the trial that he was a decorated combat veteran who had served in Operation Iraqi Freedom. To the degree that there was no other evidence regarding the answer given by the mother, however, we will assume that the failure to instruct the jury was erroneous. Because the error is non-constitutional error, in our harm analysis we are required to disregard any error that does not affect an appellant's substantial rights. TEX. R. APP. P. 44.2(b). An error that has a "substantial and injurious effect or influence in determining the jury's verdict" affects a substantial right. Haley v. State, 173 S.W.3d 510 , 518 (Tex. Crim. App. 2005). Conversely, an error does not affect a substantial right if we have "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon v. State, 49 S.W.3d 356 , 365 (Tex. Crim. App. 2001) (citation and internal quotation marks 2Sorting out the various inconsistent descriptions used by the Court of Criminal Appeals as to whether the error is “cured,” “waived,” or “harmless” is unnecessary to the disposition of this issue. Petty, III v. State Page 6 omitted). In determining the likelihood that a nonconstitutional error adversely affected the jury's decision, we review the record as a whole, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352 , 355 (Tex. Crim. App. 2002). We may also consider the jury instructions, the State's theory and any defensive theories, whether the State emphasized the error, closing arguments, and even voir dire, if applicable. Haley, 173 S.W.3d at 518-19 . When an error that occurs in the guilt- innocence phase of a trial does not likely move the jury from a state of nonpersuasion to a state of persuasion concerning the defendant's guilt, the error is harmless. Murkledove v. State, 437 S.W.3d 17 , 29 (Tex. App.—Fort Worth 2014, pet. ref'd). The key issue in the trial was the credibility of the alleged victim and Petty. Petty attempted to show that the alleged victim was autistic, had been coached by her mother and grandmother, and that the alleged victim’s mother also checked the alleged victim in the same way that Petty alleged that he did in order to look for urinary accidents. We have reviewed the entire record, including voir dire, opening statements, the evidence, arguments, and the jury charge, and based on that review, we conclude that any error “did not influence the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d at 365 . We overrule issue two. Petty, III v. State Page 7 JURY ARGUMENT In issue three, Petty complains that the trial court erred by refusing to give an instruction to disregard statements presented by the State because they were outside of the record in its argument during the guilt-innocence phase of the trial. The entire segment of the argument to which Petty complains was: We know when a 10, 11-year-old child wets the bed it’s a puddle. It’s not a little spot on the underwear. We know that. That’s ridiculous. Talked about – and he talks about the misunderstanding, she just misunderstands daddy-[A.G.] time. She misunderstands an act of love. I was showing her love by sticking my penis in her mouth, in her vagina, in her anus, sticking my fingers inside of her and licking on her breasts. As I said, the system failed [A.G.] but now you’re going to have the opportunity to tell us what you think. You’re going to have the opportunity to protect society, you’re going to have the opportunity to protect [A.G.], and you’re going to have the opportunity to protect the children of wives nine, ten, 11, however many more there are. There are a lot more— Petty then objected that the State was arguing outside the record and the trial court sustained the objection. Petty did not specify what part of the State’s argument was outside of the record. Petty then asked the trial court for an instruction to disregard, but the trial court refused to give an instruction. In determining whether Petty was entitled to an instruction to disregard, we must first decide whether the prosecutor's jury argument was improper. The purpose of closing argument is to inform and educate the jury on how to properly analyze the evidence presented at trial so that it may reach a reasonable and just conclusion based upon the evidence alone, and not upon a fact not admitted into evidence. See Milton v. Petty, III v. State Page 8 State, 572 S.W.3d 234 , 239 (Tex. Crim. App. 2019). There are four proper areas of jury argument: "(1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to an argument of opposing counsel, and (4) plea for law enforcement." See id. Counsel is generally given wide latitude to draw inferences from evidence, so long as they are reasonable, fair, legitimate, and offered in good faith. Gaddis v. State, 753 S.W.2d 396 , 398 (Tex. Crim. App. 1988). In his brief to this Court, Petty’s sole complaint regarding this issue is that the statement by the State inferred that there were other victims of sexual abuse that he had perpetrated or that needed to be protected from him, “specifically children of the former wives of the Appellant,” which was outside of the evidence. However, our reading of the argument does not establish the error of which Petty complains. In the statements at issue, the State did not argue that there were other current victims of Petty but that by finding him guilty, the jury could prevent Petty from remarrying, having other children with those wives, and sexually abusing those children. Petty had been married eight times as of the trial, and the belief that Petty was likely to marry again more than once in the future based on his history is a reasonable deduction from the evidence. Protection of future victims of crime is a proper plea for law enforcement. See, e.g., Rocha v. State, 16 S.W.3d 1 , 21-22 (holding State's argument "us[ing] colorful speech to convey the idea that the defendant would kill again and that the jury had a responsibility to prevent that occurrence through its verdict" was a proper plea for law enforcement). We find that Petty, III v. State Page 9 Petty’s complaint was not properly sustained by the trial court. Because the State’s argument was not improper and the trial court should not have sustained the objection, there was no error in refusing to give a limiting instruction. We overrule issue three. SUFFICIENCY OF THE EVIDENCE In his fourth issue, Petty complains that the evidence was insufficient for the jury to have found that he committed the offenses. The Court of Criminal Appeals has expressed our standard of review of a sufficiency issue as follows: When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 , 319, 99 S. Ct. 2781 , 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227 , 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer "to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319 . We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742 , 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a "divide and conquer" strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232 . Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750 , 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319 ); see also Hooper v. State, 214 S.W.3d 9 , 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516 , 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893 , 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating Petty, III v. State Page 10  circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805 , 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 . We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234 , 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.; see also Daugherty v. State, 387 S.W.3d 654 , 665 (Tex. Crim. App. 2013). The "law as authorized by the indictment" includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665 . Zuniga v. State, 551 S.W.3d 729 , 732-33 (Tex. Crim. App. 2018). At its essence, Petty is complaining that the evidence was insufficient because the alleged victim’s testimony was not credible and should not be believed in the absence of physical evidence. The alleged victim was autistic and had significant physical and mental difficulties and was taking multiple medications. There was no physical evidence to support her contentions and Petty contends that she was coached by her grandparents. Petty argues that the only evidence against him was that of the alleged victim and the hearsay statements of the alleged victim introduced through the other witnesses which he contends were inconsistent and contradictory. The uncorroborated testimony of a child victim can be sufficient to support a conviction. See TEX. CODE CRIM. PROC. art. 38.07; see also Garcia v. State, 563 S.W.2d 925 , 928 (Tex. Crim. App. 1978) (holding victim's testimony of penetration by defendant, Petty, III v. State Page 11 standing alone, was sufficient). Furthermore, the State has no burden to produce physical, medical, or other corroborating evidence. See Jones v. State, 428 S.W.3d 163 , 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.). To the extent the lack of this or other evidence could serve to undermine the alleged victim’s or any other witness's credibility, it was the jury's duty as the sole factfinder to assess the alleged victim’s credibility and to resolve any conflicts in the evidence or testimony. See Zuniga, 551 S.W.3d at 729 . We presume that the jury resolved any conflicting inferences in favor of the verdict and defer to that resolution. See Jackson, 443 U.S. at 326 . The jury determines the credibility of the witnesses and may believe all, some, or none of the testimony. Sharp v. State, 707 S.W.2d 611 , 614 (Tex. Crim. App. 1986). Based on its verdict, the jury was not persuaded by Petty's arguments, and apparently found the alleged victim’s testimony to be credible. The alleged victim testified about Petty committing each of the offenses in the manners alleged, and Petty does not argue that she did not as to any one specific offense. The nurse who performed the sexual assault examination and the two individuals who performed forensic interviews of the victim testified that the victim told them how Petty committed each of the offenses alleged, that during the time frame the offenses were committed Petty called the victim “sexy” and that she should not tell what happened because they would both get in trouble. After reviewing all of the evidence in the light most favorable to the jury's verdict, and giving due deference to the jury's weight and credibility determinations, we Petty, III v. State Page 12 conclude that, on the evidence presented, a rational trier of fact could have found the essential elements of each of the offenses beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19 . We overrule issue four. CONCLUSION Having found no reversible error, we affirm the judgment of the trial court. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Davis, and Senior Justice Al Scoggins 3 Affirmed Opinion delivered and filed December 2, 2020 Do not publish CRPM 3The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003. Petty, III v. State Page 13

2021-01-27 08:17:24.458618+00

http://wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=328760

2021 WI 4 SUPREME COURT OF WISCONSIN CASE NO.: 2014AP2633-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against William J. Spangler, Attorney at Law: Office of Lawyer Regulation, Complainant, v. William J. Spangler, Respondent. ATTORNEY SPANGLER REINSTATEMENT PROCEEDINGS Reported at 370 Wis. 2d 369 , 881 N.W.2d 35 PDC No: 2016 WI 61 - Published OPINION FILED: January 26, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: Per Curiam. NOT PARTICIPATING: ATTORNEYS:  2021 WI 4 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2014AP2633-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against William J. Spangler, Attorney at Law: Office of Lawyer Regulation, FILED Complainant, JAN 26, 2021 v. Sheila T. Reiff Clerk of Supreme Court William J. Spangler, Respondent. ATTORNEY reinstatement proceeding. Reinstatement granted. ¶1 PER CURIAM. We review the report and recommendation of Referee John B. Murphy recommending that William J. Spangler's license to practice law in Wisconsin be reinstated. After careful review of the matter, we agree that Attorney Spangler's license should be reinstated. Consistent with our general practice, we also find that Attorney Spangler should be required to pay the full costs of this reinstatement proceeding, which are $3,973.88 as of October 27, 2020. ¶2 Attorney Spangler was admitted to practice law in Wisconsin in 2003 and practiced in Eau Claire. In 2016,  No. 2014AP2633-D Attorney Spangler's Wisconsin law license was suspended for a period of six months, effective August 12, 2016. As we noted in the opinion suspending Attorney Spangler's license, [H]e engaged in an elaborate web of deception that included creating false documents and meticulously adding fake file stamps and other notations to make them appear to be genuine. He managed to perpetuate his ruses for years, leading his clients to believe that they had live lawsuits pending when, in fact, Attorney Spangler had voluntarily dismissed [one] suit and never filed [a second] action. See In re Disciplinary Proceedings Against Spangler, 2016 WI 61 , ¶35, 370 Wis. 2d 369 , 881 N.W.2d 35 . ¶3 Attorney Spangler filed a petition for reinstatement of his Wisconsin law license on April 19, 2019. A hearing on the reinstatement petition was held, via Zoom, on July 28, 2020. The referee issued his report and recommendation on October 8, 2020. ¶4 In his report, the referee noted that as part of his testimony at the July 28, 2020 hearing, Attorney Spangler stated that he had become personally mentally involved in the two cases that formed the basis for the disciplinary proceeding and that he "felt bad for his clients." Attorney Spangler said, "I felt like I needed to personally demonstrate that I could help them while at the same time I kept telling myself that I couldn't." ¶5 The referee noted that since his suspension, Attorney Spangler has been very involved in community activities including volunteer service at his church and with a local boy scout organization. The referee noted that various letters of 2  No. 2014AP2633-D reference submitted by Attorney Spangler speak positively as to his character since his suspension. The referee noted Attorney Spangler states that, "I've made significant changes to the way I live my life . . . I believe that I am now at a point in my life where I can, again, honestly, truthfully, trustworthily represent myself, the profession, my family in a completely ethical and responsibly way." Attorney Spangler stated that if he should ever be in a position where he could not handle a legal matter he would seek help from other attorneys or refer matters to other counsel. ¶6 The referee recommends that this court grant Attorney Spangler's reinstatement petition. The referee said he did not believe that Attorney Spangler's reinstatement would be detrimental to the administration of justice nor would it subvert the public interest. The referee commented that Eau Claire is a relatively small community; many people are probably aware of Attorney Spangler's situation; and since Attorney Spangler seems intent on remaining in the Eau Claire community, his motivation to never again violate the ethical rules will be exceedingly strong. ¶7 Neither party has appealed from the referee's recommendation, so this court considers this matter pursuant to Supreme Court Rule (SCR) 22.33(3). ¶8 In our review, we accept a referee's findings of fact unless they are clearly erroneous. We review a referee's legal conclusions, including whether the attorney has satisfied the criteria for reinstatement, on a de novo basis. See In re 3  No. 2014AP2633-D Disciplinary Proceedings Against Jennings, 2011 WI 45 , ¶39, 334 Wis. 2d 335 , 801 N.W.2d 304 ; In re Disciplinary Proceedings Against Gral, 2010 WI 14 , ¶22, 323 Wis. 2d 280 , 779 N.W.2d 168 . ¶9 Supreme Court Rule 22.29(4) provides that a petition for reinstatement must show all of the following: (a) The petitioner desires to have the petitioner's license reinstated. (b) The petitioner has not practiced law during the period of suspension or revocation. (c) The petitioner has complied fully with the terms of the order of suspension or revocation and will continue to comply with them until the petitioner's license is reinstated. (d) The petitioner has maintained competence and learning in the law by attendance at identified educational activities. (e) The petitioner's conduct since the suspension or revocation has been exemplary and above reproach. (f) The petitioner has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards. (g) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the courts. (h) The petitioner has fully complied with the requirements set forth in SCR 22.26. (j) The petitioner's proposed use of the license if reinstated. 4  No. 2014AP2633-D (k) A full description of all of the petitioner's business activities during the period of suspension or revocation. ¶10 Supreme Court Rule 22.31(1)(c) provides that an attorney seeking reinstatement has the burden of demonstrating all of the above requirements by clear, satisfactory, and convincing evidence. Supreme Court Rule 22.31(1) also provides that an attorney seeking reinstatement must show by clear, satisfactory, and convincing evidence that he or she has the moral character to practice law; that his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive to the public interest; and that he or she has complied with SCR 22.26 and the terms of the underlying disciplinary order. See SCR 22.31(1)(a), (b), and (d). ¶11 This court agrees with the referee that Attorney Spangler has met his burden of proof with respect to all of the elements needed to justify his reinstatement. As is our usual practice, we also find it appropriate it to impose the full costs of this disciplinary proceeding upon Attorney Spangler. ¶12 IT IS ORDERED that the license of William J. Spangler to practice law in Wisconsin is reinstated, effective the date of this order. ¶13 IT IS FURTHER ORDERED that within 60 days of the date of this order, William J. Spangler shall pay to the Office of Lawyer Regulation the costs of this proceeding, which are $3,973.88 as of October 27, 2020. 5  No. 2014AP2633-D 1

2020-06-05 15:04:09.075856+00

https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/114796.pdf?ext=.pdf

IN THE SUPREME COURT OF THE STATE OF KANSAS No. 114,796 STATE OF KANSAS, Appellee, v. JASON W. HACHMEISTER, Appellant. SYLLABUS BY THE COURT 1. Under K.S.A. 2019 Supp. 60-455(b), evidence of other crimes or civil wrongs is admissible "when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." When a defendant challenges the court's admission of such evidence because its probative value is outweighed by prejudice, the defendant must demonstrate the court abused its discretion. 2. Appellate courts use a two-step process to evaluate claims of prosecutorial error— simply described as error and prejudice. To determine if the prosecutor erred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If the court finds error, the burden falls on the State to demonstrate beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility the error contributed to the verdict. 1 3. The wide latitude afforded prosecutors to conduct the State's case does not extend so far as permitting prosecutors to argue inference upon inference or engage in speculation that exceeds reasonable inferences drawn from the evidence. An inference cannot be based on evidence that is too uncertain or speculative or that raises merely a conjecture or possibility. Any inferences made by the prosecutor must be based on admitted evidence. Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed June 5, 2020. Affirmed. Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, argued the cause and was on the brief for appellant. Jodi E. Litfin, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee. The opinion of the court was delivered by STEGALL, J.: Jason W. Hachmeister was convicted of premeditated murder for killing his mother, Sheila Hachmeister. On direct appeal to this court, Hachmeister argues for reversal of his convictions because he alleges the district court abused its discretion in admitting evidence under K.S.A 60-455 and the prosecutor committed eight different errors during closing arguments. Finding only one instance of prosecutorial error, we affirm Hachmeister's conviction. The prosecutor's erroneous comment was harmless given the overwhelming evidence against Hachmeister, and this single instance of error is not enough to require a reversal for cumulative error. 2  FACTUAL AND PROCEDURAL BACKGROUND In September 2011, Hachmeister was in his mid-30s and had been living in his divorced mother's basement in Topeka for about 15 years. At 4:05 p.m. on Saturday, September 10, Hachmeister called 911 to report that he arrived home and found his mother, Sheila, lying face-down on the floor "in a pool of blood." First responders reported to the scene and found Sheila dead face down on the floor in a large pool of blood. Despite the bloody scene, law enforcement only discovered three bloody footprints inside the house with no other blood nearby. There were no signs of a forced entry; the home was not ransacked; and there were no obvious signs of robbery. Later investigation revealed diluted bloodstains around the house. Senior Special Agent Cory Latham used a technology called leuco crystal violet (LCV) dye, which reacts with hemoglobin in blood, to discover "dilute[d] blood around the sink" in the bathroom, indicating someone "had blood on them and washed up." He also found small diluted bloodstains on the sliding glass door that went from the kitchen to the backyard; on the stairwell wall going down to the basement; and underneath the computer desk in the basement. These bloodstains all matched Sheila's blood. Agent Latham later testified about the bloodstains at trial and also stated that the three bloody footprints appeared to be "staged" because there was no other blood around them. Agent Latham also mentioned that these footprints were made with a shoe smaller than Hachmeister's size 11 feet. Later that night, Detective Adam Arensdorf conducted a videotaped interview of Hachmeister at the police station after visiting the scene. At this time, Hachmeister was not a suspect and Detective Arensdorf had not talked to Hachmeister about any evidence inside the house. Detective Arensdorf began by asking Hachmeister if there was anything of value in the house. Hachmeister mentioned his mother's jewelry; his $6,000 in a cash 3 box in his room; his computer; and his Buddha statue. A later search of the house revealed that these items were the only things missing; law enforcement had not told Hachmeister that they were missing yet. These items were never found. While the video camera was still rolling, Detective Arensdorf stepped out of the interview room and Hachmeister's father, William, stepped in. The camera recorded their conversation. When Hachmeister was telling his father about what happened that day, Hachmeister said, "[T]hey [law enforcement] said there was a pair of footprints in there, that's why they wanted my shoes. Apparently my feet were too big for it." But, Detective Arensdorf had not talked with Hachmeister about the footprints yet. Detective Scott Dickey—the lead detective on the case—interviewed Hachmeister again once he became a suspect. Hachmeister detailed his whereabouts on the day of Sheila's death with uncanny precision. Hachmeister said he last saw Sheila on Friday evening. The next morning, he heard Sheila moving around upstairs and she yelled down to Hachmeister that she had a headache. Hachmeister said he left the house at 11:30 to run errands and was gone until 4:00 p.m. He went to Starbucks, Dillard's, Lens Crafters, Success Vision, Kohl's, Walmart, Barnes & Noble, to visit his grandpa in assisted living, to Hy-Vee, to a gas station, and then home. Hachmeister later told Detective Dickey that his movements were caught on camera; that he wore a "traffic cone" orange shirt that they could not miss; that he saved every receipt. A text message sent by Hachmeister to Sheila also corroborated this schedule stating: "I'm going to the mall, Starbucks, and then to see Papa, so I won't be home for a few hours." Law enforcement later tracked down individuals at these locations that came into contact with Hachmeister that day. Law enforcement found the barista that served Hachmeister at Starbucks on the day Sheila was murdered. The barista said Hachmeister was a regular and came in that day around 1:00 p.m. The barista asked Hachmeister how his day was going, and Hachmeister responded that his mother had died. The barista 4 offered his condolences. Law enforcement also talked to someone who worked at the assisted living facility where Hachmeister's grandfather lived. The employee said that Hachmeister normally said hi to her, but that day, he didn't say hi and he "looked wore out" "like he hadn't been to bed yet." Hachmeister also only stayed about 10 or 15 minutes, though he usually visited for longer periods. Hachmeister also told Detective Dickey about a confrontation between him and his mother a day or two prior to the murder about whether he stole her wedding ring that was missing. The video of this interview was played at trial. In the video, a second detective asked Hachmeister, "Are you aware your mom thought you were stealing from her?" Hachmeister responded, "Yeah, she thought I stole a wedding ring." But Hachmeister denied taking it. In addition to this confrontation, there was other evidence that Sheila and Hachmeister's relationship was deteriorating. At her last therapy appointment in August, Sheila had told her therapist, "Next time, I want to talk about my son." And the day before her death, Sheila spoke with her close work friend, Amy Raye, about her relationship with Hachmeister. Sheila said she had concerns about Hachmeister and was planning to ask him to move out. Sheila told Raye that Hachmeister was disrespectful and would call her a "bitch." Hachmeister had not been working outside the home since July 2011, but he claimed to be day trading for his income. At the time of Sheila's death, Sheila had a $72,000 pay on death benefit and a $200,000 life insurance policy. After Sheila's death, Hachmeister received $36,000 from her pay on death benefit. Soon, Hachmeister's brother Aaron suspected Hachmeister was involved in Sheila's death and filed a wrongful death claim to ensure the life insurance proceeds were not paid out. This upset Hachmeister. 5  Just a few days after Aaron told Hachmeister that the life insurance would not be paid out because Hachmeister was a suspect, the Topeka Police Department received an anonymous "Crime Stoppers" tip stating that "two subjects out of Kansas City were involved in the death of Sheila Hachmeister" and "the two sons of Sheila were not suspects." This was not the only anonymous tip sent about Sheila's murder. Between late September 2011 and October 2012, the Topeka Police Department received 17 anonymous, highly detailed letters about Sheila's murder from the "real killer." Importantly, at that time no details about the investigation of Sheila's murder had been made public. Some letters were handwritten; some were typed and coded (with means to decode included); and they were sent to a variety of places—for example, the Topeka Capital Journal, Hachmeister's former defense attorney, and Hachmeister's friend. Some were addressed from Hachmeister at the jail but claimed to be framing him. All of the letters were signed, "Bye-bye," a phrase Hachmeister commonly used when he left places. All of these letters were admitted into evidence at trial for the jury to read. These letters were not only significant because they often contained information about Sheila's murders not released to the public, but the delivery of the letters also pointed to Hachmeister. For example, Hachmeister wrote to his friend, Brandon Wallace, several times in January and February 2012, after Hachmeister was jailed. One letter contained information about child pornography found on Hachmeister's computer before this information was made public. Another letter contained a second letter labeled "legal mail" within it, and Hachmeister asked Wallace to mail it for a fellow inmate. Wallace mailed this letter, and later it turned out to be one of the letters from the "real killer." A different letter claimed the killer was someone who worked at the Shawnee County Jail, and it included a "run sheet," or print out of the jail officer shifts, as proof. Detective Dickey reviewed the videotapes from the jail and saw an officer throw a run 6 sheet away in a small trashcan; then an inmate dumped that small trashcan into a larger one; and Hachmeister later removed a document from that large trashcan and took it back to his cell. In the months following Sheila's murder before Hachmeister was apprehended, Hachmeister visited strip clubs and drunkenly talked about his mother's murder with the dancers. One dancer testified that Hachmeister showed her a new tattoo on his arm that said, "Ich liebe dich Mutti," which means "I love you mother" in German. Hachmeister kept talking about his mother's death, even during lap dances. He said, "'I had been the prime suspect. They thought I killed her, but I didn't.'" He joked, "Oh, what's it like talking to a serial killer? No I'm just kidding." The dancer later called the police because she was alarmed by how much he brought up his mother's murder. She recalled that "he brought up the fact that she was tied to a chair, and it was really brutal," and he seemed "excited and happy" to talk about it. Two bartenders from another strip club also testified about conversations with Hachmeister. One bartender testified that Hachmeister told her about the memorial tattoo for his mother who had passed. He also mentioned that there was a life insurance policy that he would have to share with his brother. The other bartender testified that, in October or November 2011, Hachmeister told her that he killed his mother. Hachmeister also showed this bartender his tattoo which prompted the bartender to ask: "Well, why would you do that if you killed her?" Hachmeister replied, "To give the jury sympathy." Hachmeister told the bartender, "I really did kill my mom." She responded sarcastically, "Really? Well, good for you." Then Hachmeister reached out, grabbed her arm, and said, "No, I really did. I hacked that fucking bitch up." Hachmeister seemed angry, and the bartender did not think he was joking around. Later that night, Hachmeister came back to the bar asking to talk to the bartender again. She testified: 7  "He was telling me about his carpeting. That he still wanted to live in the home, but that fucking bitch bled so much all over the carpets, he had to rip the carpeting out and replace the carpeting. He had to paint the walls. He had to—something about the drapes or blinds. I can't remember, it was drapes or blinds he had to replace because there was blood, so much blood all over them." She also recalled that several times Hachmeister said he "hacked that fucking bitch up." Upon all the evidence above being admitted at trial, the jury convicted Hachmeister of premeditated murder. Hachmeister waived his right to a jury trial on the aggravated sentencing factors, and the district court imposed a hard 50 sentence. On direct appeal to this court, Hachmeister argues the district court erred in admitting the evidence about Sheila's missing wedding ring and the child pornography found on his computer under K.S.A. 2019 Supp. 60-455(b). He also alleges eight instances of prosecutorial error. Because we find that the single error that occurred was harmless, we affirm Hachmeister's conviction. ANALYSIS The district court did not err when it admitted evidence of Hachmeister's child pornography and Sheila's missing wedding ring under K.S.A. 2019 Supp. 60-455(b). Hachmeister claims the district court erroneously admitted evidence of other crimes or civil wrongs under K.S.A. 60-455. First, Hachmeister argues the district court erroneously admitted evidence of Sheila's missing wedding ring. Second, Hachmeister challenges the court's decision to allow evidence of Hachmeister's possession of child pornography and charges associated with this possession. 8  Under K.S.A. 60-455, evidence of other crimes or civil wrongs is admissible "when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." K.S.A. 2019 Supp. 60-455(b). We review a district court's decision to admit evidence under K.S.A. 2019 Supp. 60-455(b) using a three-step test: "'"First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in the case. The appellate court reviews this determination independently, without any required deference to the district court. '"Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion. '"Third, if the fact to be proven was material and the evidence was relevant to prove a disputed material fact, then the district court must determine whether the probative value of the evidence outweighs the potential for undue prejudice against the defendant. The appellate court also reviews this determination only for abuse of discretion."'" State v. Haygood, 308 Kan. 1387 , 1392-93, 430 P.3d 11 (2018). Hachmeister does not argue against the materiality or relevancy of the child porn or wedding ring evidence. Thus, our analysis is focused on the third step: determining whether the district court abused its discretion in finding that the probative value of the evidence outweighed the potential for undue prejudice against Hachmeister. In order for us to find error, Hachmeister must show that the district court's ruling "'"(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, 9  i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. [Citation omitted.]"'" State v. Ross, 310 Kan. 216 , 224-25, 445 P.3d 726 (2019) (noting that the burden of proof is on the party alleging the discretion was abused). Wedding Ring Evidence Hachmeister first challenges the district court's decision to admit evidence of Sheila's missing wedding ring. During trial, the court admitted testimony from Detective Dickey that referenced Sheila's missing wedding ring. Specifically, Hachmeister challenges Detective Dickey's testimony about an interview conducted with Sheila's friend Raye. Over objection, the district court allowed Detective Dickey to testify that he learned from Raye that "Sheila was going to go home . . . ask Jason or tell Jason to move out. She was concerned about a missing wedding ring, and she wanted to get on with her own life, and it was time for him to move out." The district court admitted this under K.S.A. 60-455 to show "a point of confrontation" that could be used to establish motive. Hachmeister, however, claims the district court abused its discretion in admitting this evidence because its prejudicial value substantially outweighed its probative value. Hachmeister argues the evidence merely went to the character of the accused rather than a lawful purpose listed under K.S.A. 2019 Supp. 60-455(b). We find Hachmeister's argument unpersuasive. Other than Hachmeister's own mentioning of the confrontation about the wedding ring in his videotaped interview with Detective Dickey, the trial references to the missing wedding ring involved Sheila confronting Hachmeister about the missing ring, not accusing him of taking it. Even Hachmeister noted in his briefings to this court that "[n]o evidence was admitted to support Mr. Hachmeister actually taking, or having taken, the wedding ring, but there 10 was evidence merely that it was not found by family members after her death, and of course that Sheila suspected he had taken it." We understand that this evidence may have shed an unfavorable light on Hachmeister—but most prior crimes or civil wrongs evidence does. See Haygood, 308 Kan. at 1396 (recognizing that most evidence admitted under K.S.A. 60-455 is prejudicial in that it "shines an unfavorable light on a defendant"). But the probative value of this evidence substantially outweighed any prejudice. The confrontation surrounding the missing wedding ring was the key evidence of motive. We find no error in the district court's admission of this evidence. Child Pornography Evidence Hachmeister next challenges the district court's admission of child pornography found on Hachmeister's computer and charges stemming from this possession. Again, Hachmeister claims the district court abused its discretion in admitting this evidence because its prejudicial effect outweighed its probative value. At trial, the court allowed evidence that child pornography was found on Hachmeister's computer and of charges for this possession under K.S.A. 2019 Supp. 60- 455(b) to identify Hachmeister as the "real killer" writing the anonymous letters. Detective Dickey testified that the letters only started to reference child pornography after Hachmeister became aware of the possession of child pornography charges against him but before these charges were made public. The court then admitted the letter written to Wallace explaining that the "real killer" planted child pornography on Hachmeister's computer. Again, we recognize that this evidence casts an unfavorable shadow on Hachmeister. But identifying the author of these letters was extremely probative in 11 ultimately identifying the killer. These letters demonstrate intimate knowledge of Sheila's murder not known to the public and other confessional statements by the murderer. Clearly establishing Hachmeister as the author of these letters connects him to Sheila's murder and speaks to the ultimate question of whether Hachmeister killed his mother. Moreover, the court's limiting instruction to consider the child pornography evidence for the purpose of proving the identity of Sheila's killer diluted any prejudice. Hachmeister fails to offer any supporting authority or explanation as to why the jury was incapable of following the court's limiting instruction. "To the contrary, . . . we presume jury members follow instructions." State v. Gray, 311 Kan. 164 , 172, 459 P.3d 165 (2020). Given the evidence's probative value in identifying Sheila's killer and the court's limiting instruction reducing any prejudice, we find no error. Prosecutorial Error Hachmeister also claims that eight instances of prosecutorial error denied him a fair trial. All of Hachmeister's claims of prosecutorial error occurred during the prosecutor's closing argument. Even though Hachmeister failed to make a contemporaneous objection to these comments, we review these alleged errors because this court reviews comments made during closing argument for prosecutorial error even without a timely objection. State v. Sean, 306 Kan. 963 , 974, 399 P.3d 168 (2017). When analyzing claims of prosecutorial error, we use a two-step process. First, in order to determine error has occurred, we must decide "whether the act complained of falls outside the wide latitude afforded to prosecutors to conduct the State's case in a way that does not offend the defendant's constitutional right to a fair trial." State v. Chandler, 307 Kan. 657 , Syl. ¶ 6, 414 P.3d 713 (2018). If error is found, we must then determine whether the error prejudiced the defendant's due process rights to a fair trial. 307 Kan. 657 , Syl. ¶ 6. In evaluating prejudice, we adopt the traditional harmlessness inquiry set 12 forth in Chapman v. California, 386 U.S. 18 , 87 S. Ct. 824 , 17 L. Ed. 2d 705 (1967). State v. Sherman, 305 Kan. 88 , 109, 378 P.3d 1060 (2016). Under this inquiry, prosecutorial error is harmless "if the State can demonstrate 'beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.'" 305 Kan. at 109 (quoting State v. Ward, 292 Kan. 541 , Syl. ¶ 6, 256 P.3d 801 [2011]). Generally speaking, "A prosecutor has wide latitude in crafting arguments and drawing 'reasonable inferences from the evidence but may not comment on facts outside the evidence.' Any argument 'must accurately reflect the evidence, accurately state the law, and cannot be "intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law."' [Citations omitted.]" State v. Longoria, 301 Kan. 489 , 524, 343 P.3d 1128 (2015). References to the Missing Wedding Ring Hachmeister argues the State committed prosecutorial error by violating the court's evidentiary order to limit testimony about Sheila's missing wedding ring for the purpose of showing motive. He claims the State impermissibly referred to the wedding ring during closing argument to "discredit the defense's case." These references included the State's comment on the lack of a robbery or burglary "except for the missing wedding ring that was never recovered" and Hachmeister's knowledge of the ring being missing. Recall that the district court limited testimony about the missing ring to prove a confrontation between Hachmeister and his mother. Then evidence about the missing ring came in through Detective Dickey's testimony in two ways: (1) he testified Raye said that "Sheila was going to go home . . . ask Jason or tell Jason to move out. She was 13 concerned about a missing wedding ring, and she wanted to get on with her own life, and it was time for him to move out," and (2) the court admitted the video of Dickey's interview with Hachmeister, where Hachmeister claimed he did not steal his mother's wedding ring and suggested that she might have misplaced it. Hachmeister also told law enforcement that his mother's jewelry was missing after her death, and the "real killer" letters talked about taking jewelry. Put simply, the State's closing references to the wedding ring did not stray outside the lines permitted at trial. The State either summarized how the wedding ring evidence came in at trial or used it to show confrontation: "Man just killed Sheila Hachmeister. . . . Didn't take the TVs upstairs. Didn't take the stereos upstairs. Didn't take the computers upstairs. Right? Didn't even really take any jewelry that we could find, necessarily, except for the missing wedding ring that was never recovered. .... "Remember that conversation that Sheila had with Amy Raye, right? . . . She talked about having problems with Jason. Problems with him just living there, that maybe it was time for him to move out. But she also mentioned a missing wedding ring that she was concerned about, that she was going to talk to Jason about. And Jason is the one who confirms that that conversation took place, because when he went in to talk to Detective[s] Dickey and Arensdorf, he talked about that. Yes, my mom did have concerns with me taking a wedding ring. She misplaces things all the time. But she did talk to me about that. She talked to me about moving out. .... "I told you at the beginning motivation was going to be hard to figure out, because there's so many. . . . She confronted him about a missing wedding ring. I can imagine it was awkward after that. 14  .... "That that William Johnstrom, going through the whole house, seeing cash on the table, seeing computers upstairs . . . decides the only thing that he thinks he's gonna take out of that house also happens to be in Jason's room, and it's a Buddha. A cheap $20 Buddha. . . . It's just ridiculous. And he says his mother's jewelry are stolen. . . . And you know what the only jewelry anybody can ever say was missing, the wedding ring that Sheila Hachmeister talked to Jason about on September 9th or the morning of the 10th." (Emphases added.) We are persuaded that the State's use of the wedding ring evidence was limited to showing a confrontation between Sheila and Hachmeister. The prosecutor's comments were not accusatory but rather showed the subject of the confrontation between Hachmeister and Sheila. Thus, we find no error. "They got the same subpoena power . . . . And if they thought that William Johnstrom had something to add in, they could have put him up there[.]" During closing argument, defense counsel argued the State had "tunnel vision" and zeroed in on Hachmeister without investigating Sheila's other lovers that she met online. Hachmeister's defense was that one of Sheila's lovers—strangers she met on dating websites—killed her. Sheila was divorced and active on dating websites. Sheila's conversations on these sites were sexually explicit; often involved master-servant relationships; and one thread even talked about strangulation. The month before Sheila's death, she was actively communicating with Johnstrom from Florida, and the two engaged in master-servant sexual dialogue. Hachmeister's defense counsel focused on Johnstrom and the lack of investigation into him. 15  In the State's rebuttal argument, the prosecutor said: "I've got the burden, absolutely. And I brought in witness after witness after witness to show you how the evidence adds up in its totality. Even if you just take the crime scene evidence by itself and the nature of the crime, it points to Jason Hachmeister beyond a reasonable doubt. . . . But you know what, they don't have a burden, absolutely true. But if they want to bring forth assertions that poke holes in reasonable doubts or poke holes in my case, they got the same subpoena power, they got the same process of authorizing tests that I do. And if they thought that William Johnstrom had something to add in, they could have put him up there, just like we could have. Right? If he's so easy to track down, he didn't use fake names or emails on his PlentyofFish.com cite, well, we didn't figure that out. We didn't find it." (Emphasis added.) Hachmeister equates this comment to burden shifting. Generally, "a prosecutor does not shift the burden of proof by pointing out a lack of evidence to support a defense or to corroborate a defendant's argument regarding holes in the State's case." State v. Williams, 299 Kan. 911 , 940, 329 P.3d 400 (2014). And "[w]hen the defense creates an inference that the State's evidence is not credible because the State failed to admit a certain piece of evidence, the State may rebut the inference by informing the jury that the defense has the power to introduce evidence." State v. Blansett, 309 Kan. 401 , 415, 435 P.3d 1136 (2019). This even goes so far as to permit the State to comment on the defense's subpoena power to rebut the same evidence. See 309 Kan. at 414; Williams, 299 Kan. at 939 (holding that "if a defendant asks the jury to draw an inference that the State's evidence is not credible because the State did not call a witness to corroborate other evidence, we have held that the State can refute the inference by informing the jury that the defense has the power to subpoena witnesses, including those who would be favorable to the defense"); State v. Naputi, 293 Kan. 55 , 64, 260 P.3d 86 (2011) (holding that it was not improper for the State to respond to defense counsel's "purported inference" that the State refused to call a witness beneficial to the defense "by pointing 16 out that if the [witness] would have been helpful to the defense, the defense could have subpoenaed him"). Accordingly, we find the prosecutor appropriately rebutted the defense's argument by pointing out the defense's own lack of investigating Sheila's online acquaintances. "Rabbit trail" and "Ridiculous" The prosecutor also rebutted the defense's criticism of failing to investigate Johnstrom by explaining the State decided not to pursue him as a suspect because law enforcement realized it was just a "rabbit trail." The prosecutor tried to debunk the Johnstrom-did-it theory by claiming it didn't add up: "To suggest that somebody like William Johnstrom drove from Florida, happened to find that sweet spot between 11:30 and 1:30, whenever her optometrist appointment was, and kill her like that and then targeted every single piece of evidence that points to him as the true killer in this case . . . then takes the time to write coded letter after coded letter after coded letter trying to get our attention away from Jason, because he's got an ego too big, because he wants credit? It's not evidence. It's not based on evidence. Those conclusions are wishful thinking, hoping that you get off [sic] a rabbit trail. That you get tunnel vision. That you start picking apart every little thing to see if it all adds up. Well, I welcome that. I hope you do that. I hope you unroll the carpet. Walk through it." (Emphasis added.) We find that the rabbit trail comments, when viewed in context, are fair rebuttal explaining why law enforcement did not pursue Johnstrom as a lead (rebutting the "tunnel vision" accusation in particular) and a fair argument about why the Johnstrom theory did not add up based on the evidence. This is an example of a "'[f]air comment on trial tactics and the interpretation of evidence'" that does not "'"inappropriately denigrate opposing counsel or inject personal evaluations of the honesty of witnesses."'" State v. Butler, 307 Kan. 831 , 865, 416 P.3d 116 (2018) (quoting State v. Crum, 286 Kan. 145 , 17 150, 184 P.3d 222 [2008]); see also State v. Thomas, 307 Kan. 733 , 744, 415 P.3d 430 (2018) ("Appellate courts consider the prosecutor's comments in the context in which they were made rather than in isolation."). Hachmeister also challenges the prosecutor's use of the word "ridiculous" in its argument. The prosecutor used this word to, again, rebut the Johnstrom-did-it theory. The prosecutor said: "How do we know it's not William Johnstrom, when the computer, the only computer taken out of the whole house, happens to be the one owned by Jason Hachmeister? And then it's removed so carefully that . . . the cables are placed back under the desk. That that William Johnstrom, going through the whole house, seeing cash on the table, seeing computers upstairs, multiple computers upstairs, three TV's, decides the only thing that he thinks he's going to take out of that house also happens to be in Jason's room, and it's a Buddha. A cheap $20 Buddha. And you can say it's got gold paint on there, but ain't nobody going to steal a Buddha to go take that somewhere to pawn. Where are you going to pawn a solid gold Buddha? It's just ridiculous. It's just ridiculous. And he says his mother's jewelry are stolen. . . . And you know what the only jewelry anybody can ever say was missing, the wedding ring that Sheila Hachmeister talked to Jason about on September 9th or the morning of the 10th." (Emphasis added.) Recently in Butler this court considered whether the State's repeated use of the word "ridiculous" was fair comment on the evidence. There, the defense attorney first called the State's theory "ridiculous." 307 Kan. at 863. Then in rebuttal, the State repeatedly used the same term to describe the defense theory claiming the facts didn't add up. 307 Kan. at 863. The defendant argued that "the prosecutor's comments improperly disparaged his theory of the case as well as imparted the prosecutor's personal opinion to the jury." 307 Kan. at 865. 18  The Butler court held the use of the word "ridiculous" was fair comment in context. Citing the dictionary definition of "ridiculous," the court reasoned that "[t]he most reasonable assumption is the prosecutor was simply arguing Butler's version of the events was unworthy of serious consideration, i.e., it was not believable." 307 Kan. at 867. The court explained: "The manner in which Butler's trial counsel used the same word in closing arguments bolsters our interpretation. Defense counsel posited the State's theory of the case was 'simply ridiculous' because '[i]t makes no sense. It makes no sense because it didn't happen.' In other words, defense counsel was imploring the jury to consider the testimony given at trial and find it not believable." 307 Kan. at 867. The State's use of the word "ridiculous" here was used for the same purpose as in Butler—to comment on the believability of the Johnstrom-did-it theory. It did not disparage the defense or comment on Hachmeister's allegation of innocence. The "ridiculous" comments were few—just twice—and were made to rebut the Johnstrom theory. Thus, we find no error. "These people have no skin in the game." Hachmeister also argues the prosecutor's closing argument contained improper comments on witness credibility or vouching. The prosecutor commented on the credibility of several of the witnesses, saying: "When you ask what the credibility of these witnesses, right, to weigh what they have to say, every piece of evidence that you hear that you will deliberate on must come from this chair. Somebody tells you that something happened. Somebody tells you they heard something. . . . That's the evidence you consider. You consider Joe Patton's credibility [Starbucks barista]. He didn't know any of these people. All he knows is Jason 19  Hachmeister is a customer. He doesn't know why Detective Arensdorf called him up, but he gives good information. Can we corroborate that information? Yes we can. You go to the nursing home lady, who does the exact same thing. These people have no skin in the game. They've got no agenda. They're just here telling you what they saw and what they heard. And all that points back to Jason Hachmeister." (Emphasis added.) Indeed, "[a] prosecutor who speculates about witness motives walks a fine line between 'explaining to juries what they should look for in assessing witness credibility,' State v. McReynolds, 288 Kan. 318 , 325, 202 P.3d 658 (2009), and 'improperly bolstering the credibility of its witnesses' by 'injecting [his or] her personal opinion regarding witnesses' motives,' State v. Sprague, 303 Kan. 418 , 429, 362 P.3d 828 (2015)." State v. Anderson, 308 Kan. 1251 , 1261, 427 P.3d 847 (2018). But we consistently draw a distinction between the two finding the former acceptable. Prosecutors may comment on a witness' lack of motivation to be untruthful but must base these comments on the evidence and reasonable inferences from the evidence without stating their own personal opinion concerning the witness' credibility. See State v. Armstrong, 299 Kan. 405 , 427, 324 P.3d 1052 (2014) ("[I]t is not improper for a prosecutor to offer 'comments during closing arguments regarding the witness' motivations to be untruthful.'"); State v. Ortega, 300 Kan. 761 , 777, 335 P.3d 93 (2014) (approving of the prosecutor's rhetorical question probing whether there was any motivation for the witness to lie because "[e]xamining whether a witness has a motive to lie is a valid consideration in weighing credibility"); State v. King, 288 Kan. 333 , 353, 204 P.3d 585 (2009) (holding that it is not improper for a prosecutor to offer "comments during closing argument regarding the witness' motivations [or lack thereof] to be untruthful"); McReynolds, 288 Kan. at 326 (prosecutor may offer the jury an explanation of "'what it should look for in assessing witness credibility'"); State v. Scaife, 286 Kan. 614 , 624, 186 P.3d 755 (2008) (same). In Ortega, for example, this court held that a prosecutor's comments about the witnesses' lack of incentives to lie were proper. There, the prosecutor asked rhetorical questions that probed whether there was any motivation for the witness to lie: 20  "While discussing the elements of disorderly conduct, the prosecutor pointed to the discrepancy in witnesses' testimony and reminded the jury that they are 'going to have to judge the credibility of witnesses.' The prosecutor continued stating: "'What reason do they have to lie to you? Perhaps somebody who might think, well, police officers do this all the time. I don't necessarily know why you would think that, but that's the most cynical possible thing I can think of. Well, set that aside. Do middle school secretaries come into court and lie all the time? Did Ms. Perez or Ms. Delarosa, the principal, have a reason to come in here and tell you that the defendant did something or said something that she didn't really do?'" (Emphases added.) Ortega, 300 Kan. at 775. The Ortega court ultimately decided "the prosecutor's statements were based on reasonable inferences drawn from the evidence, and the prosecutor was merely explaining what the jury should look for in assessing the credibility of the school officials." 300 Kan. at 775. Here, the prosecutor's comment that the barista and the nursing home employee had "no skin in the game" or "agenda" are similar. The prosecutor made these comments so the jury could examine whether the witnesses here had a motive to lie—a valid consideration in weighing credibility. Further, the prosecutor did not inject any personal opinion into these statements. Rather, the prosecutor made a reasonable inference that these witnesses lacked a motive to lie given their peripheral connection to Hachmeister. Accordingly, the prosecutor's statements were within the wide latitude allowed the State when discussing evidence. "We know that full rigor mortis was set in by the time that Sheila Hachmeister was found dead at 4:00." Next, Hachmeister challenges the State's comments on Sheila's time of death. During closing, the State said: 21  "Let's talk about the time line for a minute. . . . We know that full rigor mortis was set in by the time that Sheila Hachmeister was found dead at 4:00. Not a little bit. Not just in her jaw, and not just in her extremities, but full rigor mortis. Her belly, her back, her breasts, her shoulders, everything was straight-up rigid. Every muscle's contracted due to that lactic acid buildup, as Dr. Mitchell explained to us last week." (Emphasis added.) Hachmeister claims this misstated evidence because the coroner Dr. Erik Mitchell did not provide a definitive time of death and there was no authoritative diagnosis of rigor mortis at 4:00 p.m. The State, however, claims this was a reasonable inference based on the evidence. We agree with the State. While Dr. Mitchell testified that he could not give a "definitive opinion" about Sheila's time of death, the State was not limited to Dr. Mitchell's testimony when drawing reasonable inferences. State v. Pribble, 304 Kan. 824 , 832, 375 P.3d 966 (2016) (explaining that prosecutors' wide latitude in crafting closing arguments "allows a prosecutor to argue reasonable inferences that may be drawn from the admitted evidence"). For example, first responder Corporal Green testified that he touched Sheila's dead body to check her vitals at the scene and described her as "stiff and cold." Green continued to state that Sheila's body was "very rigid"; her skin had "no flexibility" and felt like "rocks." Later, Dr. Mitchell defined rigor mortis as "stiffening of the muscles" postmortem. Dr. Mitchell testified that Sheila was in rigor mortis "probably at least hours before she's found." While Dr. Mitchell did not directly state Sheila was in full rigor mortis at 4:00 p.m., it was a reasonable inference for the prosecutor to make. First responders, such as Green, arrived at Sheila's house shortly after 4:00 p.m. and found her dead body cold and stiff. And according to Dr. Mitchell, rigor mortis is the stiffening of the body's muscles postmortem and this would have occurred hours before Sheila was found. We find no error in the prosecutor's comment. Rather, the prosecutor's comment was a reasonable inference based on the evidence presented. 22  "[B]etween the time Sheila Hachmeister was killed, or about the time Sheila Hachmeister was killed, her dog was placed outside in the backyard for three hours." Hachmeister also challenges the prosecutor's statements about Sheila's dog when establishing a timeline for Sheila's death. When the prosecutor proposed its timeline, he used evidence of Sheila's dog being placed outside to establish Sheila was killed in the morning: "Coincidentally, between the time Sheila Hachmeister was killed, or about the time Sheila Hachmeister was killed, her dog was placed outside in the backyard for three hours. The dog had no blood on it. You can imagine, again, based on common knowledge and experience, that had Sheila Hachmeister been attacked, moved around her house, strangled and left for dead, that her dog would be all over her. . . . There's no blood on the dog whatsoever. The dog was outside for the entire time until the scene was cleaned up. Somebody went back to that sliding glass door, left her blood on it as they opened the door, but took the dog, not through all the blood in the living room, but straight through to the kennel where the dog was found at 4:00 o'clock in the afternoon. Sheila Hachmeister was most likely killed the morning of September 10th, 2011." (Emphasis added.) Hachmeister argues the italicized portion is misstated evidence because the State's theory that Sheila was killed while her dog was outside between 9:00/9:30 a.m. and 12:00/12:30 p.m. was not reasonable based on the evidence. But while there is no direct evidence of Sheila's time of death, circumstantial evidence reasonably supports the State's theory that Sheila was killed in the morning while her dog was outside. Sheila's neighbor testified that Sheila's dog—which was an inside dog that did not usually stay outside more than 10 minutes—was outside that morning barking nonstop from about 9 or 9:30 a.m. until about 12 or 12:30 p.m. Again, Dr. Mitchell estimated that she had been in rigor mortis for 23 "probably hours" before she was found. Finally, Sheila's dog was in a kennel when law enforcement arrived shortly after 4:00 p.m. And despite the bloody crime scene, the dog had no blood stains on it. We find no error because, taken together, a reasonable inference is that Sheila was murdered while her dog was outside that morning. State v. Banks, 306 Kan. 854 , Syl. ¶ 4, 397 P.3d 1195 (2017) ("[P]rosecutors are allowed to craft arguments that include reasonable inferences to be drawn from circumstantial evidence, so long as the circumstances have themselves been proved, rather than having been presumed from other circumstances."). Description of the dissection of Sheila's sex organs. Next, Hachmeister challenges the prosecutor's reference to Sheila's sex organs during its rebuttal. During trial and closing argument, the defense focused on certain evidence that was never tested. For example, in closing argument defense counsel talked about how evidence from the coroner's rape kit such as hair found on the body, vaginal swabs, and underwear were never tested to determine whether Sheila had any recent sexual activity. In response, the State said: "You know why we didn't test her for rape or sexual assault? She wasn't raped or sexually assaulted. That's the way she arrived at the coroner's office. Her panties are in place. There's not a stitch out of line. They are as smooth and as straight as when she put them on. I didn't show you these pictures, but they not only looked at her external genitalia and didn't see any signs of injury or any signs of sexual activity at all, they cut it open. They pulled her pelvic bones apart and they looked at the inside of her vaginal vault. They looked at everything leading up to her cervix. This was an autopsy, for God's sakes. They looked at everything. Dr. Mitchell went through her. He would not believe that she was not sexually assaulted." (Emphasis added.) 24  Hachmeister argues the italicized portion was unsupported by the evidence and was inflammatory. But the State's rebuttal comment—though perhaps graphic—appears to be accurate based on Dr. Mitchell's testimony. Dr. Mitchell spoke at length about how he dissected Sheila, looked at her genitalia, and concluded there were no signs of sexual assault. At trial Dr. Mitchell talked about his external examination of Sheila's genitalia and confirmed that he saw no bruising or indication of trauma in those areas. And indeed, during an exchange with the State, Dr. Mitchell testified to the information contained in the State's rendition. In short, Dr. Mitchell testified he examined Sheila's genitalia "from the inside out" and confirmed that he saw no bruising or indication of trauma in those areas. Given that the prosecutor's comment was supported and no more graphic than the testimony by Dr. Mitchell itself, we find no error. The State's description of Sheila's strangulation death. Lastly, Hachmeister claims the State misstated evidence during its closing argument while discussing premeditation. The prosecutor argued: "Now, again, remember how she died, because that becomes important for premeditation. She didn't die because her larynx was crushed and she just couldn't breathe in. Right? She could breathe just fine. The supporting bones on her larynx were fractured, which is some indication of the force that was used to hold her down. But her trachea wasn't smashed, she could breathe fine. What did the coroner tell you about the carotid arteries? They were open. There wasn't enough pressure there to close off the carotid arteries in the side of her neck, so she was still getting blood into her brain. What she doesn't do is get the blood out of her brain. The veins in her neck were collapsed. The low pressure veins in her neck were collapsed, and so, as the blood builds up in her brain, eventually she's deprived of oxygen and that's what kills her." (Emphases added.) Hachmeister claims this misstates the evidence presented about the mechanism of Sheila's death and that the statements about her ability to breathe were especially inflammatory. Hachmeister points out that Dr. Mitchell did not conclude exactly how 25 Sheila died by strangulation—whether it was by blocking the airways or restricting blood flow. Dr. Mitchell said there was "at least a period of time" where she was strangled in such a way that the blood flow could not leave her head. But, he added, "Whether somebody then went on to completely occlude the blood flow and the airway, you don't know." Thus, Hachmeister again points to Dr. Mitchell's inconclusive testimony—which does not definitively state the type of strangulation that caused Sheila's death—to say the State misstated the evidence. But there was evidence to support the prosecutor's reasonable conclusion that Sheila died by strangulation that restricted the blood flow from her head. Dr. Mitchell first testified about the types of strangulation: "You can cut off the blood vessel supply, that would be cutting off the carotid arteries, so you're not bringing blood up to the brain through the carotid arteries. You can block the blood coming out of the head by blocking the veins. Or, you can block the airway or a combination—variable combinations of these." Then Dr. Mitchell described how strangulation by restricted blood flow to the brain occurs: "The simplest thing, with the least amount of force, is blocking the blood flow out, because veins are low pressure whereas arteries are high pressure. They're the high pressure blood coming out of the heart supplying the tissues and then it passively drains back. So stopping the drainage is the simplest. . . . [I]f you just block the outflow, you've still got blood being pumped, in, so the vessels all dilate. And this causes us to get what we call petechial hemorrhages from rupture of the smallest blood vessels, which are the capillaries. . . . [S]he has petechial hemorrhages prominently within the eyes." 26  Finally, Dr. Mitchell testified that Sheila was strangled by cutting off the blood from her head for "at least a period of time." Dr. Mitchell knew this based on the petechial hemorrhages he found in Sheila's eyes, which is a sign that the blood flow out of the brain was blocked. Hachmeister is right that the type of strangulation Sheila died by is not conclusive, and her larynx, or voice box, was broken, suggesting she had substantial pressure on her neck. But even so, the State's theory that Sheila died by restricting blood flow from the brain, which caused petechial hemorrhages, is reasonably based on Dr. Mitchell's testimony. It is not inflammatory, and it supports the State's premeditation theory. See State v. Walker, 304 Kan. 441 , 446, 372 P.3d 1147 (2016) ("We have noted many times that death by strangulation presents strong evidence of premeditation."). But the State's claim that Sheila "could breathe just fine" crossed the line into speculation and was inflammatory. Under the State's theory, Sheila did not die by a restricted airway; she died by restricted blood flow. That said, there was still evidence that Sheila's neck was bruised and her larynx was broken. Suggesting Sheila could breathe "just fine" exceeds the prosecutor's ability to draw inferences from the evidence. Chandler, 307 Kan. at 670 ("Presumptions and inferences may be drawn from established facts, but a presumption may not rest on presumption or inference on inference. In other words, an inference cannot be based on evidence that is too uncertain or speculative or that raises merely a conjecture or possibility."). This error, however, is harmless in light of the trial as a whole. Based on the overwhelming evidence presented against Hachmeister, we are persuaded beyond a reasonable doubt that the State's claim that Sheila could "breathe just fine" during the strangulation did not affect the outcome of trial. See Sherman, 305 Kan. at 109 (holding that prosecutorial error is harmless "if the State can demonstrate 'beyond a reasonable 27 doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict'"). Further, this single error "'"is insufficient to support reversal under the cumulative effect rule."'" Blansett, 309 Kan. at 417. Affirmed. NUSS, C.J., not participating.1 PATRICK D. MCANANY, Senior Judge, assigned.2 1 REPORTER'S NOTE: Chief Justice Nuss heard oral arguments but did not participate in the final decision in case No. 114,796. Justice Nuss retired effective December 13, 2019. 2 REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 114,796 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Justice Lee A. Johnson. 28

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http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=3811&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa13%5cOrder

NUMBER 13-20-00159-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG ADA ELIZONDO, Appellant, v. U.S. BANK, N.A., Appellee. On appeal from the County Court at Law No. 6 of Hidalgo County, Texas. ORDER Before Chief Justice Contreras and Justices Benavides and Silva Order Per Curiam Appellant Ada Elizondo brought a suit against appellee U.S. Bank, N.A. (U.S. Bank) and Shapiro Schwartz, LLP (Shapiro) 1 asserting multiple claims and seeking 1Although Elizondo names a third party, Nationstar Mortgage LLC (Nationstar), as a defendant in the body of her first amended petition, filed November 15, 2017, Nationstar is not identified in the style of the cause, and it is unclear whether Nationstar received citation. injunctive relief to prevent the foreclosure of her home following her mortgage default. U.S. Bank moved for summary judgment on all of Elizondo’s claims, which the trial court granted. After reviewing the clerk’s record, the Court questions its jurisdiction over this appeal. We can find no order, judgment, or other document disposing of the claims against Shapiro. Absent a statutory exception, an appeal may only be taken from a final judgment that disposes of all parties and claims. See Bonsmara Nat. Beef Co., LLC v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385 , 387 (Tex. 2020); Lehmann v. Har-Con Corp., 39 S.W.3d 191 , 205 (Tex. 2001) (“[W]hen there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties.”); see also, e.g., Hardaway v. Narstco Inc., No. 10- 18-00286-CV, 2018 WL 5290143 , at *1 (Tex. App.—Waco Oct. 24, 2018, no pet.) (mem. op.) (dismissing an appeal for want of jurisdiction where summary judgment was only sought and granted for some defendants but claims against other defendants remained); Brewer v. Schlumberger Tech. Corp., No. 04-16-00519-CV, 2017 WL 3880130 , at *1 (Tex. App.—San Antonio Sept. 6, 2017, no pet.) (mem. op.) (per curiam) (same); cf. Luna v. Luna, No. 13-10-00455-CV, 2011 WL 3667465 , at *2 (Tex. App.—Corpus Christi– Edinburg Aug. 22, 2011, no pet.) (mem. op.) (concluding that an order granting motions for no-evidence summary judgment, which states that “appellant's claim is dismissed and that ‘[t]his judgment finally disposes of all parties and all claims and is appealable’” was, in fact, appealable “even though the judgment did not address the plaintiff’s claims against 2 one of the defendants”). Neither parties briefed the issue of this Court’s jurisdiction. Accordingly, so that the Court may determine the threshold issue of jurisdiction, appellant is ORDERED to file, no later than September 7, 2021, a letter brief addressing the Court’s concern. Appellee may file a response within ten days of the filing of appellant’s letter brief. If any party relies on information not included in the clerk’s record, that party shall have filed a supplemental clerk’s record containing that information. Should the Court determine it lacks jurisdiction, the Court will dismiss the appeal without further notice. See TEX. R. APP. P. 42.3(a). The Court may also dismiss the appeal without further notice should appellant fail to file the requested letter brief. See id. 42.3(a),(c). PER CURIAM Delivered and filed on the 24th day of August, 2021. 3

2021-08-30 07:33:33.633096+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=31643&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa13%5cOpinion

NUMBER 13-19-00494-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG ROBERT LEON ALLEN, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 226th District Court of Bexar County, Texas. MEMORANDUM OPINION Before Justices Longoria, Hinojosa, and Tijerina Memorandum Opinion by Justice Hinojosa Appellant Robert Leon Allen appeals his conviction for murder, a first-degree felony enhanced for punishment by a prior felony conviction. See TEX. PENAL CODE ANN. §§ 12.42(c)(1), 19.02. A jury found appellant guilty, and the trial court sentenced him to thirty-five years’ imprisonment. In four issues, appellant argues the trial court erred in: (1) prohibiting him from impeaching a witness; (2) sustaining the State’s relevance objection to evidence that appellant was previously shot; (3) failing to charge the jury on the defense of necessity; and (4) failing to charge the jury on the accomplice witness rule. We affirm. I. BACKGROUND 1 A grand jury indicted appellant with causing the death of fifteen-year-old Noel Reyna by shooting Reyna with a firearm. The shooting occurred outside a Whataburger restaurant in an unincorporated area of Bexar County, Texas and was preceded by a fight between two teenage girls—appellant’s sister M.C. and Reyna’s friend L.A. 2 A. Trial Testimony On the night of the shooting, Reyna, L.A., and several friends arrived at Whataburger and waited at a table for their food. While seated, L.A. saw M.C. enter with a group of her friends. M.C.’s group used the restroom and exited the restaurant. L.A. and M.C. had previously fought each other on multiple occasions, and L.A. suspected tonight would be no different. L.A. called her adult cousin and requested that she come to the restaurant for support. L.A.’s cousin later arrived with her teenage daughter and goddaughter and joined L.A.’s group inside the restaurant. Meanwhile, M.C. called appellant, her twenty-five-year-old brother, and requested that he come to the restaurant as well. According to M.C., “it’s always the understanding 1 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. 2 We use initials to refer to the minor witnesses to protect their privacy. See TEX. R. APP. P. 9.8 cmt. (“The rule [protecting the privacy for filed documents in civil cases] does not limit an appellate court's authority to disguise parties' identities in appropriate circumstances in other cases.”); Salazar v. State, 562 S.W.3d 61 , 63 n.1 (Tex. App.—Corpus Christi–Edinburg 2018, no pet.). 2 every time I see [L.A.] that we’re going to fight.” After getting their food, L.A.’s group exited to the parking lot, where they were met by M.C.’s group. According to multiple witnesses, appellant encouraged M.C. and L.A. to fight, saying to M.C., “I know you didn’t call me up here for nothing,” and “beat her up then.” M.C. and L.A. began fighting in the parking lot, and members from both groups eventually joined the fight. At some point during the altercation, Reyna attempted to break up a fight between two of the girls. Appellant then approached Reyna and slapped him in the face. The witnesses’ accounts diverge on what occurred next. Three witnesses in M.C.’s group testified that Reyna pulled out a gun—either “cocking” the gun or aiming it at appellant. Two witnesses in L.A.’s group describe Reyna as adjusting his clothes or lifting his shirt, while hearing appellant say, “if you showed, you should use it.” Another witness in L.A.’s group conceded on cross-examination that she told law enforcement on the night of the shooting that Reyna “flashed” his gun. After confronting Reyna, appellant ran across the parking lot to a vehicle, which was measured to be at least 146 feet away, and retrieved an AK-47 semi-automatic rifle. Appellant then returned and fired multiple rounds at Reyna, which caused Reyna’s death. Multiple witnesses saw a handgun near Reyna’s body after he was shot. Responding officers recovered a Glock 9 mm pistol with a chambered round from under Reyna’s body. After shooting Reyna, appellant fled the scene in a vehicle. He later contacted his cousin Damien McKnight and asked that McKnight take his rifle to McKnight’s house. McKnight agreed, and appellant placed the rifle wrapped in clothes in McKnight’s vehicle. 3 McKnight stored the items at his residence, where they were later discovered by law enforcement during the execution of a search warrant. B. J.S. Impeachment Reyna’s friend J.S., who was present the night of the shooting, acknowledged giving a statement to police. When presented with his statement by appellant’s counsel, J.S. denied that the signature on the statement was his. Appellant’s counsel proceeded to ask J.S. about various assertions contained in the written statement: Q. Did you tell the police officers that there was supposed to be a girl fight at the Whataburger that night? A. I didn’t know there was supposed be a girl fight, but there was a girl fight. .... Q. Okay. So my question is to you: Did you tell the police officers that night that the girls were supposed to fight some other girls at the Whataburger that night? A. That’s—that’s what it says, but I didn’t like—I didn’t know there was a girl fight, like I told you earlier. Q. Okay. So what you’re telling this jury and me right now is that you didn’t say that to the police officers? A. No, I didn’t. Q. Okay. A. I might have said there was a girl fight, but I never said there was supposed to be a girl fight. Q. All right. During your statement to the police officers that night, did you—did you tell the police officers that [Reyna] jumped into the fight to break it up? A. No, I didn’t say that. 4  .... Q. All right. Are you telling this jury that you did not tell the police officer that was taking your statement that [Reyna] jumped in to break— break up the girl fight? A. I did say that. Q. I can’t— A. Yeah, I said that, that he broke up the fight. .... Q. All right. In your statement, is it true or not true that you told the police officers that you saw [Reyna] pull out a gun? A. Untrue. Q. I’m sorry. What? A. Untrue. .... Q. In your statement you mentioned that [Reyna] pulled out a gun at some point in time before he got shot. You mentioned that he pulled out a gun in your statement, the written statement that has your signature on it—or a signature on it, I’m sorry. Did you see that? Is that—is that in your statement? A. Yes, it’s there. Q. All right. Did that actually happen? Did you see him pull out a gun? A. No, sir. Q. All right. Did you tell that to the police officer that night? A. I don’t even remember. It was like two years ago. Q. So you don’t remember if you told the police officer that [Reyna] pulled out a gun that night? 5  A. Huh-uh. I don’t remember him pointing no gun. Appellant then called Dorian Prosser, an investigator with the Bexar County Sheriff’s Department who took J.S.’s statement. Prosser testified that the statement was typed on his laptop. Prosser explained that 90% of the time, he has the witness type the statement. However, Prosser will type the statement for the witness if they are unable to do so because they are overwhelmed or illiterate. Prosser could not remember whether he or J.S. typed this particular statement, but he stated that he was 100% certain that J.S. signed the statement using a stylus. Appellant’s counsel then asked the following: All right. Investigator, in reading the statement, if [J.S.] today is telling this jury that he did not tell you in his statement that the girls were supposed to fight and— The State objected that the question called for hearsay, and appellant responded that the testimony was permissible impeachment evidence. During a bench conference, appellant’s counsel explained the scope of his intended questioning: [J.S.] said, I didn’t say the girls were supposed to fight some other girls at the Whataburger, I just told him there was a fight amongst girls at the Whataburger. That’s what he said. And in his statement he said, the girls were supposed to fight some other girls at the Whataburger. .... And then in his statement he says, [Reyna] pulled out a gun. He told that to this investigator. The trial court sustained the State’s objection, but it permitted appellant to make an offer of proof. Outside the presence of the jury, Prosser testified that the information contained in J.S.’s statement was provided by J.S.. Prosser agreed with appellant’s 6 counsel that J.S.’s written statement contained the following information: “The girls were supposed to fight some other girls at the Whataburger” and “[Reyna] pulls out a gun.” C. Prior Shooting Incident During M.C.’s testimony, the following colloquy occurred: [Appellant]: Like you knew that your brother, [appellant], just eight days earlier, you know that— [State]: Objection, Your Honor; relevance. [Appellant]: I didn’t ask the question yet, but I don’t mind approaching on it if he has an objection on it. .... [State]: He’s going to try to elicit testimony that [appellant] was shot eight days before this, and that somehow that goes to his frame of mind to allow him to arm himself and bring an AK-47 to a Whataburger. .... THE COURT: What’s your question? [Appellant]: Well, the question, Your Honor, is she was there eight days earlier when [appellant] was on his porch—and we have the police department that—the detective we’re subpoenaing—that he was standing on his porch, [a] car came by and he got shot in the leg twice by people eight days before. And so that does go toward that . . . [.] That does go towards his state of mind as far as fear of guns, fear of life. And she has personal knowledge because she was there. The trial court sustained the State’s objection. D. Jury Instruction & Verdict The trial court instructed the jury on self-defense and defense of a third person, but it rejected appellant’s request to include a necessity defense in the charge. The jury 7 returned a guilty verdict. This appeal followed. II. EVIDENTIARY RULINGS In his first two issues, appellant complains of the trial court’s exclusion of evidence. A. Standard of Review We review a trial court’s exclusion of evidence for an abuse of discretion. Gonzalez v. State, 544 S.W.3d 363 , 370 (Tex. Crim. App. 2018). A trial court abuses its discretion only if its decision lies outside the “zone of reasonable disagreement.” Id. We must affirm the trial court on any legal theory supported by the record, even if the theory is not one on which the trial court itself relied. See State v. Esparza, 413 S.W.3d 81 , 85 & n.17 (Tex. Crim. App. 2013); Carrasco v. State, 154 S.W.3d 127 , 129 (Tex. Crim. App. 2005). B. Impeachment In his first issue, appellant argues that the trial court abused its discretion in excluding the testimony of Prosser which would have established that J.S. made the following statements that were inconsistent with his trial testimony: (1) there was going to be a “girl fight” on the night in question; and (2) Reyna pulled out a gun during the confrontation with appellant. Appellant contends that this testimony was admissible impeachment evidence and that the trial court’s ruling violated his constitutional right to confront and cross-examine witnesses. 1. Applicable Law “Extrinsic evidence of a witness’s prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement.” TEX. R. EVID. 613(a)(4). When examining a witness about the 8 witness’s prior inconsistent statement, a party must first tell the witness (1) the contents of the statement, (2) the time and place of the statement, and (3) the person to whom the witness made the statement. Id. R. 613(a)(1). The witness must be given the opportunity to explain or deny the prior inconsistent statement. Id. R. 613(a)(3). If the admission is partial, qualified, or otherwise equivocal, or if the witness claims to not remember making the prior statement, then the statement is admissible for impeachment purposes. See McGary v. State, 750 S.W.2d 782 , 786 & n.3 (Tex. Crim. App. 1988) (en banc); Abdygapparova v. State, 243 S.W.3d 191 , 204 (Tex. App.—San Antonio 2007, pet. ref’d). However, if the witness admits making the statement, “then the witness has impeached himself, and no portion of the written statement is admissible.” McGary, 750 S.W.2d at 787 . Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. TEX. R. EVID. 801(d). Hearsay is generally inadmissible. Id. R. 802. Unless a witness’s prior inconsistent statement falls within a hearsay exception, it is admissible only for purposes of impeachment and not as substantive evidence. Miranda v. State, 813 S.W.2d 724 , 735 (Tex. App.—San Antonio 1991, pet. ref’d). 2. Analysis We agree with appellant that he established the proper predicate for the admission of the portions of the written statement which J.S. did not unequivocally admit to making. See Ruth v. State, 167 S.W.3d 560 , 566 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (concluding that a prior written statement was admissible for impeachment purposes because, “when questioned about the statement, [the witness] did not unequivocally 9 admit making it; rather she claimed she could not remember”). However, appellant never moved to admit the written statement. Instead, appellant attempted to question Prosser about J.S.’s statement. This method of impeachment would be proper only if appellant established that J.S. made an oral statement to Prosser. See TEX. R. EVID. 613(a)(1) (permitting impeachment of a witness with a prior inconsistent statement—“whether oral or written”). Prosser did not testify that J.S. provided an oral statement which Prosser later typed. Rather, Prosser could not recall how the statement was made, and he did not have any independent recollection of what J.S. might have said. While Prosser’s testimony aided in authenticating the written statement, he possessed no independent knowledge of any oral statement made by J.S. In other words, the excluded testimony amounted to Prosser reading J.S.’s written statement, which was not in evidence. Under these circumstances, we conclude that the trial court did not abuse its discretion in granting the State’s objections on the grounds of hearsay and improper impeachment. See Gonzalez, 544 S.W.3d at 370 . We further conclude that the trial court’s ruling did not violate appellant’s right to confront witnesses. See Hammer v. State, 296 S.W.3d 555 , 561 (Tex. Crim. App. 2009) (explaining that the right to present evidence and to cross-examine witnesses under the Confrontation Clause does not generally conflict with the corresponding rights under state evidentiary rules). Even if we were to find error, we would conclude that such error is harmless. Any non-constitutional “error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b). In other words, non-constitutional 10 error requires reversal only if it affects the substantial rights of the accused. Id.; see Barshaw v. State, 342 S.W.3d 91 , 93 (Tex. Crim. App. 2011); Proenza v. State, 555 S.W.3d 389 , 398 (Tex. App.—Corpus Christi–Edinburg 2018, no pet.). “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” Ellis v. State, 517 S.W.3d 922 , 931 (Tex. App.—Fort Worth 2017, no pet.). “We review the entire record to ascertain the effect or influence on the verdict of the error.” Proenza, 555 S.W.3d at 398 . Here, appellant complains that he was unable to present evidence that J.S. saw Reyna pull out a gun and that J.S. knew ahead of time that there was going to be a “girl fight.” With respect to the first statement, we note that it is undisputed that Reyna possessed a gun that night. The primary dispute is the extent to which Reyna exhibited the gun. However, witnesses on both sides of the altercation claimed he displayed the gun after appellant slapped Reyna. More importantly, while appellant did not move to admit the written statement, his counsel was able to impeach J.S. by having him confirm that the statement provides that J.S. saw Reyna pull out a gun. Appellant’s counsel emphasized this point in his closing argument. Prosser’s testimony reiterating what J.S.’s statement says is cumulative of the already admitted evidence. See Seidule v. State, 622 S.W.3d 480 , 495 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (“Erroneously admitted evidence will not result in reversal when other evidence, or substantially similar evidence, was received without objection—either before or after the complained of ruling.”). Further, we can perceive of no injurious effect from the exclusion of J.S.’s statement that “The girls were supposed to fight some other girls at the Whataburger.” It is undisputed that 11 the fight was anticipated at some point that evening after M.C. and L.A. saw each other. The degree to which the fight was planned beforehand was not an issue central to appellant’s defense. For the foregoing reasons, we conclude that the exclusion of Prosser’s testimony did not have a substantial and injurious effect or influence on the jury’s verdict. See TEX. R. APP. P. 44.2(b); Ellis, 517 S.W.3d at 931. We overrule appellant’s first issue. C. Relevance In his second issue, appellant argues that the trial court abused its discretion in sustaining the State’s relevance objection to evidence that appellant was shot in the leg eight days prior to shooting Reyna. Appellant offered the evidence at trial to support that he acted in self-defense or in defense of a third person. In particular, appellant urged that the evidence was relevant to his “state of mind” and “fear of guns.” Appellant further maintains the trial court’s ruling violated his due process right to present a defense. 1. Applicable Law A person is justified in using deadly force against another when and to the degree the actor reasonably believes the deadly force is immediately necessary to protect the actor or a third person against the other’s use or attempted use of unlawful deadly force. TEX. PENAL CODE ANN. §§ 9.31(a), 9.32(a), 9.33. “Both self-defense and defense of a third person require that there be a reasonable belief in the immediate need to act.” Henley v. State, 493 S.W.3d 77 , 89 (Tex. Crim. App. 2016); see TEX. PENAL CODE ANN. §§ 9.32, 9.33. “[F]orce that is immediately necessary to protect oneself or another from a person’s use of unlawful force is force that is needed at that moment—when a split second decision 12 is required.” Henley, 493 S.W.3d at 90 (internal quotations omitted). A reasonable belief is “a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.” TEX. PENAL CODE ANN. § 1.07(a)(42). “Relevant evidence is generally admissible, irrelevant evidence is not.” Gonzalez, 544 S.W.3d at 370 (citing TEX. R. EVID. 402). “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” TEX. R. EVID. 401. “A ‘fact of consequence’ includes either an elemental fact or an evidentiary fact from which an elemental fact can be inferred.” Henley, 493 S.W.3d at 84 . 2. Analysis We can perceive of only two scenarios in which a prior violent act committed against appellant would be relevant to his self-defense and defense of others claims. For instance, if the proffered evidence established that Reyna committed the prior violent acts, then such evidence would potentially be relevant to appellant’s defense. See Torres v. State, 117 S.W.3d 891 , 894 (Tex. Crim. App. 2003) (explaining that a defendant may introduce evidence of a deceased’s violent character to support self-defense or specific acts of violence “to demonstrate the reasonableness of the defendant’s fear of danger or to demonstrate that the deceased was the first aggressor”). Further, if the proffered evidence demonstrated that appellant mistakenly believed Reyna to be the person who shot him days prior, then such evidence could potentially be relevant to demonstrate appellant’s apprehension of danger. See Dyson v. State, 672 S.W.2d 460 , 463 (Tex. Crim. App. 1984) (explaining that a mistaken belief about the identity of the complainant 13 or decedent can support a self-defense claim); Henderson v. State, 906 S.W.2d 589 , 595 (Tex. App.—El Paso 1995, pet. ref’d) (same). Here, the proffered evidence concerns an alleged violent act directed at appellant by an unknown person, eight days prior. Appellant provided no connection between the prior shooting and the events leading to Reyna’s death. Absent such a connection, we conclude the trial court did not abuse its discretion in determining that the prior shooting was irrelevant to whether appellant reasonably believed that deadly force was immediately necessary to protect himself or others from Reyna. See Gonzalez, 544 S.W.3d at 370 . We further conclude that the exclusion of this evidence did not violate appellant’s due process right to present a defense. See Davis v. State, 313 S.W.3d 317 , 329 n.26 (Tex. Crim. App. 2010) (explaining that the constitutional right to present a complete defense is qualified by the requirement that the evidence be relevant and not excluded by an established evidentiary rule). We overrule appellant’s second issue. III. JURY CHARGE In his third and fourth issues, appellant alleges jury charge error. A. Standard of Review & Applicable Law The trial court must provide the jury with “a written charge distinctly setting forth the law applicable to the case.” Walters v. State, 247 S.W.3d 204 , 208 (Tex. Crim. App. 2007) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.14). The trial court must instruct the jury on statutory defenses, affirmative defenses, and justifications whenever they are raised by the evidence. Id. at 208–09. “Raised by the evidence” means “there is some evidence, from any source, on each element of the defense that, if believed by the jury, 14 would support a rational inference that th[e] element is true.” Shaw v. State, 243 S.W.3d 647 , 657–58 (Tex. Crim. App. 2007). When presented with an argument that a trial court committed jury-charge error, the reviewing court must conduct a two-step inquiry: (1) did an error occur; and (2) if so, did it cause harm that rises to the level of reversible error? Ngo v. State, 175 S.W.3d 738 , 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450 , 453 (Tex. Crim. App. 2003)). “The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection.” Id. (citing Middleton, 125 S.W.3d at 453 ). If a defendant preserves error, then he only has to show “some harm” to his rights. Id. (quoting Almanza v. State, 686 S.W.2d 157 , 171 (Tex. Crim. App. 1985)). If he fails to object, he must demonstrate “egregious harm.” Id. (citing Bluitt v. State, 137 S.W.3d 51 , 53 (Tex. Crim. App. 2004)). B. Necessity In his third issue, appellant argues that the trial court erred in refusing his requested necessity instruction. The defense of necessity is based on the reasonable belief that the charged conduct was “immediately necessary to avoid imminent harm.” TEX. PENAL CODE ANN. § 9.22(1). The Texas Penal Code broadly defines “harm” as “anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.” Id. § 1.07(25). The defense of necessity is available unless “a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.” Id. § 9.22(3). The jury charge in the instant case contained an instruction on the use of deadly 15 force in self-defense or in defense of third person. This Court has previously held that the use of deadly force does not preclude an instruction on necessity as a matter of law. See Fox v. State, No. 13-03-230-CR, 2006 WL 2521622 , at *3 (Tex. App.—Corpus Christi– Edinburg Aug. 31, 2006, pet ref'd) (mem. op., not designated for publication). However, because this is a transfer case from the Fourth Court of Appeals, we “must decide the case in accordance with the precedent of [that court] under principles of stare decisis if the transferee court's decision otherwise would have been inconsistent with the precedent of the transferor court.” TEX. R. APP. P. 41.3. In that regard, the Fourth Court of Appeals has held that when deadly force is the conduct that is immediately necessary, then the defense of necessity does not apply. Striblin v. State, No. 04-17-00826-CR, 2019 WL 1049233 , at *4 (Tex. App.—San Antonio Mar. 6, 2019, pet. ref’d) (mem. op., not designated for publication). The court explained that “allowing an instruction on necessity when the appellant used deadly force and obtained a jury instruction on self-defense or defense of a third person would undermine the legislative purpose of only allowing deadly force to be used to prevent the immediate threat to one’s life or the life of a third person or to prevent the commission of specific violent crimes.” Id. Therefore, the court concluded that a legislative purpose for excluding the necessity defense plainly appears in §§ 9.32 and 9.33 of the penal code. Id. Applying the precedent of the Fourth Court of Appeals, we conclude that the trial court did not err in denying appellant’s request for a necessity instruction. See id. We overrule appellant’s third issue. C. Accomplice Witness Rule In his fourth issue, appellant argues that the trial court erred in failing to charge the 16 jury concerning the accomplice witness rule because McKnight, who testified at trial, was an accomplice “after the fact.” “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” TEX. CODE CRIM. PROC. ANN. art. 38.14. The purpose of the accomplice witness instruction is to remind the jury that it cannot use the accomplice’s testimony to convict the defendant unless there also exists some non-accomplice testimony or evidence tying the defendant to the offense. Cocke v. State, 201 S.W.3d 744 , 747 (Tex. Crim. App. 2006). An accomplice is someone who, by an affirmative act, promotes the commission of the offense with which the defendant is charged. Druery v. State, 225 S.W.3d 491 , 498 (Tex. Crim. App. 2007). A witness is not an accomplice merely because the witness knew of the offense and did not disclose it, or even if the witness concealed the offense. Id. Complicity with a defendant in the commission of another offense separate from the charged offense does not make one an accomplice witness as to the charged offense. Id. “[I]f the witness cannot be prosecuted for the offense with which the defendant is charged, or a lesser-included offense of that charge, the witness is not an accomplice witness as a matter of law.” Id. Here, there is no evidence that McKnight took any affirmative act to promote Reyna’s murder. At most, the record establishes that McKnight assisted appellant in concealing evidence. However, such action does not rise to the level of an affirmative act to assist in the commission of murder or a lesser-included offense of murder. See id. at 17 499–500 (concluding that two witnesses in a murder prosecution were not accomplices for purposes of the accomplice witness rule where one assisted in the disposal of the decedent’s body and a gun and both were paid a sum of money out the cash stolen from the decedent); Nelson v. State, 297 S.W.3d 424 , 430 (Tex. App.—Amarillo 2009, pet. ref’d) (“Horton’s actions in assisting with the washing of the pickup truck were not done with the intent to cause Schraer’s death nor with the knowledge that such an action would cause the death of Schraer.”). We conclude that the trial court did not err in failing to instruct the jury on the accomplice witness rule. See Druery, 225 S.W.3d at 498 . We overrule appellant’s fourth issue. IV. CONCLUSION We affirm the trial court’s judgment. LETICIA HINOJOSA Justice Do not publish. TEX. R. APP. P. 47.2 (b). Delivered and filed on the 26th day of August, 2021. 18

2020-12-04 10:06:40.073674+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/SCT/158663_124_01.pdf

Michigan Supreme Court Lansing, Michigan Syllabus Chief Justice: Justices: Bridget M. McCormack Stephen J. Markman Brian K. Zahra Chief Justice Pro Tem: Richard H. Bernstein David F. Viviano Elizabeth T. Clement Megan K. Cavanagh This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis PEOPLE v BROWN Docket No. 158663. Decided December 3, 2020. Troy A. Brown was convicted by a jury in the Macomb Circuit Court of one count of first- degree criminal sexual conduct, MCL 750.520b(1)(a). According to the victim, defendant threatened her with a belt and then forced her legs open and penetrated her. The victim disclosed the assault to her brother the next day. Defendant agreed to come to the police station for an interview and voluntarily spoke to the police for approximately three hours. The entirety of defendant’s interview with two detectives was videorecorded; however, the video was not admitted at trial. Instead, the detectives testified as to what transpired during the interview. At trial, one detective testified that defendant said that the truth was “probably somewhere in the middle” of the victim’s story and defendant’s story. Defense counsel cross-examined the detective about whether the detective—not defendant—was actually the one who asked defendant in the interview whether the truth was somewhere in the middle. Defense counsel asked whether the video should be shown, but the prosecutor objected, and the trial court sustained the objection. When defense counsel continued to question the detective, the prosecutor reinforced his position on redirect examination instead of conceding that the detective’s earlier testimony was incorrect. During closing arguments, defense counsel again argued to the jury that the detective’s testimony was incorrect, but the prosecutor objected, and the court sustained the objection. Following a five-day jury trial, defendant was convicted and sentenced to the statutory mandatory minimum of 25 years in prison, MCL 750.520b(2)(b), and to a maximum of 60 years in prison. Defendant appealed. In an unpublished order entered on June 28, 2017 (Docket No. 336058), the Court of Appeals, SAAD, P.J., and SERVITTO and GLEICHER, JJ., granted a stipulated request to expand the record to include the videorecording of the police interview. The video revealed that the detective, in fact, had been the one to ask defendant if the truth was somewhere in the middle. The video further showed that defendant, in response to the detective’s questioning, did not move or make any gesture whatsoever. In an unpublished order entered on July 25, 2017, the Court of Appeals, SERVITTO, P.J., and JANSEN and SAAD, JJ., granted defendant’s motion to remand for an evidentiary hearing. On remand, the trial court conducted a hearing and heard testimony from defense counsel. In an opinion and order, the trial court denied defendant’s request for a new trial. Defendant appealed, and in an unpublished per curiam opinion issued on October 18, 2018, the Court of Appeals, O’BRIEN, P.J., and K. F. KELLY and FORT HOOD, JJ., affirmed. Defendant sought leave to appeal in the Supreme Court.  In a unanimous per curiam opinion, the Supreme Court, in lieu of granting leave to appeal and without hearing oral argument, held: A prosecutor may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, and a prosecutor has an affirmative duty to correct patently false testimony, especially when that testimony conveys to the jury an asserted confession from the defendant. In this case, the detective testified that defendant said that the truth between the victim’s allegations and defendant’s claims of innocence was actually “somewhere in the middle.” This claimed confession, however, was false, as evidenced by the videorecording of the interview. Therefore, the prosecutor elicited false testimony from the detective on direct examination. The prosecutor then allowed this false testimony to stand uncorrected. At most, the prosecutor’s direct examination and defense counsel’s cross-examination left for the jury the task of determining the detective’s credibility regarding the claimed confession. And even if defense counsel’s questioning worked to correct the detective’s inaccurate statements, the prosecutor failed in his duty to correct false testimony by subsequently attempting on redirect examination to restore the detective’s credibility regarding his initial statements. Furthermore, the attorneys’ closing arguments did not correct or alleviate the harm done by the detective’s testimony. Accordingly, the prosecutor’s conduct failed to comport with due process. Defendant was entitled to a new trial because there was a reasonable probability that the prosecution’s exploitation of the false testimony affected the verdict. The trial presented a credibility contest between defendant and the victim. The prosecutor not only failed to correct the false testimony, which essentially claimed that defendant confessed to the crime, but the prosecutor undertook affirmative actions to cloud defense counsel’s efforts to correct the record. Accordingly, defendant was entitled to a new trial. Court of Appeals judgment reversed; defendant’s conviction vacated; and case remanded for a new trial. ©2020 State of Michigan  Michigan Supreme Court Lansing, Michigan OPINION Chief Justice: Justices: Bridget M. McCormack Stephen J. Markman Brian K. Zahra Chief Justice Pro Tem: Richard H. Bernstein David F. Viviano Elizabeth T. Clement Megan K. Cavanagh FILED December 3, 2020 STATE OF MICHIGAN SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No. 158663 TROY ANTONIO BROWN, Defendant-Appellant. BEFORE THE ENTIRE BENCH PER CURIAM. At issue is whether defendant, Troy Antonio Brown, is entitled to a new trial because the detective who conducted defendant’s police interview testified falsely against him. We conclude that (1) the detective’s testimony against defendant was false, (2) the prosecutor failed to correct the false testimony, and (3) there is a reasonable likelihood that the uncorrected false testimony affected the judgment of the jury. People v Smith, 498 Mich. 466 , 475-476; 870 NW2d 299 (2015). Therefore, we reverse the judgment of the Court of Appeals, vacate defendant’s conviction, and remand to the trial court for a new trial.  I. FACTS AND HISTORY Defendant lived across the street from the victim’s babysitter. On April 27, 2015, the 11-year-old victim was at defendant’s home playing with his two children and the babysitter’s children. According to the victim, defendant told her to go to his bedroom, and he locked the other children in a playroom. In the bedroom, he threatened to “whoop” the victim with a belt, and then he forced her legs open and penetrated her vagina with his penis. Afterward, defendant told her not to say anything and gave her a dollar. The victim then went back to her babysitter’s house. She disclosed the assault to her adult brother the next day. Defendant agreed to come to the police station for an interview and voluntarily spoke to the police for approximately three hours. Detective-Sergeant Robert Eidt was one of two detectives who participated in defendant’s interview, the entirety of which was videorecorded. At trial, the video was not admitted. Instead, the detectives testified as to what transpired during the interview. The prosecutor concluded his direct examination of Eidt by asking about Eidt’s questioning of defendant: Q. At some point did you confront the Defendant with the fact that [the victim] was staying [sic] one thing and [that defendant’s] story didn’t match up? A. Yes, I did. Q. All right. And what was [defendant’s] response? A. He said that it was probably somewhere in the middle. Q. That what was probably somewhere in the middle? A. The truth. 2 A short time later during the direct examination, the prosecutor repeated this point to conclude his questioning of Eidt: Q. So Sergeant, you had indicated that the Defendant said that the truth was probably somewhere in the middle? A. Yes. Following the prosecutor’s direct examination of Eidt, defense counsel asked for and was granted a recess to review the videorecorded interview before beginning his cross- examination. Defense counsel then cross-examined Eidt about whether he was actually the one who asked defendant whether the truth was somewhere in the middle: Q. I asked for a recess to go back to this and watch it, to make sure my notes were accurate. If I told you the DVD says that you said the truth’s somewhere in the middle and [defendant] never said that word, would you have any reason to dispute that? A. As I said before, the report I did not author and this did happen a year and a half ago and I reviewed the report and that’s what the report says. Defense counsel then asked, “Do we need to show this part of the video?” But the prosecutor objected on the ground that the question was argumentative, and the trial court sustained the objection. Defense counsel then continued his cross-examination of Eidt: Q. Do you, do you disagree with my position that the video shows you saying the truth is somewhere in the middle and not [defendant], at 6:49:50, it’s not him but you that says that? A. It’s possible. Q. So your testimony earlier could be incorrect? A. About that, yes. Instead of conceding the point, the prosecutor reinforced his position on redirect examination, asking Eidt if one of defendant’s responses during the interview was “that the 3 truth is somewhere in the middle[.]” Defense counsel objected before Eidt could answer, and defense counsel again said, “[I]f we want to show the video I gladly will.” But the prosecutor responded that “we can rely on the previous testimony and the report,” and the trial court agreed. Closing arguments were held the next day. When defense counsel argued to the jury that he had asked for the recess to make sure that his review of the DVD was correct, that his notes were accurate, and that Eidt lied, the prosecutor objected on the ground that this was “Counsel’s testimony of what he saw” on the DVD and that “this is facts not in evidence,” and the trial court sustained the objection. And while the prosecutor did not specifically mention the “truth is in the middle” statement in his closing argument, he did argue during rebuttal: Counsel suggested that I’m hiding something from you by not showing you the three-hour video. Do you really think you need to watch three hours of that kind of manipulation? You don’t, because you have him here in the flesh. That’s even better, and you can judge for yourselves whether or not he’s lying. Following the five-day jury trial, defendant was convicted as charged on one count of first-degree criminal sexual conduct, MCL 750.520b(1)(a). He was sentenced to the statutory mandatory minimum of 25 years in prison, MCL 750.520b(2)(b), and a maximum sentence of 60 years. On appeal, the Court of Appeals granted a stipulated request to expand the record to include the videorecording of the police interview. People v Brown, unpublished order of the Court of Appeals, entered June 28, 2017 (Docket No. 336058). The video revealed that Eidt, in fact, had been the one to ask defendant if the truth was somewhere in the middle. And the video further showed that defendant, in response to 4 Eidt’s questioning, did not move or make any gesture whatsoever. The Court of Appeals granted defendant’s motion to remand for an evidentiary hearing. People v Brown, unpublished order of the Court of Appeals, entered July 25, 2017 (Docket No. 336058). On remand, the trial court conducted a hearing and heard testimony from trial defense counsel. In an opinion and order, the trial court denied defendant’s request for a new trial. Defendant appealed, and the Court of Appeals affirmed. People v Brown, unpublished per curiam opinion of the Court of Appeals, issued October 18, 2018 (Docket No. 336058). We are now tasked with determining whether the detective’s testimony, in conjunction with the prosecutor’s actions, violated defendant’s constitutional right to due process. II. LEGAL PRINCIPLES A due-process violation presents a constitutional question that this Court reviews de novo. People v Wilder, 485 Mich. 35 , 40; 780 NW2d 265 (2010). A prosecutor’s use of false testimony is inconsistent with due process. Smith, 498 Mich. at 475 . In other words, “a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction . . . .” Napue v Illinois, 360 U.S. 264 , 269; 79 S. Ct. 1173 ; 3 L. Ed. 2d 1217 (1959).1 Importantly, a prosecutor “has an affirmative duty to correct” patently false testimony, Smith, 498 Mich. at 476 (emphasis added), especially when that testimony conveys to the jury an asserted confession from the defendant. See People v Tanner, 496 Mich. 199 , 254; 853 NW2d 653 (2014) (“[C]onfessions and incriminating statements constitute perhaps the most compelling and important evidence available to fact-finders in 1 Although Justice ZAHRA dissented in Smith, he expressed “agree[ment] with this fundamental proposition, and imagine[d] that no one denies it.” Smith, 498 Mich. at 494 - 495 (ZAHRA, J., dissenting). 5 the justice system’s search for truth.”). And while “not every contradiction is material and the prosecutor need not correct every instance of mistaken or inaccurate testimony, it is the effect of a prosecutor’s failure to correct false testimony that is the crucial inquiry for due process purposes.” Smith, 498 Mich. at 476 (quotation marks and citations omitted). A prosecutor’s referencing, or taking advantage of, false testimony is of paramount concern because it “reinforce[s] the deception of the use of false testimony and thereby contribute[s] to the deprivation of due process.” Id. (quotation marks and citation omitted; alterations by the Smith Court). “A new trial is required if the uncorrected false testimony ‘could . . . in any reasonable likelihood have affected the judgment of the jury.’ ” Id., quoting Napue, 360 US at 271-272. III. ANALYSIS At trial, Eidt testified that defendant said that the truth between the victim’s allegations and defendant’s claims of innocence was actually “somewhere in the middle.” In essence, Eidt told the jury that defendant at most confessed to committing first-degree criminal sexual conduct or at a minimum admitted that he engaged in sexual activity with the victim. This claimed confession, however, was false, as evidenced by the videorecording of the interview. During the interview, Eidt actually asked defendant if the truth was “somewhere in the middle,” but defendant gave no indication—verbally or nonverbally—in response to this questioning.2 Therefore, the prosecutor elicited false testimony from the detective on direct examination. 2 The Court of Appeals explained, “[I]t is apparent that defendant made a non-verbal response to the challenged statement about the truth being somewhere in the middle, nodding his head in a discernable affirmative reply.” Brown, unpub op at 5. As a result, 6  Our inquiry then turns to whether the prosecutor allowed this false testimony to stand uncorrected. Both the trial court and the Court of Appeals held that defense counsel sufficiently impeached Eidt on this point and thus that there was no need for the prosecutor to correct the record. Certainly, after the prosecutor elicited Eidt’s response during direct examination, defense counsel attempted to set the record straight. Defense counsel requested a recess and then questioned Eidt about what was actually said during the interview. In response to defense counsel’s questioning, Eidt initially continued to testify that defendant made the inculpatory statement as was recounted in the police report, but in response to Eidt’s comments, defense counsel asked if the video of the interview should be played for the jury. The prosecutor objected to this questioning, and the trial court sustained the objection. When defense counsel continued his examination, he again asked if it was the detective, and not defendant, who made the inculpatory statement. Importantly, the detective never admitted that he was mistaken. Rather, he simply stated that it was “possible” he was wrong and agreed that his testimony “could be incorrect.” the Court held that “even if that particular portion of the video would have been shown to the jury to correct Sergeant Eidt’s testimony . . . , the jury would have learned that although defendant did not orally state that the truth was somewhere in the middle, he did indeed nod in assent when it was said.” Id. We have reviewed the videorecorded interview, and the Court’s assertions are in error. At one point in the interview, Detective James Twardesky asked a similar question that “somewhere in the middle is probably the truth, right like any other story?” Defendant made a slight nod to this question but seconds later said, “I told you I didn’t touch her.” Indeed, defendant nodded in response to many of the detectives’ questions but denied the criminal allegations over 20 times throughout the three-hour interview. But even if this one nod constituted evidence that defendant agreed with Twardesky’s assertion, Eidt’s testimony nonetheless remained inaccurate and misleading because Eidt indicated at trial that while he was questioning defendant, defendant made the incriminating statement, not that defendant simply nodded his head in response to another detective’s questioning. 7 We cannot conclude, as the trial court and Court of Appeals did, that this questioning sufficiently corrected the record. At most, the prosecutor’s direct examination and defense counsel’s cross-examination left for the jury the task of determining Eidt’s credibility regarding the claimed confession. Even if defense counsel’s questioning worked to correct Eidt’s inaccurate statements, the prosecutor failed in his duty to correct false testimony by subsequently attempting on redirect examination to restore Eidt’s credibility regarding his initial statements. Despite being aware that there might be video evidence to the contrary, the prosecutor asked Eidt, “And to summarize some of the responses that you got from [defendant] is that . . . the truth is somewhere in the middle?” Defense counsel objected and argued that the prosecutor was mischaracterizing Eidt’s testimony and that Eidt actually admitted that “he does not remember” whether defendant confessed.3 Instead of correcting the record and having Eidt concede that defendant never made any such admission, the prosecutor said, “Your Honor, we can rely on the previous testimony and the [police] report.” Eidt’s testimony on direct and cross-examination was contradictory, and the police report was patently false.4 Thus, the redirect examination did nothing to 3 Defense counsel’s characterization of Eidt’s testimony, i.e., that Eidt simply “[did] not remember” what defendant said during the interview, further indicates that Eidt did not unequivocally admit that he, rather than defendant, made the inculpatory statement. 4 According to the police report, defendant told Eidt during the interview that “the truth was probably in the middle.” The police report was not admitted at trial, but Eidt testified that this is what the report indicated. Thus, even though Eidt correctly relayed the information in the police report, the report itself was factually inaccurate, and the prosecutor failed to adhere to his duty to correct the record when he told the court and the jury that they could “rely on . . . the report.” 8 correct the record and, indeed, further suggested that the prosecutor believed that Eidt initially told the truth and that defendant made the admission during the interview.5 Here, the prosecutor’s failure to correct the testimony and instead rely on that testimony in questioning is especially problematic because it “reinforce[d] the deception of the use of false testimony and thereby contribute[d] to the deprivation of due process.” Smith, 498 Mich. at 476 (quotation marks and citation omitted). We further find that the attorneys’ closing arguments did not correct or alleviate the harm done by Eidt’s testimony. Defense counsel attempted to highlight to the jury that defendant made no such admission. However, the prosecutor again objected, arguing that those facts were “not in evidence.” The trial court sustained the objection, further underscoring the prosecutor’s attempt to obscure the truth about the claimed confession. And, finally, the prosecutor during rebuttal argued to the jury that he was not trying to hide anything by keeping the actual video from them. This argument at worst misled the jury 5 It is clear that the prosecutor has a duty to apprise the court when he or she knows the witness is giving false testimony. See Smith, 498 Mich. at 477 (“Regardless of the lack of intent to lie on the part of the witness, Giglio [v United States, 405 U.S. 150 ; 92 S. Ct. 763 ; 31 L. Ed. 2d 104 (1972)] and Napue require that the prosecutor apprise the court when he knows that his witness is giving testimony that is substantially misleading.”) (quotation marks and citation omitted; emphasis added). But, contrary to the prosecutor’s contention on appeal, the prosecutor also has such a duty when it should be obvious that the witness is giving false testimony. “ ‘[W]hen it should be obvious to the Government that the witness’ answer, although made in good faith, is untrue, the Government’s obligation to correct that statement is as compelling as it is in a situation where the Government knows that the witness is intentionally committing perjury.’ ” Smith, 498 Mich. at 477 , quoting United States v Harris, 498 F2d 1164, 1169 (CA 3, 1974). This is not a case of “inconsistencies” among witnesses, as the prosecutor now suggests. Rather, it should have been obvious to the trial prosecutor that Eidt’s testimony was false at least by the time defense counsel requested a recess, sought to correct the record (over the prosecutor’s objections), and asked if the taped interview should be played for the jury. 9 to believe that defendant admitted his guilt or at best muddied the record so that the jury would have to assess on its own whether Eidt was telling the truth regarding the admission. We are unable to conclude that the prosecutor adhered to his duty to correct the record; instead, he left intact the false statements that Eidt made. Accordingly, we hold that Eidt’s testimony was false; that the prosecutor’s actions did not correct the false testimony; and that as a result, the prosecutor’s conduct failed to comport with due process. Smith, 498 Mich. at 482 . We must determine whether the prosecutor’s use of the false testimony merits relief. A defendant is entitled to a new trial when “there is a reasonable probability that the prosecution’s exploitation of the substantially misleading testimony affected the verdict.” Id. at 470, citing Napue, 360 U.S. at 271-272 . As with many sexual-assault cases, the trial presented a credibility contest between defendant and the victim. There was no DNA evidence, no physical injury to the victim, and no eyewitness testimony that supported the prosecutor’s assertion that defendant sexually assaulted the victim. Rather, the prosecutor’s case rested largely on the victim’s testimony. Throughout the trial, defense counsel fleshed out inconsistencies in the victim’s allegations, including (1) whether the assault occurred on the bed or on the floor, (2) whether the victim cleaned herself up before or after the assault, (3) whether the victim kept her underwear on or took them off, and (4) whether the victim was quiet and did not fight back during the assault or whether she screamed and attempted to forestall defendant’s advances. Additionally, defense counsel argued that the victim had a proclivity for stealing and lying, highlighting the fact that she stole a candy bar the day of the assault. 10  Conversely, the prosecutor effectively attacked defendant’s credibility by admitting portions of a jail-call video wherein defendant made comments to his fiancée that he “fucked up,” that he could not say anything or else he would get “locked up,” and that “she came on to me and I fell right into the trap.” Additionally, the officers testified that defendant at one point in the interview said, “It never got that far,” rather than simply and repeatedly denying the allegations. The prosecutor also emphasized throughout the trial that defendant’s bedding was in the washer when the police searched his home, indicating that defendant may have been trying to cover up the evidence. And finally, the prosecutor introduced defendant’s prior conviction of assault with a dangerous weapon in order to rebut defendant’s claim that he had not been convicted of prior assaultive crimes. Yet, both sides had viable defenses of each aspect of their questioning. The prosecutor argued that although defense counsel highlighted inconsistencies in aspects of the victim’s allegations, the victim’s main assertion—that defendant sexually assaulted her—never wavered. Moreover, the prosecutor pointed to consistencies regarding the victim’s allegations, such as that she gave the dollar she received from defendant to her brother and that officers found the belt with which defendant allegedly threatened her on defendant’s dresser. On the other hand, defendant and his fiancée testified that during their jail call they were not referring to the allegations against defendant but about his recent affair with another woman. His fiancée also explained that she washed the bedding because one of the children urinated on it. As for defendant’s prior conviction, he clarified that he had not been convicted of any other crime involving sexual assault, not assault in general. These illustrations reinforce that the trial was essentially a credibility contest in which both sides either bolstered or attacked the trustworthiness of defendant and the 11 victim. When credibility is a dominant consideration in ascertaining guilt or innocence, other independent evidence apart from the testimony of the defendant and the victim is particularly vital to the fact-finding process. And false testimony simply undermines the jury’s ability to discern the truth in these circumstances. This is not to say that false testimony always gives rise to a violation of due process meriting a new trial. In some cases, a new trial will not be warranted given the sheer strength of the truthful evidence relative to the false testimony. “[N]ot every contradiction is material and the prosecutor need not correct every instance of mistaken or inaccurate testimony . . . .” Smith, 498 Mich. at 476 (quotation marks and citation omitted). However, “confessions and incriminating statements constitute perhaps the most compelling and important evidence available to fact-finders in the justice system’s search for truth.” Tanner, 496 Mich. at 254 . And when an alleged confession is introduced into a trial, even if the reliability of the confession is in question, there is a greater likelihood that this testimony, when false, will destructively affect the judgment of the jury. As we explained in Smith, a new trial is warranted when there is a reasonable probability that the prosecutor’s exploitation of the false testimony affected the verdict. Smith, 498 Mich. at 470 . Once again, the prosecutor here not only failed to correct Eidt’s testimony, which essentially claimed that defendant confessed to the crime, but the prosecutor undertook affirmative actions to cloud defense counsel’s efforts to correct the record. A prosecutor “may strike hard blows, [but] he is not at liberty to strike foul ones,” and “[i]t is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v United States, 295 U.S. 78 , 88; 55 S. Ct. 629 ; 79 L. Ed. 1314 (1935). We recognize that the prosecutor may not have relied heavily on this false 12 testimony throughout the trial, but his actions nonetheless left it to the jury to decide if defendant made self-incriminatory statements during the interview. Leaving this kind of false testimony for the jury to assess on its own is highly prejudicial in the present circumstances, and we conclude that there is a reasonable likelihood that it affected the jury’s verdict, one ultimately resting on the credibility of the victim and defendant. We therefore reverse the judgment of the Court of Appeals, vacate defendant’s conviction, and remand for a new trial.6 Bridget M. McCormack Stephen J. Markman Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh 6 Given our holding, we do not address defendant’s remaining claims, including that the CARE House interviewer’s testimony and the prosecutor’s comments violated the legal principles set forth in People v Peterson, 450 Mich. 349 ; 537 NW2d 857 (1995). See also People v Thorpe, 504 Mich. 230 ; 934 NW2d 693 (2019). However, we urge the prosecutor on retrial to ensure that any testimony, and any arguments relying on that testimony, fully comports with the standards set forth in Peterson and Thorpe. 13

2020-12-04 10:06:57.406564+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20201203_C351828_34_351828.OPN.PDF

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION December 3, 2020 Plaintiff-Appellant, 9:00 a.m. v No. 351828 Wayne Circuit Court LYLE HOWARD HILL, JR., LC No. 19-006327-01-FC Defendant-Appellee. Before: BOONSTRA, P.J., and MARKEY and FORT HOOD, JJ. BOONSTRA, P.J. In this interlocutory appeal, the prosecution appeals by leave granted1 the trial court’s order permitting Taylor Hill (Taylor) to assert spousal privilege and to refuse to testify against defendant, her husband. We reverse and remand for further proceedings. I. PERTINENT FACTS AND PROCEDURAL HISTORY In August 2019, Taylor and defendant held a birthday party at their home for one of their children. Taylor’s brother, Daniel Simmons (Simmons), and Taylor’s mother, Sonya Harris (Harris), attended the party. According to testimony presented before a grand jury in this matter, defendant was irritable throughout the party, and at some point, he and Taylor began arguing about the music being played on Taylor’s phone. As the argument grew heated, Harris removed the children from the vicinity. At some point during the argument, defendant charged at Taylor and poked her in the face with his fingers. Taylor sought assistance from Simmons because she believed the argument would escalate.2 While Simmons was initially reluctant to intervene, he did stand next to defendant and Taylor and told them to relax. His efforts were unsuccessful, however, and defendant and Simmons began to grapple physically, at one point causing Simmons’s arm to 1 People v Hill, unpublished order of the Court of Appeals, entered January 24, 2020 (Docket No. 351828). 2 Taylor and defendant had had physical fights previously in their relationship. -1- break through a window. Defendant drew a firearm and shot Simmons. Simmons’s wounds were not fatal. Defendant was charged with assault with intent to murder (AWIM), MCL 750.83, assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84, discharge of a firearm in a building, MCL 750.734b(3), and two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was not charged with an offense against Taylor. Taylor testified before a grand jury and described the incident. Although she was willing to testify before the grand jury, defendant later moved to permit Taylor to assert spousal privilege under MCL 600.2162(2) and to refuse to testify at trial. At the motion hearing, Taylor informed the trial court that she would assert the spousal privilege if it were available to her. The trial court granted defendant’s motion. The effect of that ruling was to deny the admission of Taylor’s testimony on grounds of spousal privilege. This appeal followed. II. STANDARD OF REVIEW We review for an abuse of discretion a trial court’s decision to admit or to deny the admission of evidence, but we review de novo questions of law concerning the admissibility of that evidence, such as whether admission of the evidence is precluded by the assertion of privilege. See People v Allen, 310 Mich. App. 328 , 341; 872 NW2d 21 (2015), rev’d in part on other grounds 499 Mich. 307 (2016). We review de novo issues of statutory interpretation. People v Davis, 310 Mich. App. 276 , 286; 871 NW2d 392 (2015). “Our overriding goal for interpreting a statute is to determine and give effect to the Legislature’s intent.” People v Peltola, 489 Mich. 174 , 181; 803 NW2d 140 (2011). “The first step in ascertaining the Legislature’s intent is to review the specific language of the statute.” People v Szabo, 303 Mich. App. 737 , 741; 846 NW2d 412 (2014). “The Legislature is presumed to have intended the meaning it plainly expressed and, therefore, clear statutory language must be enforced as written.” Id. III. ANALYSIS The prosecution argues that the trial court erred by granting defendant’s motion because the “spousal wrong” exception to spousal privilege applies in this case. We agree. “In a criminal prosecution, a husband shall not be examined as a witness for or against his wife without his consent or a wife for or against her husband without her consent, except as provided in subsection (3).” MCL 600.2162(2). Accordingly, in criminal proceedings, the spousal privilege is vested with the witness-spouse unless an exception in MCL 600.2162(3) applies. Szabo, 303 Mich. App. at 748 . Under the spousal wrong exception, “[t]he spousal privilege[] established in subsection[] . . . (2) . . . do[es] not apply . . . [i]n a cause of action that grows out of a personal wrong or injury done by one to the other . . . .” MCL 600.2162(3)(d). Our Supreme Court has on several occasions interpreted the scope of the spousal wrong exception. In People v Love, 425 Mich. 691 ; 391 NW2d 738 (1986), the defendant (Abner Love), suspected his wife of having an affair with a friend. Id. at 694-695 (opinion by CAVANAGH, J.). Love shot the friend, killing him, and then drove around with his (Love’s) wife at gunpoint. Id. at -2- 695. Love was convicted of murder and felony-firearm regarding his conduct against the friend and was convicted of kidnapping regarding his conduct against his wife. Id. at 693-694. At trial, Love moved to suppress his wife’s testimony, asserting spousal privilege.3 Id. at 695. The trial court denied the motion, and Love’s wife was compelled to testify. Id. at 695-696. The parties agreed on appeal that the spousal privilege did not apply to the kidnapping charge because it clearly grew out of a personal wrong done to her by Love and thus was subject to the spousal wrong exception. Id. at 696. The issue before the Court was whether the murder and felony-firearm charges were also subject to the spousal wrong exception. The Supreme Court issued three opinions in Love, each joined by only two Justices.4 Two opinions (encompassing a total of four Justices) held, albeit for different reasons, that the spousal wrong exception did not apply to the murder and felony-firearm charges. In the lead opinion, Justice CAVANAGH (joined by Justice LEVIN) concluded that the spousal wrong exception only applied if the particular offense charged was for the injury inflicted upon one spouse by the other. Love, 425 Mich. at 702-706 . Therefore, because Love’s murder and felony-firearm charges were not for injury inflicted upon Love’s wife, the exception was not applicable. Id. Chief Justice WILLIAMS (joined by Justice BRICKLEY) reached the same result, but for the reason that “a cause of action cannot ‘grow[] out of a personal wrong or injury done by one to the other’ that did not occur at the time of the ‘cause of action’ (murder). Something cannot ‘grow[] out of’ something that did not exist.” Id. (second and third alterations in original). Therefore, the two opinions agreed that the spousal wrong exception was not implicated with respect to the murder (and related felony-firearm) charge but disagreed about whether that was because the murder charge was not for an injury inflicted on Love’s wife or because Love kidnapped his wife after completing the murder.5 Subsequently, in People v Vann, 448 Mich. 47 ; 528 NW2d 693 (1995), our Supreme Court seemingly approved of Chief Justice WILLIAMS’s position in Love, noting that “[i]n Love, the kidnapping of the defendant’s wife occurred after the murder of the third party. Accordingly, the third party’s cause of action did not “grow out of” the personal injury or wrong to the wife.” Id. at 52. The defendant in Vann, Lawrence Vann, was convicted of felonious assault and felony- firearm after Vann’s wife was permitted to testify at trial. Id. at 48-50. Both offenses related to Vann’s conduct toward a third-party victim; Vann was not charged with an offense against his 3 Originally, the spousal privilege in criminal proceedings was vested with the defendant-spouse, requiring his or her consent for the witness-spouse to testify unless an exception was applicable. MCL 600.2162, as enacted by 1961 PA 236 . Since October 2000, however, the spousal privilege has been vested in the witness-spouse. See MCL 600.2162(2), as amended by 2000 PA 182 (effective October 1, 2000) and 11 PA 2001 (effective May 29, 2001). 4 One Justice did not participate. Id. at 709. 5 Justice BOYLE (joined by Justice RILEY) authored a third opinion that would have affirmed the Court of Appeals’ holding that the spousal wrong exception applies when a crime against a third person occurs during the same criminal transaction as a crime committed against the witness- spouse. Love, 425 Mich. at 716 (BOYLE, J., dissenting). -3- wife. Id at 53 (CAVANAGH, J., dissenting). However, Vann’s wife was present for the third-party assault and Vann assaulted his wife contemporaneously with his assault of the third party. Id. at 49 (opinion of the Supreme Court). Distinguishing the case from Love, the Supreme Court stated: Here, however, the prosecution’s evidence indicated that there was an assault on the defendant’s wife, and that it occurred contemporaneously with the assault on the third party. In other words, unlike the situation in Love, the offense committed against the third party in the instant case did “grow out of” the personal wrong or injury done by the defendant to his wife. [ Id. at 52. ] The Court in Vann did not discuss the competing rationales of the various opinions in Love and appears to have errantly characterized Chief Justice WILLIAMS’s position as that of the Love majority. Nonetheless, by affirming the trial court’s decision to permit Vann’s wife to testify against Vann, the Supreme Court appears to have put to rest Justice CAVANAGH’S assertion in Love that the spousal wrong exception applies only when a defendant is charged with crimes committed against a spouse. Instead, the spousal privilege was found to be unavailable even though the charges were not for injuries to Vann’s wife. In People v Warren, 462 Mich. 415 ; 615 NW2d 691 (2000), the Supreme Court noted that “Love lacks a majority holding. It does not serve as binding precedent.” It explained that the opinions of Justice CAVANAGH and Chief Justice WILLIAMS in Love “cannot be reconciled; they have no common denominator except in result.” Id. at 427. The Court also noted that Vann’s comments regarding Chief Justice WILLIAMS’s temporal-sequence test were dicta because the defendant’s offenses against his wife and the third party in Vann occurred simultaneously and as part of a single criminal act, such that the Vann Court “did not employ the temporal-sequence test in reaching its conclusion.” Id. at 426-427. The Court in Warren then expressly rejected Justice CAVANAGH’s position (as well as Justice BOYLE’s position) in Love and stated that “[t]he ‘grows out of’ wording requires a connection between the cause of action and the harm or injury committed against the spouse. However, the phrase does not limit spousal testimony to those crimes of which the spouse was the direct victim.” Id. at 428 (emphasis added). Consistent with Chief Justice WILLIAMS’s position, the Court affirmed that the spousal wrong exception may apply even when the charge was not for injury to the witness-spouse, Warren, 462 Mich. at 430-431 , and it noted that “the temporal sequence test set out in Chief Justice WILLIAMS’ Love concurrence has support in the language of the statute.” Id. at 429. The Court continued: Additionally, we read the exception to allow a victim-spouse to testify about a persecuting spouse’s precedent criminal acts where (1) the underlying goal or purpose of the persecuting spouse is to cause the victim-spouse to suffer personal wrong or injury, (2) the earlier criminal acts are committed in furtherance of that goal, and (3) the personal wrong or injury against the spouse is ultimately completed or “done.” Thus, where a persecuting spouse’s criminal activities have roots in acts ultimately committed against the victim-spouse, those preparatory crimes constitute “cause[s] of action that grow[] out of a personal wrong or injury done by -4-  one to the other . . . .” M.C.L. § 600.2162(d); MSA 27A.2162(1)(d). This is because the underlying intent, the “seed” from which the other criminal acts grew, was the personal wrong or injury done to the spouse. [Id. at 698 (footnote omitted).] There is a glaring issue with applying any of the above cases to the case before us, i.e., they were all decided before the effective date of the amendment of MCL 600.2162 in 2000 to provide that the spousal privilege vested in the witness-spouse, rather than in the defendant-spouse. The procedural posture of this case is thus substantially different from that of Love, Vann, or Warren. Rather than having a defendant seeking to assert a statutory right to preclude spousal testimony against him, the prosecution in this case is seeking to compel the testimony of a witness against him. Moreover, because those cases all predated the 2000 amendment of MCL 600.2162, none of them addressed whether a witness-spouse in whom the spousal privilege is vested (as under the current statutory scheme) may be compelled to testify when the spousal privilege is inapplicable.6 But this Court did have occasion in Szabo to apply the post-amendment language of MCL 600.2162. The defendant in Szabo allegedly took a rifle into the home of his estranged wife. The gun was fired; the estranged wife was not shot, but another man who was present was shot in the arm. The defendant was charged with assault with intent to murder and felonious assault with regard to the man, as well as felonious assault with regard to the estranged wife. The estranged wife testified at the defendant’s preliminary examination, although whether she did so voluntarily was disputed. The prosecution moved for a bindover on the charges relating to the estranged wife,7 and the defendant moved to dismiss those charges. The trial court concluded that the estranged wife could not be compelled to testify against the defendant, and it therefore granted the defendant’s motion to dismiss. This Court held on appeal that MCL 600.2162 “specifically denies the victim-spouse a testimonial privilege in a case that grew out of a personal wrong or injury done by the defendant- spouse to the victim-spouse” and permits a trial court to compel that spouse’s testimony. Szabo, 303 Mich. App. at 748 -749. Szabo thus appears to have answered the question that was necessarily left unanswered in the Supreme Court cases applying the earlier statutory scheme. 6 Even under the previous version of the statute (which vested the spousal privilege in the defendant-spouse), it is unclear from the Supreme Court caselaw whether and when a witness- spouse could be compelled to testify. In Vann and Warren, the spousal testimony was voluntary. And in Love, Justice CAVANAGH’s opinion suggested that a witness-spouse could voluntarily testify but that she could not be compelled to testify. Chief Justice WILLIAMS and Justice BOYLE disagreed about whether the spousal wrong exception applied (and therefore about whether the spousal privilege applied), but agreed that a spouse may be compelled to testify. See Love, 425 Mich. at 696 , 708-709 (opinions by CAVANAGH, J. and WILLIAMS, C.J.); id. at 714 (opinion by BOYLE, J.). See also Szabo, 303 Mich. App. at 744-745 (“Thus, four Justices held that a victim- spouse could be compelled to testify against the criminal defendant-spouse when an exception to the spousal privilege was applicable.”). 7 The charges relating to the shooting of the other man were dismissed without prejudice. -5-  We note, however, that Szabo also is not on all fours with the case before us. Specifically, the only charges that remained pending in Szabo were the charges relating to the spousal-witness, i.e., the estranged wife. The charges relating to the shooting of the other man were no longer pending. Therefore, the Court in Szabo was only addressing MCL 600.2162 in the context of charges directly relating to the spousal-witness; it was not addressing the statute in the context of charges relating to third parties that arguably “grew out of” a personal wrong or injury done to the spousal-witness. We thus are left with no authority that definitely answers the pertinent question in the precise procedural context of the case before us. Nonetheless, considering the body of the pertinent caselaw in its totality, we conclude that the trial court erred by holding that Taylor could assert the spousal privilege. The trial court concluded that “the spousal privilege is available for [Taylor] to take if she wishes because [defendant is] not charged with anything related to her in this case.” The trial court’s holding is directly contrary to the Supreme Court’s decisions in Vann and Warren. Like in Vann and Warren, Taylor’s testimony at defendant’s trial would relate to several offenses allegedly committed against a third party (Simmons) that occurred contemporaneously with (or after) his alleged assault on her. According to the allegations, defendant made physical contact with Taylor, and Taylor feared for her safety, causing her to ask Simmons for help. When Simmons attempted to provide that assistance, defendant shot him. Also as in Vann, defendant was not charged with an offense against Taylor. And as in Warren, defendant’s purpose in allegedly shooting Simmons was to facilitate his assault against Taylor. We conclude under these circumstances, and consistent with Vann and Warren, that the charges against defendant grew out of an alleged personal wrong or injury to Taylor, and therefore that the spousal wrong exception prevents Taylor from asserting spousal privilege. MCL 600.2162(3)(d). Moreover, Szabo held, under the current statutory scheme, that “defendant’s wife was not vested with a spousal privilege; thus, her consent to testify was not required and she could be compelled to testify against defendant in this criminal prosecution.” Szabo, 303 Mich. App. at 749 . Similarly in this case, Taylor was not vested with a spousal privilege because the spousal wrong exception applied. Therefore, her consent to testify was not required, and she could be compelled to testify. By reaching a contrary conclusion, the trial court erred. Reversed and remanded for further proceedings. We do not retain jurisdiction. /s/ Mark T. Boonstra /s/ Jane E. Markey /s/ Karen M. Fort Hood -6-

2020-12-04 10:07:11.411929+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20201203_C340600_160_340600O.OPN.PDF

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS In re RELIABILITY PLANS OF ELECTRIC UTILITIES FOR 2017-2021. ASSOCIATION OF BUSINESSES UNPUBLISHED ADVOCATING TARIFF EQUITY, December 3, 2020 Appellant, V No. 340600 Public Service Commission MICHIGAN PUBLIC SERVICE COMMISSION, LC No. 00-018197 CONSUMERS ENERGY COMPANY, ENERGY MICHIGAN, INC., and MICHIGAN ELECTRIC AND GAS ASSOCIATION, Appellees. In re RELIABILITY PLANS OF ELECTRIC UTILITIES FOR 2017-2021. ENERGY MICHIGAN, INC., Appellant, V No. 340607 Public Service Commission MICHIGAN PUBLIC SERVICE COMMISSION, LC No. 00-018197 CONSUMERS ENERGY COMPANY, and MICHIGAN ELECTRIC AND GAS ASSOCIATION, Appellees.  ON REMAND Before: METER, P.J., and GADOLA and TUKEL, JJ. PER CURIAM. At the end of 2016, our Legislature enacted new electric utility legislation that included Act 341. That act added, among other statutory sections, MCL 460.6w. As part of its implementation of MCL 460.6w, the Michigan Public Service Commission (MPSC) issued an order in its Case No. U-18197. That order of the MPSC was appealed to this Court in Docket No. 340600, by appellant Association of Businesses Advocating Tariff Equity (ABATE), and in Docket No. 340607, by appellant Energy Michigan, Inc. (Energy Michigan). In these consolidated cases,1 appellants contended that the MPSC erred by determining that it is empowered by the Legislature under 2016 PA 341 (Act 341) to impose a local clearing requirement upon individual alternative electric suppliers. In Docket No. 340607, Energy Michigan additionally contended that the order of the MPSC purports to impose new rules upon electric providers in this state without the required compliance with Michigan’s Administrative Procedures Act of 1969 (APA), MCL 24.201, et seq. In Docket No. 340600, ABATE contended that the MPSC’s claim of a statutory delegation of authority allowing the imposition of an individual local clearing requirement does not include sufficient standards to guide the PSC’s exercise of what amounts to legislative policy-making, and thus violates the nondelegation doctrine. This Court determined that the MPSC erred by determining that it is empowered by the Legislature under Act 341 to impose a local clearing requirement upon individual alternative electric suppliers; we therefore reversed the MPSC’s order. In re Reliability Plans of Electric Utilities for 2017-2021, 325 Mich. App. 207 , 228, 235; 926 NW2d 584 (2018). In light of that decision, we concluded that it was unnecessary to reach the additional issues raised by Energy Michigan and ABATE, being whether the MPSC’s determination resulted in the promulgation of rules without compliance with the APA and in violation of the nondelegation doctrine. Id. at 234- 235. Thereafter, our Supreme Court considered plaintiffs’ application for leave to appeal to that Court and, in lieu of granting leave to appeal, reversed the judgment of this Court and remanded the case to us for further proceedings consistent with that Court’s opinion, “including addressing whether the MPSC’s order complied with the Administrative Procedures Act.” In re Reliability Plans of Electric Utilities for 2017-2021, 505 Mich. 97 , 129; 949 NW2d 73 (2020). We do so now, and hold that the MPSC neither issued the equivalent of administrative rules in violation of APA procedures, nor otherwise exercised legislative authority in violation of the nondelegation doctrine. We therefore affirm the order of the MPSC. 1 These appeals were consolidated on this Court’s own motion. In re Reliability Plans of Electric Utilities for 2017-2021, unpublished order of the Court of Appeals, entered November 15, 2017 (Docket Nos. 340600; 340607). -2-  I. BACKGROUND FACTS When this case was previously before this Court, we summarized the background facts underlying the appeal as follows: Michigan’s Legislature previously enacted what was known as the Customer Choice and Electricity Reliability Act, MCL 460.10 et seq., as enacted by 2000 PA 141 and 2000 PA 142 , to “further the deregulation of the electric utility industry.” In re Application of Detroit Edison Co for 2012 Cost Recovery Plan, 311 Mich. App. 204 , 207 n 2; 874 NW2d 398 (2015). That act permitted customers to buy electricity from alternative electric suppliers instead of limiting customers to purchasing electricity from incumbent utilities, such as appellee Consumers Energy Company (Consumers). Consumers Energy Co v Pub Serv Comm, 268 Mich. App. 171 , 173; 707 NW2d 633 (2005). Among the purposes of the act, as amended by Act 341, is the promotion of “financially healthy and competitive utilities in this state.” MCL 460.10(b). [T]he Midcontinent Independent System Operator (MISO) is the regional transmission organization responsible for managing the transmission of electric power in a large geographic area that spans portions of Michigan and 14 other states. To accomplish this, MISO combines the transmission facilities of several transmission owners into a single transmission system. In addition to the transmission of electricity, MISO’s functions include capacity resource planning. MISO has established ten local resource zones; most of Michigan’s lower peninsula is located in MISO’s Local Resource Zone 7, while the upper peninsula is located in MISO’s Local Resource Zone 2. Each year MISO establishes for each alternative electric supplier in Michi- gan the “planning reserve margin requirement.” MISO also establishes the “local clearing requirement.” Under MISO’s system, there generally are no geographic limitations on the capacity resources that may be used by a particular supplier to meet its planning reserve margin requirement. That is, MISO does not impose the local clearing requirement on alternative electric suppliers individually but instead applies the local clearing requirement to the zone as a whole. Each individual electricity supplier is not required by MISO to demonstrate that its energy capacity is located within Michigan, as long as the zone as a whole demonstrates that it has sufficient energy generation located within Michigan to meet federal requirements. MISO also serves as a mechanism for suppliers to buy and sell electricity capacity through an auction. This allows for the exchange of capacity resources across energy providers and resource zones. The MISO auction is conducted each year for the purchase and sale of capacity for the upcoming year. The auction allows suppliers to buy and sell electricity capacity and acquire enough capacity to meet their planning reserve margin requirement. The auction also allows each zone as a whole to meet the zone’s local clearing requirement. -3-  At the end of 2016, our Legislature enacted Act 341, in part adding MCL 460.6w, which imposes resource adequacy requirements on electric service providers in Michigan and imposes certain responsibilities on the MPSC. Under MCL 460.6w(2), the MPSC is required under certain circumstances to establish a “state reliability mechanism.” The parties agree that because the Federal Energy Regulatory Commission did not put into effect the MISO-proposed tariff, the MPSC is required by § 6w(2) to establish a state reliability mechanism. A “state reliability mechanism” is defined by the statute as “a plan adopted by the commission in the absence of a prevailing state compensation mechanism to ensure reliability of the electric grid in this state consistent with subsection (8).” MCL 460.6w(12)(h). The state reliability mechanism is to be established consistently with § 6w(8), which . . . requires each alternative electric supplier, cooperative electric utility, and municipally owned electric utility to demonstrate to the MPSC that it has sufficient capacity to meet its “capacity obligations.” The statute does not define “capacity obligations,” but in § 6w(8)(c), the statute provides that: (c) In order to determine the capacity obligations, [the MPSC shall] request that [MISO] provide technical assistance in determining the local clearing requirement and planning reserve margin require- ment. If [MISO] declines, or has not made a determination by October 1 of that year, the commission shall set any required local clearing requirement and planning reserve margin requirement, consistent with federal reliability requirements. Section 6w(8)(b) also provides that municipally owned electric utilities are permitted to “aggregate their capacity resources that are located in the same local resource zone to meet the requirements of this subdivision” and that cooperative electric utilities are permitted to “aggregate their capacity resources that are located in the same local resource zone to meet the requirements of this subdivision.” Section 6w(8)(b) also permits a cooperative or municipally owned electric utility to “meet the requirements of this subdivision through any resource, including a resource acquired through a capacity forward auction, that [MISO] allows to qualify for meeting the local clearing requirement.” Section 6w(8)(b), however, does not include a similar provision for alternative electric suppliers and is, in fact, silent as to whether alternative electric suppliers may aggregate their capacity resources that are located in the same local resource zone to meet the requirements of the subdivision. MCL 460.6w(3) directs the MPSC to establish a capacity charge that a provider must pay if it fails to satisfy the capacity obligations established under § 6w(8). Section 6w(6), however, directs that a capacity charge shall not be assessed against an alternative electric supplier who demonstrates “that it can meet its capacity obligations through owned or contractual rights to any resource that [MISO] allows to meet the capacity obligation of the electric provider. . . .” -4-  After the enactment of Act 341, the MPSC worked collaboratively in a workgroup process to implement MCL 460.6w. On September 15, 2017, the MPSC issued an order in its Case No. U-18197, imposing new requirements on alternative electric suppliers as part of its implementation of MCL 460.6w. In that order, the MPSC determined that MCL 460.6w authorizes it to impose a local clearing requirement on individual alternative electric suppliers. . . . [In re Reliability Plans, 325 Mich. App. at 211-216 (footnotes omitted).] As noted, ABATE and Energy Michigan appealed the order of the MPSC to this Court, challenging the order as an erroneous interpretation of MCL 460.6w. This Court agreed, and reversed the order of the MPSC. In re Reliability Plans, 325 Mich. App. at 235 . The Michigan Supreme Court reversed the judgment of this Court, and remanded the consolidated cases to this Court for further proceedings consistent with the Supreme Court’s opinion. In re Reliability Plans, 505 Mich. at 102 , 129, II. ANALYSIS A. STANDARD OF REVIEW Whether an agency policy is invalid because it was not promulgated as a rule under the APA is a question of law that we review de novo. In re PSC Guidelines for Transactions Between Affiliates, 252 Mich. App. 254 , 263; 652 NW2d 1 (2002). Whether the Nondelegation Clause of the Michigan Constitution has been violated is a question of constitutional interpretation that we also review de novo. See In re Certified Questions from US Dist Court, ___ Mich ___, ___; ___ NW2d ___ (2020) (Docket No. 161492); slip op at 4. B. THE APA Energy Michigan contends that the MPSC erred when issuing its order in its Case No. U- 18197 because the order essentially promulgates rules without complying with the formal rule- making requirements of the APA. Energy Michigan argues that the MPSC’s order essentially enacts rules because it establishes a formula for determining the total capacity obligation for each electric provider, restricts resort to MISO’s planning resource auctions for that purpose, and sets the capacity obligations on the basis of a provider’s peak load contributions. We conclude that the MPSC did not err by interpreting § 6w of Act 341 as calling for it to implement the provisions of § 6w without resorting to formal rulemaking under the APA. The promulgation of administrative rules is governed by the APA, Slis v Michigan, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket Nos. 351211, 351212); slip op at 1, and the MPSC is authorized to promulgate rules under the APA. MCL 460.9(8). Under § 7 of the APA, MCL 24.207, “rule” is defined as: an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or rescission of the law enforced or administered by the agency. . . . -5- An agency is obligated to employ formal APA rulemaking when establishing policies that “do not merely interpret or explain the statute or rules from which the agency derives its authority,” but rather “establish the substantive standards implementing the program.” Faircloth v Family Independence Agency, 232 Mich. App. 391 , 404; 591 NW2d 314 (1998). A rule that is not promulgated under the APA is invalid and does not have the force of law. MCL 24.243; Goins v Greenfield Jeep Eagle, Inc, 449 Mich. 1 , 10; 534 NW2d 467 (1995). Excepted from the definition of a “rule” under the APA is a “rule or order establishing or fixing rates or tariffs,” MCL 24.207(c), a “determination, decision, or order in a contested case,” MCL 24.207(f), an “interpretive statement” or “guideline,” MCL 24.107(h), or a “decision by an agency to exercise or not to exercise a permissive statutory power, although private rights or interests are affected,” MCL 24.207(j); In re Reliability Plans, 325 Mich. App. at 233 . The definition of “rule” under MCL 24.207 is broadly construed to reflect the APA’s preference for policy determinations pursuant to rules, while the exceptions are narrowly construed. AFSCME v Dep’t of Mental Health, 452 Mich. 1 , 10; 550 NW2d 190 (1996). In addition, an agency may not avoid the requirements for promulgating rules by issuing its directives under different labels. See id. at 9. In this case, we conclude that the MPSC’s exercise of authority under § 6w was an exercise of permissive statutory power, and thus not subject to the rulemaking requirements of the APA. See MCL 24.207(j). Section 6w requires the MPSC to establish the format for electric provider resource adequacy filings, and authorizes it to determine local clearing requirements and planning reserve margin requirements for electric providers. Section 6w also calls for contested cases under the circumstances set forth in subsections (1) and (2), and calls for the agency to determine a capacity charge under subsection (3). Subsection (8)(c) requires the MPSC to seek “technical assistance” from MISO “in determining the local clearing requirement and planning reserve margin requirement” for purposes of determining capacity obligations, and subsection (8)(d) requires the PSC to seek such assistance in “assessing resources to ensure that any resources will meet federal reliability requirements.” The Legislature’s specification of procedural methodology—contested case proceedings in Subsections (1), (2), and (3), and seeking technical assistance from MISO under Subsection (8)—indicates that, where the Legislature did not specify how to proceed, it expected the MPSC to do so within its own discretion. In addition, what the MPSC refers to as the “compressed timeline that Section 6w presents” suggests that the Legislature did not expect the MPSC to promulgate APA rules in implementing the new legislation.2 See Mich Trucking Ass’n v Pub Serv Comm, 225 Mich. App. 424 , 430; 571 NW2d 734 (1997) (treating the impossibility of promulgating rules within the envisioned timeframe as indicating that the Legislature did not intend to require APA rulemaking). We therefore conclude that § 7(j) of the APA exempts the MPSC from 2 The Office of Regulatory Reinvention’s Rules Tracking Time Frame Report, p 9, provides that the process for promulgating rules by entities within the Department of Licensing & Regulatory Affairs averages 572 days. Because it would be impossible for the MPSC to promulgate rules to determine annual capacity obligations with a rulemaking process that takes more than one year to accomplish, logic dictates that the Legislature did not intend the agency to use that procedure. -6- implementing § 6w of Act 341 by resort to the rule-making procedures of the APA. This conclusion is further supported by the fact that § 6w does not specifically require the MPSC to promulgate rules before undertaking the tasks assigned to it under that section. See Mich Trucking Ass’n, 225 Mich. App. at 430 . C. NONDELEGATION DOCTRINE ABATE contends that the MPSC’s exercise of authority under § 6w of Act 341 runs afoul of Michigan’s nondelegation doctrine, which prohibits the Legislature from delegating policy- making authority to the Executive without meaningful standards or guiding principles. We disagree. Michigan’s Constitution provides that “[t]he legislative power of the State of Michigan is vested in a senate and a house of representatives.” Const 1963, art 4, § 1. Our state Constitution further declares that no person “exercising the powers of one branch” of state government “shall exercise powers properly belonging to another except as expressly provided in this constitution.” Const 1963, art 3, § 2. “These constitutional provisions have led to the constitutional discipline that is described as the nondelegation doctrine.” Taylor v Gate Pharmaceuticals, 468 Mich. 1 , 8; 658 NW2d 127 (2003). “One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority.” In re Certified Questions, ___ Mich at ___; slip op at 12, quoting Cooley, Constitutional Limitations (1886), pp 116-117. As noted, we review de novo whether the Nondelegation Clause of the Michigan Constitution has been violated. See In re Certified Questions, ___ Mich at ___; slip op at 4. “Statutes are presumed to be constitutional, and we have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.” Id. (quotation marks and citations omitted). Although the Legislature may not delegate its legislative power to the executive branch, the Legislature may delegate a task to an executive branch agency if the Legislature provides “sufficient standards.” Taylor, 468 Mich. at 10 n 9. If sufficient standards accompany the delegation it is transformed into a proper exercise of executive power. See Blue Cross & Blue Shield v Governor, 422 Mich. 1 , 51-55; 367 NW2d 1 (1985). In other words, the Legislature’s delegation of authority to an administrative agency is proper only when the controlling statute provides the agency with standards sufficient to turn the agency’s decision from a legislative decision into an executive decision. Taylor, 468 Mich. at 10 n 9. In determining whether a statute contains sufficient standards, “we must be mindful of the fact that such standards must be sufficiently broad to permit efficient administration in order to properly carry out the policy of the Legislature but not so broad as to leave the people unprotected from uncontrolled, arbitrary power in the hands of administrative officials.” In re Certified Questions, ___ Mich at ___; slip op at 13, quoting Dep’t of Natural Resources v Seaman, 396 Mich. 299 , 308-309; 240 NW2d 206 (1976). In evaluating legislative standards in the context of the nondelegation doctrine, our Supreme Court has explained that “(1) the act must be read as a whole; 2) the act carries a presumption of constitutionality; and 3) the standards must be as reasonably precise as the subject matter requires or permits.” Blue Cross & Blue Shield, 422 Mich. at 51 . “The preciseness of the -7- standards will vary in proportion to the degree to which the subject regulated requires constantly changing regulation.” Associated Builders & Contractors v Dep’t of Consumer & Industry Servs Dir (On Remand), 267 Mich. App. 386 , 391; 705 NW2d 509 (2005). The focus is “whether the degree of generality contained in the authorization for exercise of executive or judicial powers in a particular field is so unacceptably high as to amount to a delegation of legislative powers.” In re Certified Question, ___ Mich at ___; slip op at 13, quoting Mistretta v United States, 488 Mich. 361 , 419; 109 S. Ct. 647 ; 102 L. Ed. 2d 714 (1989) (SCALIA, dissenting). Thus, the question is whether the Legislature “supplied an intelligible principle to guide the delegee’s use of discretion. . . . [T]he answer requires construing the challenged statute to figure out what task it delegates and what instructions it provides.” In re Certified Question, ___ Mich at ___; slip op at 13, quoting Gundy v United States, 588 US ___, ___; 139 S. Ct. 2116 , 2123; 204 L. Ed. 2d 522 (2019) (opinion by KAGAN, J.). In this case, ABATE contends that the Legislature’s directive to the MPSC in § 6w of Act 341 is not accompanied by sufficiently precise standards, and thus runs afoul of the nondelegation doctrine. Specifically, ABATE argues that the Legislature in § 6w directs the MPSC to adopt a “state reliability mechanism” defined by the act as a “plan . . . to ensure reliability of the electric grid in this state. . . .” MCL 460.6w(12)(h). ABATE further argues that the Legislature requires all electric providers in Michigan to “demonstrate to the commission, in a format determined by the commission, that . . . [each electric provider has] sufficient capacity to meet its capacity obligations as set by the [MISO], or commission, as applicable.” MCL 460.6w(8)(a). ABATE argues that because the statute does not define “capacity” or “capacity obligation,” and also does not direct how to establish the capacity demonstration process, the Legislature provided insufficient standards. We disagree that the statute provides insufficient standards. On the contrary, § 6w defines the scope and nature of the MPSC’s review and sets standards directing the authority of the MPSC in some detail. For example, § 6w(12)(h) defines “state reliability mechanism” and § 6w(8) outlines numerous responsibilities of the MPSC if a state reliability mechanism is required under § 6w(2). Section 6w(8)(c) provides direction to the MPSC to determine capacity obligations by requesting technical assistance from the appropriate independent system operator in determining the local clearing requirement and the planning reserve margin requirement, terms defined by the statute, and otherwise to set those requirements consistent with federal reliability requirements. MCL 460.6w(8)(c). -8-  As noted, in determining whether a statute contains sufficient standards we are mindful that although the standards cannot be so broad as to permit uncontrolled, arbitrary power in the hands of administrative officials, they must be sufficiently broad to permit efficient administration to properly carry out the policy of the Legislature. In re Certified Questions, ___ Mich at ___; slip op at 13. Given that the preciseness of the standards by necessity varies with whether the subject being regulated requires constantly changing regulation, Associated Builders (On Remand), 267 Mich. App. at 391 , and given that the Legislature is presumed not to delegate the authority to act unreasonably, In re Certified Questions, ___ Mich at ___; slip op at 16, we conclude that the standards provided were not so general as to amount to a delegation of legislative powers. See id. at ___; slip op at 13. Affirmed. /s/ Patrick M. Meter /s/ Michael F. Gadola /s/ Jonathan Tukel -9-

2020-11-20 19:24:17.281108+00

WILLIAM H., JR. and CLARA R. EDMISTER, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Edmister v. Commissioner Docket No. 9516-75. United States Tax Court T.C. Memo 1977-208; 1977 Tax Ct. Memo LEXIS 234; 36 T.C.M. (CCH) 874; T.C.M. (RIA) 770208; July 6, 1977, Filed Robert M. Tyle, for the petitioners. Louis J. Zeller, Jr., for the respondent. SCOTT MEMORANDUM FINDINGS OF FACT AND OPINION SCOTT, Judge: Respondent determined a deficiency in petitioners' income tax for the calendar year 1973 in the amount of $63.54. One of the issues raised by the pleadings has been disposed of by the parties, leaving for our decision only whether petitioners are entitled to a deduction for state and local sales taxes in addition to the amount allowed by respondent. FINDINGS OF FACT Some of the facts have been stipulated and are found accordingly. Petitioners, husband and wife, who resided in Painted Post, New York at the time they filed their petition in this case filed their joint Federal income tax return for the calendar year 1973 with the North Atlantic Service*235 Center, Andover, Massachusetts. Petitioners had acquired a house in Painted Post in 1963 and were living in that house on June 23, 1972, when a flood occurred in the area of Painted Post in which petitioners' home was located. The flood moved petitioners' house approximately 18 feet off its foundation. Water covered all of the first floor of the two-story house and there was about a half-inch of water on the second floor. Some of the walls were washed in and a number of windows were broken. Some of the furniture in petitioners' home was destroyed and other furniture was damaged. Also, most of petitioners' clothing and that of their children was damaged or destroyed. After the flood, the family moved into a trailer and commenced repair work on the house. The house was not sufficiently repaired for them to move back into until August 1973, at which time they did move back into the house. Petitioners, on their 1972 Federal income tax return, claimed a casualty loss with respect to the damage by the flood to their house and personal property of $33,000 and no portion of the casualty loss has been disallowed. During 1973 petitioners purchased some building material for repair*236 work on their house. On their Federal income tax return for the year 1973, petitioners itemized their deductions and in their deductions for taxes claimed a deduction for state and local general sales tax of $446.75, based on sales tax tables published by the Internal Revenue Service. In addition, they claimed a deduction for taxes of $247.06 which they described as sales tax on major purchases. Petitioners kept receipts of items which they considered to relate to replacement of items they lost in the flood or repairs to their home from damage done by the flood. Included in the items for which petitioners kept receipts were watches, shrubs, fertilizer and seeds, a projector and screen, carpet, carpet shampoo and machine rental, department store and discount store receipts which do not indicate the items purchased, purchases from a ski center, purchase of a refrigerator and a record player, and purchases such as clothing, bed spreads, toaster, mattresses, towels, and a coat. The sales tax shown on purchases on the sales receipts retained by petitioners totaled $270.27. Respondent, in his notice of deficiency, disallowed the $247.06 claimed by petitioners as sales tax on major*237 items with the following explanation: Since your sales tax deduction was determined from the state sales tax table, you cannot deduct additional amounts claimed for sales tax paid on specific items. OPINION Section 164, I.R.C. 1954, 1 provides for the deduction of various taxes, including state and local general sales tax. Respondent publishes and includes in the instructions for preparation of tax returns "Optional State Sales Tax Tables." These tables carry an explanation that taxpayers who itemize deductions can use these tables to determine the general sales tax deduction taken on their return. The further explanation is made that if a taxpayer's records show that he paid more than the amount shown in the tables he can deduct the larger amount. In addition, the tables explain that tax paid on the purchase of an automobile may be deducted in addition to the amount shown in the tables and also, in addition to the amount shown in the tax tables, taxes paid on boats, airplanes, mobile homes and, if the taxpayer is his own contractor, materials to build a new home may be deducted. *238 Petitioners' argument is generally to the effect that it is illogical for respondent to permit deductions in addition to the deductions computed in the sales tax tables on the major items on which additional deductions for sales tax are permitted, but not to permit this deduction for the unusual expense a person encounters when a flood destroys most of his property. Petitioners recognize that the receipts which they had are all for individual small purchases and that the total tax shown on these receipts is less than they deducted in computing the sales tax deductions from the optional tax tables. Their primary argument is that even though the additional tax which they seek to deduct is composed of numerous small purchases, the total of such small purchases is a major purchase since all of these purchases, in their opinion, were necessitated because of their property being destroyed by a flood. Petitioners make no contention that the total sales tax they actually paid in 1973 exceeded the $446.75 which they claimed as a deduction based on the optional tax tables and which respondent has allowed. They apparently do not view the sales tax deductions as in any way being related*239 to the actual amount of sales tax they paid, but rather take the position that they are entitled as a matter of right to the deduction of sales tax computed from the optional tax tables and then, in addition, are entitled to the amount shown on purchases which in their opinion were necessitated because of items lost in the preceding year in the flood. Clearly, the deduction allowed by section 164 for general sales tax is, as the statute says, for taxes "paid" within the taxable year. Petitioners have totally failed to show that they paid more than $446.75 of sales taxes in 1973. In fact, the only amount of actual payment of sales taxes that has been shown is the $270.27 shown on the various receipts they introduced into evidence. The fact that respondent, as a matter of administrative convenience, permits deductions in accordance with the tax tables and in addition permits deductions with respect to tax on certain specific items, does not relieve a taxpayer who has not made a purchase of such a specific item from showing that the amount of the deduction he is allowed by the tax tables is less than the sales tax he actually paid if he is to be entitled to a deduction in excess of*240 the amount shown in the tax tables. A taxpayer is entitled only to those deductions specifically allowed by statute and other deductions cannot be allowed to a taxpayer on general equitable principles. New Colonial Ice Co. v. Commissioner,292 U.S. 435">292 U.S. 435 (1934); Deputy v. duPont,308 U.S. 488">308 U.S. 488 (1940). Since petitioners have failed to show that they actually paid sales taxes in 1973 in excess of the $446.75 which they claimed on the basis of the optional tax tables and which respondent did not disallow, we hold that petitioners are not entitled to deduct sales taxes in excess of this $446.75. Because of a concession by respondent with respect to another issue raised in the case, Decision will be entered under Rule 155. Footnotes

2020-12-04 10:07:15.723324+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20201203_C348957_46_348957.OPN.PDF

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED December 3, 2020 Plaintiff-Appellee, V No. 348957 Genesee Circuit Court ROBERT BERNARD COLLINS, LC No. 18-042889-FC Defendant-Appellant. Before: REDFORD, P.J., and RIORDAN and TUKEL, JJ. PER CURIAM. Defendant appeals by right his convictions by a jury of unlawful imprisonment, MCL 750.349b, assault with intent to do great bodily harm less than murder, MCL 750.84, attempted assault with intent to do great bodily harm less than murder, MCL 750.92(2), felonious assault, MCL 750.82, domestic violence, MCL 750.81(2), and two counts of first-degree criminal sexual conduct (CSC-I) while armed with a weapon, MCL 750.520b(1)(e). The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 25 to 40 years each for the CSC-I, unlawful imprisonment, and assault with intent to do great bodily harm less than murder convictions, 140 to 240 months for the attempted assault conviction, 100 to 180 months for the felonious assault conviction, and 93 days for the domestic violence convictions. We affirm. I. FACTS The complaining witness testified at defendant’s preliminary examination that, after some marital quarreling, defendant struck her in the face, threatened and cut her with a box cutter, choked her, then wrapped an extension cord around her neck, and issued death threats. When the complainant attempted to flee but fell down, defendant forced her back into the bedroom and sexually assaulted her. Hours later, after defendant fell asleep, the complainant left home and reported to a hospital emergency room. In jailhouse phone calls between defendant and the complainant, recordings of which were played for the jury, defendant variously attempted to cajole the complainant into agreeing that they had consensual sex, attempted to persuade her not to trust the prosecution, and pressured her not -1- to testify at his trial. Despite the prosecution’s efforts to have the complainant come from Illinois and testify at trial, just before trial she refused to do so. II. USE OF PRELIMINARY EXAMINATION TESTIMONY Defendant first argues that the trial court erred by declaring the complaining witness unavailable for trial and allowing the prosecution to introduce her testimony from the preliminary examination into the record. We disagree. We review a trial court’s evidentiary decisions for an abuse of discretion. People v Martzke, 251 Mich. App. 282 , 286; 651 NW2d 490 (2002). “The decision whether to admit evidence lies within the trial court’s sound discretion and will not be disturbed absent an abuse of that discretionary authority.” Id. (citation omitted). This includes a court’s determination whether a witness is unavailable for purposes of relying on that witness’s earlier testimony. People v Bean, 457 Mich. 677 , 684; 580 NW2d 390 (1998). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. People v Kahley, 277 Mich. App. 182 , 184; 744 NW2d 194 (2007). “ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). “Hearsay is not admissible” except as provided by the rules of evidence. MRE 802. The United States and Michigan Constitutions both guarantee criminal defendants the right to confront adverse witnesses. US Const, Am VI; Const 1963, art 1, § 20. Respect for this right is one of the bases for the general rule against admitting hearsay into evidence. See People v Tanner, 222 Mich. App. 626 , 632; 564 NW2d 197 (1997). One of the exceptions to the general prohibition against hearsay provides that when a declarant is unavailable to testify at trial, that declarant’s testimony given as a witness at an earlier hearing is admissible if the party against whom it is offered had an opportunity, and similar incentive, to examine or cross-examine that witness on that occasion. MRE 804(b)(1).1 Another hearsay exception applies to “[a] statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” MRE 804(b)(6). A. DUE DILIGENCE For purposes of MRE 804, “availability” includes situations in which the witness “is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance . . . by process or other reasonable means, and in a criminal case, due diligence is shown.” MRE 804(a)(5). The test for due diligence is whether the proponent of the testimony made a “diligent good-faith effort” to produce the witness for trial. Bean, 457 Mich. at 684 . “The test is one of reasonableness and depends on the facts and circumstances of each case, i.e., whether 1 See also MCL 768.26 (“[t]estimony taken at an examination, preliminary hearing, or at a former trial of the case . . . may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial”). -2- diligent good-faith efforts were made to procure the testimony, not whether more stringent efforts would have produced it.” Id. In this case, the trial court held a hearing to decide the issue of due diligence. The prosecution introduced evidence that the complainant acknowledged receipt of a subpoena to appear at trial. Testimony of witnesses indicated that the complainant had relocated to Illinois, and that the prosecution and police had remained in touch with her as trial approached, including by way of arranging for hotel accommodations for her, but just before trial she declared her unwillingness to participate. Testimony further indicated that the police and prosecution responded with efforts to locate her, both in Michigan and Illinois, including with help from the police in Illinois to check on the complainant’s well-being. The police officer in charge of the case testified that the complainant telephoned him the evening before, and “stated that she was upset that the police came out there,” appeared “nervous, very upset, and stated she was staying with a sister, wouldn’t tell you who, and that she would not be coming.” The officer added that the complainant indicated that she had been unable to sleep and was otherwise traumatized since being informed of the trial date, but that the officer nonetheless had tried to call her again that morning, and also contacted a local hospital and jail to see if the complainant was at either institution, but to no avail. The trial court concluded that unavailability had been established under MRE 804(a)(5) for purposes of admitting the complainant’s preliminary examination testimony under MRE 804(b)(1) and (6). The record supports the trial court’s decision to recognize the complainant as unavailable for trial. Therefore, the trial court did not abuse its discretion. Michigan law does not require the prosecution to seek to compel the complainant’s presence by involving the state of Illinois for assistance. Defendant acknowledges that our Supreme Court, in People v Serra, 301 Mich. 124 ; 3 NW2d 35 (1942), held that the prosecution is not obliged to apply to the courts of another state for process to compel production of a witness. Defendant, however, argues that the prosecution had the option to use the procedures set forth in the uniform act to secure the attendance of witnesses from other states in criminal proceedings, MCL 767.91 et seq. Although defense counsel initially requested a material witness warrant, over the prosecuting attorney’s protestation that “[t]here would have to be a rendition proceeding and things of that nature,” and the trial court in fact expressed a willingness to consider issuing one, the record does not indicate that the defense persisted with attempts to obtain compulsory service of process after the complainant’s preliminary examination testimony was read into the record, and thus does not indicate that the trial court actually made a decision adverse to the defense in the matter. For these reasons, we conclude that defendant has failed to show that the trial court erred by ruling that the complainant was unavailable under MRE 804(a)(5). B. OPPORTUNITY AND INCENTIVE TO CROSS-EXAMINE Defendant acknowledges that the preliminary examination was a “hearing of the same or a different proceeding” for purposes of MRE 804(b)(1), but argues that defense counsel at the preliminary examination did not fully share in the opportunities or incentives to cross-examine the complainant that would have been present had the complainant appeared at trial. We disagree. -3-  Defendant points out that preliminary examinations and criminal trials involve different evidentiary standards, and cites authority for the proposition that an earlier hearing does not satisfy MRE 804(b)(1) if the two proceedings concerned substantially different issues. Defendant further asserts that defense counsel at a preliminary examination is more interested in furthering discovery than in challenging the reliability of prosecution witnesses. Defendant, however, has not identified any specific aspects of the cross-examination of the complainant at the preliminary examination in this case that indicate that defense counsel less than vigorously cross-examined the complainant to impeach her credibility. Defendant further asserts that defense counsel at the preliminary examination did not have the benefit of cross-examining the complainant “with regard to new information and strategies developed between the exam and trial.” Such argument might indeed be compelling if significant new information or strategic opportunities came to light between the two proceedings. The defense, however, expressed no such concern and defendant on appeal likewise does not identify any such new information or opportunity to support his contention. Further, defendant offers no argument on appeal to rebut the trial court’s conclusion that the challenged preliminary examination testimony was also admissible under MRE 804(b)(6) because defendant, by way of his phone calls to the complainant from jail, had attempted to procure that witness’s unavailability. Defendant complains generally that use of the preliminary examination testimony denied him his constitutional right to confront adverse witnesses, but MRE 804(b)(1) specifically conditions use of earlier testimony on the adverse party’s having had proper opportunities and incentives to cross-examine when that testimony was given, and MRE 804(b)(6) implicitly recognizes that a defendant whose wrongdoing prevented a witness from appearing thereby forfeits the right to confront that witness. Therefore, defendant has brought no constitutional infirmity to light. Defendant has failed to show that the trial court abused its discretion by declaring the complainant unavailable for trial, or by allowing use of her testimony from the preliminary examination. III. OTHER BAD ACTS Defendant next argues that the trial court abused its discretion by admitting evidence that defendant committed a violent act of criminal sexual conduct in 1990. We disagree. We review a trial court’s evidentiary decisions for an abuse of discretion. Martzke, 251 Mich. App. at 286 . This includes a trial court’s decision whether to admit evidence of prior bad acts. Kahley, 277 Mich. App. at 184 . MRE 404(b)(1) provides that evidence of other bad acts is not admissible to prove a person’s character to show behavior consistent with other wrongs, but such uncharged conduct may be admissible for other purposes, “such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material . . . .” In this case, the prosecution filed a notice of intent2 to present evidence under MRE 404(b) that defendant committed an earlier sexual assault and defense 2 See MRE 404(b)(2). -4- counsel filed objections. The trial court heard arguments on the issue in a pretrial hearing, then on the first day of trial ruled that the evidence would be admitted. The following day, the prosecution stated that it had provided defense counsel with a death certificate for the earlier complainant, ST, and asked the court to declare her unavailable and to allow use of that witness’s preliminary examination testimony. The transcript of ST’s preliminary examination testimony was ultimately admitted by stipulation of the parties. In that earlier proceeding, ST testified that defendant, whom she knew only as someone who lived across the street who had once asked to borrow her lawnmower, appeared on her porch at 4:00 a.m. one morning, told her to “shut up” when she asked through a closed window what he was doing, then broke her window. ST ran to her kitchen and called the police, but defendant came to a side door near the kitchen, and “started breaking the glass out of that,” then reached through that opening to begin unlocking the door, upon which she hung up her phone and ran upstairs and grabbed her rifle. ST testified that the police called back, and from her upstairs bedroom phone, while continuing to hear the sounds of breaking glass, she reported that a man was breaking in. When things seemed to have quieted down, ST entered her hallway, where she saw defendant “more or less crawlin’ up the stairs.” ST testified that she attempted to raise her rifle, but defendant pulled it away and threw it on the floor, then pushed her into her bedroom and started forcibly disrobing her. Over her protestations, defendant forced her onto the bed, twice struck her in the face, pulled his pants down, forced her to perform fellatio on him, then forced her to endure sexual intercourse. The police then arrived and apprehended defendant. Defendant argues that this testimony described events too dissimilar to what the instant complainant alleged to be of probative value and that it was extremely prejudicial to him. Although the trial court was presented with a difficult decision, we cannot conclude that the trial court abused its discretion by admitting the evidence. Evidence of prior bad acts under MRE 404(b) is admissible if it is offered for a proper purpose, if it is relevant, and if its probative value is not substantially outweighed by unfair prejudice. People v Crawford, 458 Mich. 376 , 385; 582 NW2d 785 (1998). A proper purpose is one other than establishing the defendant’s character to show his propensity to commit the offense. People v VanderVliet, 444 Mich. 52 , 74; 508 NW2d 114 (1993), amended 445 Mich. 1205 (1994). In People v Mardlin, 487 Mich. 609 , 615-616; 790 NW2d 607 (2010) (citations omitted), our Supreme Court explained: To admit evidence under MRE 404(b), the prosecutor must first establish that the evidence is logically relevant to a material fact in the case, as required by MRE 401 and MRE 402, and is not simply evidence of the defendant’s character or relevant to his propensity to act in conformance with his character. The prosecution thus bears an initial burden to show that the proffered evidence is relevant to a proper purpose under the nonexclusive list in MRE 404(b)(1) or is otherwise probative of a fact other than the defendant’s character or criminal propensity. Evidence relevant to a noncharacter purpose is admissible under MRE 404(b) even if it also reflects on a defendant’s character. Evidence is inadmissible under this rule only if it is relevant solely to the defendant’s character or criminal propensity. Stated another way, the rule is not exclusionary, but is inclusionary, because it provides a nonexhaustive list of reasons to properly admit evidence that -5-  may nonetheless also give rise to an inference about the defendant’s character. Any undue prejudice that arises because the evidence also unavoidably reflects the defendant’s character is then considered under the MRE 403 balancing test, which permits the court to exclude relevant evidence if its “probative value is substantially outweighed by the danger of unfair prejudice . . . .” MRE 403. Finally, upon request, the trial court may provide a limiting instruction to the jury under MRE 105 to specify that the jury may consider the evidence only for proper, noncharacter purposes. In this case, the trial court provided a lengthy explanation for its decision to admit the evidence, and in the process expressed serious discomfort with how admitting such evidence for a proper purpose might nonetheless suggest propensity. The trial court analyzed the evidence, considered defendant’s claim that the sex had been consensual, the material issues of defendant’s motive, intent, state of mind, and conduct during the commission of the offenses, the victim’s state of mind, and defendant’s phone calls to the victim, and compared this case with the evidence of the prior bad act. The trial court noted that factual differences existed between the two incidents but found that evidence of the prior bad act had relevance to the issues of motive and intent. The trial court then considered whether the probative value of such evidence would be substantially outweighed by unfair prejudice. It concluded that it would not. On appeal, defendant argues that ST’s account of what defendant did to her was dissimilar in almost every respect to the allegations underlying the instant case. The record reflects that the trial court acknowledged the differences between the two cases but also recognized as a key commonality that both complainants alleged that defendant persisted with sexual aggression despite their protestations and inflicted violent blows to the victims’ heads. Although defense counsel did not expressly invoke the defense of consent, she did acknowledge that sexual relations were part of the marital relationship, and, as the trial court noted, the jailhouse telephone calls presented the theory of consent. Defendant protests that “[a]ny motivation or intent regarding a violent sexual assault of a stranger bears no relationship to anything at issue in this case,” but does not follow that assertion with any explanation why differing degrees of familiarity with the victims militates against recognizing the similarities in an assailant’s conduct during the commission of the same or similar bad acts. Defendant further argues that, according to the instant complainant, by the time the sexual relations took place, defendant’s “rage was winding down and she believed that he felt sorry for her.” The record, however, reflects that the complainant in this case also testified that she did not resist defendant’s sexual advances and assaults out of continuing fear induced by defendant’s severe aggression and threats. Although the evidence established that the offenses in this case occurred in relation to a domestic quarrel between husband and wife, such facts do not negate the similarities or preclude admission of the evidence to establish motive, intent, or system of doing an act. The trial court indicated that the balancing of the probative value of the challenged evidence against its potential for unfair prejudice presented a close question. We agree, and thus bear in mind that a court’s decision on a close evidentiary question ordinarily cannot constitute an abuse of discretion. People v Sabin (After Remand), 463 Mich. 43 , 67; 614 NW2d 888 (2000); People v Bahoda, 448 Mich. 261 , 289; 531 NW2d 659 (1995). -6-  Defendant also argues that reliance on ST’s testimony violated his constitutional right to confront adverse witnesses, see US Const, Am VI; Const 1963, art 1, § 20, on the ground that “[i]t is unknown whether the attorney representing [defendant] during the preliminary exam ‘had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.’ ” Defendant, however, has not developed this argument further, except by referring to his similar argument in connection with admission of the complainant’s preliminary examination testimony which lacks merit. For the same reasons set forth previously we find no merit to defendant’s argument in this regard. Further, defendant failed to preserve appellate objections. The record, in fact, indicates that the parties stipulated to the admission of the transcript of ST’s testimony. Defense counsel’s agreement on the record to that action taken below constitutes an affirmative waiver of objections extinguishing his claim of error on appeal. See People v Carter, 462 Mich. 206 , 214-216; 612 NW2d 144 (2000) (affirmative waiver extinguishes appellate objections); People v Barclay, 208 Mich. App. 670 , 673; 528 NW2d 842 (1995) (a criminal defendant may not assign error on appeal to something the defendant’s lawyer deemed proper at trial). For these reasons, we reject defendant’s challenges to the use of ST’s testimony regarding the 1990 incident. IV. STATEMENTS RELATING TO MEDICAL DIAGNOSIS OR TREATMENT At trial, defense counsel expressly declined to object to admission of an exhibit containing medical records from the complainant’s emergency room visit and also did not object when a physician’s assistant read for the jury the notes she contributed to that exhibit that described what the complainant told her. Similarly, defense counsel expressly declined to object to admission of an exhibit consisting of the report resulting from the complainant’s sexual assault examination, and also did not object when the nurse and head of a sexual assault response team who performed that examination and prepared the report read for the jury statements therein attributed to the complainant. Both recitations substantially confirmed what the complainant had stated in her preliminary examination testimony with minor variations. On appeal, defendant asserts that the testimony from those medical practitioners did not constitute admissible hearsay under the exception set forth in MRE 803(4) for “[s]tatements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, of past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment.” Defendant also argues that defense counsel provided ineffective assistance for failing to object in this regard. Defendant relies on Merrow v Bofferding, 458 Mich. 617 , 630; 581 NW2d 696 (1998), where the Supreme Court generally reaffirmed the validity of the hearsay exception for medical records, but held that “the statement in the medical record” that the plaintiff “had a fight with his girlfriend” before suffering the injury for which he sought treatment “was not reasonably necessary for diagnosis and treatment and, thus, falls outside the rationale underlying the exception.” Similarly, this Court in People v DePlanche, 183 Mich. App. 685 , 690; 455 NW2d 395 (1990), held that “the identity of an assailant cannot be characterized as the ‘general cause’ of an injury, and such testimony was not of the sort contemplated by the drafters of MRE 803(4).” Accordingly, had defense counsel wished to narrow the scope of the two medical witnesses’ testimony to avoid -7- naming defendant as the assailant, or describing the nature or causes of domestic tensions other than actual violence suffered, counsel may have had some success.3 But because the challenged evidence came from medical records, and the two witnesses each suggested that a broad scope of background information had use for medical purposes, the trial court did not commit plain error for not having sua sponte enforced a narrower application of the operative hearsay exception.4 Further, defense counsel apparently chose to approach the defense in a way that comported with the now challenged testimony. A defendant pressing a claim of ineffective assistance of counsel must overcome a strong presumption that counsel’s tactics were matters of sound trial strategy. People v Henry, 239 Mich. App. 140 , 146; 607 NW2d 767 (1999). “This Court does not second-guess counsel on matters of trial strategy, nor does it assess counsel’s competence with the benefit of hindsight.” People v Russell, 297 Mich. App. 707 , 716; 825 NW2d 623 (2012). “That in hindsight a strategy was not completely successful does not render it unreasonable and does not render counsel’s assistance ineffective.” People v Trakhtenberg, 493 Mich. 38 , 63; 826 NW2d 136 (2012). No issue of mistaken identity existed here, and defense counsel conceded in closing argument that domestic violence took place. Defense counsel stated: “Obviously something happened. He admitted to putting his hands on her. Find him guilty of domestic violence. He said so and I’m not going to make an excuse for that because it’s wrong. Everything else there’s a reasonable doubt about.” It is not ineffective assistance of counsel to concede lesser crimes in hopes that the display of candor will help avoid a guilty verdict on greater ones, People v Wise, 134 Mich. App. 82 , 98; 351 NW2d 255 (1984), provided that the defendant has not expressly instructed defense counsel to not concede guilt as to any count. See McCoy v Louisiana, ___ US ___, ___; 138 S. Ct. 1500 , 1507-1512; 200 L. Ed. 2d 821 (2018). There is nothing in the record that defendant expressly instructed his counsel to not proceed as he did. Further, defense counsel did not expressly assert the defense of consent, but rather emphasized reasons to doubt the complainant’s credibility. That the complainant provided nearly identical accounts of the key events in question at the preliminary examination and to the two 3 We note that because the challenged testimony consisted of reading from medical documents that were themselves admitted into evidence, any such endeavor would logically have included moving for redaction of those documents in kind. Defendant’s appellate objections, however, do not include making issue of the admission of those documentary exhibits. 4 Where a hearsay declarant’s statement is testimonial in character, and that declarant does not appear at trial or is otherwise not available to testify, and where the defense has had no opportunity to cross-examine that declarant, those testimonial statements are not admissible even if they fall under an established exception to the general hearsay prohibition. Crawford v Washington, 541 U.S. 36 , 53-54, 68; 124 S. Ct. 1354 ; 158 L. Ed. 2d 177 (2004). In this case, the prosecution argues that the complainant’s statements to the medical providers were not testimonial in nature, but defendant on appeal does not assert that those statements were testimonial. Because defendant raised no objection regarding testimonial hearsay concerning these two witnesses below, and has not raised any such issue on appeal, defendant has waived the issue and we need not consider it. -8- witnesses who testified at trial did not undercut that defense posture, but in fact comported with the defense theory that the complainant had manufactured her allegations or otherwise consistently mischaracterized what took place. To the extent that the various accounts did not align perfectly, defense counsel took advantage of the opportunity to highlight those irregularities during cross- examination. Further, pursuing that strategy involved little risk, because, as defendant points out, the challenged testimony from the two medical witnesses was substantially cumulative to the complainant’s own testimony, the earlier presentation of which minimized the potential for unfair prejudice resulting from the recitation of her similar accounts as told to two others. See People v McRunels, 237 Mich. App. 168 , 185; 603 NW2d 95 (1999) (competent testimony that is duplicative of improperly admitted testimony can militate against the conclusion that a party was harmed by the error). Accordingly, we reject defendant’s challenges to the testimony of the two medical witnesses. V. INSTRUCTION ON FLIGHT Defendant argues that the trial court erred by providing the jury with an instruction on a criminal suspect’s fleeing or hiding.5 We disagree. To the extent that instructional issues involve questions of law, appellate review is de novo, but we review for an abuse of discretion a trial court’s determination whether an instruction is applicable to the facts of the case. People v Gillis, 474 Mich. 105 , 113; 712 NW2d 419 (2006). Instructions should cover all material issues and theories that have evidentiary support. People v Daniel, 207 Mich. App. 47 , 53; 523 NW2d 830 (1994). “Conversely, an instruction that is without evidentiary support should not be given.” People v Wess, 235 Mich. App. 241 , 243; 597 NW2d 215 (1999). In this case, the trial court’s instructions to the jury after the close of proofs included the following: There has been some evidence that the defendant ran away after the alleged crime. This evidence does not prove guilt. A person may run or hide for innocent reasons, such as panic, mistake, or fear. However, a person may also run or hide because of a consciousness of guilt. You must decide whether the evidence is true, and, if true, whether it shows that the defendant had a guilty state of mind. In overruling defense counsel’s objections to providing the instruction, the trial court noted that the standard instruction referred to “some,” not necessarily abundant or otherwise compelling evidence of flight, and spoke of the efforts the police undertook to find defendant, which “included going to his house and also another address, and trying to find him, and . . . he made himself scarce for three days.” Testimony from the police officer in charge of the case supported the trial court’s conclusion. The officer stated that, within hours of the assault, the complainant gave permission and provided her keys for the police to enter the home she shared with defendant, where she had left him, and that she also suggested an alternative location for him. When the police promptly reported to the residence, however, defendant was not present. Nor did officers dispatched to the 5 See M Crim JI 4.4(2). -9- alternative location find him there. The officer in charge stated that he asked dispatch to “ping” defendant’s cell phone in hopes of determining its location, but that “they believed it was turned off.” After failing to locate defendant during the first day of the investigation, the officer in charge turned the search over to “people who actually can sit on houses or investigate further through that and that’s all they have to do.” When an e-mail from the complainant later provided additional information, defendant was apprehended by what the officer called the “Fugitive Task Force.” The latter team was sent to the residence and watched it from noon until 3:00 p.m., during which time officers knocked on the door without answer. Then defendant, after not answering their knocking on the door, finally left the residence from the back door. Defendant argues that neither leaving his home nor returning to it constitutes flight for present purposes. However, the challenged instruction recognizes not only fleeing, but also hiding, as possibly indicating a guilty mind, which permitted the jury to consider that possibility on the basis of only “some evidence.” We hold that the evidence that the police could not find defendant at all on the first day, including by responding promptly to a location where he had been left sleeping, and attempting to use cell phone signals, and that the fugitive apprehension team could not find him over the two days that followed until an e-mail tip led the police back to the home where they found him only as he attempted to leave through the back door after three hours of observation during which he declined to respond to knocking at the door, provided a sufficient evidentiary basis that justified the trial court’s giving the challenged instruction. Further, the trial court guarded against any possibility that the jury would attach too much significance to the evidence that defendant seemed to be avoiding the police after the subject incident by beginning its instruction with the admonishment that such evidence itself “does not prove guilt.” Therefore, the trial court did not err in this regard. VI. CUMULATIVE ERROR Defendant suggests that if no single claim of error itself warrants reversal, such relief is nonetheless required in the face of the cumulative effect of all such errors. See People v Cooper, 236 Mich. App. 643 , 659-660; 601 NW2d 409 (1999). Because defendant has failed to bring any error to light, this argument is unavailing. Affirmed. /s/ James Robert Redford /s/ Michael J. Riordan /s/ Jonathan Tukel -10-

2020-12-04 10:07:16.44929+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20201203_C347537_46_347537C.OPN.PDF

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED December 3, 2020 Plaintiff-Appellee, v No. 347537 St. Clair Circuit Court NATHAN WAYNE SHAW, LC No. 18-001730-FH Defendant-Appellant. Before: RONAYNE KRAUSE, P.J., and SAWYER and BOONSTRA, JJ. RONAYNE KRAUSE, P.J. (concurring) I concur with the majority’s reasoning and conclusion that the prosecutor’s use of alleged statements from defendant’s wife, Mercedes Shaw, to the police did not affect the outcome of the proceedings. I write separately to provide additional reasons for that conclusion; and because I respectfully disagree with the majority that the prosecutor’s violation of defendant’s right to confrontation should be left unaddressed, even if that violation does not, under the specific circumstances of this case, warrant reversal. I. IMPEACHMENT OR SUBSTANTIVE EVIDENCE I agree with, and will not repeat, the majority’s analysis concluding that Mercedes Shaw’s statements to the police were testimonial. Thus, they were inadmissible under the Confrontation Clause unless Mercedes was unavailable to testify and defendant had a prior opportunity to cross- examine her. People v Walker, 273 Mich. App. 56 , 60-61; 728 NW2d 902 (2006); Crawford v Washington, 541 U.S. 36 , 52-55; 124 S. Ct. 1354 ; 158 L. Ed. 2d 177 (2004). Additionally, under Michigan’s spousal privilege statute, MCL 600.2162(2), Mercedes Shaw would have had to waive her spousal privilege in order to testify against defendant,1 and there is no evidence in the record that she made any such waiver. See People v Szabo, 303 Mich. App. 737 , 741-742; 846 NW2d 412 (2014). The record indicates that Mercedes Shaw was in the courtroom and thus the prosecutor 1 Subject to exceptions not present here, such as where one spouse is a victim of some manner of wrong committed by the other spouse. See MCL 600.2162(3). -1- could have at least attempted to call her as a witness, subject to her right to exercise her spousal privilege. In any event, the record also establishes that defendant was unaware that she had given a statement. As the majority observes, the Confrontation Clause does not preclude the admission of otherwise-testimonial statements for the purposes of impeachment or to attack credibility. Or, more specifically, “the Confrontation Clause applies only to statements used as substantive evidence.” People v Fackelman, 489 Mich. 515 , 528; 802 NW2d 552 (2011). “Substantive evidence” means evidence used to prove or disprove the truth of a fact. See Perry v F Byrd, Inc, 280 Mich. 580 , 582; 274 N.W. 335 (1937). Thus, an inconsistent statement might be admissible to impeach a witness, but not to prove the truth of the prior statement—and admission would be improper even where there was a meaningful risk that the jury would be unable to distinguish between substantive evidence and impeachment evidence. See People v Jenkins, 450 Mich. 249 , 259-263; 537 NW2d 828 (1995). II. PROSECUTOR QUESTIONING The prosecutor asked witness Jonathan Smith if he was aware that Mercedes Shaw had “said she was driving around with [Smith] because she was mad at [defendant] for drinking and wanting to drive the car.” The prosecutor further asked Smith whether she had been angry at defendant for drinking and driving the truck, and attempted to elicit a confirmation “that Mercedes told the police she saw [defendant] leave driving the truck northbound on State [Street].” Although there was nothing improper about confirming that Mercedes rode with Smith that evening, the prosecutor’s questions were unambiguously an attempt to introduce into evidence a statement from Mercedes to prove the substantive facts that defendant had keys to the truck and was actually driving the truck while drunk. This is improper. No possible impeachment purposes present themselves: Smith had not previously testified one way or the other about Mercedes Shaw riding with him, and he testified that he did not see defendant operating the truck while drunk. The prosecutor did not, for example, attempt to impeach Smith with a contradictory statement Smith had made to the police. On direct examination, defendant and Breger both testified that defendant’s truck could not be locked because the lock was broken, so keys were unnecessary to get into the vehicle. Defendant denied knowing where the keys were. On cross examination, the following exchange occurred: Q. Who’s Mercedes Smith [sic] to you? A. My wife. Q. Is she here today? A. Yes. Q. Do you know that she gave a statement to police? A. I don’t know. -2-  Q. You don’t know? A. No. Q. You were made aware – we watched the footage and the officer told you that your wife had made a statement to police saying she saw you driving. A. Well my wife told me she did not make a statement. Q. Okay. So, not only are the people who were hit by the car and the – those people are lying. The people who saw you they’re, they’re lying, now the officers are lying about who they talked to? A. I don’t understand. Q. It just seems like – would you agree that a lot of people are lying in this situation to get you in trouble? A. No. Q. Well, okay. So, you’re telling me that Mercedes told you she didn’t make a statement? A. Correct. Q. And if Deputy Carrie Duva of the St. Clair County Sheriff’s Department indicates that your wife did give a statement saying that she did see you driving and she was mad at you because you were drinking and insisted on driving the car you would say that’s, you’re saying that’s a lie? A. I don’t know if she gave a statement or not. It’s – I’m just going by what I was told. * * * Q. So where did you park initially? A. I couldn’t, I couldn’t tell. I’m not from that area. Q. Was it in Algonac? A. Yes. Q. And that’s in St. Clair County, correct? A. I believe so, yes. -3-  Q. All right. So now you’re saying the car was originally parked in a different spot and then it was moved to the position that you’ve heard testimony where it was parked on Robbins Street, correct? A. Correct. Q. But you don’t know how it got there? A. I don’t remember, no. Q. You don’t remember. A. I don’t remember how the car – who moved – I don’t know who moved it from the original park to the Robbins Street. Q. Okay. Could have been you, but you don’t remember? A. No, it couldn’t have been me. I didn’t have the keys. Q. Mere, if Mercedes told Deputy Carrie Duva that she threw the keys at you when she was mad at you because you were insisting on driving would that be a lie? A. I don’t remember her throwing the keys at me, no. Q. You don’t remember her throwing the keys at you. Is that what you’re saying? A. Correct. Q. So she could have thrown the keys at you and you don’t remember? A. I don’t know. Q. You either don’t know or you don’t remember? A. I don’t remember if she threw the keys at me. * * * Q. Okay. So, somehow without your knowledge the car was moved from that original parking space to Robbins Street? A. Correct. Q. And so you, but you don’t remember getting into an argument with Mercedes? -4-  A. We – it – to me and her it’s, it wasn’t an argument. It’s – that’s just me and my wife we talk about things and we move on. Some people call that an argument. I call it just talking. Q. So you do remember a conversation? A. Yes. Q. Was she mad? A. She could have been, yes. Q. Okay. So while you may not see it as argument you would acknowledge that she was mad at you? A. I can’t, I can’t read her mind. No, I don’t know. Q. You’ve been married to her since 2011; isn’t that correct? A. Right, right. Q. You can’t read her mind, but you certainly know when your wife is angry at you? A. Well like I said, I was intoxicated as well. And I didn’t want nothing to do with her. Q. Which way is it? Was she mad? You don’t remember. Or you were – or what because you keep going for these different, you know, versions. You saw her, was she mad at you? A. I honestly can’t tell you. I don’t know. It’s just being my wife. We have our different type of relationship than most. And I don’t – I just – I’m confused why that’s a problem when we’re not here for me and her. It’s something, something totally different. Q. If Mercedes told Deputy Carrie Duva that you two got in an argument because she was mad at you because you were drunk and you were insisting on driving-- A. I don’t believe that to be true. Q. Why, because you two don’t argue? A. Because I don’t believe she thought I was going to drive. I don’t think she would have thought I was going to drive. Why would I drive, I was drinking. -5-  III. CONFRONTATION CLAUSE VIOLATION Significantly undermining the prosecution’s argument that it was merely trying to impeach defendant, it is noteworthy that the prosecutor asked defendant multiple times whether other witnesses were lying. Doing so is blatantly improper. See People v Dobek, 274 Mich. App. 58 , 70- 71; 732 NW2d 546 (2007). I agree with the majority that such an inquiry might not be technically impermissible as to Mercedes Shaw or Deputy Carrie Duva, simply because they did not actually testify as witnesses. However, given the obviously testimonial nature of the statements at issue, even as to them, such a line of inquiry at least skirts the bounds of impropriety. In addition, it is clear that the prosecutor was affirmatively trying to introduce evidence to directly prove that defendant possessed the keys to the truck and had been directly observed by his wife driving the truck while drunk. If the prosecutor had simply asked defendant whether his wife threw the keys at him at some point that evening, such a question might have been proper impeachment. As posed, however, the prosecutor’s questions were, again, clearly an effort to introduce Mercedes Shaw’s testimony into substantive evidence. I conclude that plain error occurred and defendant’s confrontation rights were flagrantly violated. IV. OBJECTIVE VIDEO EVIDENCE Notwithstanding the above analysis, I agree with the majority that defendant is not entitled to reversal because he cannot show that the error affected the outcome of the proceedings. See People v Carines, 460 Mich. 750 , 763; 597 NW2d 130 (1999). Under the circumstances, I cannot conclude that the prosecutor’s improper questioning likely swayed the jury in any way. I do not disagree with the majority’s observations about what the evidence showed. However, I rely primarily on comparing defendant’s version of events to what is objectively depicted in the dashboard camera footage from Deputy Dennis Tuzinowski’s police vehicle, which was played for the jury. Deputy Tuzinowski was the officer who initiated contact with defendant. Ordinarily, only the trier of fact may resolve conflicts in evidence. Nichol v Billot, 406 Mich. 284 , 301-302; 279 NW2d 761 (1979). However, the courts may remove such a conflict from the jury’s consideration if it is based on testimony that is physically or effectively impossible. See People v Lemmon, 456 Mich. 625 , 643-646; 576 NW2d 129 (1998). Objective and clear record evidence, such as a video recording, in the absence of allegations of tampering, that “blatantly” contradicts a party’s differing version of events may discredit that version of events so utterly that no reasonable jury could believe it, thereby precluding a court from finding a genuine question of material fact. See Scott v Harris, 550 U.S. 372 , 378-381; 127 S. Ct. 1769 ; 167 L. Ed. 2d 686 (2007). I would not go so far as to say that the dash-camera footage from Deputy Tuzinowski’s police vehicle renders defendant’s version of events absolutely impossible, but it does render defendant’s version of events extremely implausible. On the video, defendant’s truck appears at approximately 23:07:51, driving in the opposite direction from the police vehicle, with its headlights turned off, and driving partially on the curb. The truck disappears from the camera’s view at 23:07:55, and the police vehicle almost immediately begins to make a three-point turn to follow the truck. The truck becomes visible again at 23:08:04, by which time it has turned right at a nearby intersection and apparently parked. -6- Although the driver’s side was facing away from the police vehicle’s perspective, the truck’s brake lights are unambiguously turned on at that point, and they can be seen to turn off. The police vehicle takes a few seconds to reach the intersection, whereupon it turns behind the truck. Although the truck is not visible at that point, the camera’s perspective sweeps most of the street, and no one is visible other than a few individuals who appear to be calmly walking away from the fireworks in the distance. Defendant himself becomes visible at 23:08:12, at which time he is already out of the truck, standing in the street, and smoking a cigarette. Defendant then turns and approaches the police vehicle with his hands up, whereupon he was ordered back by Deputy Tuzinowski. According to defendant’s version of events, he was asleep in the back of the truck and woke up to “screaming and yelling.” According to defendant and his friend, Justin Breger, it was Breger who was driving the truck at that time. Defendant remained lying down in the back seat when the truck came to an “abrupt” stop, whereupon defendant hit his head on the back of the front seat. Breger said he was “getting out of here,” and when defendant sat up, Breger was already out of the vehicle and running away up the street. Breger testified that when he drove past Deputy Tuzinowski’s police vehicle, Breger could tell that the officer was “interested” in the truck, so he immediately pulled off to the side of the road, saw the police vehicle in the process of turning around, and fled. Defendant testified that he immediately got out, but he was still disoriented, so he then stood there and lit a cigarette. He explained that the truck had two rows of seats, and egress from the back seats through rear “suicide doors” required the front doors to be open first. Importantly, the fact that the rest of the truck’s lights were off to begin with, and that the video therefore clearly records the truck’s brake lights in the process of turning off, raises a mandatory inference: whoever was driving the truck must have still been in the driver’s seat at 23:08:04. Thus, there was a span of—at the most—eight seconds for: (1) Breger to exit the vehicle and run away far enough to no longer be within view; (2) defendant to sit up in the backseat and see Breger running away; (3) defendant to extricate himself from the back seat of the truck; and (4) defendant to light a cigarette. Although that might just barely be possible, the available time seems highly improbable. Critically, during its deliberations, the jury asked to review the video footage, and the testimonies of Shaw, Breger, and defendant. The video footage and Breger’s testimonies were replayed for the jury, but the jury opted to rely on its memories regarding Shaw’s and defendant’s testimonies upon being told that, unlike what was depicted on television, transcripts were not automatically generated. Thus, not only does the video recording make defendant’s version of events highly implausible, but it was also of great interest to the jury. Under the circumstances, I simply cannot conclude that the prosecutor’s blatantly improper references to Mercedes Shaw’s alleged statements had any likely effect on the outcome of the proceedings. The jury was obviously interested in the video, and as noted, objective video evidence is one of the very few exceptions to the courts’ deference to the jury’s role in weighing credibility and resolving factual disputes. I do not believe the video needs to render defendant’s version of events impossible; nevertheless, it renders defendant’s version of events objectively implausible to a degree that precludes interference with the jury’s findings. -7-  V. CONCLUSION Because I share the majority’s ultimate conclusion that the improper questioning was harmless, I concur with the majority that defendant is not entitled to reversal on the basis of the confrontation clause violation, and he cannot satisfy the prejudice prerequisite for ineffective assistance of counsel. I concur in affirming. /s/ Amy Ronayne Krause -8-

2020-12-04 10:07:17.165538+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20201203_C347537_45_347537.OPN.PDF

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED December 3, 2020 Plaintiff-Appellee, v No. 347537 St. Clair Circuit Court NATHAN WAYNE SHAW, LC No. 18-001730-FH Defendant-Appellant. Before: RONAYNE KRAUSE, P.J., and SAWYER and BOONSTRA, JJ. PER CURIAM. Defendant appeals as of right his jury trial convictions of operating a vehicle while intoxicated, third offense, MCL 257.625(1)(a), reckless driving, MCL 257.626, and operating a vehicle with a suspended, revoked, or denied license, second offense, MCL 257.904. Defendant was sentenced, as a second-offense habitual offender, MCL 769.10, to 2 to 7½ years for operating a motor vehicle while intoxicated, third offense, five days, time served, for reckless driving, and five days, time served, for operating a vehicle with a suspended, revoked, or denied license, second offense. Defendant argues on appeal that he is entitled to a new trial because his right to confrontation was violated when the prosecutor questioned him and Jonathan Smith about the statements made to the police by defendant’s wife, Mercedes Shaw. Defendant argues, in the alternative, that he was denied the effective assistance of counsel because his trial counsel failed to object to the prosecutor’s questions about Shaw’s statements to the police. We affirm. I. FACTUAL BACKGROUND On July 2, 2017, defendant and his family attended the Pickerel Festival in Algonac, Michigan. Defendant testified that throughout the day, he drank eight or nine 16-ounce beers and snorted cocaine. Before the fireworks show started, defendant laid down in his black truck because he drank too much and wanted to “sleep it off.” Defendant’s truck was parked at the corner of Robbins Street and State Street in Algonac. Corey Engel, Scott Pearson, and Jeannie Hilton were attending a barbeque at Engel’s house located on State Street. After the fireworks ended, Engle, Pearson, and Hilton, heard a truck “brake torqueing” and squealing tires. Engel, Pearson, and Hilton ran to the front of Engel’s house and saw a bearded -1- man in a black truck parked at the corner of Robbins Street and State Street brake torqueing, revving his engine, and spinning his back tires. Engel and Pearson approached the driver’s side window of the truck and Engel asked the driver what he was doing. The driver did not respond. Engel and Pearson put their arms into the truck to take the keys out of the ignition and the driver drove off with Engel and Pearson hanging off the side of the truck. Engel and Pearson let go of the truck after being dragged for two blocks. St. Clair County Sheriff’s Deputy Dennis Tuzinowski pulled the truck over and defendant exited from the driver’s door. Deputy Tuzinowski arrested defendant and defendant admitted that he did not have a valid driver’s license, had a blood alcohol level of .078, and tested positive for cocaine and benzoylecgonine. II. RIGHT TO CONFRONTATION Defendant argues that his constitutional right to confrontation was violated when the prosecutor questioned defendant and Smith about Shaw’s statements to the police. We disagree. To preserve a claim that a defendant’s right to confrontation was violated, the defendant must object to the admission of the testimony in the trial court. People v Chambers, 277 Mich App 1, 10; 742 NW2d 610 (2007). Defendant failed to object to the admission of the testimony regarding Shaw’s statements to the police at trial. Therefore, the issue is unpreserved. Id. This Court reviews unpreserved issues for plain error affecting substantial rights. People v Carines, 460 Mich. 750 , 763-764; 597 NW2d 130 (1999). To avoid forfeiture, the defendant must demonstrate that “1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” Id. at 763. “The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id. Even if all three requirements are met, reversal is only warranted when the plain error resulted in an innocent defendant’s conviction, or it “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” People v Moorer, 262 Mich. App. 64 , 66-67; 683 NW2d 736 (2004). A criminal defendant’s right to confront the witnesses against him or her is guaranteed by both the United States Constitution and the Michigan Constitution. US Const, Am IV; Const 1963, art 1, § 20; People v Garland, 286 Mich. App. 1 , 10; 777 NW2d 732 (2009). “To preserve this right, testimonial hearsay is inadmissible against a criminal defendant unless the declarant is unavailable at trial and the defendant had a prior opportunity to cross-examine the declarant.” Garland, 286 Mich. App. at 10 , citing Crawford v Washington, 541 U.S. 36 , 68; 124 S. Ct. 1354 ; 158 L. Ed. 2d 177 (2004). “However, if the hearsay is nontestimonial, the Confrontation Clause does not restrict state law from determining admissibility.” Id. “Hearsay” is defined as “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c); See People v Musser, 494 Mich. 337 , 350; 835 NW2d 319 (2013). “Statements are testimonial if the ‘primary purpose’ of the statements or the questioning that elicits them ‘is to establish or prove past events potentially relevant to later criminal prosecution.’ ” Garland, 286 Mich. App. at 10 , quoting Davis v Washington, 547 U.S. 813 , 822; 126 S. Ct. 2266 ; 165 L. Ed. 2d 224 (2006). Statements to the police are nontestimonial “ ‘when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.’ ” People v Walker, -2-  273 Mich. App. 56 , 61; 728 NW2d 902 (2006), quoting Davis, 547 U.S. at 822 . Statements to the police are testimonial when “ ‘the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.’ ” Id., quoting Davis, 547 U.S. at 822 . Defendant challenges the prosecutor’s line of questioning about the statements which Shaw made to the police when defendant was arrested. The prosecutor first questioned Smith about Shaw’s statements, as follows: Q. . . . So later that night were you aware that [Shaw] gave a statement to the police? A. Um, not that I recall. A statement to the police at all. I mean, I know that the cops talked to both of us. * * * Q. Are you aware that [Shaw] said she was driving around with you because she was mad at [defendant] for drinking and wanting to drive the car? A. She was with me, yes. Q. Okay. So she was driving around with you when you said you were kind of driving around – A. The block. Q. -- the block. A. Yep. Q. She was with you? A. We was trying to leave, yeah. Q. And it’s true she was mad at [defendant]? A. Yes. Q. Because he was drinking? A. Um, yes. Q. And because he insisted on driving the truck, correct? A. Yeah, they were fighting, yeah. Q. She’d actually thrown the keys at him, correct? -3-  A. Um, I don’t know, I wasn’t [watching] them fight. I just kind of learned to block them two out. Q. It’s true that she wasn’t driving the truck. The truck got driven so she didn’t have the keys, correct? A. Um, she wasn’t driving, no. Q. Are you aware that [Shaw] told the police she saw [defendant] leave driving the truck northbound on State [Street]? A. No, I’m not aware of that. Q. She was in the car with you when she saw that, correct? A. I didn’t see him leave at all. I’m not aware if she seen him leave. I don’t see how that’s even possible because we left before that car had left. I, we were gone. Q. Gone where? A. Around the block. Maybe it was more like three or four blocks, but we were gone before that car or truck or moved. Before the truck moved we were gone. So maybe she’s over thinking, you know, just like sometimes women do. I’m not meaning like that, but you, when you, you’re mad, you know what I mean, you’re fighting, you’re upset, you’re angry. She was over thinking maybe I don’t know, but that – the truck did not move before we left. Q. But it moved after? A. Apparently, yes. The prosecutor next questioned defendant on cross-examination about Shaw’s statements, as follows: Q. Do you know that [Shaw] gave a statement to police? A. I don’t know. Q: You don’t know? A. No. Q. You were made aware—we watched the footage and the officer told you that your wife had made a statement to [the] police saying she saw you driving. A. Well my wife told me she did not make a statement. * * * -4-  Q. And if Deputy Carrie Duva[1] of the St. Clair County Sherriff’s Department indicates that your wife did give a statement saying that she did see you driving and she was mad at you because you were drinking and insisted on driving the car you would say that’s, you’re saying that’s a lie? A. I don’t know if she gave a statement or not. It’s – I’m just going by what I was told. * * * Q. Mere, [sic] if [Shaw] told Deputy Carrie Duva that she threw the keys at you when she was mad at you because you were insisting on driving would that be a lie? A. I don’t remember her throwing the keys at me, no. The record demonstrates that Shaw spoke to the police after defendant’s truck was stopped and defendant was arrested. The record is void of any continuing danger. Thus, Shaw was not speaking to the police to meet an ongoing emergency. Rather, Shaw’s statements recounted the events which led to defendant’s arrest. Thus, the primary purpose of Shaw’s statements to the police was to establish or prove the events that led to defendant’s arrest. Therefore, Shaw’s statements were testimonial under the standard set forth in Davis. The Confrontation Clause bars the admission of testimonial statements of a witness who did not appear at trial, unless the witness was unavailable to testify and the defendant had a prior opportunity to cross examine the witness. Walker, 273 Mich. App. at 60-61 . Shaw did not appear at trial, defendant did not have a prior opportunity to cross-examine her, and there was no evidence presented that Shaw was unavailable to testify. The prosecution did not assert that Shaw invoked spousal immunity or that her statements were admissible under any hearsay exception. On appeal, the prosecution argues that the questions regarding Shaw’s statements to the police did not violate defendant’s right to confrontation because the statements were not offered as substantive evidence, but rather, to attack defendant’s credibility. The Confrontation Clause only applies to testimonial statements used as substantive evidence in a criminal prosecution. People v Nunley, 491 Mich. 686 , 697-698; 821 NW2d 642 (2012) (quotation marks and citations omitted). The use of testimonial statements for the purpose of impeachment or to otherwise attack the credibility of a witness does not violate the Confrontation Clause. People v Fackelman, 489 Mich. 515 , 528; 802 NW2d 552 (2011); See also Tennessee v Street, 471 U.S. 409 , 413-414; 105 S Ct 2078; 85 L. Ed. 2d 425 (1985) (holding that evidence admitted for impeachment purposes does not violate the Confrontation Clause). Thus, the Confrontation Clause does not “bar the use of out-of-court testimonial statements for purposes other than establishing the truth of the matter asserted.” People v Putman, 309 Mich. App. 240 , 246; 870 NW2d 593 (2015). 1 Deputy Carrie Duva did not testify during the lower court proceeding. -5-  We need not decide, however, whether the prosecutor properly used Shaw’s statements to the police to impeach the credibility of defendant and Smith, rather than as substantive evidence, because defendant has failed to demonstrate that the alleged error affected his substantial rights. Defendant argues that the error affected the outcome of the proceeding because it undermined his defense that he was not driving the truck and made him look like a liar. We disagree. While defendant denied that he was driving when his truck was pulled over, the evidence demonstrated that he was the driver of the truck. Hilton, Engel, Pearson, Deputy Tuzinowski, and St. Clair County Sheriff’s Deputy Susan Westrick each testified that there was only one person in the truck. Deputy Tuzinowski and Deputy Westrick both testified that defendant exited the truck from the driver’s seat when he was pulled over. Additionally, defendant informed St. Clair County Sheriff’s Deputy Stoyan that he “had to get out of there” because “four or five guys” started “beating him up.” When defendant was arrested, he had a blood alcohol level of .078, and tested positive for cocaine and benzoylecgonine. At trial, defendant admitted that he was intoxicated prior to his arrest and that, throughout the day, he snorted cocaine and consumed eight to nine, 16- ounce beers. Defendant, Smith, and Justin Breger each testified that defendant was sleeping in his truck prior to being arrested because he “had too much to drink.” Furthermore, defendant admitted that he drove to the festival with a suspended license. Deputy Stoyan confirmed that defendant did not have a valid license in a database run by the Secretary of State. Additionally, the jury was instructed that the attorney’s questions and arguments are not substantive evidence. Therefore, defendant is not entitled to a new trial because the testimony regarding Shaw’s statements to the police did not affect the outcome of the proceeding and did not result in the conviction of an actually innocent defendant. III. INEFFECTIVE ASSISTANCE OF COUNSEL Defendant argues, in the alternative, that he is entitled to a new trial because his trial counsel was ineffective for failing to object to the prosecutor’s questions about Shaw’s statements to the police. We disagree. To preserve a claim of ineffective assistance of counsel for appellate review, a defendant must move in the trial court for a new trial or for a Ginther hearing. People v Lopez, 305 Mich App 686, 693; 854 NW2d 205 (2014); see People v Ginther, 390 Mich. 436 ; 212 NW2d 922 (1973). Failure to move for a new trial or for a Ginther hearing limits this Court’s review to mistakes that are apparent in the appellate record. People v Foster, 319 Mich. App. 365 , 390; 901 NW2d 127 (2017) (citations omitted). “If the record does not contain sufficient detail to support defendant’s ineffective assistance claim, then he has effectively waived the issue.” Id. Defendant did not move in the trial court for a new trial or a Ginther hearing. Therefore, review is limited to the existing record. Foster, 319 Mich. App. at 390 . Whether a defendant has been denied the effective assistance of counsel is a mixed question of law and fact. People v Miller, 326 Mich. App. 719 , 726; 929 NW2d 821 (2019). This Court reviews questions of law de novo and a trial court’s findings of fact for clear error. Id. “Clear error exists when the reviewing court is left with the definite and firm conviction that a mistake has been made.” People v Thompson, 314 Mich. App. 703 , 720; 887 NW2d 650 (2016). -6-  The effective assistance of counsel is presumed, and a defendant bears the burden to overcome the strong presumption that the assistance of his counsel was sound trial strategy. People v Rosa, 322 Mich. App. 726 , 741; 913 NW2d 392 (2018); see also People v Jackson, 313 Mich. App. 409 , 431; 884 NW2d 297 (2015) (citation omitted). To establish the ineffective assistance of counsel, a defendant must establish that “ ‘(1) the performance of his counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that, in the absence of counsel’s unprofessional errors, the outcome of the proceedings would have been different.’ ” Rosa, 322 Mich. App. at 74 , quoting People v Sabin (On Second Remand), 242 Mich. App. 656 , 659; 620 NW2d 19 (2000). However, counsel is not ineffective for failing to raise a meritless or futile objection. People v Ericksen, 288 Mich. App. 192 , 205; 793 NW2d 120 (2010). While defendant’s trial counsel failed to object to the prosecutor’s questions about Shaw’s statements to the police, counsel’s performance was not below an objective standard of reasonableness. The decision not to object to the prosecutor’s questioning regarding Shaw’s statements was likely a strategic decision to avoid drawing undue attention to the testimony. Alternatively, defendant’s trial counsel may have opted not to object to the statements because neither Smith nor defendant provided any detailed answer to the prosecutor’s questions or indicated that they had any significant knowledge of Shaw’s statements. “The fact that defense counsel’s strategy may not have worked does not constitute ineffective assistance of counsel.” People v Stewart (On Remand), 219 Mich. App. 38 , 42; 555 NW2d 715 (1996). Additionally, as previously discussed, there is not a reasonable probability that the outcome of the proceeding would have been different had defendant’s trial counsel objected to the line of questioning. Therefore, defendant failed to demonstrate that his trial counsel’s performance was objectively unreasonable or that he was prejudiced by his counsel’s failure to object to the prosecutor’s questioning regarding Shaw’s statements to the police. Affirmed. /s/ David H. Sawyer /s/ Mark T. Boonstra -7-

2020-12-04 10:07:17.895715+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20201203_C323741_166_323741O.OPN.PDF

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED December 3, 2020 Plaintiff-Appellee, v No. 323741 Wayne County Circuit Court JOHNNY RAY KENNEDY, LC No. 14-001748-FC Defendant-Appellant. ON REMAND Before: MURRAY, C.J., and STEPHENS and RIORDAN, JJ. PER CURIAM. On remand, our Supreme Court directed this Court to reconsider whether defendant’s claim of error concerning his request for a DNA expert constitutes error that is harmless beyond a reasonable doubt. People v Anderson (After Remand), 446 Mich. 392 , 405-406; 521 NW2d 538 (1994). We reverse and remand for a new trial consistent with this opinion. I. FACTUAL AND PROCEDURAL BACKGROUND On November 17, 1993, a dead body was discovered in the basement of an abandoned office building in Detroit. The body was identified as Tanya Harris, and the medical examiner determined that she died by strangulation. After an investigation, the police had no leads as to who murdered Harris. In 2011, while “working on cold cases,” the Detroit Police Department sent a vaginal and rectal swab taken from Harris to the Michigan State Police Crime Lab for DNA testing. After testing, it was determined that the swabs contained DNA from Harris “as well as an additional donor that was determined to be male.” When the male DNA was run through the -1- “CODIS System,”1 it produced a match with defendant. As a result, on December 12, 2013, defendant was charged with open murder for the death of Harris. He was convicted as charged. His conviction was affirmed, People v Kennedy, unpublished per curiam opinion of the Court of Appeals, issued July 26, 2016 (Docket No. 323741) (Kennedy I) (Judges MURRAY, P.J., and RIORDAN, with Judge STEPHENS dissenting). Defendant sought leave to appeal in our Supreme Court. After holding oral arguments on the application for leave to appeal, the Supreme Court issued an opinion on the application, overruling People v Jacobsen, 448 Mich. 639 ; 532 NW2d 838 (1995), and People v Tanner, 469 Mich. 437 ; 671 NW2d 728 (2003), “to the extent that they h[e]ld or suggest[ed]” that an indigent defendant’s request for the appointment of an expert at state expense is governed by MCL 775.15. People v Kennedy, 502 Mich. 206 , 225; 917 NW2d 355 (2018) (Kennedy II). Given that the majority in this Court had relied on the now overruled holding in Tanner, the Supreme Court vacated Kennedy I and remanded with instructions for this Court to reexamine defendant’s claim of error concerning his request for a DNA expert by applying the due process analysis set forth in Ake v Oklahoma, 470 U.S. 68 ; 105 S. Ct. 1087 ; 84 L. Ed. 2d 53 (1985), utilizing the “reasonable probability” standard announced in Moore v Kemp, 809 F2d 702 (CA 11, 1987). Kennedy II, 502 Mich. at 227-228 . After reexamining the matter according to the Supreme Court’s instructions, a majority of this panel held that although “defendant’s motion [wa]s sufficient to satisfy the Moore ‘reasonable probability’ standard,” defendant’s due-process argument had not been duly preserved in the trial court, and “defendant [wa]s not entitled to appellate relief under the plain-error test.” People v Kennedy (On Remand), unpublished per curiam opinion of the Court of Appeals, issued August 6, 2019 (Docket No. 323741) (Kennedy III). Judge STEPHENS dissented, opining both that the question of issue preservation was not properly before this Court on remand and that defendant’s due-process argument was duly preserved. Kennedy III, unpub op at 1-2 (STEPHENS, J., dissenting). Defendant again sought leave to appeal in our Supreme Court, which issued an opinion on the application (1) reversing the Kennedy III majority’s determination that the due-process issue was unpreserved, (2) vacating “the remainder” of that majority opinion, and (3) remanding with instructions for this Court to reconsider the issue “under the standard for preserved constitutional error” described in People v Anderson, 446 Mich. 392 , 405-406; 521 NW2d 538 (1994). People v Kennedy, ___ Mich ___, ___ (2020) (Kennedy IV) (Docket No. 160320); slip op at 1. After the Supreme Court remanded this matter to this Court in Kennedy IV, ___ Mich at ___; slip op at 1, this Court entered an order, sua sponte, directing the parties to file supplemental briefs “specifically addressing the following issue: whether defendant’s claim of error concerning his request for a DNA expert constitutes error that is harmless beyond a reasonable doubt.” People v Kennedy, unpublished order of the Court of Appeals, entered April 30, 2020 (Docket No. 323741). II. ANALYSIS 1 CODIS stands for Combined DNA Index System and is a database system where DNA profiled from crime scene evidence are kept. -2-  In its supplemental brief on remand, the prosecution concedes that the trial court erred by refusing to appoint Zubel as a defense expert at state expense, but argues that the state’s failure to pay for Zubel’s services was harmless beyond a reasonable doubt. The prosecution argues, because defendant’s trial counsel nevertheless hired Zubel at counsel’s own expense for “many hours” of consultation services; “there is zero evidence that even an unlimited consultation— something that an appointment would not have paid for—would have made any difference”; Zubel admitted that the prosecution’s DNA evidence was highly inculpatory, stating, “looks like they’ve got your guy”; “counsel spent a considerable amount of time studying books and other materials to attempt to undermine the People’s DNA evidence”; counsel “testified that he was able to use the knowledge he gained to challenge the state’s proofs”; and as this Court recognized in Kennedy III, unpub op at 5-6, counsel “acknowledged that neither he nor Zubel were able to identify any specific problems with the DNA testing that was performed in this case.” In response, defendant argues that the prosecution failed to carry its burden of demonstrating beyond a reasonable doubt that the trial court’s error regarding Zubel was harmless. This is so, defendant contends, because “DNA evidence was the lynchpin of the government’s case”; Zubel’s further assistance was “critical . . . to trial counsel’s efforts to challenge that evidence”; the trial prosecutor strongly emphasized the DNA evidence in the prosecution’s opening statement and closing arguments; there was evidence that “another man, Big Mike, was seen with the decedent shortly before her death and said he killed her shortly after her death”; although trial counsel “took the extraordinary step of personally retaining Mr. Zubel for some of the assistance . . . originally sought,” counsel “also testified that he was not able to afford to pay for all of the assistance that he required and did not feel confident in his ability to use what he learned . . . to effectively cross-examine the state’s experts”; as a result, counsel admittedly failed to understand the content of Zubel’s report, which left counsel “ill-equipped to understand and challenge the scientific evidence presented by the state at trial”; counsel was especially unable to challenge the prosecution’s Y-STR DNA evidence and to cross-examine the state’s experts concerning the “anomalies” cited in Zubel’s report; and Zubel’s written report is “compelling evidence” that the trial court’s error in failing to appoint him as a defense expert was not harmless. In Kennedy IV, ___ Mich at ___; slip op at 1, the Supreme Court specifically directed this Court to reconsider this issue “under the standard for preserved constitutional error.” Questions of constitutional law are reviewed de novo. Kennedy II, 502 Mich. at 213 . Applying the standard for preserved, nonstructural,2 constitutional error in this case, the prosecution—as the beneficiary of the error at issue—bears the burden of demonstrating that the error was “harmless beyond a reasonable doubt.” See People v Carines, 460 Mich. 750 , 774; 597 NW2d 130 (1999), citing 2 Notably, in defendant’s supplemental brief on remand, he does not contend that the Ake error at issue here is structural, i.e., error requiring automatic reversal. See Anderson (After Remand), 446 Mich. at 405 (discussing structural error). Hence, defendant has abandoned any such argument. See People v McGraw, 484 Mich. 120 , 131 n 36; 771 NW2d 655 (2009) (“Failure to brief an issue on appeal constitutes abandonment.”). -3- Anderson (After Remand), 446 Mich. at 405 -406 (“This requires the beneficiary of the error to prove, and the court to determine, beyond a reasonable doubt that there is no reasonable possibility that the evidence complained of might have contributed to the conviction.”) (quotation marks, footnote, and citation omitted). In more colloquial terms, the prosecution must prove that the preserved constitutional error “did not tip the scale in the prosecution’s favor and contribute to the jury’s verdict.” Anderson (After Remand), 446 Mich. at 407 . In analyzing that issue, a reviewing court should examine “the entire record,” the nature of the error, and its import in the context of the case as a whole. Id. at 406-407 (holding, under the instant standard of review, that the introduction of an inculpatory statement made by the defendant during an unconstitutional custodial interrogation was not harmless error, reasoning: “We reach this conclusion after examining the entire record and considering both the statement itself and its subsequent emphasis in closing argument.”) On remand, we must determine whether the prosecution has carried its burden of demonstrating that the trial court’s failure to appoint Zubel as a defense expert was “harmless beyond a reasonable doubt.” This Court opines that the prosecution failed to meet its burden. We reiterate our determination as set forth in Kennedy III that the Moore standard was met, as we wrote in Kennedy III, at 4-5: “ ‘[A] defendant [seeking appointment of an expert under Ake] must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.’ ” Kennedy II, 502 Mich. at 228 , quoting Moore, 809 F2d at 712. “ ‘Thus, if a defendant wants an expert to assist his attorney in confronting the prosecution’s proof—by preparing counsel to cross-examine the prosecution’s experts or by providing rebuttal testimony—he must inform the court of the nature of the prosecution’s case and how the requested expert would be useful.’ ” Id. at 225, quoting Moore, 809 F2d at 712. “ ‘At the very least, he must inform the trial court about the nature of the crime and the evidence linking him to the crime.’ ” Id., quoting Moore, 809 F2d at 712. “[T]he defendant’s showing must also include a specific description of the expert or experts desired” and “should inform the court why the particular expert is necessary.” Id., quoting Moore, 809 F2d at 712. In pertinent part, the motion to appoint Zubel stated: 1. That . . . the defendant is charged with murder in the first degree. 2. That the decedent victim is one Tanya Harris, whose body was found in an abandoned building in November 1993. 3. That the only evidence against the defendant, who is an inmate in the Michigan Department of Corrections, is a test of DNA material performed by one Amy Altesleben, a forensic scientist employed by the Michigan State Police. 4. That, a prosecution based largely or entirely upon the presentation of identification evidence based upon DNA poses an especially technical and complex -4-  range of issues for defense counsel, as the essence of the prosecutions’ case is the presentation of a report from a qualified technician or scientist. That report is conclusory and counsel who would render constitutionally effective assistance to his client and zealously confront the witnesses and evidence called in the prosecution’s case in chief, must be educated and schooled to no small extent in the science and accepted protocols of DNA extraction, preservation, testing, as well as dangers of contamination and the steps and measures taken to document a particular test, and to maintain the proper calibration of testing equipment, all just to some of the areas in which counsel must be prepared to cross-examine. 5. That counsel seeks an order of the court to appoint as an expert in what may be called “DNA litigation” one Brian Zubel of Fenton, Michigan. 6. Mr. Zubel is an attorney licensed to practice in Michigan, who has been a member of the American Academy of Forensic Sciences since 2008. He has presented DNA evidence as a prosecuting attorney in Oakland, Berrien, and Genesee counties and has litigated in similar fashion as an assistant attorney general of the state of Michigan in the case of People v Unger, 278 Mich. App. 210 (2008). 7. That Mr. Zubel’s Curriculum Vitae is attached . . . , as well as a scholarly article from the September 2013 issue of the Criminal Law Section newsletter. 8. That in Wayne County Circuit Court, Mr. Zubel has been recognized as an expert by the Honorable Annette Jurkewicz Berry and by the Honorable Vonda Evans. 9. That, without the active assistance of a learned expert, counsel will not be able to confront the witnesses and to shed light on any questionable issues that may have occurred during the lengthy storage and testing procedures. Notably, when counsel filed the above motion, he had yet to receive requested discovery materials from the prosecution concerning the DNA “collection/processing/analysis in this case,” which counsel had specifically requested at Zubel’s recommendation. We reaffirm our prior conclusion that defendant’s motion was sufficient to satisfy the Moore reasonable probability standard, particularly in light of the limited discovery concerning the DNA evidence that had been provided to defense counsel at the time the motion was filed. See Moore, 809 F2d at 712 n 10 (“The difficulty of the defendant’s task will vary depending on the scope of the jurisdiction’s discovery rules.”). Among other things, the motion informed the trial court of the nature of the prosecution’s case, the identity and background of the desired expert, how his appointment would be useful to the defense, and why counsel believed that it was necessary to ensure a fair trial. Moreover, given the highly technical, scientific nature of DNA evidence, that counsel indicated he would be unable to understand that evidence or to meaningfully cross-examine the prosecution’s experts concerning it without expert assistance, and that DNA evidence was the sole foundation of the charges against defendant, it seems that defendant demonstrated that there was “a reasonable probability both that an expert would be of assistance -5- to the defense and that denial of expert assistance would result in a fundamentally unfair trial.” See Kennedy II, 502 Mich. at 227 , quoting Moore, 809 F2d at 712. Where the claim of error is preserved and a constitutional error is found it is the prosecution’s burden to establish that the error was harmless beyond a reasonable doubt. Anderson (After Remand), 446 Mich. at 405 -406. In Mathews v Eldridge, the Supreme Court stated that: . . . due process generally requires consideration of three distinct factors: First, the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [ 424 U.S. 319 , 335; 96 S. Ct. 893 ; 47 L. Ed. 2d 18 (1976)]. The private interest at stake here is defendant’s liberty and his right to present a defense to the charge against him. These interests have been recognized as substantial. “The interest of the individual in the outcome of the State’s effort to overcome the presumption of innocence is obvious and weighs heavily[.]” Ake, 470 U.S. at 78 . This is a DNA case. This defendant could not safely proceed to trial without DNA expertise. Nearly two decades ago DNA evidence was collected from the victim, who was both strangled and sexually assaulted. It was only when that evidence was tested that defendant was charged with murder. The age and size of the DNA sample, its storage process and testing methodology were all likely issues of contention in this case. Trial counsel understood that this DNA evidence was the lynchpin of the prosecutions’ case and asked the court for the appointment of Zubel, an eminently qualified expert to assist him in preparing his client’s defense. Zubel was a former prosecutor who trained prosecutors on litigating forensic science issues in criminal cases. The trial court however, denied Zubel’s appointment. The court seemed to presume that despite the scientific nature of the evidence at issue, counsel could prepare for examination of the prosecutions’ witnesses and otherwise prepare an effective litigation strategy, including plea considerations, through reading and soliciting the advice of some mythical expert who would consult for free. To the contrary, this is a case like Ake where “[w]ithout a[n] [expert’s] assistance, the defendant cannot offer a well-informed expert’s opposing view, and thereby loses a significant opportunity to raise in the jurors’ minds questions about the State’s proof of an aggravating factor.” 470 U.S. at 84 .3 At trial, the prosecution presented two forensic experts. Through these experts, 3 There can be no doubt that many types of expert witnesses—including DNA experts—have played a pivotal role in criminal proceedings. It is undisputed in this case—and indeed seems beyond dispute—that DNA and other types of experts may sometimes “be crucial to the defendant’s ability to marshal his defense.” Id. at 80 (quotation marks and citation omitted). And, finally, we have yet to discern an exact science on this topic—indeed, the very notion is incompatible with our adversarial system of justice, in which “juries remain the primary factfinders -6- the jury learned about DNA, different types of DNA testing, the DNA testing results in this case, and the meaning of the test results as applied to defendant. We cannot conclude that the failure to appoint Zubel to assist counsel was harmless under the test set forth in Anderson. Accordingly, we REVERSE and REMAND for a new trial. We do not retain jurisdiction. /s/ Christopher M. Murray /s/ Cynthia Diane Stephens /s/ Michael J. Riordan . . . and they must resolve differences of opinion [among the experts] on the basis of the evidence offered by each party.” Id. at 81; see also Hinton v Alabama, 571 U.S. 263 , 276; 134 S. Ct. 1081 ; 188 L. Ed. 2d 1 (2014) (“Prosecution experts, of course, can sometimes make mistakes. Indeed, we have recognized the threat to fair criminal trials posed by the potential for incompetent or fraudulent prosecution forensics experts, noting that ‘[s]erious deficiencies have been found in the forensic evidence used in criminal trials.’ . . . This threat is minimized when the defense retains a competent expert to counter the testimony of the prosecution’s expert witnesses; it is maximized when the defense instead fails to understand the resources available to it by law.”), quoting Melendez-Diaz v Massachusetts, 557 U.S. 305 , 319; 129 S. Ct. 2527 ; 174 L. Ed. 2d 314 (2009). -7-

2020-12-04 10:07:18.570588+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20201203_C348317_58_348317.OPN.PDF

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED December 3, 2020 Plaintiff-Appellee, v No. 348317 Grand Traverse Circuit Court JOHN LESTER ANDERSON, LC No. 18-013060-FH Defendant-Appellant. Before: LETICA, P.J., and RIORDAN and, CAMERON JJ. PER CURIAM. Defendant appeals as of right his jury conviction of second-degree arson, MCL 750.73. Defendant was sentenced as a third-offense habitual offender, MCL 769.11, to serve 7 to 20 years’ imprisonment. We affirm. I. FACTS This appeal arises from an arson that occurred on Sunday, August 19, 2018. Defendant, who was identified as the perpetrator from security camera video recordings made at the time of the fire, was charged with second-degree arson and second-degree home invasion, MCL 750.110a(3). The home invasion charge was later dismissed and replaced with a charge of breaking and entering a building with the intent to commit arson, MCL 750.110. At the time of the fire, the home was undergoing interior renovations and was unoccupied. The construction project was close to completion with the homeowner and his family scheduled to move in on September 1. After listening to the witnesses’ testimony and reviewing the exhibits, the jury convicted defendant of second-degree arson, but acquitted him of breaking and entering a building with the intent to commit arson. -1-  II. DISCUSSION A. SUFFICIENCY OF THE EVIDENCE Defendant argues that insufficient evidence was presented to show that the home undergoing renovation was a dwelling. We disagree. This Court reviews de novo challenges to the sufficiency of evidence in a jury trial, viewing the evidence in the light most favorable to the prosecution. People v Gaines, 306 Mich. App. 289 , 296; 856 NW2d 222 (2014). To determine whether the prosecutor has presented sufficient evidence to sustain a conviction, this Court reviews “the evidence in the light most favorable to the prosecutor to determine whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” People v Smith-Anthony, 494 Mich. 669 , 676; 837 NW2d 415 (2013) (citation and quotation marks omitted). “The standard of review is deferential: a reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict.” People v Nowack, 462 Mich. 392 , 400; 614 NW2d 78 (2000). MCL 750.73(1) provides that “a person who willfully or maliciously burns, damages, or destroys by fire or explosive a dwelling, regardless of whether it is occupied, unoccupied, or vacant at the time of the fire or explosion, or its contents, is guilty of second-degree arson. On appeal, defendant does not challenge the evidence that he committed the arson; instead, he only contends that there was insufficient evidence that the home was a dwelling. The arson statute provides a specific definition of a dwelling. People v Brown, 249 Mich App 382, 385; 642 NW2d 382 (2002) (determining that courts must apply meaning of terms as expressly defined in a statute). A dwelling “includes, but is not limited to, any building, structure, vehicle, watercraft, or trailer adapted for human habitation that was actually lived in or reasonably could have been lived in at the time of the fire . . . .” MCL 750.71(d). Because it is undisputed that no one was living in the house at the time of the fire, the critical determination was whether someone “reasonably could have” lived in the house. Defendant first argues that the prosecution conceded that the structure destroyed in the fire was a building, not a dwelling, because the prosecution stipulated to dismiss the second count against him, a charge of second-degree home invasion, and replace it with a charge of breaking and entering a building with the intent to commit arson. Defendant recognizes that the prosecution took these actions after defendant moved to dismiss the home-invasion charge given that the home- invasion statute defines a dwelling as “a structure or shelter that is used permanently or temporarily as a place of abode, including an appurtenant structure attached to that structure or shelter.” MCL 750.110a(1)(a). But because the Legislature provided different statutory definitions for the term “dwelling” in the home-invasion and arson statutes, we reject defendant’s contention that the prosecution’s amendment of the second count against defendant was a concession that the home -2- was not a dwelling for purposes of the second-degree arson charge.1 Brown, 249 Mich. App. at 385 . Defendant next argues that there was insufficient evidence to support the jury’s verdict because the home undergoing renovation was not a dwelling. In particular, defendant points to the condition of the home, including the lack of personal items and furnishings therein, the lack of propane access, the lack of functional smoke and carbon-monoxide detectors, and the lack of a certificate of occupancy, which would make residing in the home illegal. Viewing the evidence in the light most favorable to the prosecution, we conclude that there was sufficient evidence to support the jury’s determination that the house was dwelling as it “reasonably could have been lived in at the time of the fire.” MCL 750.71(d). The jury was presented with five witnesses who testified regarding the state the house was in at the time of the fire as well as multiple photographs. This evidence addressed the issues of whether the property was occupied; whether it had been inspected; whether permits had been issued; detailed information about the state of all aspects of the construction project; and whether furniture and other personal effects had been moved in; and the presence or absence of any safety issues. At the time of the fire, the home was an unoccupied custom home, with a completed exterior. The home’s future occupants were scheduled to move in on September 1, after an earlier June 1 scheduled move-in date had passed. The home’s contractor described the home as being in a reasonably livable condition, testifying: “You could have been living in it.” In fact, the day after the fire, the contractor planned to call to schedule the final inspections, in anticipation that the home was ready to pass them. And, four days before the fire, the future occupants’ daughter asked to spend the night inside the home with her friend. Although her parents were agreeable, the contractor vetoed the plan, not because the home was unlivable, but because he was concerned that he would be blamed for and have to repair any damage that she and her friend might cause. After all of this evidence was presented, the trial court instructed the jury on the elements required to convict defendant of the second-degree arson charge, including the relevant definition of a dwelling. The trial court also instructed the jury on the possibility of finding defendant guilty on the lesser offense of third-degree arson, MCL 750.74, if the jury found that the house did not meet the statutory definition of a dwelling. The jury concluded that defendant was guilty of 1 The jury was given the option of third-degree arson, which requires a person to: (a) Willfully or maliciously burn[], damage[], or destroy by fire or explosive any building or structure, or its contents, regardless of whether it is occupied, unoccupied, or vacant at the time of the fire or explosion. (b) Willfully and maliciously burn[], damage[], or destroy[s] by fire or explosive any of the following or its contents: (i) Any personal property having a value of $20,000.00 or more. (ii) Any personal property having a value of $1,000.00 or more if the person has 1 or more prior convictions. [MCL 750.74(1).] The jury rejected this option and convicted defendant of second-degree arson. -3- second-degree arson. Viewing the evidence in the light most favorable to the prosecution, we conclude that the jury could have reasonably decided that the house was sufficiently complete to “reasonably” be lived in. B. GREAT WEIGHT OF THE EVIDENCE Even if the evidence was sufficient to support the jury’s verdict, defendant contends that it was against the great weight of the evidence. We disagree. To preserve a claim that a jury’s verdict was contrary to the great weight of the evidence, a defendant must raise the issue in a motion for a new trial in the trial court. People v Musser, 259 Mich. App. 215 , 218; 673 NW2d 800 (2003). In this case, defendant failed to raise the issue in a motion for a new trial. Therefore, this issue is unpreserved. Generally, “[a]n appellate court will review a properly preserved great-weight issue by deciding whether the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.” People v Cameron, 291 Mich. App. 599 , 616-617; 806 NW2d 371 (2011) (quotation marks and citation omitted). “However, when a party fails to preserve a great-weight issue for appeal, an appellate court will look for plain error affecting the defendant’s substantial rights.” Id. at 617 (quotation marks and citation omitted). “To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” People v Carines, 460 Mich. 750 , 763; 597 NW2d 130 (1999). “The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id. “Reversal is warranted only when the plain, forfeited error result[s] in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings independent of the defendant’s innocence.” Id. at 763-764 (citations and quotation marks omitted). Again, the only element of second-degree arson that defendant challenges is whether the house was a dwelling. As just discussed, there was ample evidence presented at trial for the jury to find that the house was a dwelling. Therefore, defendant’s conviction of second-degree arson was not against the great weight of the evidence. C. INCONSISTENT VERDICTS Finally, defendant argues that he is entitled to reversal of his conviction because the guilty verdict on the second-degree arson charge was inconsistent with the not-guilty verdict for breaking and entering a building. We disagree. A claim of inconsistent verdicts is a constitutional issue that is reviewed de novo. People v Russell, 297 Mich. App. 707 , 722; 825 NW2d 623 (2012). However, because this issue is unpreserved, we review it for plain error that affected defendant’s substantial rights. Carines, 460 Mich. at 763-764 . Jury verdicts rendered on multiple counts do not have to be consistent. People v Vaughn, 409 Mich. 463 , 465; 295 NW2d 354 (1980). Our Supreme Court succinctly explained the reasons for this rule: -4-  Juries are not held to any rules of logic nor are they required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury’s capacity for leniency. Since we are unable to know just how the jury reached their conclusion, whether the result of compassion or compromise, it is unrealistic to believe that a jury would intend that an acquittal on one count and conviction on another would serve as the reason for defendant’s release . . . . [Thus,] the mercy- dispensing power of the jury may serve to release a defendant from some of the consequences of his act without absolving him of all responsibility. [Id. at 466.] Nevertheless, “[i]nconsistent verdicts might be cause for reversal when it is evident that the jury was confused, did not understand the instructions, or did not know what it was doing.” People v McKinley, 168 Mich. App. 496 , 510; 425 NW2d 460 (1988), citing People v Lewis, 415 Mich. 443 , 450 n 9; 330 NW2d 16 (1982). Contrary to defendant’s argument otherwise, there is absolutely no indication in this case that the jury was confused, did not understand its instructions, or know what it was doing. Finally, relying on this Court’s since-vacated holding in People v Davis, 320 Mich. App. 484 , 490-496; 905 NW2d 482 (2017), vacated in part 503 Mich. 984 ; 923 NW2d 891 (2019), defendant suggests that finding him guilty of second-degree arson, while simultaneously finding him not guilty of breaking and entering a building with the intent to commit arson, resulted in impermissible mutually exclusive outcomes. However, to the extent that our Supreme Court left open the possibility that the principle of mutually exclusive verdicts is even recognized as an exception to the rule permitting inconsistent jury verdicts, see Davis, 503 Mich. at 984 , this concept is inapplicable in this case because the arson charge and the breaking-and-entering charge involve completely different elements, none of which are mutually exclusive. Affirmed. /s/ Anica Letica /s/ Michael J. Riordan /s/ Thomas C. Cameron -5-

2020-12-04 10:07:19.30231+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20201203_C346034_81_346034.OPN.PDF

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS KINCAID HENRY BUILDING GROUP, INC., UNPUBLISHED December 3, 2020 Plaintiff/Counterdefendant/Third- Party Defendant-Appellee, v No. 346034 Livingston Circuit Court HEART OF HOWELL, LLC, LC No. 14-028116-CK Defendant/Counterplaintiff/Cross- Defendant/Third-Party Plaintiff- Appellee, and STEPHEN DAVID, INC., Defendant/Counterplaintiff/Cross- Plaintiff-Appellant, and COMERICA BANK, PLATTE RIVER INSURANCE COMPANY, and REKON CORPORATION, Defendants-Appellees, and THYSSENKRUPP ELEVATOR COMPANY, Defendant, and EBELS CONSTRUCTION, LLC, -1-  Third-Party Defendant, and DE LAU FIRE & SAFETY, INC., Third-Party Defendant/Third-Party Plaintiff-Appellee, and MODERN DRYWALL, INC., Third-Party Defendant/Cross- Plaintiff/Third-Party Plaintiff- Appellee, and AB LOCK AND SAFE, INC., doing business as FISHER DOOR & HARDWARE, Third-Party Defendant. Before: REDFORD, P.J., and RIORDAN and TUKEL, JJ. PER CURIAM. Cross-plaintiff Stephen David, Inc. (SDI) appeals as of right the trial court’s judgment in favor of SDI on its construction lien claim against Heart of Howell, LLC (HOH) and postjudgment order awarding SDI attorney fees of $4,224 under the Construction Lien Act (CLA), MCL 570.1101 et seq. For the reasons set forth in this opinion, we affirm in part, but vacate the trial court’s judgment and award of attorney fees and remand for further proceedings. I. BACKGROUND This case arises from a dispute between HOH and SDI regarding an unpaid balance for SDI’s work on the Heart of Howell project (“HOH building project”) which involved renovation of three historical buildings purchased by HOH in downtown Howell known as the “Swan’s, Thistledown, and Spags buildings.” SDI contracted with Kincaid Henry Building Group, Inc. (Kincaid), the general contractor on the HOH building project, to perform paint removal and masonry work. In September 2013, Kincaid terminated SDI from the project because of alleged poor workmanship, SDI’s failure to timely complete work, and insubordination. Replacement contractors finished the work that SDI did not complete. On October 7, 2013, SDI recorded a claim of lien against the HOH building project, stating that it last provided labor and materials on -2- September 17, 2013, and that its lien claim amounted to $80,969 by taking the contract amount of $177,411 and deducting $96,442 for payments it received from Kincaid. Kincaid filed suit against HOH, SDI, and numerous other parties, and SDI cross-claimed against HOH for foreclosure of its construction lien. Following the dismissal of all claims involving other parties, the trial court held a nine-day bench trial on SDI’s cross-claim against HOH. The trial court found that SDI had been terminated for no fault of its own and was entitled to a claim of lien valued at $57,707.14. The trial court ruled that SDI may recover its reasonable attorney fees under the CLA, but limited the amount to 24% of the attorney fees that were incurred solely during trial and later awarded SDI $4,224 in attorney fees. II. STANDARD OF REVIEW We review de novo a trial court’s decision regarding a question of law, but the trial court’s factual findings at a bench trial are reviewed for clear error. In re Receivership of 11910 South Francis Rd, 492 Mich. 208 , 218; 821 NW2d 503 (2012). A finding is clearly erroneous, if, after a review of the entire record, this Court is left with a definite and firm conviction that the trial court made a mistake. Alan Custom Homes, Inc v Krol, 256 Mich. App. 505 , 512; 667 NW2d 379 (2003) (citations omitted). To the extent that this issue requires interpretation and application of the CLA, we review issues of statutory interpretation de novo. Id. at 507. III. ANALYSIS A. WAIVER HOH claims that SDI waived any claim of error respecting the trial court’s calculation of the amount of its lien or that SDI should be judicially estopped from challenging the trial court’s decision on this issue. We disagree that waiver is applicable to the case at bar. A waiver occurs when a party intentionally relinquishes a known right. Sweebe v Sweebe, 474 Mich. 151 , 156-157; 712 NW2d 708 (2006). “It is also well-settled that a waiver may be shown by express declarations or by declarations that manifest the parties’ intent and purpose.” Id. at 157 (citation omitted). To constitute a waiver, there must be a showing of “an affirmative expression of assent” and an intention to plainly relinquish a right. VHS Huron Valley Sinai Hosp v Sentinel Ins Co, 322 Mich. App. 707 , 716; 916 NW2d 218 (2018). Judicial estoppel is an equitable doctrine which prevents a party from prevailing on one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase. Spohn v Van Dyke Public Sch, 296 Mich. App. 470 , 479; 822 NW2d 239 (2012). The doctrine is used to preserve the court’s integrity by preventing a party by abusing the judicial process through cynical gamesmanship. Id. at 479-480. For the judicial estoppel doctrine to apply, there must be some showing that the court in the earlier proceedings accepted an inconsistent position advanced by the litigant as true. Id. at 480. In support of its waiver or estoppel argument, HOH relies on the fact that SDI moved for an order permitting it to order less than the full transcript of the lower court proceedings for purposes of appeal. At the hearing on SDI’s motion, counsel for SDI stated that “the only issue that we intended to pursue on appeal was the issue of attorney fees under the [CLA].” The trial court granted the motion permitting SDI to order less than the full transcript of the lower court -3- proceedings. However, SDI apparently decided otherwise and it ordered a complete transcript of the proceedings in this case. Although SDI stated an intention to only pursue the issue of attorney fees on appeal, its statements in its motion and at the motion hearing do not otherwise reflect that SDI plainly intended to relinquish all right to pursue additional appellate relief respecting other claimed errors by the trial court. VHS Huron Valley Sinai Hosp, 322 Mich. App. at 716 . Accordingly, we are not persuaded that SDI waived the instant claim of error. Further, although SDI did not inform the trial court of an intention to challenge the court’s determination of the amount of SDI’s construction lien, SDI’s decision to raise the issue on appeal is not necessarily an inconsistent position, but rather simply reflects that SDI later decided to ultimately pursue this additional claim of error. The earlier statements were associated with SDI’s request to order less than a full transcript of the proceedings, but SDI later ordered a complete transcript and the complete transcript has been filed with this Court. SDI is not judicially estopped from challenging the trial court’s determination of the amount of its construction lien on appeal.1 B. THE CONSTRUCTION LIEN ACT 1. GENERAL PRINCIPLES FOR CALCULATING LIENS In Ronnisch Constr Group, Inc v Lofts on the Nine, LLC, 499 Mich. 544 , 552-553; 886 NW2d 113 (2016) (quotation marks, alterations, and citations omitted), our Supreme Court explained: The CLA is intended to protect the interests of contractors, workers, and suppliers through construction liens, while protecting owners from excessive costs. The fundamental purpose of the CLA with respect to contractors, workers, and suppliers is to provide a method to secure payment for their labor and materials. The Legislature has declared that the CLA is a remedial statute that shall be liberally construed to secure the beneficial results, intents, and purposes of the act. Accordingly, when interpreting the CLA, we should always be mindful of the CLA’s intended purpose. * * * The first inquiry in determining whether a party may seek attorney fees under the CLA is whether the party is a lien claimant. Under [MCL 570.1]118(2), the trial court has discretion to award attorney fees to a lien claimant who is the prevailing party. The CLA defines a lien claimant as a person having a right to a construction lien under the act. 1 We similarly reject HOH’s suggestion that SDI’s earlier-filed motion to file less than a full transcript thereby waived this Court’s jurisdiction. -4-  The CLA specifies the extent to which a lien claimant may claim a right to a construction lien in MCL 570.1107 which provides in relevant part: (1) Each contractor, subcontractor, supplier, or laborer who provides an improvement to real property has a construction lien upon the interest of the owner or lessee who contracted for the improvement to the real property, as described in the notice of commencement given under section 108 or 108a, the interest of an owner who has subordinated his or her interest to the mortgage for the improvement of the real property, and the interest of an owner who has required the improvement. A construction lien acquired pursuant to this act shall not exceed the amount of the lien claimant’s contract less payments made on the contract.[2] * * * (6) If the real property of an owner or lessee is subject to multiple construction liens, the sum of the construction liens shall not exceed the amount the owner or lessee agreed to pay the person with whom he or she contracted for the improvement as modified by all additions, deletions, and other amendments, less payments made by or on behalf of the owner or lessee, pursuant to either a contractor’s sworn statement or a waiver of lien, in accordance with this act. MCL 570.1120 provides: If a lien claimant, by reason of the failure of an owner or lessee to perform the contract, and without fault on the part of the lien claimant, has been prevented from completely performing the contract, the lien claimant shall be entitled to compensation for as much as was performed by the claimant under the contract, in proportion to the price stipulated for complete performance of the whole contract, less any payments made to the lien claimant and also to any additional damages which the lien claimant may be entitled to as a matter of law. The plain language of these statutory provisions provides that the amount of a lien claimant’s construction lien must be calculated by determining the total value of the claimant’s contract, the amount of work performed by the claimant under the contract, i.e., the proportion or percentage completed, and the amount paid by the owner in relation to the work performed. The value of the total contract multiplied by the proportion of the contract completed equals the amount owed by the owner, minus the amount paid by the owner, equals the value of the lien. MCL 570.1107(1) and MCL 570.1120. Under MCL 570.1107(6), however, where an owner is subject to multiple construction liens, the sum of the construction liens shall not exceed the amount the owner agreed to pay under its contract as modified by change orders that added, deleted, or 2 See also Erb Lumber, Inc v Gidley, 234 Mich. App. 387 , 396; 594 NW2d 81 (1999) (“The proper amount of a lien is the lien claimant’s contract price less payments made on that contract to the lien claimant.”) (Emphasis added.) -5- amended the contract, less payments made by the owner pursuant to contractor sworn statements or lien waivers. 2. OWNER’S DEFENSE UNDER MCL 570.1107(6) SDI first argues that the trial court erred in determining the amount of SDI’s construction lien claim against HOH. We agree that the trial court erred in its application of the law and that remand for further consideration of SDI’s construction lien claim is necessary. Although the parties frame the issue as whether the trial court correctly determined the amount of SDI’s construction lien, that issue hinges on whether HOH may invoke the defense set forth in MCL 570.1107(6). In Vugterveen Sys, Inc v Olde Millpond Corp, 454 Mich. 119 ; 560 NW2d 43 (1997), the lodestar case of Michigan jurisprudence addressing the application of MCL 570.1107(6), our Supreme Court addressed whether a property owner could use payments made to a second general contractor as a defense to a construction lien foreclosure asserted by a subcontractor. The Court acknowledged that the system under the CLA could be used by “unscrupulous contractors to force property owners to pay excessive construction charges.” Id. at 124. Therefore, the Legislature included in the CLA “a defense to liens that would force owners to pay more than the price stated in the general contract.” Id. In Vugterveen, the general contractor, Vander Wall Construction, contracted with the plaintiff subcontractor to perform work on two units in a condominium building for a total amount of $9,750. The defendant owner of the property later fired both the general contractor and Vugterveen which prompted Vugterveen to record a construction lien and notice of furnishing against the property. Id. at 126. The owner of the property, Olde Millpond, paid $276,969 to complete construction, $10,374 more than it had agreed to pay Vander Wall to complete the construction work under their contract. Id. Our Supreme Court evaluated Olde Millpond’s claim that MCL 570.1107(6) provided a defense to Vugterveen’s construction lien because it paid more than the original contract price to complete the project. Id. at 127. The Court noted that in enacting MCL 570.1107(6), the Legislature intended to protect owners of real property “from excessive liens by allowing an owner to rely on the price set forth in its contract with the general contractor.” Id. at 128. The Court rejected Olde Millpond’s assertion that MCL 570.1107(6) directly applied to the case and that it could not be required to satisfy an outstanding construction lien because it had already paid an amount in excess of the original contract price. First, our Supreme Court concluded that the terms in MCL 570.1107(6), “person with whom [the owner] contracted,” did not contemplate situations in which more than one general contractor served on the job, or factual scenarios in which a general contractor and its subcontractors were fired and subsequently replaced. Id. at 128. The Court explained: Further, Olde Millpond’s analysis allows an owner to cut off liens held by subcontractors by merely firing them and hiring successor contractors. Under this reading, an owner would be able to assert [MCL 570.1107(6)] as a defense to all liens held by subcontractors on the first general contract whenever the owner pays the successor contractors amounts which, when added to the payments already made on the first general contract, exceed the price of the first general contract. -6-  This is clearly contrary to the act’s stated purpose of protecting the rights of such parties. Thus, this reading must be rejected. [Id.] Because MCL 570.1107(6) must be interpreted in a manner “so as to give full effect to the act’s purpose of protecting the interests of builders as well as owners[,]” our Supreme Court clarified that the phrase “payments made” in MCL 570.1107(6) referred only to “payments made on the specific contract between the owner and the person with whom the owner contracted.” Id. at 129. The Court clarified: Thus, Olde Millpond may use all payments made on the contract with Vander Wall as a defense to Vugterveen’s lien because Vugterveen was a subcontractor on the contract between Olde Millpond and Vander Wall. Olde Millpond may not use payments made on the second general contract as a defense to Vugterveen’s lien because these payments were not made on the relevant contract. [Id.] Our Supreme Court held that Olde Millpond could only raise MCL 570.1107(6) as a defense if it could establish that what it paid under the contract with Vander Wall, together with the claim of lien asserted by Vugterveen, exceeded the cost of the Vander Wall contract. Id. Because the trial court had not factually determined how much Olde Millpond paid under the Vander Wall contract “as attested by sworn statements or waivers of lien,” the Court remanded the case to the trial court to allow it to undertake that inquiry. Id. Our Supreme Court directed that “Vugterveen has a valid lien to the extent that the lien and the payments made by Olde Millpond on the Vander Wall contract do not exceed the price of the contract between Olde Millpond and Vander Wall.” Id. at 130, 134. SDI essentially argues that the trial court erred as a matter of law by deducting from the amount of its construction lien the costs that HOH paid to other subcontractors to complete the work on the project that was not finished by SDI. SDI relies upon MCL 570.1107(1), which provides that “[a] construction lien acquired pursuant to this act shall not exceed the amount of the lien claimant’s contract less payments made on the contract.” (Emphasis added.) MCL 570.1103(4) defines “contract” as “a contract, of whatever nature, for the providing of improvements to real property, including any and all additions to, deletions from, and amendments to the contract.” Neither MCL 570.1107(1) nor MCL 570.1120 authorize HOH to deduct from SDI’s lien the payments HOH made to additional subcontractors who completed work on the project after SDI’s termination by Kincaid. MCL 570.1107(6) also does not authorize such a deduction. Notably, HOH points to no provision in the CLA that allows HOH to deduct what the parties and the trial court characterized as the “cost of cover.” Indeed, in Vugterveen, 454 Mich. at 128 , our Supreme Court expressly disavowed an interpretation of MCL 570.1107(6) that would allow “an owner to cut off liens held by subcontractors by merely firing them and hiring successor contractors.” Specifically, the Court rejected an interpretation of the CLA that would allow an owner to rely on MCL 570.1107(6) as a defense to a lien claim that it had paid amounts to additional subcontractors that, when added to the payments made on the first general contract, exceed the price set forth in the first general contract. -7-  HOH urged the trial court to consider the total contract price minus the amount paid minus its cost to cover as the method for calculating SDI’s lien amount. Under that formula, HOH urged the trial court to deduct from SDI’s contract the amounts that it paid to replacement contractors to finish the work that SDI started. HOH has advanced the argument that its costs to cover paid to replacement subcontractors to complete the work left undone by SDI, a subcontractor, should be deducted from SDI’s construction lien under MCL 570.1107(1). The record reflects that the trial court agreed with and applied HOH’s formula to reduce SDI’s lien claim by amounts paid to the subcontractors which were hired after SDI’s termination from the project. The CLA, however, does not permit doing so. On appeal, HOH attempts to distinguish this case from Vugterveen on the ground that the replacement subcontractors, Helms and Zimmerman Masonry, Inc., were both hired and paid by Kincaid. This assertion, however, is not supported by a close reading of the case. Specifically, in Vugterveen, 454 Mich. at 128 , our Supreme Court disagreed with the interpretation of MCL 570.1107(6) advanced by the owner, Olde Millpond, which argued that it should not have to pay any outstanding liens because it had already paid more than the original contract price to complete the building project. Our Supreme Court rejected this interpretation because MCL 570.1107(6) did not expressly address factual scenarios in which a general contractor and its subcontractors were fired and replaced. The principles articulated in Vugterveen apply to this case. Although HOH does not seek to completely cut off SDI’s construction lien, it asserts the defense set forth in MCL 570.1107(6) to reduce the amount of SDI’s lien. In Vugterveen, 454 Mich. at 129 , our Supreme Court explained that MCL 570.1107(6) must be interpreted in a manner that protects owners like HOH from paying lien claims in excess of the contract terms, and that the defense of MCL 570.1107(6) may be invoked, but that the phrase “payments made” “refers to payments made on the specific contract between the owner and the person with whom the owner contracted.” In that case, the Court held that payments made by Olde Millpond on the general contract with Vander Wall could be used as a defense to Vugterveen’s lien, because Vugterveen constituted a subcontractor under the contract that existed between Vander Wall and Olde Millpond. Id. at 129. Accordingly, under the statute, HOH could assert as a defense to SDI’s lien claim the payments that it made on the contract with Kincaid, “the person with whom [HOH] contracted,” but such amounts would only be a defense to the extent that “the sum of the construction liens . . . exceed[ed] the amount” that HOH agreed to pay Kincaid under their contract. MCL 570.1107(6). In Vugterveen, 454 Mich. at 129 , our Supreme Court expressly recognized the limitation of the MCL 570.1107(6) defense: Olde Millpond will have a defense to Vugterveen’s lien if it can show that the sum of payments made pursuant to sworn statements and waivers of lien under the Vander Wall contract plus Vugterveen’s claim of lien exceed the price of the Vander Wall contract. Therefore, under the CLA, contrary to HOH’s argument in the present case, an owner of real property may not simply rely on MCL 570.1107(6) to assert that it was required to pay additional “costs of cover” to complete a building project, and then attempt to reduce the construction lien of a subcontractor which, for whatever reason, did not finish its work. Instead, to establish entitlement to reduce SDI’s claimed lien, HOH was required to demonstrate that the -8- payments it made under the sworn statements and lien waivers under the Kincaid contract, plus SDI’s claim of lien, exceeded the price of its contract with Kincaid. Vugterveen, 454 Mich. at 129 . SDI argues that the trial court erred by relying on Steelcon, Inc v Bennett & Wright Group, Inc, 257 F Supp 2d 895 (ED Mich, 2003), to calculate the amount of SDI’s lien. In Steelcon, which involved consolidated cases, the plaintiff subcontractor, subcontracted to perform modifications to the owner’s slag grinding and handling plant in Detroit. Id. at 896-897. After not being fully paid, the plaintiff sued to foreclose on its construction lien against the owner’s property. Id. at 897. The cases were removed to federal court, and in the context of the plaintiff’s motion for summary judgment against the owner and general contractor, the federal district court, reading MCL 570.1107(6) and MCL 570.1110(7) together, held that, if a subcontractor properly files a notice of furnishing under the CLA, an owner may not invoke the defense of MCL 570.1107(6) by relying on the sworn statements or lien waivers of a general contractor. Steelcon, 257 F Supp 2d at 899. The court further concluded that MCL 570.1107(6) did not limit the plaintiff’s lien because it had filed a notice of furnishing, and therefore, the owner could not rely on the general contractor’s sworn statements or lien waivers, and thus the owner had not made payments pursuant to the sworn statements or lien waivers of a general contractor as required to invoke the defense set forth in MCL 570.1107(6). Steelcon, 257 F Supp 2d at 900. In our view, the Steelcon decision does not support SDI’s contention that it contained a specific calculation formula for determining the amount of SDI’s construction lien in this case. In Vugterveen, 454 Mich. at 129 , our Supreme Court instructed that an owner raising the defense set forth in MCL 570.1107(6) must demonstrate “that the sum of payments made pursuant to sworn statements and waivers of lien under the [general contractor’s] contract plus [the subcontractor’s] claim of lien exceed the price of the . . . contract [between the owner and the general contractor].” Throughout the proceedings in the trial court, HOH presented evidence establishing what HOH paid on its contract with Kincaid through the testimony of Courtney Tarara. For example, on cross-examination by SDI’s counsel, Tarara estimated the initial contract amount between HOH and Kincaid at approximately $1.7 million. In their posttrial briefs, SDI and HOH both agreed that the specific amount of the contract between Kincaid and HOH amounted to $1,716,787.25. Regarding payments, Tarara stated that before Kincaid left the project and submitted its last sworn statement, HOH had paid Kincaid $1,263,500.67. Tarara also recounted that in order to discharge the lien Kincaid had recorded against HOH’s property, HOH made later additional payments of $95,000 and $310,714.24 on the contract, with the payment of $310,714.24 paid to Kincaid’s subcontractors. On direct examination, Tarara also testified regarding discrete payments made to Kincaid’s subcontractors. The trial court, however, did not make any factual findings concerning (1) the total amount of the contract between Kincaid and HOH, (2) whether the sum of payments HOH made in conformance with sworn statements and lien waivers under the contract between Kincaid and HOH, plus SDI’s claim of lien, exceeded the price set forth in the contract between Kincaid and HOH. Instead, perhaps because of the trial court’s erroneous legal conclusion that HOH could simply defend SDI’s claim of lien by arguing that HOH had to pay additional subcontractors to finish the building project, and its misunderstanding concerning what proofs HOH was required to establish to support a defense under MCL 570.1107(6), the trial court simply did not address and determine these pivotal factual issues. Moreover, although the trial court cited MCL 570.1107(6) in its written opinion, it did not apply the statute to the facts of this case. -9-  HOH claims that SDI “invited error”3 because it conceded in the trial court that what was paid to additional subcontractors to complete the work that SDI did not perform could be deducted from SDI’s lien. We disagree. The record reflects that the parties and the trial court misapprehended the defense set forth in MCL 570.1107(6), and this misunderstanding resulted in the deduction of the costs paid to cover SDI’s work to new subcontractors from the amount of SDI’s construction lien, rather than determining whether HOH’s payments on the contract with Kincaid, combined with the payments made to SDI, exceeded the price of the contract between HOH and Kincaid. Vugterveen, 454 Mich. at 129 , 134. We conclude that this case must be remanded to the trial court for it to render the necessary findings of fact and to then make a legal determination regarding whether HOH established a defense under MCL 570.1107(6) to SDI’s claim of lien. The trial court must apply MCL 570.1107(6) as directed by Vugterveen to determine whether the sum of the construction liens exceed the amount HOH agreed to pay Kincaid for the improvements as modified by all additions, deletions, and other amendments to the Kincaid contract, less payments made by or on behalf of HOH pursuant to either a contractor’s sworn statement or a waiver of lien, in accordance with the CLA. SDI disputed below whether the payments that HOH made to subcontractors in the amount of $310,714.24 were in fact made to subcontractors who had contracted with Kincaid, and SDI maintains on appeal that payments to the replacement subcontractors were unrelated to the contract between Kincaid and HOH. This Court is an error-correcting Court, and its “review is generally limited to matters actually decided by the lower court.” Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich. App. 182 , 210; 920 NW2d 148 (2018). On remand, the trial court must render factual findings concerning (1) the total amount of the contract between HOH and Kincaid, (2) the amount of payments HOH made under that contract, (3) whether the sum of the payments HOH made were in conformance with the sworn statements and lien waivers under that contract between HOH and Kincaid, and (4) whether the sum of the liens claimed in relation to HOH and Kincaid’s contract, including SDI’s claim of lien, exceeded the contract between Kincaid and HOH. SDI further argues that under MCL 570.1107(6) and Vugterveen, the trial court should not have admitted and considered evidence of payments made to replacement subcontractors to complete the work left undone by SDI because the replacement subcontractors were paid under a second contract between HOH and Rekon, the replacement general contractor, and no evidence was presented that these subcontractors were paid by Kincaid under its contract with HOH. The record, however, does not support this assertion. Specifically, both Tarara and Dan Zimmerman of Zimmerman Masonry, Inc., testified that the replacement contractors that completed SDI’s work were paid under the contract with Kincaid. Tarara further stated that Trust Thermal was hired to complete the exterior paint removal that SDI did not complete, and HOH paid Kincaid approximately $33,000 for the work that Trust Thermal performed. Helms was hired to complete 3 As this Court stated in Cassidy v Cassidy, 318 Mich. App. 463 , 476; 899 NW2d 65 (2017), “ ‘[i]nvited error’ ” is typically said to occur when a party’s own affirmative conduct directly causes the error.” -10- the sealing of the brick work and HOH paid $7,203 for that work. HOH similarly paid Kincaid payments of $34,111.58 and $24,970.05 for Zimmerman’s masonry work on the HOH building project. Zimmerman also testified that after signing a subcontract with Kincaid in September 2013, Kincaid fully paid for its services and had submitted a full unconditional lien waiver for the project. SDI also argues that evidence of payments made to replacement contractors should not have been admitted and considered by the trial court as “cost to cover” because the work completed by the subcontractors went far beyond the scope of work that SDI contracted to complete. The trial court indicated in its opinion that it made one adjustment for the expansion of the work beyond the scope of the SDI contract respecting work Zimmerman Masonry, Inc. performed. SDI, however, describes, based upon the record, several instances in which the later subcontractors performed work additional to and different from the work SDI contracted to perform. SDI submits that it contracted to complete chemical paint removal on the HOH building project, but HOH contracted with Trust Thermal to perform soda-blasting of the brick to remove paint which caused additional damage that HOH paid to repair. SDI contends that the cost of the amount for the repairs occasioned by Trust Thermal’s work at HOH’s request should not have been deducted from SDI’s lien. SDI also submits that HOH’s principal, Joseph Parker, chose a new type of brick for the HOH building project after SDI had already installed the brick HOH chose for the project which substantially changed the project from what SDI had contracted to perform. Thus, SDI argues that any attempt by HOH to deduct the cost that Zimmerman Masonry charged for installing the new brick from SDI’s lien is inappropriate. During trial, Rich Stouffer, SDI’s principal, further testified that the work that Zimmerman Masonry completed went beyond SDI’s scope of work, and Dan Zimmerman acknowledged in his testimony that the scope of work for Zimmerman Masonry, Inc. “mushroomed” over the life of the project. In its opinion, the trial court treated the “Total Repair/Cost to Cover” as a category of costs that it deducted from the total subcontract price for SDI’s services minus the amounts reflected by lien waivers for painting and masonry work performed by SDI. The trial court reduced SDI’s lien claim by the amount of the “Total Repair/Cost to Cover” but the record is not entirely clear regarding what work may have been performed to repair defective work by SDI and what work constituted completion of the work SDI contracted to perform but because Kincaid terminated SDI it did not. These are not distinctions without a difference. Repair of defective work by SDI could properly be considered by the trial court to determine what proportion of SDI’s contract SDI completed. Deduction of HOH’s cost of cover to complete SDI unfinished work, however, is not authorized by the CLA for calculation of the amount of SDI’s lien claim. MCL 570.1107(1) and MCL 570.1120, when read in conjunction, do not prescribe the deduction of the cost to cover the completion of the work that SDI could not perform because of its termination. Under these statutory provisions, an owner is required only to pay for the amount of work performed by the subcontractor and if it hires another contractor to complete the project it must pay that contractor for the work it performs and cannot reduce the unpaid lien claimant’s construction lien by the amount it paid the newly hired contractor. This is because the subcontractor lien claimant is only entitled to be paid for the proportion of the work it actually performed. The proper amount of a lien is the lien claimant’s contract price in relation to the proportion of the work performed, less payments made on that contract to the lien claimant. MCL 570.1107(1); Erb Lumber Co v Homeowner Constr Lien Recovery Fund, 206 Mich. App. 716 , 720; -11- 522 NW2d 917 (1994). Therefore, the scope of the construction lien at issue depends on what the lien claimant performed and does not encompass the entire project as later completed by others. MCL 570.1120. Under MCL 570.1107(1), the amount of the lien is limited to the amount owed for the work performed under the applicable contract. C D Barnes Assoc, Inc v Star Heaven, LLC, 300 Mich. App. 389 , 427-428; 834 NW2d 878 (2013). Noticeably absent from the trial court’s opinion, however, is any indication of a determination of the proportion of SDI’s contract that SDI completed. MCL 570.1107(6) specifies that the sum of the construction liens on real property “shall not exceed the amount the owner [] agreed to pay the person with whom he [] contracted for the improvement as modified by all additions, deletions, and other amendments, less payments made by or on behalf of the owner,” as evidenced by sworn statements or lien waivers. Admission of cost of cover evidence respecting the completion of the work for which SDI contracted for the project should not have been used by the trial court to determine the amount of SDI’s lien for the work it performed and for which it had not been paid. Further, the additional costs made necessary merely because the owner changed the project’s scope beyond the scope of the subcontractor’s contract cannot be factored into the calculation of the subcontractor’s lien unless the lien claimant actually agreed to perform the added work and it became part of the subcontractor’s total contract price. Reduction of the construction lien amount by the cost of cover or because of an owner’s later expansion or change of the scope of the work does not comport with MCL 570.1107(1) and MCL 570.1120, nor is it authorized under MCL 570.1107(6). Later in its opinion the trial court stated that the value of SDI’s completed work should not be reduced by the value of the work performed by replacement contractors because SDI had been fired through no fault of its own and the evidence did not convince the trial court that SDI provided defective performance respecting the work it performed, nor that Zimmerman Masonry, Inc. merely continued and finished work within the same scope of SDI’s contract. Despite these significant factual findings, the trial court indicated that it concluded that SDI’s lien claim could be reduced by the cost of cover incurred by HOH. In so doing, the trial court erred to the extent that it calculated the amount of SDI’s construction lien by subtracting the cost of cover and the cost of any work beyond the scope of SDI’s contract with Kincaid in relation to Kincaid’s contract with HOH after termination of SDI. C. ADVERSE INFERENCE REGARDING JOSEPH PARKER SDI next argues that the trial court erred by not inferring that because HOH failed to call its principal, Joseph Parker, as a witness, his testimony would have been adverse to HOH. We disagree. We review de novo the legal question whether the trial court should have drawn an adverse inference against HOH for its failure to call Parker as a witness. Kuhlgert v Mich State Univ, 328 Mich. App. 357 , 371; 937 NW2d 716 (2019). As a preliminary matter, HOH contends that SDI waived this issue because during a motion hearing that preceded trial, counsel for SDI confirmed that SDI was satisfied with its witness list, which did not list Parker as a witness. We find no merit to HOH’s contention. At most, SDI waived its own right to call Parker as a witness, but that is not determinative of whether SDI waived any right to request that an adverse inference be drawn from HOH’s decision to not call Parker as a witness. Regardless, the trial court correctly decided that -12- HOH’s decision not to call Parker as a witness did not entitle SDI to a presumption that Parker’s testimony would have been adverse to HOH. In Ward v Consol Rail Corp, 472 Mich. 77 , 84; 693 NW2d 366 (2005), our Supreme Court explained the underpinnings of an evidentiary presumption. The Court described a presumption as a “procedural device” that will entitle the party relying on it at trial to a directed verdict if the opposing party does not proffer evidence to rebut the presumption. Id. If the opposing party does present rebuttal evidence, the presumption will disappear, but an underlying inference will remain, to be weighed by the fact-finder against the rebuttal evidence. Id. The Court stated, “It is well settled that missing evidence gives rise to an adverse presumption only when the complaining party can establish intentional conduct indicating fraud and a desire to destroy [evidence] and thereby suppress the truth.” Id. at 85 (quotation marks and citations omitted). The fact-finder may only draw an adverse inference from a party’s failure to produce evidence “when: (1) the evidence was under the party’s control and could have been produced; (2) the party lacks a reasonable excuse for its failure to produce the evidence; and (3) the evidence is material, not merely cumulative, and not equally available to the other party.” Id. at 86 (citations omitted); see also Pugno v Blue Harvest Farms, LLC, 326 Mich. App. 1 , 24; 930 NW2d 393 (2018) (setting forth the same requirements that must be met before the fact-finder can draw an adverse inference against a party who does not present evidence). In this case, the trial court did not err by declining to draw an adverse presumption or inference as a result of HOH’s decision to not call Parker as a trial witness. First, the procedural device of an adverse presumption would not have been appropriate because SDI did not demonstrate that HOH acted intentionally or fraudulently to suppress the truth at trial. Although HOH did not offer a reason for not calling Parker, HOH could decide which witnesses to call in its defense. Even assuming that Parker’s testimony would have been material, as the trial court correctly stated in its ruling, SDI could have named Parker as a witness and subpoenaed him to testify at trial, but it did not do so. The record does not reflect that SDI sought to call Parker as a witness and HOH refused to make him available. SDI has failed to establish its entitlement to an adverse presumption or inference and the trial court did not err in this regard. SDI also asserts in a reply brief that the trial court abused its discretion by not admitting into evidence a transcript of Parker’s deposition testimony and by not allowing SDI’s counsel to question Tarara regarding admissions made by Parker. These issues are not properly before this Court. “Reply briefs must be confined to rebuttal of the arguments in the appellee’s . . . brief[.]” MCR 7.212(G). It is well settled that a party is not permitted to raise a new issue in a reply brief. Blazer Foods, Inc v Restaurant Props, Inc, 259 Mich. App. 241 , 252; 673 NW2d 805 (2003). See also Vanalstine v Land O’Lakes Purina Feeds, LLC, 326 Mich. App. 641 , 650; 929 NW2d 789 (2018) (this Court may decline to address an issue not raised in an appellant’s statement of questions presented on appeal). Although SDI requests in its reply brief that leave to amend be granted to the extent that its brief on appeal does not sufficiently challenge the admissibility of Parker’s deposition testimony, we deny this request, particularly because HOH has not had an opportunity to respond to these evidentiary claims. -13-  D. ATTORNEY FEES SDI also argues that the trial court erred in determining the attorney fees to which it was entitled under the CLA by awarding SDI only $4,224, a small percentage of the trial cost only, without holding an evidentiary hearing. We find that the trial court erred by failing to set forth its analysis under the rubric defined in Smith v Khouri, 481 Mich. 519 ; 751 NW2d 472 (2008), Pirgu v United Servs Auto Ass’n, 499 Mich. 269 ; 884 NW2d 257 (2016), and Wood v Detroit Auto-Inter Ins Exch, 413 Mich. 573 ; 321 NW2d 653 (1982). Where attorney fees are authorized, a trial court’s determination regarding the amount of a fee award is reviewed for an abuse of discretion. Pirgu, 499 Mich. at 274 . A court abuses its discretion when it erroneously applies the law or its determination of a fee award falls outside the range of reasonable and principled outcomes. Id. As a preliminary matter, we reject HOH’s claim that counsel for SDI “forfeited” this issue by waiving, on the record, “any further hearing on attorney fees.” The statement on which HOH relies was made in the limited context of a discussion regarding the hourly rate the trial court intended to use to calculate the limited attorney fees that the court had already decided would be awarded to SDI. The trial court agreed to use the hourly rate requested by SDI, and HOH has not challenged that decision. Viewed in context, SDI’s counsel did not agree that an evidentiary hearing was not necessary to decide the broader issue of a reasonable attorney fee award. On the contrary, in its motion and at the motion hearing, SDI’s counsel repeatedly requested that the trial court hold an evidentiary hearing respecting attorney fees. Accordingly, HOH’s claim that SDI waived this issue lacks merit. The CLA provides that attorney fees may be awarded to a construction lien claimant that prevails on its claim. MCL 570.1118(2) provides: In an action to enforce a construction lien through foreclosure, the court shall examine each claim and defense that is presented and determine the amount, if any, due to each lien claimant or to any mortgagee or holder of an encumbrance and their respective priorities. The court may allow reasonable attorneys’ fees to a lien claimant who is the prevailing party. The court also may allow reasonable attorneys’ fees to a prevailing defendant if the court determines the lien claimant’s action to enforce a construction lien under this section was vexatious. In Pirgu, 499 Mich. at 271 , our Supreme Court reaffirmed the legal framework for determining reasonable attorney fees set forth in Smith, 481 Mich. 519 . The Court explained: [A] trial court must begin its reasonableness analysis “by determining the fee customarily charged in the locality for similar legal services” and then multiplying that number “by the reasonable number of hours expended in the case.” After a trial court has calculated this baseline figure, it must consider and briefly discuss on the record the remaining Wood factors and the factors in MRPC 1.5(a) to determine whether any up or down adjustments from the base number are appropriate. [Pirgu, 499 Mich. at 276 , quoting Smith, 481 Mich. at 530-531 (opinion by TAYLOR, C.J.).] -14- Because Wood and Smith contained two different lists of factors to be considered, some of which were duplicative, to assist trial courts in their analysis, the Court in Pirgu refined the factors for consideration as follows: (1) the experience, reputation, and ability of the lawyer or lawyers performing the services, (2) the difficulty of the case, i.e., the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly, (3) the amount in question and the results obtained, (4) the expenses incurred, (5) the nature and length of the professional relationship with the client, (6) the likelihood, if apparent to the client, that acceptance of the particular employment will preclude other employment by the lawyer, (7) the time limitations imposed by the client or by the circumstances, and (8) whether the fee is fixed or contingent. [Pirgu, 499 Mich. at 282 .] This list of factors is not exclusive. Id. To allow for meaningful appellate review, the trial court “should briefly discuss its view of each of the factors above on the record and justify the relevance and use of any additional factors.” Id. (citation omitted). If the opposing party challenges the request for attorney fees, “[t]he trial court should normally hold an evidentiary hearing.” Head v Phillips Camper Sales & Rental, Inc, 234 Mich. App. 94 , 113; 593 NW2d 595 (1999). However, if the parties establish a sufficient record and the trial court fully explains its reasoning, an evidentiary hearing may not be required. Id. In this case, in setting the attorney fee award, the trial court, consistent with Pirgu, 499 Mich. at 276 , first considered a reasonable hourly rate for SDI’s counsel by consulting the 2017 Economics of Law and Practice Attorney Income and Billing Rate Summary Report, and HOH does not challenge the trial court’s conclusion that an hourly rate of $400 was reasonable. The trial court, however, ruled that SDI could recover attorney fees for only 10.56 hours expended by its attorneys. SDI substantially prevailed on the amount it sought under the claim of lien which made it a prevailing party under the CLA. Ronnisch Constr Group, Inc v Lofts on the Nine, LLC, 306 Mich. App. 203 , 211-214; 854 NW2d 744 (2014). Moreover, noticeably absent from the trial court’s ruling was the determination of a baseline figure of the attorney fees expended in the case by SDI and consideration of the factors from Wood and MRPC 1.5(a) to determine whether an up or down adjustment to such baseline figure was warranted. Pirgu, 499 Mich. at 276 . In Powers v Brown, 328 Mich. App. 617 , 623-624; 939 NW2d 733 (2019), this Court clearly indicated that when the trial court fails to follow the Smith/Pirgu method and does not apply the relevant factors, it errs. Like the trial courts in Pirgu and Powers, the trial court here focused on one of the factors in the Smith/Pirgu framework—the amount sought by SDI and the result obtained in comparison to that amount—without addressing -15- the remaining factors or articulating its rationale for the amount awarded. The trial court’s failure to address the other factors constituted an abuse of discretion. Therefore, it is necessary to vacate the trial court’s attorney fee award and remand for further proceedings. Powers, 328 Mich. App. at 624 . The trial court’s conclusion that SDI had entitlement only to attorney fees incurred for 10.56 hours expended during trial rests solely on its consideration of the third factor set forth in the Smith/Pirgu framework, the amount sought by SDI and the results obtained. However, in Smith, 481 Mich. at 532 (opinion by TAYLOR, C.J.), our Supreme Court explained: In considering the time and labor involved (factor 1 under MRPC 1.5 [a] and factor 2 under Wood) the court must determine the reasonable number of hours expended by each attorney. The fee applicant must submit detailed billing records, which the court must examine and opposing parties may contest for reasonableness. The fee applicant bears the burden of supporting its claimed hours with evidentiary support. If a factual dispute exists over the reasonableness of the hours billed or hourly rate claimed by the fee applicant, the party opposing the fee request is entitled to an evidentiary hearing to challenge the applicant’s evidence and to present any countervailing evidence. After the trial court awarded 24% of the attorney fees incurred solely during trial, SDI submitted detailed billings demonstrating the work performed by its attorneys and the hours spent supported by an affidavit from its lead attorney regarding details of the attorneys who assisted in the case. The trial court multiplied 10.56 hours, the time that the trial court determined that SDI spent at trial on the issues on which it prevailed, by the rate it deemed reasonable. The trial court, however, should have considered all of the applicable factors and made findings regarding them on the record. On remand, the trial court must first consider and determine the extent to which HOH may rely, if at all, on the defense claimed under MCL 570.1107(6) to SDI’s construction lien claim. The trial court must analyze the record and determine the total value of SDI’s contract, the value of work actually performed by SDI in proportion with the total it contracted to perform, and then subtract the amount paid to SDI for the work to derive the value of its construction lien. If, after such analysis SDI is determined to have prevailed on its construction lien claim, the trial court must analyze and decide SDI’s attorney fee award under the factors set forth in Smith/Pirgu/Woods and Powers while being mindful of the remedial nature of the CLA. To the extent that the trial court’s consideration of these matters depends on resolution of disputed factual issues, the trial court may hold an evidentiary hearing to resolve the disputed issues and then, in the exercise of its discretion, determine the amount to which SDI may be entitled. CONCLUSION AND INSTRUCTIONS ON REMAND Although we affirm the trial court’s decision not to draw an adverse inference from HOH’s decision not to call Joseph Parker as a witness, we vacate the trial court’s judgment and remand to the trial court for further proceedings consistent with this opinion including that the trial court shall render the necessary findings to enable it to make a legal determination whether HOH established the defense set forth in MCL 570.1107(6) to SDI’s lien claim. We also vacate the trial court’s -16- award of attorney fees, and upon its determination of the validity and extent of SDI’s lien claim, the trial court should consider the applicable factors set forth in Smith/Pirgu/Woods and Powers and make appropriate findings on the record in its exercise of discretion in determining whether and to what extent SDI may be entitled to recover attorney fees that it incurred to enforce its construction lien claim. Therefore, we direct the trial court to undertake the following upon remand: A. Related to SDI’s lien claim, the trial court shall determine the following: 1. The amount of SDI’s subcontracts for paint and masonry work (as modified by all additions, deletions, and other amendments); 2. The percentage SDI completed in its performance of its subcontracts; 3. The amount paid to SDI under its subcontracts (pursuant to either a contractor’s sworn statement or a waiver of lien, in accordance with the CLA); 4. After determination of 1, 2, and 3, the trial court shall calculate the amount of SDI’s construction lien by multiplying the percentage of SDI’s performance by the total amount of SDI’s subcontracts, from which it shall then subtract the amount paid to SDI.4 If this calculation results in a positive value, the amount equals SDI’s enforceable lien claim, i.e., the amount owed to SDI;5 and 5. Whether and to what extent HOH may assert the defense set forth in MCL 570.1107(6), according to its plain language as explained in this opinion and as directed in Vugterveen, by determining (a) whether HOH is subject to multiple construction liens related to HOH’s contract with Kincaid, (b) the sum of those construction liens, (c) whether those construction liens exceed the amount HOH agreed to pay Kincaid for the improvements as modified by all additions, deletions, and other amendments, (d) the amount of payments made by HOH under the Kincaid contract pursuant to either a contractor’s sworn statement or lien waiver in accordance with the CLA, and (5) the contract amount minus what HOH paid to Kincaid or its subcontractors. B. Related to SDI’s attorney fees claim, if upon the completion of the CLA analysis set forth above, the trial court concludes that SDI is the prevailing party, the trial court shall undertake the analysis of SDI’s attorney fees under the rubric of Smith, Purgu, and Wood. In undertaking this 4 The trial court shall not deduct the “cost of cover,” the cost of completion of the work SDI contracted to perform. 5 If the calculation results in a negative value, the result would indicate an overpayment owed to HOH. -17- analysis, the trial court shall consider, evaluate, and articulate its reasoning respecting factors (1)- (8) of Pirgu and any other factors the trial court deems appropriate. C. On remand, if the trial court is satisfied that the factual record is adequate for its analysis and sufficient for it to rule, the trial court is not required to conduct an evidentiary hearing or allow any party to supplement the record with either evidence or offers of proof. If, however, the trial court deems it helpful or necessary, it may allow additional proofs on any specific issue or sub- issue. Head, 234 Mich. App. at 113 . D. The trial court may provide the parties the opportunity to submit briefs and may impose page limits on any written submissions as it deems appropriate. The trial court may entertain oral argument but is not required to do so. Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. /s/ James Robert Redford /s/ Michael J. Riordan /s/ Jonathan Tukel -18-

2020-01-17 22:02:17.034497+00

Murdock

*231OPINION. Murdock: The issue before the Board is whether or not the petitioner is entitled to deduct $9,515 or any other amount from his taxable income in 1922 as a loss resulting from the sale of his former residence. The petitioner claims the right to a deduction under section 214 (a) (5) of the Revenue Act of 1921, which allows the deduction of “ losses sustained during the taxable year and not compensated for by insurance or otherwise, if incurred in any transaction entered into for profit, although not connected with the trade or business.” Despite the petitioner’s testimony that he bought the lot and built the house expecting to make a profit, the evidence clearly indicates that this property was not acquired, improved, or developed as a transaction “ entered into for profit.” The petitioner’s business was successful, his financial success enabled him to satisfy the desire of his family for a home, and he bought a lot in the then best residential section of Pittsburgh. A fine home was built, improvements were made from time to time, and in 1918 and 1919 adjoining lots were purchased. He and his family lived in this house continuously from the date it was completed until after his wife died, when it was sold. Although the petitioner dealt in business real estate, he did not deal in residential property at any time. He made no effort to sell his home or to offer it for sale prior to August, 1922. The petitioner, no doubt having in mind the case of Heiner v. Tindle, 276 U. S. 582, offered the testimony of several witnesses to prove that the value of the property on October 16, 1922, the date when it was first rented, was $78,000. This testimony consisted of the opinions of several dealers in real estate and others who were supposed to be expert in the matter. It appears from their testimony that there were no sales of similar property on or about October 16, 1922, which would support their opinions of value. We know, as a matter of fact, that four days after that date an offer of $60,000 for this property was made and finally accepted by the petitioner; There is nothing in the evidence to indicate that the value of the property had declined to the extent of $18,000 during those four days, nor is there anything in the record to indicate that the petitioner was forced to sell at less than the fair market value of the property. Under these circumstances we think the sale is more reliable evidence of the value on October 16th than the opinions of the experts, and we can not hold that the value of this property on October 16, 1922, was *232any greater than the amount for which it was sold a short time thereafter. Andrews v. Commissioner, 38 Fed. (2d) 55. This being so, no loss could possibly result and further discussion as to whether Heiner v. Tindle, supra, applies is unnecessary. Counsel for the petitioner also attempted to bring this transaction within section 214 (a) (6) of the Revenue Act of 1921, which provides for loss “ arising from fires, storms, shipwreck or other casualty.” We fail to see merit in this contention. See William J. Matheson, 18 B. T. A., 674, for a discussion of “ other casualty.’ ’ The respondent admits error in disallowing deductions claimed on account of the contributions to the Municipal Planning Association, in so far as the contributions do not exceed 15 per cent of net income. Judgment will ~be entered wider Rule 50.

2020-01-17 22:02:17.098615+00

Seawell

*237OPINION. Seawell: In this case, the petitioner had no counsel to represent him at the hearing and in consequence thereof the record in his behalf is not as full and satisfactory as it might otherwise have been. It is, however, very apparent from the evidence that the petitioner was badly deceived and imposed upon by his partner, Weinroth, now deceased. The evidence is clear and convincing that Weinroth had control of the firm’s books and business; that he misapplied and misappropriated funds and property of the firm and that its books were not correctly kept and that the Commissioner’s determination was based on incorrect data, due to the false and fraudulent manner in which the books of the firm of Weinroth & Schofield were manipulated by Weinroth, and his misappropriation of the funds and property of the firm. The evidence of the petitioner himself was not objected to and the motion to strike out the evidence of his witness, Seiffert, was reserved. In so far as the testimony given by the witness Seif-fert detailed conversations and communications with other persons, the motion to strike is allowed; but in so far as that testimony dealt with the status of the books of the firm of Weinroth & Schofield and detailed facts ascertained in consequence of information received, the motion is overruled and exception is allowed the respondent. The evidence admitted showing the condition of the partnership books, the false entries therein made and the evident intent of *238Weinroth to fraudulently withdraw funds of the partnership for his individual use is of such a nature as to overcome the presumption in favor of the correctness of the determination of the Commissioner and we are of the opinion that the petitioner did not at any time receive any income or profit from his connection with the firm of Weinroth & Schofield. Schofield, who impressed us as an honest and truthful man, so testified. At the hearing the respondent contended that the petitioner’s investment in the jjartnership was $50,000 and that by reason of the misappropriation in 1920 and 1921 of the funds of the partnership by one of the partners there was a loss to the petitioner of his invested capital of $26,233.05 and that the petitioner’s reduced capital on November 10,1923, was accordingly only $23,766.95 and the difference between this amount and the $50,000 received under the settlement of the equity suit is taxable income to the petitioner. The question, therefore, arises: Was this part of the $50,000 received in the equity suit taxable income to the petitioner in the year in which it was received ? Did the misapplications and misappropriations of the assets of the firm by Weinroth to his own use and benefit operate to deprive the partnership of the title to or the possession of the same? Under the law it would seem each of the partners was entitled to possession of the partnership assets and though one partner did take into his individual possession property of the partnership, with intention to embezzle or misapply the same, such property was nevertheless still in the possession of the partnership, as the possession of either was the possession of the partnership. 47 C. J. 783. Restitution of assets improperly removed may be compelled in a court of equity where the offending partner is possessed of means. Browning v. Cover, 108 Pa. 595. The evidence of the solvency of Weinroth was not contradicted, and we are of the opinion that the assets so embezzled by him were still the property of the partnership, and the recovery by, or the return to, the innocent individual member of his interest in such assets would not constitute taxable income to the said partner. The instant case is distinguishable from those decided by the Board in which an employee or officer of a corporation has stolen or embezzled money from it and there is at the time an actual loss, though not discovered until later, for the employee or officer of a corporation has not that community of possession of the corporate property that a partner has in the partnership assets. Douglas County Light & Water Co., 14 B. T. A. 1052; Peterson Linotyping Co., 10 B. T. A. 542. In the instant case, the petitioner, having confidence in the honesty of his partner and being ignorant of the true condition of the *239firm’s business and books, because of the fraud practiced on him by his partner, did not discover until the latter part of October, 1923, that his partner was appropriating to his own use the funds of the firm. After such discovery, the petitioner promptly employed an attorney, under whose advice he filed a bill for the dissolution of the partnership and an accounting. As a result of such suit and under advice of counsel, a compromise settlement was effected, whereby the petitioner accepted from Weinroth a return to him in cash and notes of $50,000, the amount of his initial investment, upon the receipt of which he released to Weinroth the entire assets of the firm and thereupon the firm was dissolved. In the light of the evidence, as we view it, no part of the $50,000 received by petitioner was income or profit. After his unfortunate connection as a partner of Weinroth, petitioner withdrew from the partnership, after losing $27,000 of his capital investment and the interest on his total investment of $77,000, receiving only a return of the $50,000, his initial investment. The Commissioner erred in his determination of petitioner’s income-tax liability for 1923. In our opinion, petitioner received no taxable income in 1923. Judgment will be entered for the petitioner.

2021-01-27 11:07:06.47081+00

http://caseinfo.nvsupremecourt.us/document/view.do?csNameID=55407&csIID=55407&deLinkID=804177&onBaseDocumentNumber=21-02438

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2021-01-27 14:01:22.976267+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2020cv1323-38-0

In the United States Court of Federal Claims No. 20-1323 (Filed: 26 January 2021*) *************************************** SYNEREN TECHNOLOGIES CORP., * * Plaintiff, * * v. * * Bid protest; National Oceanic and THE UNITED STATES, * Atmospheric Administration (“NOAA”); * technical approach; past performance. Defendant, * * and * * DOWLESS & ASSOCIATES, INC., * * Defendant-Intervenor. * * *************************************** Jon D. Levin, of Maynard, Cooper & Gale, P.C., with whom were W. Brad English, J. Dale Gipson, Emily J. Chancey, and Michael W. Rich, all of Huntsville, AL, for plaintiff. Brendan D. Jordan, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, with whom were Jeffrey Bossert Clark, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Steven J. Gillingham, Assistant Director, all of Washington, DC, for defendant. Isaias Alba IV, of PilieroMazza PLLC, of Washington, DC, for defendant-intervenor. OPINION AND ORDER HOLTE, Judge. Plaintiff, Syneren Technologies Corp. (“plaintiff” or “Syneren”), brings this bid protest challenging the National Oceanic and Atmospheric Administration’s (“NOAA” or “the agency”) award of a contract for upper air atmospheric monitoring technical and support services to defendant-intervenor Dowless & Associates, Inc. (“defendant-intervenor” or “Dowless”) under * This Opinion was originally filed under seal on 21 January 2021 pursuant to the protective order in this case. The Court provided the parties until 25 January 2021 to submit redactions, if any, before the Opinion is released for publication. On 25 January 2021, the parties emailed informing the Court no party seeks redaction of the Opinion. The Opinion is now reissued for publication in its original form. Solicitation No. 1305M220FNWWG0056. Pending before the Court are plaintiff’s motion for judgment on the administrative record and the government’s cross-motion for judgment on the administrative record. For the following reasons, the Court DENIES plaintiff’s motion for judgment on the administrative record and GRANTS the government’s cross-motion for judgment on the administrative record. I. Background A. The Solicitation After conducting market research for a “re-compete of a requirement previously fulfilled under . . . Task Order 0030,” NOAA issued Request for Quotation No. 1305M220FNWWG0056 (“RFQ” or “solicitation”) for a “non-personal services task order to provide technical and administrative support” for its upper air programs on 17 December 2019. Admin. R. (“AR”) at 5, 16–17. The RFQ contemplated a one-year time and materials award with three one-year options, along with the six-month option provided for in FAR 52.217-8. Id. at 17, 19 (solicitation). This task order would be part of a “larger overall restructuring of contractual instruments from three contracts into four contracts, in which Syneren was the incumbent contractor.” Pl. Syneren Technologies Corporation’s Mot. for J. on the AR and Incorporated Brief (“Pl.’s MJAR”) at 16, ECF No. 27 (citing AR at 463 (Contracting Officer’s Statement of Relevant Facts)).1 The RFQ sought technical and administrative support for the National Weather Service (“NWS”), Surface and Upper Air Division (“SUAD”), Office of Observations (“OSB”), to include “[t]he Advanced Weather Interactive Processing System (‘AWIPS’), Radiosonde Replacement System (‘RRS’), and other upper air programs,” “[t]he Radio Frequency Migration Project (‘RFMP’),” and conducting “the necessary reliability and maintainability analysis to monitor and evaluate system and network equipment performance.” AR at 17 (solicitation). The RFQ also called for “[t]echnical writing and web page maintenance support to meet the goals and objectives of the National Weather Service,” as well as “engineering, budgeting, budget tracking, and documentation support.” Id. The RFQ stated the contract would be awarded to the “offeror whose quote represents the best value to the government, price and non-price factors considered.” Id. at 19 (solicitation). Quotes were to be evaluated on the basis of the following three factors in descending order of weight: (1) technical approach, (2) past performance, and (3) price. Id. at 18–19 (solicitation). As part of technical approach, the government required quotes to address “incumbent capture methodology, the vendor’s phase-in strategy and approach to performing the work without disrupting or compromising effective and efficient operations.” Id. at 18 (solicitation). Quotes were also required to include “all associated schedules [offerors] believe are required from the start of phase-in to the full assumption of task order responsibilities.” Id. The 1 During oral argument, defendant-intervenor reiterated “this contracting effort was part of a descoping. So Syneren was the incumbent, but the contracts were not identical to the solicitation they were performing before.” Tr. at 21:21–22:1. Plaintiff concurred “to the extent there is a change and there’s a descoping, we agree.” Tr. at 42:21–22. -2- government’s final technical approach requirement was to “[i]dentify any risks associated with [the offeror’s] approach and proposed mitigation methods.” Id. Under past performance, the government required quotes to “provide information on no more than three (3) of the firm’s most recently completed contracts/orders . . . for like or similar work.” AR at 18 (solicitation). The RFQ instructed past performance references to “provide a detailed explanation demonstrating the relevance of the contract/order to the requirements of the solicitation.” Id. To assess past performance, the RFQ explicitly stated the government could consider information from the Contractor Performance Assessment Reporting System (“CPARS”). Id. at 18–19. The RFQ stated the contractor would be required to provide five full-time positions, each at 1,880 hours per year: a Subject Matter Expert (SME IV), an Engineer (Eng IV), a Tech Writer (Tech Writer IV), a Web Master (Web Programmer II), and a Technician II (Tech Spec II). Id. at 39. The RFQ required quotes be submitted by 10 January 2020. Id. at 20. B. Plaintiff’s Proposal Two offerors, Syneren and Dowless, submitted quotes. Id. at 131 (First TET Consensus Report). Since this task order would be “part of a larger overall restructuring of contractual instruments from three contracts into four contracts, in which Syneren was the incumbent contractor,” plaintiff emphasized the superiority of its incumbency capture “no fewer than 20 times.” Pl.’s MJAR at 14, 16 (citing AR 463 (Contracting Officer’s Statement of Relevant Facts)). To illustrate its incumbency capture ability, plaintiff described “5 out of 5 required incumbent Syneren staff to start on Day 1.” AR at 95 (plaintiff’s proposal). Plaintiff also proposed a phase-in strategy consisting of salary escalations and a one-day transition. Id. at 96– 100. Plaintiff’s final price estimate was $3,458,275.60. Id. at 117. C. Defendant-Intervenor’s Proposal Defendant-intervenor was “currently performing similar services within the NWS,” and since the RFQ prioritized incumbent capture, defendant-intervenor proposed to ensure incumbent staff “salaries and benefits are as good or better than they currently are,” and “selected employees will get improved salaries and benefits.” Id. at 65 (defendant-intervenor’s proposal). To guarantee successful transition, defendant-intervenor proposed a phase-in process to “seamlessly transition the current staff to Team Dowless while maintaining operations without disruption.” Id. Defendant-intervenor proposed to enlist Tesla Laboratories (“Tesla”) and ITegrity as subcontractors to fulfill the government’s task order. Id. According to defendant- intervenor, both “are very knowledgeable about NWS upper air observations management, understand the administration and operations of NOAA, plus they greatly expand the socio- economic diversity” of the offering. Id. Tesla and ITegrity submitted past performance references to support defendant-intervenor’s bid. Id. 79–82. Defendant-intervenor’s final price estimate was $3,053,376.85. Id. at 87. D. First Award Decision Following the two quote submissions, a technical evaluation team (“TET”) rated both plaintiff and defendant-intervenor as acceptable in both the technical approach and past -3- performance categories. AR at 135 (First TET Consensus Report). Plaintiff’s price estimate was $404,898.75 more than defendant-intervenor’s. Id. at 145 (First Award Selection Memorandum). The CO noted “[t]he TET concluded that there were no notable difference [sic] in either quote. The TET believes both vendors would perform successfully if either company was awarded the task order.” Id. at 146. The CO found “a very minor discernable difference between the two quotes in the area of past performance,” with defendant-intervenor “having slightly higher quality.” Id. The CO then awarded the contract to defendant-intervenor on the grounds “there is no additional value received from Syneren to justify the price premium associated with their quote.” Id. E. First GAO Protest and Corrective Action On 5 March 2020, plaintiff protested the award at the Government Accountability Office (“GAO”). Id. at 216 (First GAO Protest). Plaintiff asserted the following grounds: (1) “its mitigation risk should have been zero”; (2) “the Agency failed to consider risk associated with relying entirely on subcontractor performance”; and (3) “the Agency leveled quotations and considered price, essentially turning the competition into a low price technically acceptable evaluation.” AR at 222–24. After “careful consideration of the issues raised in Syneren’s protest,” the government decided to take corrective action and reevaluate the proposals. Id. at 314 (Corrective Action Notice). If necessary, the government would “terminate the award to Dowless and award a new contract if appropriate.” Id. The government further indicates “when an agency action undertakes a new evaluation of proposals, the agency action renders a protest of the original evaluation and award decision academic.” Id. (internal citation omitted). Following the government’s decision to take corrective action, the GAO dismissed plaintiff’s protest as moot. Id. at 316 (First GAO Decision). F. Reevaluation of Proposals 1. The Government’s Reevaluation of Plaintiff’s Proposal The government tasked a different TET to perform the reevaluation of the offerors’ non– price proposal volumes. AR at 317 (Second TET Consensus Report). The government found plaintiff had an acceptable technical approach and outstanding past performance. Id. at 330–36. The government assessed plaintiff one significant strength, three strengths, four weaknesses, and one significant weakness. Id. at 330–331. Plaintiff’s significant strength was for its position as the incumbent contractor, as the government stated: The fact that Syneren is the incumbent contractor provides benefit to the Government and Upper Air Program by retaining team members with corporate knowledge, vital skills and relevant abilities in order to support Upper Air program requirements. This also will eliminate the detrimental effects of low incumbent capture and employment-related anxiety on Upper Air Program Team Members’ morale that may result from a loss of expertise. Id. at 330. Plaintiff’s significant weakness was due to plaintiff proposing “two part-time individuals as SME IVs” to provide direction to the staff and communication with the -4- government. Id. The government decided plaintiff’s proposal to split this responsibility between two people represented a “significant risk to the Government that the tracking, reporting, monitoring, and checking of deliverables would not be consistent amongst the two part-time team leads.” Id. The government assigned a weakness for plaintiff’s plan to give its employees an annual pay raise, which the government believed represented a “cost control” problem. AR at 331 (Second TET Consensus Report). The government noted plaintiff provided “no mention of how the company will manage and control cost of the increases in pay and benefits from current prices to the new prices.” Id. The government also assigned a weakness for plaintiff’s proposed one-day transition period, which the government determined to be risky. Id. The government assigned a third weakness because it believed plaintiff failed to: (1) provide analysis of the risk associated with transition; (2) describe its plan for mitigating the risk; (3) explain how it would implement the planned mitigation; and (4) propose to track the mitigation. Id. The TET rated plaintiff’s incumbent status a “significant strength.” Id. at 330. The TET also observed plaintiff’s “very high employee retention rate,” “well-documented and tested Phase-In Plan,” and use of standard operating procedures were strengths. Id. 2. The Government’s Reevaluation of Defendant-Intervenor’s Proposal The TET rated defendant-intervenor’s proposal “good” in the technical approach factor, assigning it a significant strength, five strengths, and two weaknesses. AR at 322–23 (Second TET Consensus Report). Defendant-intervenor’s significant strength was related to its incumbent capture methodology. Id. at 322. The government also stated “the salaries and benefits offered by [defendant-intervenor] will be in all cases as good or better than the incumbent employee’s current company will.” Id. The government rated defendant-intervenor’s past performance acceptable. Id. at 325. The government also prepared a table comparing the two offerors’ overall pricing and hourly rates, which showed defendant-intervenor’s proposed rates were lower than plaintiff’s in every labor category. AR at 345 (Second Best Value Determination Memorandum). G. Second Award Decision The CO’s tradeoff analysis selected defendant-intervenor over plaintiff and found the TET report “contain[ed] sufficient information to make a sound, supportable, business award decision.” Id. at 346–48. According to the CO, plaintiff’s technical approach “introduced a level of moderate risk associated with their insufficient time to transition and failure to address a mitigation strategy should the transition take longer than anticipated.” Id. at 340 (Second Best Value Source Selection Trade-Off Memorandum). The government’s restructuring of contractual instruments would “[a]t a minimum, . . . require an adjustment on Syneren’s part to realign resource [sic] to provide support specifically to the Upper Air Program.” Id. at 347 (Second Best Value Determination Memorandum). Based on the TET’s findings and the CO’s own independent judgment of non-price and price factors, defendant-intervenor’s quote -5- represented the best value to the government. Id. at 348. The CO informed defendant-intervenor of its contract award on 12 June 2020. Id. at 351 (second notification of award). H. Second GAO Protest Plaintiff filed a second GAO protest on 18 June 2020, challenging “the agency’s evaluation of quotations and the best-value tradeoff decision.” AR at 552 (Second GAO Decision). First, plaintiff argued the government erred in assigning a significant weakness to its proposal of splitting a subject matter expert (“SME”) IV team lead position between two part- time staff employees because the solicitation did not explicitly require a single point of contact. Id. at 553. The government contended it was reasonable to conclude the assignment of a leadership role to two different people could pose a risk to unity of effort, and the GAO agreed. Id. at 553–54. Defendant-intervenor’s proposal, on the other hand, proposed to fill the team lead position with one full-time employee. Id. at 553. The GAO concluded “the quotations were not meaningfully the same in this respect, and the protestor’s arguments are not consistent with the record.” Id. at 555. Plaintiff further challenged the government’s assignment of a weakness to its proposed one-day transition period, arguing one day “was entirely reasonable because the UAOS requirements of the current task order are substantially the same as the relevant portions of the previous task order.” Id. at 555–56. The government explained the requirements related to several programs supported under the prior task order were not within the scope of the current task order; accordingly, the assigned weakness represented a concern that plaintiff may have underestimated the work required to transition employees. AR at 556 (Second GAO Decision). Having considered the contemporaneous record, the GAO concluded the government’s concern was reasonable and plaintiff’s disagreement with the government’s judgment was insufficient to establish unreasonableness. Id. Plaintiff also challenged the government’s assignment of a cost control risk weakness to its plan of providing two percent annual salary escalation for two reasons. Id. at 556–57. First, plaintiff argued the government is only bound to pay the agreed-upon rates for time and materials contracts; and second, plaintiff argued the government’s assertion it could not assess how plaintiff would manage and control salary costs is irrational because plaintiff outlined exact rates in its proposal. Id. at 556–57. The GAO noted even if plaintiff was correct in arguing error, “it is not clear that the protestor was prejudiced by this error.” Id. at 557. The GAO also noted the best-value determination made no reference to either proposal’s cost control weaknesses, so it was unlikely that the CO considered or adopted the alleged erroneous weakness. Id. The GAO found the government’s response to each challenge to be consistent with the record and applicable law. Id. at 559. The GAO denied plaintiff’s protest on 25 September 2020. Id. at 551. I. Procedural History Before This Court -6-  On 5 October 2020, plaintiff filed its complaint in this bid protest, a motion to file the complaint under seal, and a motion for protective order. See Compl., ECF No. 1; Pl.’s Mot. for Leave to File Under Seal, ECF No. 2; Pl.’s Mot. for a Protective Order, ECF No. 3. Pursuant to the Court’s 7 October 2020 Order, later on 7 October 2020, the parties filed a joint status report with a proposed schedule. See Order, ECF No. 9; Joint Status Report, ECF No. 10. Also on 7 October 2020, defendant-intervenor filed a motion to intervene, which did not state whether the motion was opposed. See Dowless & Associates, Inc.’s Mot. to Intervene, ECF No. 11. The Court held an initial telephonic scheduling conference on 8 October 2020. See Order, ECF No. 9. Also on 8 October 2020, plaintiff refiled an unopposed motion for protective order and a redacted complaint. See Unopposed Mot. for Protective Order, ECF No. 13; Syneren Technologies Corp.’s Compl., ECF No. 14. Additionally on 8 October 2020, the Court granted plaintiff’s motion to file the complaint under seal, defendant-intervenor’s motion to intervene, and plaintiff’s second motion for protective order, along with setting the briefing schedule. Order, ECF No. 15. On 20 October 2020, the government filed the administrative record. See AR, ECF No. 24. On 2 November 2020, plaintiff filed an unopposed motion for enlargement of time, which the Court granted on the same day. See Unopposed Mot. For Enlargement of Schedule, ECF No. 25; Order, ECF No. 26. On 6 November 2020, plaintiff filed its motion for judgment on the administrative record (“MJAR”). See Pl. Syneren Technologies Corporation’s Mot. for J. on the Admin. R. and Incorporated Brief (“Pl.’s MJAR”), ECF No. 27. On 20 November 2020, the government filed its cross-MJAR and opposition to plaintiff’s MJAR. See Def.’s Cross-Mot. for J. on the Admin. R., and Opposition to Pl.’s Mot. for J. on the Admin. R., ECF No. 28 (“Def.’s Cross-MJAR”). On 30 November 2020, plaintiff filed its reply in support of its MJAR and response to the government’s cross-MJAR. See Pl. Syneren Technologies Corp.’s Reply in Supp. of Its Mot. for J. on the Admin. R. and Resp. to Def.’s Cross-Mot. for J. on the Admin. R., ECF No. 29 (“Pl.’s Reply and Resp.”). On 9 December 2020, the government filed its reply. See Def.’s Reply in Supp. of Its Cross-Mot. for J. on the Admin. R., ECF No. 30 (“Def.’s Reply”). Defendant-intervenor did not file any briefs related to the cross-MJARs. The Court held oral argument on the parties’ cross-MJARs on 6 January 2021. See Order, ECF No. 33. II. Legal Standards A. Bid Protest Jurisdiction & APA Standard of Review The Tucker Act provides this Court jurisdiction to “render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491 (b)(1). To be an interested party, a protestor must show that it is an “actual or prospective bidder or offeror whose direct economic interest would be affected by the award or failure to award the contract.” PDS Consultants, Inc. v. United States, 907 F.3d 1345 , 1356 (Fed. Cir. 2018) (internal quotation marks and citations omitted). In rendering such judgment, this Court “review[s] the agency’s decision pursuant to the standards set forth in section 706 of title 5” of the Administrative Procedure Act (“APA”). -7- § 1491(b)(4); see Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 , 1332 (Fed. Cir. 2001). “Among the various [Administrative Procedure Act] standards of review in section 706, the proper standard to be applied in bid protest cases is provided by 5 U.S.C. §706 (2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345 , 1350–51 (Fed. Cir. 2004) (citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054 , 1057–58 (Fed. Cir. 2000)). Under this standard, “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 , 43 (1983). “Courts have found an agency’s decision to be arbitrary and capricious when the agency ‘entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or [the decision] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372 , 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43 ). “The arbitrary and capricious standard applicable here is highly deferential” and “requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.” Advanced Data Concepts, 216 F.3d at 1058 (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 , 283 (1974)). B. Judgment on the Administrative Record in a Bid Protest RCFC 52.1(c) “provides for judgment on the administrative record.” Huntsville Times Co. v. United States, 98 Fed. Cl. 100 , 104 (2011). Rule 52.1(c) was “designed to provide for trial on a paper record, allowing fact-finding by the trial court.” Bannum, Inc. v. United States, 404 F.3d 1346 , 1356 (Fed. Cir. 2005). This Court may set aside a contract award if: “(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Impresa, 238 F.3d at 1332 . “When a challenge is brought on the second ground, the disappointed bidder must show ‘a clear and prejudicial violation of applicable statutes or regulations.’” Id. at 1333 (quoting Kentron Haw., Ltd. v. Warner, 480 F.2d 1166 , 1169 (D.C. Cir. 1973)). “[D]e minimis errors do not require the overturning of an award.” Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990 , 1000 (Fed. Cir. 1996). “De minimis errors are those that are so insignificant when considered against the solicitation as a whole that they can safely be ignored and the main purposes of the contemplated contract will not be affected if they are.” Id. (internal quotation marks omitted) (quoting Andersen Consulting v. United States, 959 F.2d 929 , 935 (Fed. Cir. 1992)). A bid protest plaintiff must establish alleged “errors in the procurement process significantly prejudiced [it]” by showing “there was a ‘substantial chance’ it would have received the contract award but for the errors.” Bannum, Inc., 404 F.3d at 1353 (quoting Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312 , 1319 (Fed. Cir. 2003)). Technical ratings fall within a category of “discretionary determinations of procurement officials that a court will not second guess.” E.W. Bliss Co. v. United States, 77 F.3d 445 , 449 (Fed. Cir. 1996). “Procurement officials have substantial discretion to determine which proposal represents the best value for the government.” Galen Med. Assocs. v. United States, 369 F.3d 1324 , 1330 (Fed. Cir. 2004) (citing E.W. Bliss, 77 F.3d at 449 ). A protester alleging unequal -8- treatment in a technical evaluation “must show that the agency unreasonably downgraded its proposal for deficiencies that were ‘substantively indistinguishable’ or nearly identical from those contained in other proposals.” Office Design Group v. United States, 951 F.3d 1366 , 1372 (Fed. Cir. 2020). C. Permanent Injunction When deciding whether a permanent injunction is warranted, a court considers: (1) whether, as it must, the plaintiff has succeeded on the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief. PGBA, LLC v. United States, 389 F.3d 1219 , 1228–29 (Fed. Cir. 2004). III. Parties’ Arguments A. Whether the Government’s Technical Evaluation Was Arbitrary, Irrational, or Contrary to Law 1. Whether the Government Assigned Plaintiff Irrational Weaknesses Plaintiff argues the Court should set aside the procurement decision because the government’s “evaluation of proposals was arbitrary, irrational, and/or contrary to law.” Pl.’s MJAR at 13. Plaintiff first argues the government’s evaluation of plaintiff’s proposal was arbitrary and capricious because the government assigned plaintiff irrational weaknesses. Id. The weaknesses plaintiff identifies as being irrationally assigned are: (1) “that its one day transition was risky”; (2) “that it failed to describe the risks associated with its proposed approach”; and (3) its “plan to give its employees an annual salary escalation, which the Agency believed represented a ‘cost control’ problem.” Id. at 16–17 (citing AR at 331 (Second TET Consensus Report), 343 (Second Best Value Determination Memorandum)). Plaintiff responds to the first two identified weaknesses by arguing “[t]here was literally nothing for Syneren to do—the same employees who’d been walking through the doors to work for the Agency under the prior contract would walk through the doors to work for the Agency under the new contract.” Id. at 16. Plaintiff responds to the third identified weakness by noting: (1) the RFQ did not disallow raises for employees and “it is industry practice to adequately compensate employees”; (2) concerns over cost control are “totally irrational” because “the contract contemplated by the RFQ is a time and materials contract—not a cost contract,” meaning the government “is merely bound to pay the agreed upon rates,” regardless of the cost to the contractor; and (3) plaintiff proposed “a modest 2% annual escalation for each labor category.” Id. at 17. -9-  The government explains “the upper air procurement is ‘part of a larger overall restructuring of contractual instruments from three contracts into four contracts,’ which at the very least will ‘require an adjustment on Syneren’s part to realign resource[s] to provide support specifically to the Upper Air Program.’” Def.’s Cross-MJAR at 20. The government asserts plaintiff’s belief “there was literally nothing for Syneren to do” reveals “its flawed understanding of the current procurement as being ‘identical’ to the contract for which it was an incumbent.” Id. Rather, the contracts “were not precisely identical as many tasks from the current contract were decoupled from each other as part of an overall restructuring.’” Id. (citing AR at 347 (Second Best Value Determination Memorandum). The government also argues plaintiff “still should have budgeted enough time to allow for a margin of error . . . [g]iven the uncertainty inherent in any transition involving many moving parts.” Id. The government also argues it was not unreasonable for it to treat plaintiff’s proposed salary increases as a weakness because “it was reasonable for the agency to fear that salary increases could get out of hand if, for example, market conditions caused salaries for the types of positions contemplated in the RFQ to greatly increase.” Id. at 22. The government adds even if it was in error, there was no prejudice to plaintiff because the government assigned this weakness to defendant-intervenor as well. Id. Plaintiff also asserts it was “unreasonable” for the government to assign “a significant weakness for splitting the SME IV position into two part-time personnel.” Pl.’s MJAR at 18 (citing AR at 330 (Second TET Consensus Report), 343 (Second Best Value Determination Memorandum)). Plaintiff argues the RFQ did not require the position, which provides direction to the staff and communicates with the agency, to be held by a single person, thus the government “unreasonably veered from the RFQ’s criteria in assigning a weakness for a bifurcated point of contact.” Id. at 18 (citing AR at 331 (Second TET Consensus Report)). The government responds plaintiff’s proposal to have two individuals split the SME IV team lead role is a significant risk because the position “is responsible for providing ‘direction, leadership, coordination for the rest of the staff . . . [and] ensuring that the deliverables and reports are generated and submitted to the Government in a high quality and timely manner.’” Def.’s Cross-MJAR at 18 (quoting AR at 101). The government asserts it was reasonable for the CO to conclude “having two individuals occupy such an important role would ‘jeopardiz[e] the unity of effort in the overall work performed’ and create the risk that tracking, reporting, monitoring, and checking of deliverables would not be consistent between the two individuals.” Id. at 18–19 (citing AR at 330–31 (Second TET Consensus Report), 347 (Second Best Value Determination Memorandum)). The government responds plaintiff “incorrectly understands the role ‘incumbent capture’ played in the procurement,” and the contract “was not a pro forma exercise designed to simply renew Syneren’s existing role with respect to the upper air programs.” Id. at 17. The government explains it considered offerors’ “[t]echnical ability, regular reporting, and transition planning” along with the incumbent capture methodology. Id. at 18. More broadly, the government argues it cannot be the standard “that any practice not expressly prohibited by the RFQ cannot constitute a weakness for evaluation purposes.” Id. at 19. - 10 -  2. Whether the Government Treated Plaintiff and Defendant-Intervenor Equally and Whether Strengths Assigned to Defendant-Intervenor Were Rational Plaintiff also argues the government did not treat plaintiff and defendant-intervenor equally “in irrationally assigning strengths to [defendant-intervenor’s] proposal.” Pl.’s MJAR at 18. First, plaintiff argues the government’s assignment of a strength for defendant-intervenor’s four-month transition period as being a “methodical timeline of transition within a reasonable time” falls short of its desire to perform the work “without disrupting or compromising effective and efficient operations.” Id. at 19 (citing AR at 19 (solicitation), 72 (defendant-intervenor’s proposal), 322 (Second TET Consensus Report)). Plaintiff explains while the government “dwells heavily on the risk of Syneren’s one-day transition—for its own employees already at the Agency—the Agency assigned Dowless a strength for an inordinately long transition period.” Id. Plaintiff describes the government’s treatment of a four-month transition as a strength as being “unequal treatment when compared with the risk” the government assigned to plaintiff’s one-day transition. Id.; see AR at 331 (Second TET Consensus Report). The government responds it did not assign a strength to plaintiff’s proposed one-day transition period because plaintiff “wrongly conflates transition time with disruption.” Def.’s Cross-MJAR at 20. According to the government, “[a] smooth, non-disruptive transition, which is what the RFQ calls for, would likely take more time than an abrupt and unsettling transition. Just as a transition that is too long may cause disruption, so too can a transition that is too short.” Id. at 20–21. Plaintiff also argues the two part-time employees it proposed for the SME role are part of the incumbent personnel the government values; therefore replacing them with a single individual “would introduce risk,” something the government failed to consider when evaluating defendant-intervenor’s proposal. Pl.’s MJAR at 19–20. The government explains “the RFQ did not require the retention of all current workers on the upper air programs. It would be entirely consistent with full incumbent capture for Dowless to select only one of the two SME IV workers to work full time in the position.” Def.’s MJAR at 19. B. The Parties’ Arguments Regarding NOAA’s CO’s Award Rationale Plaintiff argues the CO “failed to recognize obvious evaluation errors and compounded them with an irrational source selection decision.” Pl.’s MJAR at 20. Plaintiff argues the CO “allowed obvious evaluation errors to infect her source [s]election [d]ecision” and asserts this means “the resulting source selection decision is itself arbitrary and capricious.” Id. at 20. Plaintiff also argues the CO “failed to consider key risks in [defendant-intervenor’s] proposal.” Id. at 21. The first area plaintiff states the government failed to consider is its assignment of a significant strength to defendant-intervenor for offering benefits and salaries “as good as or better than” plaintiff’s rates, even though defendant-intervenor “actually offered lower rates, which the Contracting Officer knew and included in her decision.” Id. (citing AR at - 11 - 322 (Second TET Consensus Report), 345, 347 (Second Best Value Determination Memorandum)). According to plaintiff, these “two findings are at odds” and although defendant-intervenor might have considered charging the government less than it paid its employees, defendant-intervenor’s proposal does not indicate any intention of doing so. Id. at 21–22. The second risk plaintiff states the government failed to consider relates to the CO’s decision to adopt “the TET’s elaborate finding that two of the three past performance evaluation [sic] for [defendant-intervenor] were so unclear and wanting that [the TET] questioned whether the ratings were accurate.” Id. at 22 (citing AR at 328–29 (Second TET Consensus Report)). Plaintiff asserts an inconsistency between the CO’s decision to agree with the TET about the lack of clarity of the evaluations and the CO’s finding “that they were not so unclear that she couldn’t give [defendant-intervenor] a better rating.” Id. [emphasis omitted]. Regarding cost control, the government argues because the contract “does not contemplate a price realism assessment, there is nothing inappropriate about a contractor proposing a price that is below its costs.” Def.’s Cross-MJAR at 22 (citing AR at 559 (Second GAO Decision)). The government asserts because it is on the offeror to take the risk, “it was not inconsistent for [defendant-intervenor] to claim that it would increase worker salaries and offer a price that is below its costs.” Id. The government also argues the CO rationally determined defendant-intervenor’s past performance, and plaintiff’s “argument fails to account for the fact that the Contracting Officer’s assessment of [defendant-intervenor’s] Past Performance relied on her own independent judgement.” Id. at 23 (citing AR at 348 (Second Best Value Determination Memorandum)). The government also argues the CO “reasonably concluded that [defendant-intervenor’s] ‘Good’ Technical Approach and Past Performance at the ‘high end’ of ‘Acceptable’ were superior to Syneren’s ‘lower end of Acceptable’ Technical Approach and ‘Outstanding’ Past Performance.” Id. at 23 (citing AR at 339–40 (Second Best Value Source Selection Trade-Off Memorandum), 347–48 (Second Best Value Determination Memorandum)). The government notes defendant-intervenor was also the lower priced of the two proposals, and “[i]t would have been irrational for the agency to award the Task Order to a bidder who was evaluated less highly on non-price factors and who offered a price $400,000 more than its better-rated competitor.” Id. at 23–24. IV. Analysis Based on the parties’ arguments outlined supra, the Court’s analysis of plaintiff’s arguments flow in logical progression of how they relate to one another. The Court initially considers the similarity of the solicitation to the previous contract, for which plaintiff is the incumbent. A. Whether the Contract is the Same as the Previous Contract Plaintiff argues the CO’s market research acknowledges plaintiff as “the incumbent contractor for the same work.” Pl.’s MJAR at 14 (citing AR at 1–2, 5 (CO’s Market Research Report)). The government noted the CO’s market research report “predated the solicitation, was not widely circulated, and was a passing remark” and instead argues the “procurement was not a - 12 - pro forma exercise designed to simply renew Syneren’s existing role with respect to the upper air programs.” Tr. at 31:12–14; Def.’s Cross-MJAR at 17. Plaintiff further explained, “the difference between the task orders [in the two contracts] is that there are currently three task orders. . . . The primary difference is that [the] ASOS and upper air [task order is] being divided into two task orders, and that accounts for the difference.” Tr. at 35:19–25. According to plaintiff, there is no “substantial difference” between the prior contract and the current solicitation because the “contracting officer said in her market research that this is the identical work and it’s the same scope and Syneren is the incumbent, and the requirements didn’t change from the market research to the solicitation/PWS . . . .” Id. at 36:8– 16. According to the government, plaintiff’s “misunderstanding of [the change in scope of the contract] is a big reason why they were assigned weaknesses in the technical evaluation approach and is a major reason why the contract was not awarded to them.” Id. at 32:11–14. The government argued plaintiff’s proposal failed to address a significant change to the new solicitation, which was the “descoping and restructuring of the weather observation overall program, and a major part of that was the separation of the upper air from the ASOS.” Id. at 36:20–25. The government explained the 8 October 2019 task order overview only contains three bullet points describing required technical and administrative skills, while the 11 January 2018 task order overview contains five. Id. at 38:6–12 (citing AR at 38 (solicitation); 490 (NOAA Performance Work Statement for Operations Technical Support Services, 11 January 2018)). When the Court asked whether the difference simply reflected the new task order overview dropping two of the five tasks, the government explained the dropping of two tasks “reflects the overall understanding that the work was being descoped. So the ASOS tasks were . . . separated out from the upper air program.” Id. at 38:19–21; 39:2–6. The only substantive change from the 2018 task order overview to the 2019 task order overview is the removal of two of the five required skills. Compare AR at 38 (solicitation) with AR at 490 (NOAA Performance Work Statement for Operations Technical Support Services, 11 January 2018).2 The three technical and administrative skills listed in the 2019 task order are identical to those listed in the 2018 task order except for minor stylistic differences. Compare AR at 38 (solicitation) with AR at 490 (NOAA Performance Work Statement for Operations Technical Support Services, 11 January 2018). The significant similarity of the task order overviews weighs in favor of plaintiff’s argument for continuity between the contracts.3 The government is correct, however, in asserting the contracts are not mirror images, and it is not unreasonable for the government to exercise caution while restructuring a series of contracts, especially when there is likelihood for contracted workers to be switching to different projects. 2 The 2018 requirements dropped in the 2019 task order overview are “[t]he Automated Surface Observing Systems program (ASOS) maintenance, ASOS engineering, ASOS system performance, and surface equipment and hydrology,” and “[t]he National Weather Service’s (NWS) Cooperative Observer Program (COOP) and the COOP’s Cooperative Station Service Accountability (CSSA) database and metadata system.” Compare AR at 38 (solicitation) with AR at 490 (NOAA Performance Work Statement for Operations Technical Support Services, 11 January 2018). 3 The government noted: “one place where one can look to see where this [descoping and restructuring] manifests is if you compare, for example, administrative record page 38 with administrative record page 490 . . . .” Tr. at 37:1– 5. - 13 - The Court finds the government was rational in treating the contracts as having some relevant differences in assessing the offers. The Court’s finding here will be incorporated into its analysis of the parties’ arguments infra. B. Whether the Government Rationally Evaluated the Parties’ Proposed Pricing 1. The Rationality of Defendant-Intervenor Offering the Government a Lower Price While Promising to Increase Employee Salaries The TET assigned defendant-intervenor a significant strength for its incumbent capture methodology as part of its overall technical approach rating of good, noting defendant-intervenor will “reassure the incumbent employees about their job security and their roles on the new contract” through “open and honest communication with incumbent staff and superior salary and benefits.” AR at 322 (Second TET Consensus Report). The government emphasized “the salaries and benefits offered by Team Dowless will be in all cases as good or better than the incumbent employee’s current company will.” Id. Defendant-intervenor’s proposal promised to “reassure the current staff that the transition to Team Dowless will not adversely affect their salary and benefits and that in many case [sic] they will obtain more benefits.” Id. at 72 (defendant-intervenor’s proposal). The CO agreed with the TET’s evaluation. Id. at 343 (Second Best Value Determination Memorandum). Plaintiff states the government was unreasonable in failing to consider the riskiness of its assignment of a significant strength to defendant-intervenor for offering benefits and salaries “as good as or better than” plaintiff’s rates while defendant-intervenor “actually offered lower rates, which the Contracting Officer knew and included in her decision.” Pl.’s MJAR at 21–22 (citing AR at 322 (Second TET Consensus Report), 345 (Second Best Value Determination Memorandum), 347 (Second Best Value Determination Memorandum)). According to plaintiff, these “two findings are at odds” and defendant-intervenor’s proposal indicates no effort to reconcile the apparent discrepancy by charging the government less than defendant-intervenor planned to pay its employees. Id. The government explains: “because the RFQ contemplates fixed-price fully burdened labor rates and does not contemplate a price realism assessment, there is nothing inappropriate about a contractor proposing a price that is below its costs.” Def.’s Cross-MJAR at 22. The government notes, “because the risk and responsibility for contract costs is on the contractor, not the Government, it was not inconsistent for Dowless to claim that it would increase worker salaries and offer a price that is below its costs.” Id. The government understands defendant- intervenor to be “presumably willing to accept a lower profit margin in order to provide a more competitive and better-value bid.” Def.’s Reply at 6. The government noted at oral argument the terms of the solicitation stated the awardee “would be responsible for any cost above and beyond what’s quoted” because the awardee’s quoted amount is the contract’s “ceiling price.” Tr. at 44:13–16; 47:12–17 (citing AR at 25 (solicitation)). Plaintiff noted although there is a price ceiling, the government “explicitly anticipates that there could be an increase in the cost of the contract.” Id. at 56:20–24. Plaintiff cited a clause stating “the contractor shall notify the contracting officer in writing whenever it - 14 - has reason to believe that the costs it expects to incur under this contract in the next 60 days, when added to all the costs previously incurred, will exceed 85 percent of the total funded amount so far allotted.” Id. at 56:24–57:5 (citing AR at 25 (solicitation)).4 Plaintiff elsewhere defends its own proposed price increases by noting the government “is merely bound to pay the agreed upon rates. Syneren’s actual costs are irrelevant, and would not affect the cost the Agency paid.” Pl.’s MJAR at 17. Plaintiff defends its ability to control costs by noting it is “irrational” for the government to conclude “[the government] had no way of knowing how Syneren would manage its costs.” Id. Plaintiff’s assertion it has no way of knowing how defendant-intervenor would manage its costs its similarly irrational, as plaintiff provides no evidence defendant-intervenor would not honor its contractual obligations, even loss of money on the contract. The Court recognizes the strength of plaintiff’s observation the government could be responsible for additional costs if the contractor’s costs reach a certain level. See Tr. at 56:24– 57:5 (citing AR at 25 (solicitation)). Defendant-intervenor’s proposal is $404,898.75 less expensive than plaintiff’s, which means minor cost overruns will still save the government money, and to the extent plaintiff is concerned defendant-intervenor’s costs could rise above plaintiff’s proposed costs, this concern would also apply to plaintiff, since both parties offered to increase employee salaries to retain employees. See AR at 323, 331 (Second TET Consensus Report), AR at 340 (Second Best Value Source Selection Trade-Off Memorandum). Plaintiff’s concern regarding defendant-intervenor’s price is also misleading; although defendant-intervenor offered a superior price, the government rated defendant-intervenor higher on non-price factors, which it considered to be more important than price. See Def.’s Cross-MJAR at 13. The Court finds plaintiff is unable to overcome the government’s observation it is “entirely reasonable for the agency to have concluded that [the difference in cost between the offerors’ proposals] would not come out of the employee[s’] take-home but would come from Dowless’ margin, overhead, or any particular thing that would not affect the employee.” Tr. at 53:14–18. The government’s decision here “evince[es] rational reasoning and consideration of relevant factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054 , 1058 (Fed. Cir. 2000). Technical ratings fall within a category of “discretionary determinations of procurement officials that a court will not second guess.” E.W. Bliss Co. v. United States, 77 F.3d 445 , 449 (Fed. Cir. 1996). This analysis is also related to the Court’s consideration of the relevance of a price realism analysis, discussed immediately infra. The Court finds the government’s decision here should not be “set aside” because it is not “‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345 , 1350–51 (Fed. Cir. 2004). 2. The Role of Price and Cost Realism Analysis in the Dispute over the Rationality of Defendant-Intervenor’s Pricing 4 The clause further states: “The notice shall state the additional funds required to continue performance for the period specified in the Schedule.” AR at 25 (solicitation). The solicitation states change orders shall be allowed “to exceed the amount allotted by the government specified in the Schedule, [if] they contain a statement increasing the amount allotted.” Id. - 15 -  The government noted in its defense of defendant-intervenor’s pricing, “there is nothing inappropriate about a contractor proposing a price that is below its costs,” because the solicitation “does not contemplate a price realism assessment.” Def.’s Cross-MJAR at 22. Plaintiff responded it instead simply argued the CO failed to consider price “as a factor in whether Dowless was really offering enough to recruit and retain incumbent personnel.” Pl.’s Reply and Resp. at 5. Plaintiff clarified at oral argument it does not believe its argument regarding the rationality of defendant-intervenor’s price proposal “is a realism analysis because realism analysis addresses the risk of nonperformance. This is a consistency question.” Tr. at 63:14-16. Defendant-intervenor suggested if plaintiff is requesting any sort of realism analysis, it is cost realism analysis, rather than price realism analysis, because there is not “any real issue with price. It sounds to me like the question is about whether our costs are covered.” Id. at 64:11–17. Insofar as plaintiff requests a cost realism analysis, defendant-intervenor argued, “cost realism analysis is not required for the fixed elements of [a time and materials contract], . . . therefore, [defendant-intervenor] could bid costs that were lower than—or higher, rather, than what the . . . price might allow [defendant-intervenor] to recoup.” Id. at 64:23–65:2. The Court agrees with the parties “that a price or cost realism analysis is not called for.” Id. at 66:18–19. The Court understands plaintiff to not be holding the government to a realism analysis, contrary to the government’s characterization.5 Plaintiff did not inquire into whether any particular costs defendant-intervenor proposed were realistic; rather, plaintiff merely inquired as to whether defendant-intervenor’s proposed price for the government matched what plaintiff anticipated defendant-intervenor’s costs to be. For the reasons discussed immediately supra, the Court finds the government’s decision to accept defendant-intervenor’s commitment to increase employees’ salaries while proposing a lower price than plaintiff to be rational. 3. Whether the Government Rationally Assigned Plaintiff a Weakness for Proposing Annual Salary Increases The TET gave both plaintiff and defendant-intervenor weaknesses for proposing annual salary increases as part of their incumbent retention plans, which the government believed introduced a “cost control” problem. AR at 323, 331 (Second TET Consensus Report). These scores contributed to the TET’s technical approach scores for defendant-intervenor of good and plaintiff’s score of the lower end of acceptable. Id. at 322, 332. The CO agreed with the TET’s evaluation. Id. at 346–47 (Second Best Value Determination Memorandum). Plaintiff argues the government’s “apparent concern about ‘cost control’ is totally irrational” because under a time and materials contract, the government “is merely bound to pay the agreed upon rates,” and the contractor’s “actual costs are irrelevant, and would not affect the cost the agency paid.” Pl.’s MJAR at 17. Plaintiff argues only defendant-intervenor should still receive this weakness, however, because defendant-intervenor “did not know how much the 5 Plaintiff stated at oral argument it merely believes there “is a clear and fundamental disconnect between the technical offer and what the price was that was proposed.” Tr. at 84:22–24. Plaintiff then clarified it is not asking the government to “assess[] risk associated with the cost of performance” as a price realism analysis would require. Id. at 85:6–8. - 16 - incumbents earned and was much more likely to ‘take a bath’ if it bid substantially lower rates than Syneren.” Id. The government defended its assignment of a weakness on the ground “it was reasonable for the agency to fear that salary increases could get out of hand if, for example, market conditions caused salaries for the types of positions contemplated in the RFQ to greatly increase.” Def.’s Cross-MJAR at 22. The government observed even if it erred in assigning a weakness for the cost control issue, plaintiff “cannot show that it was prejudiced by this error” because “it was a weakness equally shared by both Syneren and Dowless” and the CO did not discuss “the salary increases as a weakness in her best value determination.” Id. (citing AR at 323, 331 (Second TET Consensus Report), 342–50 (Second Best Value Determination), 557 (Second GAO Decision)). Regardless of whether the government was rational in attributing a weakness to plaintiff and defendant-intervenor, the government is correct: any improvement in plaintiff’s rating would necessarily mean an improvement in defendant-intervenor’s rating as well. Plaintiff’s argument it deserves a better rating because it knows “how much the incumbents earned” is not a rational distinction because the information had no effect on the government’s concern regarding cost mismanagement—the government still accuses plaintiff of risking cost mismanagement despite plaintiff’s knowledge of the incumbent employees’ salaries. See Pl.’s MJAR at 17. Plaintiff also argues the government has no contractual responsibility to pay for a contractor’s cost mismanagement while also arguing defendant-intervenor provides a cost control concern to the government. See id. If plaintiff’s proposal does not present a cost control concern because of the nature of the contract, neither does defendant-intervenor’s proposal, since it is a proposal for the same contract. A protester alleging unequal treatment in a technical evaluation “must show that the agency unreasonably downgraded its proposal for deficiencies that were ‘substantively indistinguishable’ or nearly identical from those contained in other proposals.” Office Design Group v. United States, 951 F.3d 1366 , 1372 (Fed. Cir. 2020). Plaintiff asks the government for different treatment for substantively indistinguishable deficiencies in its proposal and defendant- intervenor’s proposal. Although the government’s concern over employee salaries tracking market conditions appears to be in tension with the government’s strong focus on incumbent employee retention, the government was reasonable in treating the parties’ substantively indistinguishable deficiencies equally. See id. Technical ratings fall within a category of “discretionary determinations of procurement officials that a court will not second guess.” E.W. Bliss Co., 77 F.3d at 449 . The government’s decision here “evince[es] rational reasoning and consideration of relevant factors.” Advanced Data Concepts, 216 F.3d at 1058 . The Court finds the government’s decision here should not be “set aside” because it is not “‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Banknote Corp. of Am., Inc., 365 F.3d at 1350–51. Further, even were it irrational for the government to assign a weakness to both parties, plaintiff was not prejudiced because the government assigned defendant-intervenor the same weakness and the CO’s evaluation did not discuss the weaknesses. Bannum, Inc. v. United States, 404 F.3d 1346 , 1353 (Fed. Cir. 2005) (A bid protest plaintiff must establish alleged “errors in the procurement process significantly prejudiced [it]” by showing “there was a - 17 - ‘substantial chance’ it would have received the contract award but for the errors.”); see AR at 342–50 (Second Best Value Determination); 557 (Second GAO Decision). C. Whether the Government Assessed the Proposals Regarding SME IV Rationally 1. Whether the Government Was Rational in Assigning Plaintiff a Significant Weakness for Proposing Two Part-Time Employees to a Full- Time Position As part of plaintiff’s acceptable rating for technical approach, the TET assigned plaintiff a significant weakness for “propos[ing] the use of the SME IV as the Team Lead who will provide direction, leadership, coordination for the rest of the staff” while also “propos[ing] two part-time individuals as SME IVs” and splitting leadership duties between the two part-time individuals. Id. at 330 (Second TET Consensus Report). The TET found a “significant risk” of inconsistencies between the two individuals’ “tracking, reporting, monitoring, and checking of deliverables.” Id. at 330–31 (Second TET Consensus Report). The CO agreed with this evaluation. Id. at 344 (Second Best Value Determination Memorandum). Plaintiff states because the solicitation did not explicitly require the position only be staffed by one person, the government “unreasonably veered from the RFQ’s criteria in assigning a weakness.” Pl.’s MJAR at 18. Plaintiff noted at oral argument the two part-time staffers it proposed as SMEs “are the incumbent SMEs on Syneren’s contract,” and they have similar project management experience of “more than 30 to 40 years.” Tr. at 11:16–24. The government argues the CO “reasonably concluded that having two individuals occupy such an important role would ‘jeopardiz[e] the unity of effort in the overall work performed’ and create the risk that tracking, reporting, monitoring, and checking of deliverables would not be consistent between the two individuals.” Def.’s Cross-MJAR at 18–19 (citing AR at 330–31 (Second TET Consensus Report), 347 (Second Best Value Determination Memorandum)). Although the RFQ “did not expressly prohibit multiple individuals from filling a single full-time position,” the government asserts “it was not irrational or unfair treatment for the agency to consider this a weakness.” Id. at 19. The government rejects plaintiff’s “proffered standard, that any practice not explicitly prohibited by the RFQ cannot constitute a weakness for evaluation purposes” and explains such a standard would lead to “overly permissive evaluations with the potential for absurd results.” Id. The government also notes it “would be entirely consistent with full incumbent capture for Dowless to select only one of the two SME IV workers to work full time in the position.” Id. At oral argument, plaintiff did not dispute the Court’s observation, “there’s no information in the record that specifies [the two part-time employees] have been part-time employees for a long period of time, wish to remain as part-time employees, [or] will only be employed as part-time employees.” Tr. at 74:20–24; 75:3–5. The government noted because defendant-intervenor planned to meet with employees as part of its incumbent capture methodology, defendant-intervenor could promote one of the part-time employees to full-time “if one wanted to go full-time.” Id. at 68:3–7. The government also argued “[t]here’s no demonstrated history that” the part-time employees’ part-time status was a strength, and the lack - 18 - of history means “it’s logical to say that they were retained in spite of their part-time status, not because of it.” Id. at 76:19–77:1. Finally, the government argued it was rational for it to see “the risk avoided of not having communication would be greater than the slight risk of potentially finding somebody that might not be the same level of quality as these two individuals.” Id. at 77:3–7. While plaintiff argues “proposing full-time personnel was a phantom RFQ requirement,” the Court agrees the government’s assessment of a weakness in this category did not treat the proposal as if it were “disqualifying or otherwise represented a failure to follow the solicitation requirements.” Pl.’s Reply and Resp. at 4; Def.’s Reply at 5. The Court finds it is not irrational to conclude that a full-time employee has much greater retention possibility than a part-time employee. The Court also finds the government rational in preferring a team leadership role be held by a single person, rather than by two part-time people. Thus, the government’s decision here “evince[es] rational reasoning and consideration of relevant factors.” Advanced Data Concepts, 216 F.3d at 1058 . The Court finds the government’s decision here should not be “set aside” because it is not “‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Banknote Corp. of Am., Inc., 365 F.3d at 1350–51. Plaintiff’s request for the Court to treat as irrational the government’s assignment of plaintiff weakness because it was not explicitly grounded in a violation of the letter of the solicitation is, in this instance, a request for the Court to reevaluate the “discretionary determinations of procurement officials that a court will not second guess.” E.W. Bliss Co., 77 F.3d at 449 . 2. Whether the Government Irrationally Failed to Consider the Risk of Defendant-Intervenor Replacing the Two Part-Time Employees with a Full- Time Employee Plaintiff also argues because it “employed all incumbent personnel, the hiring of any other individual as SME IV [to replace the two part-time employees] would necessarily affect the Agency’s receipt of services on other efforts” by taking employees away from other projects. Pl.’s MJAR at 19–20. Plaintiff asserts it was irrational for the government to not assign defendant-intervenor a risk related to this concern. Id. at 20. In response, the government argues “the RFQ did not require the retention of all current workers on the upper air programs,” so defendant-intervenor could “select only one of the two SME IV workers to work full time in the position” to avoid disruption to other projects. Def.’s Cross-MJAR at 19. Defendant- intervenor’s proposal of replacing the two part-time employees with a full-time employee could result in improved employee retention if one of the two part-time employees desired to work as a full-time employee. See Tr. at 68:3–7 (the government noting defendant-intervenor could promote one of the part-time employees to full-time “if one wanted to go full-time”). When the Court noted at oral argument “it’s not irrational to conclude that a full-time employee has much greater retention possibility than a part-time employee,” plaintiff responded part-time employee status and retention likelihood “are not necessarily connected.” Id. at 74:24–75:9. The Court reviews not whether the two are “necessarily connected” but whether the government was reasonable in seeing the two as connected and then crediting defendant-intervenor for proposing to select one of the two employees to work full-time as a means of retaining them for the future. Technical ratings fall within a category of “discretionary determinations of procurement officials that a court will not second guess.” E.W. Bliss Co., 77 F.3d at 449 . The government’s decision - 19 - here “evince[es] rational reasoning and consideration of relevant factors.” Advanced Data Concepts, 216 F.3d at 1058 . The Court finds the government’s decision here should not be “set aside” because it is not “‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Banknote Corp. of Am., Inc., 365 F.3d at 1350–51. D. Whether the Government’s Rating of the Parties’ Proposed Transition Times Was Irrational The TET evaluated plaintiff’s “transition schedule of one day” as a weakness contributing to its lower end of acceptable rating for technical approach because it “represents a risk to the Government that Syneren is overestimating its ability to transition from all the duties that the individuals perform today . . . to the current work and activities required only by upper air programs.” AR at 330–32 (Second TET Consensus Report). The TET treated defendant- intervenor’s proposed four-month transition as a strength contributing to its technical approach rating of good, noting the transition plan’s “methodical timeline of transition within a reasonable amount of time,” which “provides the Government assurance that the company will execute the incumbent capture and new hires in a timely fashion to ensure no lapse in the work required in the program.” Id. at 323. The CO agreed with the TET’s evaluation. Id. at 346 (Second Best Value Determination Memorandum). Plaintiff argues the government’s decision to treat defendant-intervenor’s proposed four- month transition period as reasonable falls short of the government’s desire to perform the work “without disrupting or compromising effective and efficient operations.” Pl.’s MJAR at 19 (citing AR at 19 (solicitation)). Plaintiff asserts the government’s treatment of defendant- intervenor’s four-month transition as a strength is not only “irrational and arbitrary in its own right, [but it also] demonstrates unequal treatment when compared with the risk” the government assigned to plaintiff’s “one-day transition—for its own employees already at the Agency.” Id. The government argues the CO rationally decided plaintiff’s “incumbency status ‘does not devoid them from requiring a transition period.’” Def.’s Cross-MJAR at 19–20 (quoting AR at 347 (Second Best Value Determination)). This was a necessity, according to the government, because the procurement is “‘part of a larger overall restructuring of contractual instruments from three contracts into four contracts,’ which at the very least will ‘require an adjustment on Syneren’s part to realign resource[s] to provide support specifically to the Upper Air Program.” Def.’s Cross-MJAR at 20 (quoting AR at 347 (Second Best Value Determination)).6 Plaintiff asserted at oral argument its outstanding past performance rating “can’t be . . . highly relevant for purposes of past performance and then not relevant for technical” because, in plaintiff’s view, “[t]hese individuals are doing essentially the same work.” Tr. at 42:17–20; 6 The government noted at oral argument plaintiff’s failure “to address the descoping . . . also reflected a lack of understanding of the performance work statements and the requirements of the solicitation.” Tr. at 32:16–20. The government explained some of the employees plaintiff proposed as part of its incumbent retention “were primarily ASOS,” which would require “some transition, additional training for that person, some sort of getting on the same page” because the new contract contains only upper air work and no longer contains ASOS work—concerns plaintiff’s “proposal did not address at all.” Id. at 39:21–40:11. - 20 - 42:23–24. Plaintiff adds it was contradictory for it to receive a strong rating for incumbent capture methodology and a weakness for a one-day transition to a new contract. Id. at 43:6–11. The Court is sympathetic to plaintiff’s position at oral argument its one-day transition plan was “a rational approach that made a lot of sense” based on plaintiff’s incumbent status and the minimal changes in the new contract. Id. at 10:8–9. Plaintiff appears to misunderstand the government’s concerns underlying its rating, however. The government noted plaintiff’s optimistic assessment left “no room for margin of error” in case plaintiff was “overestimating its ability to transition from all the duties that the individuals perform today . . . to the current work and activities required only by the Upper Air programs.” AR at 331 (Second TET Consensus Report).7 Plaintiff’s failure to prepare for anything but a smooth transition overlooked the government’s desire for offerors to demonstrate an understanding of “the overall requirements for Upper Air programs.” Id.8 The government observed defendant-intervenor’s proposed transition timeline “provides the Government assurance that the company will execute the incumbent capture and new hires in a timely fashion to ensure no lapse in the work required in the program.” Id. at 323.9 As the government observed at oral argument, plaintiff “offer[ed] no support . . . other than just their own say-so” for its characterization of defendant-intervenor’s proposed four- month transition as “necessarily disrupt[ing] the performance of the contract.” Tr. at 12:5–6; 80:1–3. The Court finds the government’s assignment of a risk to plaintiff’s proposed one-day transition was reasonable because it was rational for the government to be concerned plaintiff was underprepared for small but important changes in the new solicitation, which could lead to delays in transition plaintiff did not foresee. Such a determination as part of a technical rating falls within a category of “discretionary determinations of procurement officials that a court will not second guess.” E.W. Bliss Co., 77 F.3d at 449 . The Court also finds the government was rational in assigning a strength to defendant-intervenor for “a methodical timeline of transition 7 Plaintiff’s comparison of its plan to defendant-intervenor’s appears to treat the parties’ respective proposed transition times as definitive statements of the actual time it will take for the parties to transition, rather than as reflections of the parties’ understandings of the challenges transition could present: “it just doesn’t make common sense to say a one-day transition creates an unexplained risk where a four-month transition that would clearly disrupt the requirement is somehow methodical.” Tr. at 12:7–10. 8 The government’s concern plaintiff did not understand the new contract requirements is bolstered by two other weaknesses the government assigned to plaintiff. First, the government noted plaintiff’s list of deliverables included “artifacts for engineering and logistics for ASOS and COOP programs. These two programs are out of scope of this solicitation.” AR at 331 (Second TET Consensus Report). The government stated this presented a risk plaintiff “does not understand the requirements of this PWS by including activities that are clearly outside the scope of this work for Upper Air programs.” Id. Second, the government noted plaintiff’s acknowledgement of the risks involved in the transition yet failure to “clearly outline the methodology for handling each risk from all the risk management steps” is a sign plaintiff may not be clear about the risks or how to handle them. Id. The government sees this as creating risk of an unsuccessful transition. Id. 9 Meanwhile, according to the government, “of the people that Syneren proposed, if you look at their resumes that it provided, and based off of the work they’d be providing, the division of labor between those people, some were primarily ASOS.” Tr. at 39:21–25. The “particular knowledge and understanding of upper air” of staffers transitioning from primarily ASOS to new solicitation’s exclusive focus on upper air “may not be what’s required going forward. . . . [T]here’s going to need to be some transition, additional training for that person, some sort of getting on the same page.” Id. at 40:2–9. - 21 - within a reasonable amount of time.” Advanced Data Concepts, 216 F.3d at 1058 (“The arbitrary and capricious standard applicable here is highly deferential” and “requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.”); AR at 323 (Second TET Consensus Report). The government did not treat the parties unequally in assigning defendant-intervenor a strength for a longer transition period and plaintiff a weakness for a shorter transition period, since a protester alleging unequal treatment in a technical evaluation “must show that the agency unreasonably downgraded its proposal for deficiencies that were ‘substantively indistinguishable’ or nearly identical from those contained in other proposals,” and plaintiff did not demonstrate the deficiencies in its proposed transition time were nearly identical to those in defendant-intervenor’s. Office Design Group 951 F.3d at 1372. E. Whether the Government’s Past Performance Rating for Defendant-Intervenor Was Irrational The TET rated plaintiff’s past performance outstanding and rated defendant-intervenor’s past performance acceptable, noting defendant-intervenor’s “narratives provided in the CPARS and PPQs do not support the assigned adjectival ratings associated with the various rating areas.” AR at 328, 333 (Second TET Consensus Report). The CO accepted these adjectival ratings but viewed defendant-intervenor’s past performance more positively, adding: “the adjectival scale used by the agency does not provide for a rating between the level of Acceptable and the level of Outstanding for past performance, in contrast to the evaluation of Technical Approach herein which included an intermediate rating of Good. Had there been such a rating option, it would likely have been provided to Dowless’ past performance.” Id. at 348 (Second Best Value Determination Memorandum). Plaintiff argues it was prejudiced by the CO’s arbitrary past performance ratings. Pl.’s MJAR at 23. Plaintiff asserts the CO raised defendant-intervenor’s past performance rating from what the TET recommended even after agreeing with the TET that two of defendant-intervenor’s three past performance evaluations were unclear and of questionable accuracy. Id. at 22 (citing AR at 328–329 (Second TET Consensus Report), 347 (Second Best Value Determination Memorandum)). Plaintiff further alleges the CO “puff[ed] up the awardee’s past performance findings without providing any rationale.” Pl.’s Reply and Resp. at 1. The government asserts plaintiff “fails to account for the fact that the Contracting Officer’s assessment of Dowless’s Past Performance relied on her own independent judgment.” Def.’s Cross-MJAR at 23 (citing AR at 348 (Second Best Value Determination Memorandum)). According to the government, the CO “did not find the Past Performance narratives lacking to the extent that it affected her ‘overall confidence in Dowless’ ability to perform successfully.” Id. (citing AR at 347–48 (Second Best Value Determination Memorandum)). The CO’s rating of defendant-intervenor’s past performance as being on the “high end of the Acceptable rating” was lower than plaintiff’s “outstanding” rating. AR at 348 (Second Best Value Determination Memorandum). While the TET noted two of defendant-intervenor’s three references “lacked the narratives to substantiate the assigned Exceptional ratings,” the CO agreed the narratives did not justify a high rating, but instead found the narratives to be only “somewhat - 22 - lacking, however not to the detriment in affecting the overall confidence in Dowless’ ability to perform successfully.” Id. at 347 (Second Best Value Determination Memorandum). The CO also acknowledged defendant-intervenor’s past performance as a subcontractor as opposed to prime contractor: “Despite that fact, the quality of Dowless’ performance was positive, giving a reasonable expectation that Dowless & Associates, Inc. will successfully perform the required effort.” Id. at 347–48 (Second Best Value Determination Memorandum). At oral argument, plaintiff agreed defendant-intervenor has relevant past performance, namely as a subcontractor on other NOAA contracts. Tr. at 24:18–21. Plaintiff acknowledged defendant-intervenor’s reference for subcontractor Tesla “was a relevant reference and that Tesla did good work . . . .” Id. at 28:16–18. Tesla currently provides contract support for the Automated Surface Observing System Service Life Extension Program, thereby demonstrating its “technical expertise and experience in similar kinds of work.” AR at 79 (defendant- intervenor’s proposal); Tr. at 19:13–14. In performing work for NOAA, Tesla received CPARS ratings providing “more solid justification” to the government, and “greater assurance as to the quality of the work that Team Dowless would be able to provide overall.” AR at 344 (Second Best Value Determination Memorandum). Defendant-intervenor’s other reference, ITegrity, Inc., also provides “operational support services to the NOAA Office of the Assistant Administrator” by fulfilling web page maintenance and technical writing support. Id. at 81–82 (defendant-intervenor’s proposal). The CO concluded both bidders presented past performance references within the scope and magnitude of the solicitation. Id. at 347 (Second Best Value Determination). To the extent plaintiff merely asserts its own past performance is superior to defendant-intervenor’s, the government agreed, observing defendant-intervenor’s past performance rating was still lower than plaintiff’s after the CO’s review. Tr. at 78:18–19. Plaintiff does not cite any rule requiring the CO to adopt the TET’s findings verbatim. The CO does not appear to be “puffing up the awardee’s past performance findings without providing any rationale.” See Pl.’s Reply and Resp. at 1. Rather, the CO carefully considered the TET’s evaluations of defendant-intervenor’s ratings and “did not find the Past Performance narratives lacking to the extent that it affected her ‘overall confidence in Dowless’ ability to perform successfully.” Def.’s Cross-MJAR at 23 (citing AR at 347–48 (Second Best Value Determination Memorandum)). This is precisely the rational deliberation the law requires, and plaintiff asks the Court to evaluate “minutiae of the procurement process[,] . . . which involve[s] discretionary determinations of procurement officials that a court will not second guess.” E.W. Bliss Co., 77 F.3d at 449 . Accordingly, the Court finds the CO’s past performance evaluation of defendant-intervenor rational. Advanced Data Concepts, 216 F.3d at 1058 (“The arbitrary and capricious standard applicable here is highly deferential” and “requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.”). F. Whether the CO Was Rational in Accepting the TET’s Evaluations The CO found “that the Technical Evaluation Team Consensus Report contains sufficient information to make a sound, supportable, business award decision.” AR at 346 (Second Best Value Determination Memorandum). The CO also “concur[ed] with the TET’s nonprice ratings, identified technical findings and assessment of past performance” and “with the findings above that the vendors’ total evaluated price has been determined fair and reasonable.” Id. The CO - 23 - accepted these adjectival ratings but viewed defendant-intervenor’s past performance more positively, adding: “the adjectival scale used by the agency does not provide for a rating between the level of Acceptable and the level of Outstanding for past performance, in contrast to the evaluation of Technical Approach herein which included an intermediate rating of Good. Had there been such a rating option, it would likely have been provided to Dowless’ past performance.” Id. at 348. Plaintiff argues the CO’s decision to “adopt[] the strengths and weaknesses assigned to Syneren and Dowless without question . . . along is sufficient to tradeoff decision on [sic] arbitrary, capricious, and irrational technical evaluations and an unreasonable comparison of quoted prices.” Pl.’s MJAR at 20–21 (citing AR at 343 (Second Best Value Determination)). Plaintiff explained at oral argument the CO accepted “all of the strengths and all of the weaknesses proposed that the technical evaluation team found.” Tr. 12:16–19 (citing AR at 346 (Second Best Value Determination)). According to plaintiff, “[t]hese flaws in the evaluation process rendered the source selection authority’s tradeoff analysis arbitrary and capricious.” Pl.’s MJAR at 21. Plaintiff argues if the government had “properly evaluated quotations and afforded the RFQ’s factors the appropriate weight, Syneren would have stood a substantial chance for award.” Id. at 23. The government argues the CO “reasonably concluded that Dowless’s ‘Good’ Technical Approach and Past Performance at the ‘high end’ of ‘Acceptable’ were superior to Syneren’s ‘lower end of Acceptable’ Technical Approach and ‘Outstanding’ Past Performance.” Def.’s Cross-MJAR at 23 (citing AR at 339–40 (Second Best Value Source Selection Trade-Off Memorandum); 347–48 (Second Best Value Determination Memorandum)). The government explains plaintiff “fails to account for the fact that the Contracting Officer’s assessment of Dowless’s Past Performance relied on her own independent judgment.” Id. (citing AR at 348 (Second Best Value Determination Memorandum)). The government also argues because the TET’s evaluation was not “fundamentally flawed and arbitrary,” the CO “was not improper” in relying on the TET’s evaluation. Id. The Court found supra the TET’s evaluation and the CO’s reliance on the TET’s evaluation were not irrational. Plaintiff’s argument relies on a finding of “flaws in the evaluation process,” but because the evaluation process was not flawed, it was not arbitrary and capricious for the CO to rely on the TET’s evaluation in its tradeoff analysis. The CO carefully considered the TET’s evaluations of defendant-intervenor’s ratings and closely inspected narratives underlying the TET’s ratings. See id. (citing AR at 347–48 (Second Best Value Determination Memorandum)). This is precisely the rational deliberation the law requires, and plaintiff’s argument asks the Court to investigate the “minutiae of the procurement process[,] . . . which involve[s] discretionary determinations of procurement officials that a court will not second guess.” E.W. Bliss Co., 77 F.3d at 449 . Accordingly, the Court finds the CO’s past performance evaluation of defendant-intervenor reasonable. Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 , 1332 (Fed. Cir. 2001) (internal quotation marks and citations omitted) (Contracting officers “are entitled to exercise discretion upon a broad range of issues confronting them in the procurement process.”). V. Injunctive Relief - 24 -  In its motion for judgment on the administrative record, plaintiff requested a permanent injunction. See Pl.’s MJAR at 23. The Court considers the following factors when determining whether to issue a permanent injunction: “(1) whether . . . the plaintiff has succeeded on the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief.” PGBA, LLC v. United States, 389 F.3d 1219 , 1228–29 (Fed. Cir. 2004). According to the first factor, plaintiff is not entitled to injunctive relief because plaintiff does not prevail on the merits. The Court therefore does not consider the remaining factors of the test for a permanent injunction. Info. Tech. & Applications Corp. v. United States, 51 Fed. Cl. 340 , 357 n.32 (2001), aff’d, 316 F.3d 1312 (Fed. Cir. 2003) (“Absent success on the merits, the other factors are irrelevant.”). VIII. Conclusion For the foregoing reasons, the Court DENIES plaintiff’s motion for judgment on the administrative record and GRANTS the government’s cross-motion for judgment on the administrative record. The Clerk is directed to enter judgment accordingly. IT IS SO ORDERED. s/ Ryan T. Holte RYAN T. HOLTE Judge - 25 -

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Affirmed and Memorandum Opinion filed August 26, 2021. In The Fourteenth Court of Appeals NO. 14-19-00644-CV IN THE INTEREST OF E.D.S., A CHILD On Appeal from the 245th District Court Harris County, Texas Trial Court Cause No. 2013-24757 MEMORANDUM OPINION In this dispute over the custody of a child, Father contends that the trial court erred by admitting evidence and that the evidence is legally and factually insufficient to support the jury’s verdict appointing Mother as the sole managing conservator of the child. We affirm. I. PROCEDURAL BACKGROUND The child was born in 2012. Mother and Father signed an agreed child support review order that established the child-parent relationship between Father and the child, the parents’ support obligations, and possession and access to the child. The order named each parent a joint managing conservator, and Mother was designated as the conservator with the exclusive right to designate the primary residence of the child, among other exclusive rights. Ultimately, each parent filed a petition to modify the parent-child relationship to request their own appointment as sole managing conservator. After a three-day trial, a jury answered “Yes” to Question No. 1, “Do you find that it is not in the best interest of the child to appoint both parents as joint managing conservators?” The jury answered “[Mother]” to Question No. 2., “Which parent should be appointed the Sole Managing Conservator of [the child], understanding the other parent will be appointed the Possessory Conservator?” The trial court signed an order consistent with the jury’s verdict appointing Mother sole managing conservator and Father possessory conservator. Father filed a motion for new trial, which was denied by operation of law, and he timely appealed. II. SUFFICIENCY OF THE EVIDENCE We address Father’s second issue first because it challenges the sufficiency of the evidence to support the jury’s verdict. See In re L.C.L., 599 S.W.3d 79 , 84 & n.2 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (en banc) (citing Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675 , 677 (Tex. 1999) (per curiam)). Father challenges the jury’s answer to Question No. 2 naming Mother as the child’s sole managing conservator. He asks this court to render a judgment naming him the child’s sole managing conservator. He does not challenge the jury’s answer to Question No. 1. 2 A. Legal Principles and Standard of Review When custody issues are tried to a jury rather than the court, we apply traditional standards of review for challenges to the sufficiency of the evidence. See In re A.D., 474 S.W.3d 715 , 722 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Generally, we review the sufficiency of the evidence in light of the charge submitted to the jury. In re D.R.S., 138 S.W.3d 467 , 469 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). Evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the decision under review. In re J.R.P., 526 S.W.3d 770 , 777 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We consider the entire record, crediting evidence favorable to the finding if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. Id. Evidence is factually sufficient if it is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. We consider the entire record, considering evidence both in favor of and contrary to the challenged finding. Id. Under both standards, the factfinder is the sole judge of the witnesses’ credibility and the weight to be given to their testimony. Ho & Huang Props. v. Parkway Dental Assocs., 529 S.W.3d 102 , 109 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). We may not substitute our own judgment for that of the factfinder even if we would reach a different answer on the evidence. Id. It takes far less evidence to affirm a judgment than to reverse it. Id. When reversing based on factual insufficiency, this court must detail all the relevant evidence; but if we determine the evidence supports the jury’s verdict, we 3 need not detail all the evidence supporting the judgment. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402 , 407 (Tex. 1998). Modification proceedings are governed by a statutory scheme distinct from the one applicable to original custody determinations. In re J.R.P., 526 S.W.3d at 777 . In both types of proceedings, however, the best interest of the child is the primary consideration. See id.; see also Tex. Fam. Code §§ 153.002, 156.101(a). “A modification suit introduces additional policy concerns not present in an original custody action, such as stability for the child and the need to prevent constant litigation in child custody cases.” Id. (citing In re R.T.K., 324 S.W.3d 896 , 900 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); see also In re V.L.K., 24 S.W.3d 338 , 343 (Tex. 2000). Considering these policies and the nature of child custody disputes, appellate courts provide “unique deference” to a factfinder’s custody determination. In re R.T.K., 324 S.W.3d at 901 . It is even more critical to defer to the factfinder’s determinations of credibility and demeanor in child custody disputes because, as in this case, the factfinder often does not hear from the child who is the subject of the suit. Id. Thus, the child’s behavior, experiences, fears, joys, and significant attachments are conveyed through the words of other witnesses. Id. “The individuals vying for conservatorship may be scrutinized by the fact finder for such intangible signs as an animated smile when describing a child’s achievements, a furrowed brow when explaining typical affectionate concern, or even tears when anticipating the emotional impact the outcome of the litigation will have on a child.” Id. (quoting In re De La Pena, 999 S.W.2d 521 , 529 (Tex. App.—El Paso 1999, no pet.). Great deference is afforded the factfinder in light of the “forces, powers, and influences that cannot be discerned by merely reading the record.” Id. (quoting In re De La Pena, 999 S.W.2d at 526 ). 4 B. Evidence and Analysis In his multifarious sufficiency challenge, Father argues that the evidence does not support the jury’s verdict.1 He contends that the verdict is not supported by the evidence because Mother “committed family violence against [Father], his wife, and the child.” If we were reviewing a verdict in favor of Father, we might indulge this inference; but while reviewing a contrary finding, we may not. Father refers to several videos that he and his wife recorded of Mother following the couple through the Houston tunnels. Mother tried to break through the couple while they held hands; Father’s wife analogized the incident to the childhood game “Red Rover.” Father recorded another video in 2014 while returning the child to Mother’s possession. When Father did not immediately leave, Mother swore at Father and stood in front of Father’s car while holding the child in her arms. Father honked his horn at Mother and ultimately drove around Mother to leave. Father also refers to an agreed protective order issued against Mother. Although the printed order included a finding of family violence, the finding was struck through, and the court made no similar finding of family violence. The order required exchanges of possession of the child to be done at a police station, among other requirements. Father does not argue or identify evidence that Mother violated the protective order Father adduced other evidence to cast Mother in a negative light, such as her use of foul language directed at Father and his wife and making of harassing phone calls to them before the agreed protective order. But the jury also heard Mother 1 Father presents his legal and factual sufficiency points in the same issue, cites a single case from the Amarillo Court of Appeals regarding an abuse of discretion standard, and does not attempt to apply different standards of review when evaluating the evidence. We will address his sufficiency challenges together. 5 acknowledge her poor decisions, apologize for her past conduct, and testify about her efforts to change and be an effective co-parent. The jury heard from Mother, the child’s teacher, and Mother’s relative about how the child was thriving in Mother’s care. The child was a good student and had a lot of friends who lived in Mother’s neighborhood—nearly an hour from where Father lived and proposed relocating the child. The child participated in multiple extracurricular activities, and Mother was involved, such as coaching the T-Ball team. Mother has a lot of family support in the area, and the child would see family members often. Mother took the child on vacations despite evidence that Father would not cooperate and allow Mother to take the child on international travel. Mother testified that her interactions with Father are now civil, she shares information with Father about the child’s schooling and medical appointments, she hopes for Father to have a good relationship with the child, and she does not harbor ill will toward Father. She testified that she did not want the child to feel like he had to pick or choose between his parents. She also testified that Father had been uncooperative with co-parenting, such as by not responding to her request to coordinate the child’s extracurricular activities, and not communicating about the child’s counseling or school matters. She testified about an incident when the child developed an allergic reaction and had to go to an emergency room shortly after being in Father’s care—Father did not immediately respond to phone calls and text messages in which Mother inquired about what the child had eaten. Mother testified that Father had kept the child overnight when he was not supposed to and did not notify Mother. Mother testified that she wanted the child to continue living with her because it was the home that he had known, and he flourished in her care. She 6 testified that the rights and duties that she sought as sole managing conservator were the same rights and duties that she had been exercising since the child was born. Considering all of the evidence, reasonable and fair-minded people could find that it was in the child’s best interest to appoint Mother as the sole managing conservator. Father adduced evidence placing himself in a positive light and Mother in a negative light, but the jury’s finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See In re R.T.K., 324 S.W.3d at 900–05 (sufficient evidence to support appointment of the step-mother as sole managing conservator because it promoted the child’s need for stability, which would be disrupted by removing him from his home and placing him with the mother); In re J.W.H., No. 14-09-00143-CV, 2010 WL 1541679 , at *1–5, *7 (Tex. App.—Houston [14th Dist.] Apr. 20, 2010, no pet.) (mem. op.) (sufficient evidence to support appointment of the father as sole managing conservator when the parents presented conflicting evidence about each parent’s interference with the other’s possession of the children); Knopp v. Knopp, No. 14- 02-00285-CV, 2003 WL 21025527 , at *6–8 (Tex. App.—Houston [14th Dist.] May 8, 2003, no pet.) (mem. op.) (sufficient evidence to support appointment of the father as sole managing conservator when the mother moved with children out of state without informing the father, whom the mother claimed was verbally abusive). Father’s second issue is overruled. III. ADMISSION OF EVIDENCE In his first issue, Father contends that the trial court erred by admitting into evidence a “Rule 11 agreement for temporary orders.” Father suggests that the Rule 11 agreement is hearsay and a comment on the weight of the evidence, but 7 Father cites no authority to support this argument and does not provide any substantive analysis, so it is waived. See, e.g., Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928 , 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“Failure to cite legal authority or to provide substantive analysis of the legal issues presented results in waiver of the complaint.”). Citing only to the rules of evidence, Father also contends that the agreement for temporary orders was irrelevant and inadmissible under Rule 403 because Mother attempted to show that Father had violated temporary orders. In deciding whether to appoint parents as joint managing conservators, the jury instructions in this case informed the jury to consider, among other things, the ability of the parents to reach shared decisions in the child’s best interest. A parent’s failure to abide by an agreed temporary order is relevant to a parent’s ability to reach shared decisions. Thus, a parent’s failure to abide by agreed temporary orders is relevant to conservatorship. See In re J.W.H., 2010 WL 1541679 , at *3 (considering evidence of parent’s failure to abide by Rule 11 agreement); Whitworth v. Whitworth, 222 S.W.3d 616 , 631–62 (Tex. App.— Houston [1st Dist.] 2007, no pet.) (considering evidence of parent’s violation of temporary orders). Father does not show how the probative value of the Rule 11 agreement for temporary orders was substantially outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury. See Tex. R. Evid. 403. Father’s second issue is overruled. IV. CONCLUSION Having overruled both of Father’s issues, we affirm the trial court’s order appointing Mother as the child’s sole managing conservator. 8  /s/ Ken Wise Justice Panel consists of Chief Justice Christopher and Justices Wise and Hassan. 9

2021-01-27 14:06:47.660888+00

http://www.courts.state.nh.us/supreme/opinions/2021/2021004Parry.pdf

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by e-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court’s home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Grafton No. 2019-0407 STATE OF NEW HAMPSHIRE v. MELANIE PARRY Argued: October 20, 2020 Opinion Issued: January 27, 2021 Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant. Gordon J. MacDonald, attorney general (Danielle H. Sakowski, senior assistant attorney general, on the brief and orally), for the State. DONOVAN, J. The defendant, Melanie Parry, appeals her conviction, following a jury trial in the Superior Court (Bornstein, J.), on one count of possession of a controlled drug. See RSA 318-B:2, I (2017). She argues that: (1) the trial court erred by denying her requested jury instruction on the voluntary-act requirement set forth in RSA 626:1 (2016); and (2) the prosecutor’s statement during closing argument that voluntariness is not an element of possession was contrary to the law. We affirm, concluding that a voluntariness instruction is not necessary unless there is some evidence suggesting that the defendant’s conduct was involuntary. We further conclude that, because no such evidence was presented in this case, the defendant was not entitled to an instruction on RSA 626:1 and the prosecutor’s statement was not contrary to the law.  I. Facts The jury could have found the following facts. On the evening of August 18, 2015, the defendant was the front-seat passenger in a vehicle being operated by another person. After observing the vehicle swerve in and out of its lane, an officer with the Lebanon Police Department signaled the driver to stop. Upon approaching the vehicle, the officer noticed an odor of marijuana and observed that the driver appeared nervous. The officer also noted that when he began questioning the vehicle’s occupants about the odor of marijuana, the defendant immediately grabbed her purse, which had been sitting next to her, “almost like hugging it in fear.” The officer then asked if he could search the vehicle. The driver consented. The officer also asked if he could search the defendant’s purse, believing that it contained contraband. Initially, the defendant denied possessing any illegal items in her purse, but she subsequently agreed to allow the officer to search her purse. Inside the purse, the officer located a crack pipe, a marijuana pipe, and two substances that the officer believed to be heroin and crack cocaine. The defendant stated that she suffered from heroin addiction and that the heroin-like substance belonged to her. The defendant did not admit or deny ownership of the cocaine-like substance. Laboratory testing of the substance believed to be heroin established that the substance was not, in fact, heroin or any other controlled drug. However, laboratory testing revealed the other substance to be crack cocaine. Consequently, the defendant was charged with one count of possession of crack cocaine. At trial, the defendant submitted, in her opening statement and closing argument, that her possession of the crack cocaine was involuntary because it was possible that the driver placed the contraband in her purse without her consent moments before the stop. Based upon this argument, the defendant requested that the trial court read the text of RSA 626:1 to the jury, which requires a voluntary act for every criminal offense. The trial court denied the request, explaining that “if the jury [finds] beyond a reasonable doubt the four elements of the alleged offense as instructed, or as set forth in the instructions, the jury will, under [RSA 626:1, II], necessarily have found that . . . such possession was a voluntary act.” During closing argument, defense counsel told the jury that “[p]ossession has to be knowing and voluntary.” Defense counsel then attempted to link the voluntary-act requirement to the elements of custody and control, arguing that the State could not prove the elements of possession if the driver placed the contraband in her purse without her consent moments before the stop. During the State’s closing argument, the prosecutor offered the following response to the defendant’s argument: “Just the fact that you know about it or are near it isn’t possession. It’s what you do with it once you know about it. But also remember the elements of this case. Voluntary is not an element. It is custody 2 and control.” The defendant objected, arguing that the prosecutor’s statement was “contrary to the law,” and requested a curative instruction on RSA 626:1. The trial court overruled the objection and denied the request, reiterating that “if the State proves possession as the jury is instructed on it, they will necessarily have proved it was voluntary.” The jury found the defendant guilty. This appeal followed. II. Analysis The defendant first argues that the trial court’s instructions on possession failed to adequately inform the jury of the voluntary-act requirement, and, therefore, the trial court erred by rejecting her initial proposed instruction on RSA 626:1. The State, on the other hand, argues that the proposed instruction was unnecessary because the trial court’s instructions on the statutory elements of possession adequately addressed the voluntary-act requirement. We agree, in part, with the State. The proposed instruction on voluntariness was unnecessary, not because the trial court’s instructions adequately addressed the issue, but because there was insufficient evidence presented to the jury to support a rational finding that the defendant’s possession of the contraband was involuntary. See State v. Larose, 157 N.H. 28 , 36-38 (2008) (upholding the trial court’s decision denying the defendant’s request for an entrapment instruction because the defendant failed to produce sufficient evidence supporting his entrapment defense). The purpose of the trial court’s jury instructions is to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case. State v. Gingras, 162 N.H. 633 , 638 (2011). When reviewing jury instructions, we evaluate allegations of error by interpreting the disputed instructions in their entirety, as a reasonable juror would have understood them, and in light of all the evidence in the case. Id. We determine if the jury instructions adequately and accurately explain each element of the offense, and we reverse only if the instructions did not fairly cover the issues of law in the case. Id. The necessity, scope, and wording of jury instructions generally fall within the sound discretion of the trial court, and we review the trial court’s decisions on these matters for an unsustainable exercise of discretion. Id. To show that the trial court’s decision is unsustainable, the defendant must demonstrate that the court’s ruling was clearly untenable or unreasonable to the prejudice of her case. State v. Rice, 169 N.H. 783 , 790 (2017). We now turn to the merits of the defendant’s argument. The trial court instructed the jury, consistent with the statutory elements of possession, that: The definition of the crime of possession of a controlled drug has four parts or elements. The State must prove each element beyond a reasonable doubt. Thus, the State must prove that, first, the Defendant had the drug under her custody and control and, 3  second, the Defendant knew that the drug was in her vicinity and, third, the Defendant knew that the drug found was a controlled drug, that is crack cocaine, and, fourth, the drug found was in fact crack cocaine. See State v. Francis, 167 N.H. 598 , 604 (2015) (outlining the statutory elements of possession of a controlled drug). The trial court further instructed the jury that: In deciding whether the Defendant had custody and control over the drug, you should consider where the drug was found, the Defendant’s control over the place where the drug was found, and any other evidence presented. If you decide that the evidence only proves that the Defendant was present where the drug was found, then the State has not proven custody and control. If you decide that the evidence only shows that the Defendant knew where the drug was but exercised no control over the drug, then the State has not proven custody and control. However, the State does not have to prove that the drug was found on the Defendant’s person to prove custody and control. It is sufficient if the drug was found in a place over which the Defendant exercised control and the Defendant knew what the drug was and that it was there. It is possible for more than one person to have custody and control of the drug. You do not have to find that the Defendant had exclusive custody and control of the drug. .... Part of the definition of the crime of possession of a controlled drug is that the defendant acted knowingly. A person acts knowingly when she is aware of the nature of her conduct or the circumstance under which she acted. The State does not have to prove that the defendant specifically desired or intended a particular result. What the State must prove is that the defendant was aware of the nature of her conduct or the circumstance under which she engaged in the conduct. Whether the defendant acted knowingly is a question of fact for you to decide. On appeal, the defendant argues that the statutory elements of possession, as defined by the trial court’s instructions, do not fully encompass the voluntary-act requirement. RSA 626:1, I, states that “[a] person is not 4 guilty of an offense unless his criminal liability is based on conduct that includes a voluntary act or the voluntary omission to perform an act of which he is physically capable.” RSA 626:1, II further states that “[p]ossession is a voluntary act if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.” We consider the voluntary-act requirement “a matter of fundamental criminal law,” State v. Starr, 170 N.H. 106 , 108 (2017) (quotation omitted), but we have never held that a jury instruction concerning the voluntariness of a defendant’s conduct is necessary in every criminal case, and we decline to so conclude here. In most cases, a defendant in possession of a controlled drug will have “knowingly procured or received” the drug within the meaning of RSA 626:1, II. See Baird v. State, 604 N.E.2d 1170 , 1176 (Ind. 1992) (‘‘In most cases there is no issue of voluntariness and the State’s burden is carried by proof of commission of the act itself.’’); see also Webster’s Third New International Dictionary 1809 (unabridged ed. 2002) (defining “procure” as “to get possession of by particular care or effort”); id. at 1894 (defining “receive” as “to take possession . . . of”). However, this observation may not apply in every case. If evidence is presented at trial that a defendant did not choose to procure or receive the contraband — for example, because another person placed it in the defendant’s possession without consent — and if evidence supports a conclusion that a defendant was not aware of his or her control of the contraband for a sufficient period to have been able to terminate his or her possession, the defendant’s possession could be involuntary. See State v. Daoud, 141 N.H. 142 , 146 (1996) (explaining that RSA 626:1 precludes criminal liability when “the defendant did not choose to commit the charged crime”); 21 Am. Jur. 2d Criminal Law § 124, at 229 (2008) (stating that “physical movements are not voluntary if they are the nonvolitional result of someone else’s act”); see also Model Penal Code & Commentaries, § 2.01 note, at 213 (1985) (“[I]f the actor was aware of his control for a sufficient period to have been able to terminate his possession, his conduct will have included an omission to perform an act of which he was physically capable.”). We conclude that, in certain circumstances, the statutory elements of possession of a controlled drug are not coterminous with RSA 626:1, II. See State v. Colcord, 109 N.H. 231 , 234 (1968) (stating that the defendant’s act of handing a box of marijuana to the police evidenced “her possession and control of it,” but was alone insufficient to support a conviction of possession). Given this conclusion, an instruction on RSA 626:1 is warranted in a drug possession case, but only when some evidence suggests that the defendant’s possession was involuntary. See State v. Almaguer, 303 P.3d 84 , 91 (Ariz. Ct. App. 2013) (explaining that “[a]n instruction that the state must prove the defendant committed a voluntary act is appropriate only if there is evidence to support a finding” that the defendant acted involuntarily); State v. Pierson, 514 A.2d 724 , 728 (Conn. 1986) (stating that jury instructions omitting reference to 5 Connecticut’s voluntary-act requirement are not “constitutionally defective” when, as relevant here, “the evidence at trial contains no suggestion that the defendant’s conduct was involuntary”); Wyant v. State, 458 P.3d 13 , 18 (Wyo. 2020) (observing that the weight of authority in other states establishes that “a voluntariness instruction is not necessary unless there is evidence suggesting the defendant’s conduct was not voluntary”); see also Larose, 157 N.H. at 33 (“‘Some evidence’ means more than a minutia or a scintilla of evidence. To be more than a scintilla, evidence cannot be vague, conjectural, or the mere suspicion about the existence of a fact, but must be real and of such quality as to induce conviction.” (quotation omitted)). Here, the evidence supporting the defendant’s argument that her possession was involuntary was based upon mere conjecture and suspicion. At trial, the arresting officer testified that, just before the stop, he observed the driver swerving the vehicle in and out of its lane. The officer also hypothesized that, in his experience, “sometimes people are reaching for . . . something in their car, and they . . . may swerve a little bit.” This testimony merely invites a suspicion supporting the defendant’s argument; it fails to induce a rational conviction that the driver swerved the vehicle while attempting to conceal contraband in the defendant’s purse without her consent. Moreover, the defendant admitted that she suffered from heroin addiction, and that the heroin-like substance belonged to her; she never denied knowledge or ownership of the crack cocaine or the crack pipe found in her purse. Nor did she make any effort to terminate or disavow ownership of the contents of her purse. Instead, she grabbed her purse and began clutching it to her chest once the officer began questioning her and the driver about drugs. In addition, the defendant initially lied to the officer when first questioned as to whether her purse contained any illegal contraband. Accordingly, we conclude that the evidence presented at trial did not constitute “some evidence” suggesting that the defendant possessed the contraband involuntarily. See Larose, 157 N.H. at 33. Therefore, the trial court did not unsustainably exercise its discretion by refusing to provide the requested instruction concerning the defendant’s voluntary possession of the contraband. Although the trial court denied the defendant’s request on a different basis, we may uphold a trial court’s discretionary decision when it reached the right result for the wrong reason. See State v. Hayward, 166 N.H. 575 , 583 (2014). As explained above, given the paucity of evidence supporting the defendant’s argument, there was but one path the trial court could have taken, as a matter of law, without unsustainably exercising its discretion. See id. at 584. We next address the defendant’s argument that her conviction must be overturned because: (1) during its closing argument, the State misstated the law concerning the elements of possession of a controlled drug; and (2) the trial 6 court erred by refusing to provide the jury with a curative instruction. “A prosecutor has great latitude in closing argument to both summarize and discuss the evidence presented to the jury and to urge the jury to draw inferences of guilt from the evidence.” State v. DiNapoli, 149 N.H. 514 , 520 (2003) (quotation and ellipsis omitted). However, prosecutors are not free to misstate the law during closing argument. See State v. Watkins, 148 N.H. 760 , 769 (2002) (concluding that a curative instruction “would have been appropriate” where the prosecutor “blatantly misstated the law” during closing argument). “The trial court is in the best position to determine what remedy will adequately correct the prejudice created by a prosecutor’s remarks, and absent an unsustainable exercise of discretion, we will not overturn its decision.” State v. Gaudet, 166 N.H. 390 , 399 (2014) (quotation omitted). To show that the trial court’s decision is unsustainable, the defendant must demonstrate that it was clearly untenable or unreasonable to the prejudice of her case. State v. Collins, 168 N.H. 1 , 6 (2015). Here, the defendant complains that the State misrepresented the elements of the charged offense when the prosecutor argued at closing: “Just the fact that you know about [a controlled drug] or are near it isn’t possession. It’s what you do with it once you know about it. But also remember the elements of this case. Voluntary is not an element. It is custody and control.” We disagree with the premise of the defendant’s argument. The State’s closing argument did not misrepresent or misstate the law, as applied to the facts presented to the jury here. The voluntariness of a defendant’s conduct is not, per se, an element of possession of a controlled drug, see Francis, 167 N.H. at 604, and “[v]oluntariness of criminal conduct is not a fact that the state must prove in every case; rather, the state need not prove voluntariness unless the evidence raises the issue, in which case the state must disprove involuntariness beyond a reasonable doubt.” 21 Am. Jur. 2d Criminal Law, supra § 124, at 229. As we have explained, the evidence presented to the jury did not constitute “some evidence” suggesting that the defendant’s possession was involuntary and, thus, the State was not required to prove that the defendant’s possession of the crack cocaine was voluntary. Accordingly, the State’s closing argument did not misstate or misrepresent the law, as applied to this case, and the trial court did not unsustainably exercise its discretion when it refused to issue a curative or cautionary instruction. III. Conclusion For the reasons stated above, we affirm the defendant’s conviction. We consider waived any issues that the defendant raised in her notice of appeal, but did not brief. See State v. Bazinet, 170 N.H. 680 , 688 (2018). Affirmed. HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred. 7

2020-12-04 11:08:12.138726+00

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2020-12-04 11:08:12.301019+00

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2020-12-04 14:08:49.772284+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007478PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:08 AM CST - 809 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 State of Nebraska, appellee, v. Akeem R. Jones, appellant. ___ N.W.2d ___ Filed November 13, 2020. No. S-20-184. 1. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court’s conclusions. 2. Negligence: Public Officers and Employees: Pleadings: Appeal and Error. The appropriate filing procedure when an appeal is lost due to official negligence is for the party seeking relief to file a motion in the lower court, seeking the ability to establish the basis for obtain- ing relief. 3. Presumptions. A letter properly addressed, stamped, and mailed raises a presumption that the letter reached the addressee in the usual course of the mails. 4. Public Officers and Employees: Presumptions. In the absence of evi- dence to the contrary, it may be presumed that public officers faithfully performed their official duties, and absent evidence showing misconduct or disregard of the law, the regularity of official acts is presumed. 5. Public Officers and Employees: Presumptions: Evidence. The pre- sumption that a public officer will faithfully perform his or her official duties can be overcome by the showing of evidence to the contrary. Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge. Reversed and remanded. Akeem R. Jones, pro se. Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.  - 810 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 Miller-Lerman, J. NATURE OF CASE Akeem R. Jones was convicted in the district court for Douglas County of first degree murder and was sentenced to life imprisonment. State v. Jones, 296 Neb. 494 , 894 N.W.2d 303 (2017). After his direct appeal was unsuccessful, Jones’ subsequent postconviction petition was denied without an evi- dentiary hearing on February 5, 2018, and Jones attempted to appeal the postconviction ruling. He filed a notice of appeal on February 26; however, Jones’ request to proceed in forma pau- peris and the supporting poverty affidavit were not filed until March 23, thereby missing the March 7 deadline. Therefore, on July 6, we dismissed the appeal in case No. S-18-295 for lack of jurisdiction. Thereafter, Jones filed a verified motion to vacate or modify in the district court in which he sought reinstatement of his appeal. Jones claimed that in order to meet the March 7 appellate deadline, he gave his paperwork to the proper authorities to mail prior to March 7, but that the negligent acts of prison officials in the mailroom at the Nebraska State Penitentiary delayed the filing of his poverty affidavit. The district court denied the motion without a hear- ing. Jones appeals. We reverse, and remand for a hearing on Jones’ motion. STATEMENT OF FACTS This case arises from a motion filed by Jones in the dis- trict court seeking postconviction relief, which was denied on February 5, 2018, without an evidentiary hearing. Jones filed a notice of appeal on February 26, but his request to proceed in forma pauperis and his supporting poverty affidavit were not filed until March 23. On July 6, we dismissed the appeal in case No. S-18-295 for lack of jurisdiction because of failure to pay the required docketing fee within 30 days or failure to file a poverty affidavit to substitute for the required docketing fee. See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018). On November 15, 2019, Jones filed a verified motion in which he sought an order vacating or modifying judgment, the  - 811 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 purpose of which was to reinstate his appeal from the denial of his motion for postconviction relief. The denial of Jones’ motion to vacate or modify without a hearing is the subject of this appeal. In his motion, Jones alleged, inter alia: [Jones’] Poverty Affidavit was submitted via prison mail (according to rules and regulations established by the prison, handing mail to prison staff in one’s housing unit to transport to deliver to the prison mailroom staff for mailing) on or about March 2, 2018, to be received by the Clerk of District Court (Douglas County, Nebraska) before the 30-day timeline (March 7, 2018). However, [Jones’] said legal mail was erroneously returned to his housing unit, and placed on a desk of one of the unit staff member[s], and abandoned, without informing or notify- ing [Jones] in a timely fashion . . . . Additional allegations are quoted below in our analysis sec- tion. In conclusion, Jones alleged that the poverty affidavit was untimely filed in the appellate court “due to the lateness and negligence of prison officials.” With respect to relief, relying on our language in State v. Parnell, 301 Neb. 774 , 919 N.W.2d 900 (2018), Jones asserted that in such a case, he was entitled to “the ability to establish the basis for relief” through an order granting his motion or a hearing that “would permit and allow [Jones] to present said merits before the court.” Jones alleged that certain exhibits were attached. He stated that the exhibits “are imperatives and submitted herewith as bona fide proof, commensurating [Jones’] requested relief in the instant, and as a matter of law.” The memorandum from Melody Michaud, a case manager at the Nebraska State Penitentiary, was attached. The memorandum is unsworn. The memorandum states, in relevant part: On 3-16-2018/, I found an envelope on a desk that inmate Jones 84240 had previously turned in to mail on 3-7-2018. (A note from our mailroom was attached giving me this information.) The letter was returned for  - 812 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 postage, but should have been given to Mr. Jones upon it’s [sic] arrival back to the housing unit. I notified Jones, who told me that this was a letter for the courts and had a due date, but now it was late. Jones had resubmitted the envelope for mail, but was returned to the unit on 3-20-2018 as no staff had signed off on approval for postage. On this occasion, the fault lies with me, I had neglected to sign off approval and the envelope came back to the housing unit again. Please take into consideration that the lateness of this mail was not the fault of Akeem Jones, but that of hous- ing unit staff. I apologize for any inconvenience that this may have caused. The district court denied Jones’ motion for reinstatement of his appeal. It appears the court ignored Jones’ sworn alle- gations of an earlier date. Instead, working on the incorrect assumption that appellate filings were due on March 2, 2018, and relying on the unsworn Michaud memorandum, the dis- trict court made certain findings. It found that Jones originally gave his request to proceed in forma pauperis and his poverty affidavit to the mailroom on March 7 and that because these documents were due on March 2, they were untimely delivered to the mailroom even before any subsequent acts of negligence by public officials. Jones appeals. ASSIGNMENT OF ERROR Jones assigns, restated, that the district court erred when it denied his motion to vacate or modify the judgment without a hearing. STANDARD OF REVIEW [1] When reviewing questions of law, an appellate court resolves the questions independently of the lower court’s con- clusions. State v. Parnell, supra . ANALYSIS In this appeal, Jones generally claims that the appeal from the denial of his motion for postconviction relief was lost  - 813 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 due to official negligence and that his attempt to remedy the situation in the district court was wrongly denied. As explained below, we find merit in Jones’ assignment of error and reverse, and remand for a hearing. Jones filed a verified motion to vacate or modify the judg- ment. In his motion, Jones alleged that he submitted mail, including his request to proceed in forma pauperis and his poverty affidavit, “on or about March 2, 2018, to be received . . . before the 30-day timeline (March 7, 2018).” Jones further alleged that mail containing the poverty affida- vit was mislaid by prison staff, causing it to be filed after the deadline for his appeal. The unsworn memorandum prepared by the case manager, Michaud, was attached to Jones’ motion. The district court denied Jones’ motion without a hearing. The district court reasoned that the memorandum attached to Jones’ motion conclusively disproved Jones’ allegations. In particular, the district court found that Jones’ request to proceed in forma pauperis and his poverty affidavit were untimely submitted to the mailroom regardless of mishandling of the mail and subse- quent negligence of prison staff. [2] We have recently concluded that the appropriate filing procedure when an appeal is lost due to official negligence is for the party seeking relief to file a motion in the lower court, seeking the ability to establish the basis for obtaining relief. State v. Parnell, 301 Neb. 774 , 919 N.W.2d 900 (2018). This is the procedure Jones followed. [3-5] We have long held that a letter properly addressed, stamped, and mailed raises a presumption that the letter reached the addressee in the usual course of the mails. Id. In the absence of evidence to the contrary, it may be presumed that public officers faithfully performed their official duties, and absent evidence showing misconduct or disregard of the law, the regularity of official acts is presumed. Id. The pre- sumption that a public officer will faithfully perform his or her official duties can be overcome by the showing of evidence to the contrary. See id. In this case, Jones has made a show- ing under oath that mail consisting of his poverty affidavit to  - 814 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 be delivered to the court in a timely manner for filing was handled in an irregular manner. As an initial matter, we note that the district court incorrectly calculated the final day to perfect an appeal as March 2, 2018, when the actual deadline was March 7. See § 25-1912. This error coupled with its reliance on the unsworn memorandum based on hearsay cast doubt on the district court’s reasoning. Relying on the memorandum attached to Jones’ motion, and contrary to Jones’ allegations, the district court found that Jones gave his mail containing the poverty affidavit to the mailroom on March 7, 2018, and thus found it was untimely upon arrival. We believe that the district court’s reliance on the memorandum as a basis to deny a hearing was misplaced, for several reasons. The memorandum from Michaud upon which the district court relied was not verified, was not based on her own knowledge, and was based entirely on the hearsay contained in a note prepared by an unknown author. Further, Michaud was not competent to assert of her own knowledge that Jones turned his mail in on March 7, 2018. With respect to the March 7 date, Michaud admits that “[a] note from our mailroom was attached giving me this information.” See Neb. Rev. Stat. § 27-801 (Supp. 2019) (providing that hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”). In contrast, Jones swore in a verified motion that he submit- ted the poverty affidavit via prison mail (according to rules and regulations estab- lished by the prison, handing mail to prison staff in one’s housing unit to transport or deliver to the prison mail- room staff for mailing) on or about March 2, 2018, to be received by the Clerk . . . before the 30-day timeline (March 7, 2018). (Emphasis supplied.) In paragraph 10 of the verified motion, Jones alleged that the acts of the officials “denied [Jones]  - 815 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 appellate review for the denial of his postconviction motion, based upon a filing procedure and/or delay that was not [Jones’] fault and out of his hands to control.” (Emphasis sup- plied.) He further alleged in paragraph 9 that he was precluded from taking an appeal “by neglect, mistake, or an irregularity (official neglect or omission or state impediment) culpable on the part of Nebraska State Penitentiary’s prison staff official failure to submit [his] legal documents for mailing in a timely fashion for filing.” (Emphasis supplied.) And in paragraph 6, he alleged: [Jones] was effectively hindered and precluded from sub- mitting his said legal mail (with the Poverty Affidavit enclosed) through the prison mailroom, for reasons exud- ing culpability and negligence by prison staff, who failed to appropriately notify or inform [Jones] that the mail- room had returned said legal mail erroneously, to him, thereby denying [him] the opportunity to take rapid cor- rective measure(s) to re-send same said legal mail for fil- ing . . . (SEE Exhibit 1 and 5 attached herewith). (Emphasis supplied.) (Emphasis omitted.) As we read the motion in its entirety, Jones attached Michaud’s memorandum as support for his allegations that the “delay . . . was not [Jones’] fault,” officials failed to submit his documents “in a timely fashion for filing,” and he was denied “the opportunity to take rapid corrective measure(s).” The memorandum supports Jones’ numerous temporal allega- tions of a delay caused by negligent acts of officials, and we do not read his motion as adopting the memorandum’s unsub- stantiated date of March 7, 2018. The motion’s narrative to the effect that the exhibits are “imperatives” and “bona fide proof, commensurating [Jones’] requested relief” indicates, albeit colorfully, that Jones tendered the exhibits to support the thrust of his motion regarding official irregularity causing delay, rather than an endorsement of the March 7 date. The memorandum corroborates Jones’ claim that he submitted his mail containing the poverty affidavit to the prison mailroom  - 816 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. JONES Cite as 307 Neb. 809 on a date and in a proper manner and that it was delayed by subsequent official negligence. Given the layers of hear- say encompassed by the memorandum as attached, it is not appropriate to resolve the trustworthiness of statements therein about dates at this stage. See State v. Stricklin, 290 Neb. 542 , 861 N.W.2d 367 (2015) (stating that when out-of-court state- ment relates content of another out-of-court statement, there must be independent hearsay exception for each statement). The motion’s reference to the memorandum does not eclipse Jones’ numerous explicit allegations under oath that he sub- mitted his paperwork prior to the court deadline so as to reach the court in a timely manner. As in our recent case, State v. Parnell, 301 Neb. 774 , 919 N.W.2d 900 (2018), Jones’ claim of official negligence was sufficient to obtain a hearing at which to submit proof to the court of his allegation of official negligence. The district court erred when it denied the motion without holding a hearing at which Jones was able to offer proof of his allegations and attempt to carry his burden to rebut the presumption that public officers faithfully performed their official duties. CONCLUSION The district court erred when it denied Jones’ motion to vacate or modify the judgment without a hearing. We reiterate that we do not adopt a prison delivery rule, see State v. Smith, 286 Neb. 77 , 834 N.W.2d 799 (2013), and State v. Parmar, 255 Neb. 356 , 586 N.W.2d 279 (1998), nor do we hold that a delay in mailing necessarily results in an untimely filing. We reverse the decision of the district court and remand the cause for a hearing at which Jones may offer evidence that the neg- ligence of prison officials at the Nebraska State Penitentiary delayed the mailing of a poverty affidavit associated with his prior appeal. Reversed and remanded. Freudenberg, J., not participating.

2020-12-04 14:08:41.644586+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007507PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:08 AM CST - 910 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 Stacey R. Jaeger, appellant, v. Duke E. Jaeger, appellee. ___ N.W.2d ___ Filed December 4, 2020. No. S-20-122. 1. Child Custody: Appeal and Error. Child custody determinations are matters initially entrusted to the discretion of the trial court. Although reviewed de novo on the record, the trial court’s determination will gen- erally be affirmed absent an abuse of discretion. 2. Rules of Evidence. In proceedings where the Nebraska rules of evi- dence apply, they control the admissibility of evidence, and judicial discretion is allowed only insofar as the rules make it a factor. 3. Trial: Evidence: Appeal and Error. Judicial discretion is allowed to determine the relevancy of evidence, and such determination will not be disturbed on appeal unless it constitutes an abuse of discretion. 4. Motions for New Trial: Appeal and Error. An appellate court reviews a trial court’s ruling on a motion for a new trial or reconsideration for an abuse of discretion. 5. Judges: Words and Phrases. An abuse of discretion occurs when a trial court’s decision or reasoning is clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submit- ted for disposition. 6. Modification of Decree: Child Custody: Proof. Custody of a minor child will not ordinarily be modified absent a material change in circum- stances, which shows either that the custodial parent is unfit or that the best interests of the child require such action. 7. ____: ____: ____. It is the burden of the party seeking modification of a child custody order to show two elements: first, that since entry of the most recent custody order, there has been a material change in circum- stances that affects the child’s best interests, and second, that it would be in the child’s best interests to change custody. 8. Modification of Decree: Child Custody: Words and Phrases. A mate- rial change in circumstances is the occurrence of something that, if it  - 911 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 had been known at the time the most recent custody order was entered, would have persuaded that court to decree differently. 9. Modification of Decree: Child Custody. Circumstances having occurred before the most recent custody order are relevant only insofar as they bear on whether the change in circumstances since the most recent custody order are material and substantial. 10. ____: ____. Before custody is modified, it should be apparent that any material change in circumstances alleged will be permanent or contin­ uous, not merely transitory or temporary. 11. Child Custody. The wishes of a child are not controlling in determina- tions of child custody. 12. ____. If a child is of sufficient age and has expressed an intelligent preference regarding child custody, the child’s preference is entitled to consideration, alongside other factors. 13. ____. The amount of consideration given to a child’s stated preference regarding child custody will depend on the child’s age and ability to give reasons for his or her preference. 14. Child Custody: Appeal and Error. Where a trial court’s order modify- ing child custody demonstrates that the child’s age and reasoning have been duly considered alongside the child’s stated preference, an appel- late court will generally defer to the trial court’s credibility determina- tions in the assessment of facts. 15. Child Custody. Certain factors that must be considered in the determi- nation of a child’s best interests in the context of child custody include (1) the relationship of the child to each parent prior to the commence- ment of the action; (2) the desires and wishes of a sufficiently mature child, if based on sound reasoning; (3) the general health, welfare, and social behavior of the child; (4) credible evidence of abuse inflicted on any family or household member; and (5) credible evidence of child abuse or neglect or domestic intimate partner abuse. 16. ____. Certain factors that may be considered in the determination of a child’s best interests in the context of child custody include the stabil- ity of the child’s existing routine, minimization of contact and conflict between the parents, and the general nature and health of the child. 17. Trial: Evidence: Appeal and Error. The admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. 18. ____: ____: ____. Erroneous exclusion of evidence does not require reversal if the evidence would have been cumulative and other relevant evidence, properly admitted, supports the trial court’s finding.  - 912 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 Appeal from the District Court for Lancaster County: Susan I. Strong, Judge. Affirmed. Amie C. Martinez and Mona L. Burton, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellant. Jeanelle S. Kleveland, of Kleveland Law Offices, for appellee. Heavican, C.J., Miller-Lerman, Stacy, Funke, Papik, and Freudenberg, JJ. Heavican, C.J. I. INTRODUCTION A modified divorce decree in 2011 granted Stacey R. Jaeger sole physical custody over her son, C.J., subject to parenting time between C.J. and his father, Duke E. Jaeger. In 2018, Duke petitioned to modify custody. After hearing C.J. and the parties testify, the district court transferred sole legal and physical custody over C.J. to Duke, subject to Stacey’s parenting time. We affirm. II. FACTUAL BACKGROUND Stacey and Duke married in 2004 and lived together in Imperial, Nebraska. They raised two sons: H.J., born in 1997 to Stacey’s previous marriage and adopted by Duke, and C.J., born in 2005 to Stacey and Duke. Only custody of C.J. is at issue in this appeal. Stacey filed for a divorce in 2006. A divorce decree was entered in 2007. Under the divorce decree, Stacey and Duke were granted joint legal custody over their sons, and Stacey was granted sole physical custody, subject to Duke’s parent- ing time. In January 2008, Stacey filed a petition to modify the divorce decree. She sought sole legal custody over H.J. and C.J., and she requested that any visits between Duke and their sons be supervised. Stacey alleged that Duke had physically abused their sons.  - 913 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 In September 2009, before her petition was adjudicated, Stacey moved with her sons to Waverly, Nebraska. Based on this move, Stacey petitioned for the court to further limit Duke’s visits with their sons to once every other weekend and renewed her request that such visits be supervised. Stacey also requested that the parties be ordered to meet in Lexington, Nebraska, which was closer to her new home, to exchange their sons between visits. Around this time, conflict arose between Duke and H.J., who alleged that Duke had physically abused him. Stacey and Duke agreed that H.J. would no longer spend time with Duke. Since then, H.J. and Duke have remained estranged from each other. Between 2007 and 2010, Stacey made numerous allega- tions that Duke was physically abusing C.J. The Nebraska Department of Health and Human Services, the Nebraska State Patrol, and the police department for the city of Imperial all investigated. The district court appointed a guardian ad litem, who “reviewed voluminous material and spoke with investi- gators with the State Patrol, the Imperial Police Department, DHHS investigators, some of the medical personnel, the coun- selor for the children, and the children,” but concluded that the evidence did not support Stacey’s allegations of abuse against Duke. The guardian ad litem also did not recommend that Duke be limited to supervised visits, but did recommend that he com- plete family counseling. In March 2011, the district court entered an order modifying the divorce decree. Under the 2011 divorce decree, the parties retained joint legal custody over C.J. and Stacey retained sole physical custody over C.J. Duke was entitled to a minimum of one visit every other weekend with C.J. during the school year and 6 consecutive weeks’ visitation during the summer. The district court declined Stacey’s request to require that visits between Duke and C.J. be supervised. Weekday visita- tion was eliminated, and the parties were ordered to exchange  - 914 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 C.J. in Kearney, Nebraska. Duke was ordered to complete fam- ily counseling. Stacey appealed the district court’s denial of her request for sole legal custody over C.J. On appeal, in case No. A-11-330, the Nebraska Court of Appeals affirmed the order in an unpub- lished memorandum opinion filed on March 2, 2012. On March 1, 2018, Duke filed a petition for modification of the divorce decree in the district court for Chase County. Stacey filed a motion to transfer pursuant to Neb. Rev. Stat. § 25-410 (Reissue 2016), and the case was transferred to the district court for Lancaster County. The issue before the district court was whether Duke had shown a material change in circumstances that had not been foreseeable when custody was last adjudicated in 2011. Duke alleged that over the past 7 years, C.J. had grown, and that now, as a 14-year-old child, he had expressed a mature desire to live with Duke. The district court heard in camera testimony from C.J. during which time only C.J., the parties’ attorneys, and the judge were in the courtroom. During this testimony, C.J. stated that he loved both of his parents but desired to live with Duke. According to the dis- trict court: [C.J.] wants to live with his Dad because [they have] the same interests in farming and working on tractors and lawn mowers. They both enjoy hunting and fishing, especially together. [C.J.] would like to have a future in farming and hopes to inherit his Dad’s farms in Nebraska and Colorado. Because this reasoning was sound and C.J. was an eighth grade student who “does well in school,” the district court found C.J.’s testimony persuasive. In contrast, the district court viewed Stacey’s testimony at trial more skeptically. The district court found that Stacey “was often not truthful or forthcoming in her testimony” and that she had made coparenting very difficult for Duke.  - 915 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 The district court also considered evidence in the record that Stacey was not meeting C.J.’s needs as his parent. The district court noted that Stacey, a real estate broker, had earned an adjusted gross income of only $21,817 in 2018, while Duke, in retirement, had earned $52,141 in 2018. Further, Stacey’s home, which the district court noted is “owned by her parents and [for which she] pays only as much as she can afford for rent,” was “cluttered and dirty,” according to testimony. In con- trast, Duke owned a home and significant farmland. Additionally, the district court stated that “[i]n the Court’s opinion, [Stacey] is extremely overprotective and engage[d] in parental alienation to the extent that it may be harmful to [C.J.’s] general health, welfare, development and social well- being.” The district court specifically noted the deterioration of H.J.’s relationship with Duke as evidence that Stacey had already “successfully alienated” one son from Duke. As to H.J.’s allegations that Duke had been physically abusive, the district court concluded, based on its observations at trial, that Stacey “may have coached the children to say that [Duke] had hit them.” The district court refused Stacey’s testimony about her pre-2011 allegations of abuse against Duke, finding that they were irrelevant to C.J.’s circumstances since 2011. With these findings of fact, the district court concluded there had been a material change in circumstances since 2011 to justify modification of the divorce decree. That is, had the district court in 2011 “known that [Stacey] would continue to engage in such behavior, [it] may have decided differently” about C.J.’s living situation. Thus, the district court held that it would be in C.J.’s best interests to be moved to Duke’s sole legal and physical custody. Stacey was granted parenting time on every other weekend and ordered to pay $305 per month to Duke in child support. Stacey filed a motion, pursuant to Neb. Rev. Stat. § 25-1144 (Reissue 2016), for a new trial and reconsideration. She alleged that certain irregularities in the proceedings had pre- vented a fair trial and that the judgment was not sustained by sufficient evidence. On January 23, 2020, the district court  - 916 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 overruled Stacey’s motion for a new trial, though it amended the previous order to designate C.J.’s in camera testimony as confidential. Stacey timely appealed, and we moved the case to our docket. 1 III. ASSIGNMENTS OF ERROR Stacey assigns, consolidated and restated, that the district court erred in (1) modifying the divorce decree to grant Duke sole legal and physical custody over C.J.; (2) excluding, as irrelevant, Stacey’s testimony about her past abuse allegations against Duke; and (3) overruling her motion for a new trial or reconsideration. IV. STANDARD OF REVIEW [1] Child custody determinations are matters initially entrusted to the discretion of the trial court. 2 Although reviewed de novo on the record, the trial court’s determination will gen- erally be affirmed absent an abuse of discretion. 3 [2,3] In proceedings where the Nebraska rules of evidence 4 apply, they control the admissibility of evidence, and judicial discretion is allowed only insofar as the rules make it a factor. 5 Judicial discretion is allowed to determine the relevancy of evi- dence, and such determination will not be disturbed on appeal unless it constitutes an abuse of discretion. 6 [4] An appellate court reviews a trial court’s ruling on a motion for a new trial or reconsideration for an abuse of discretion. 7 1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018). 2 See State on behalf of Tina K. v. Adam B., ante p. 1, 948 N.W.2d 182 (2020). 3 See id. 4 See Neb. Rev. Stat. § 27-101 et seq. (Cum. Supp. 2016 & Supp. 2019). 5 See Tilson v. Tilson, ante p. 275, 948 N.W.2d 768 (2020). 6 See id. 7 See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38 , 917 N.W.2d 435 (2018).  - 917 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 [5] An abuse of discretion occurs when a trial court’s deci- sion or reasoning is clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. 8 V. ANALYSIS 1. Modification of Child Custody The main issue presented on appeal is whether the district court erred in modifying the 2011 divorce decree when it transferred sole legal and physical custody over C.J. to Duke, subject to Stacey’s parenting time. Stacey contends that this modification was an abuse of discretion. [6,7] Custody of a minor child will not ordinarily be modi- fied absent a material change in circumstances, which shows either that the custodial parent is unfit or that the best interests of the child require such action. 9 It is the burden of the party seeking modification to show a material change in circum- stances. 10 Specifically, the movant must show two elements: First, that since entry of the most recent custody order, there has been a material change in circumstances that affects the child’s best interests, and second, that it would be in the child’s best interests to change custody. 11 Here, because it was Duke who sought to modify the district court’s 2011 custody order, he had the burden of proving both elements to justify modification. (a) Material Change in Circumstances [8-10] We have defined a material change in circum- stances as the occurrence of something that, if it had been known at the time the most recent custody order was entered, 8 See Dycus v. Dycus, ante p. 426, 949 N.W.2d 357 (2020). 9 See Tilson, supra note 5. 10 See id. 11 See id. - 918 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 would have persuaded that court to decree differently. 12 Circumstances having occurred before the most recent custody order are relevant only insofar as they bear on whether the change in circumstances since the most recent custody order are material and substantial. 13 Before custody is modified, it should be apparent that any material change in circumstances alleged will be permanent or continuous, not merely transitory or temporary. 14 The district court found that C.J.’s testimony that he pre- ferred to reside primarily with Duke was one factor that weighed in favor of a conclusion that there had been a material change in circumstances. C.J. was approximately 6 years old in 2011, when custody was last modified. But in 2018, during in camera testimony, the district court found that C.J. had persua- sively stated his preference and reasoning for being moved to Duke’s sole legal and physical custody. Stacey contends that it was an abuse of discretion for the district court to rely so heavily on C.J.’s stated preference. Stacey warned at oral argument that if a child’s stated prefer- ence alone could establish a material change in circumstances, then children throughout the state would become capable at any time of asking for and being granted a change in custody. According to Stacey, under a recent Court of Appeals opinion, State on behalf of Slingsby v. Slingsby, 15 a child’s stated pref- erence can constitute a material change in circumstances only if it is coupled with evidence about an evolving relationship between the child and parent. We agree with Stacey that the Court of Appeals’ reasoning in Slingsby is instructive here, but we disagree that it sup- ports her position. In Slingsby, a father petitioned to modify 12 See Jones v. Jones, 305 Neb. 615 , 941 N.W.2d 501 (2020). 13 See Metcalf v. Metcalf, 278 Neb. 258 , 769 N.W.2d 386 (2009). 14 See Jones, supra note 12. 15 State on behalf of Slingsby v. Slingsby, 25 Neb. Ct. App. 239 , 903 N.W.2d 491 (2017).  - 919 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 a divorce decree in an effort to gain primary physical custody over his 15-year-old son. After the district court heard the son testify that he preferred to live with his father because of their shared interests in hunting, raising livestock, and being out- doors, the district court granted the father’s motion to modify custody. The Court of Appeals affirmed, reasoning that it was not an abuse of discretion for the district court to conclude that “[the son’s] stated preference to live with [his father] and his evolving relationship with [the father] constituted a material change in circumstances.” 16 Among the factors in Slingsby that indicated an evolving relationship between the parent and child were that the son (1) was 10 years older than the last time a divorce decree was entered; (2) had developed interests in working outdoors and hunting, interests that he shared with his father; (3) felt “trapped” living at his mother’s house because he could not get outdoors much or practice his new interests; and (4) was struggling in school under his mother’s tutelage, but believed his grades would improve at the school near his father’s house because it offered an “‘ag class,’” smaller class sizes, and study halls. 17 The Court of Appeals found that individually, these factors each provided evidence of a material change in circum- stances, and collectively, they also helped to explain the son’s stated preference, entitling it to greater consideration. 18 The Court of Appeals’ reasoning, as set forth in Slingsby, models how courts should consider children’s stated prefer- ences in custody disputes. We have never held, nor do we read Slingsby to hold, that a child’s stated preference, alone, will suffice to establish a material change in circumstances. Stacey’s fear that children could at any time be granted a change in custody simply by asking is unwarranted. 16 Id. at 254, 903 N.W.2d at 501. 17 See id. 18 See Slingsby, supra note 15.  - 920 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 [11] To the contrary, we have specifically held that “the wishes of a child are not controlling” in determinations of child custody. 19 Trial courts should consider a variety of factors that bear on the best interests of the child. 20 Due consideration of these factors will determine whether finding a material change in circumstances is justified. 21 [12-14] But “if a child is of sufficient age and has expressed an intelligent preference, the child’s preference is entitled to consideration,” alongside other factors. 22 The amount of con- sideration will depend on the child’s age and ability to give reasons for his or her preference. 23 For example, in cases where we have given the child’s stated preference significant consideration, the child was typically over 10 years old. 24 And, as Slingsby demonstrates, more consideration will be afforded where additional factors that bear on the child’s best interests undergird the child’s stated preference and reasoning. 25 Where a trial court’s order demonstrates that the child’s age and rea- soning have been duly considered alongside the child’s stated preference, we will generally defer to the trial court’s credibil- ity determinations in our assessment of facts. 26 Here, we find no basis for Stacey’s assertion that the dis- trict court gave undue consideration to C.J.’s stated prefer- ence. After hearing C.J. testify in camera and respond to questions about his stated preference, the district court made 19 Leners v. Leners, 302 Neb. 904 , 912, 925 N.W.2d 704 , 711 (2019), disapproved on other grounds, State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933 , 932 N.W.2d 692 (2019). 20 See Jones, supra note 12. 21 See id. 22 Leners, supra note 19, 302 Neb. at 912 , 925 N.W.2d at 711. 23 See id. 24 Vogel v. Vogel, 262 Neb. 1030 , 637 N.W.2d 611 (2002). 25 See Slingsby, supra note 15. 26 See Tilson, supra note 5.  - 921 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 specific findings about how much consideration to give C.J.’s stated preference. According to the district court, C.J. was a mature 14-year-old child who demonstrated a capacity for critical reasoning. Additionally, many of the same factors that indicated an evolving relationship and supported the son’s reasoning in Slingsby were also present here. The district court specifi- cally noted that since 2011, C.J. had grown 7 years older and become significantly more mature; he had developed interests in hunting, fishing, and working outdoors on tractors and lawn- mowers, all interests that he now shared with Duke but not with Stacey; he had spent time at Duke’s farm and realized a healthy father-son relationship with him; he had earned money for various jobs that he had performed on visits to Duke’s farm; he had decided to become a farmer himself in the future and wished to learn to farm from Duke, who was retired and had time to teach C.J. about farming; and he had begun to show independence by helping to manage Duke’s farmland. Further, the district court found that Stacey’s behavior had worsened over the past 7 years, raising questions about her ability to meet C.J.’s needs and to effectively coparent with Duke. Given all of these factors, the district court found that if the court in 2011 had “known that [Stacey] would continue to engage in such behavior, [it] may have decided differently” about C.J.’s living situation. Thus, contrary to Stacey’s assertion, there were many fac- tors that the district court considered and found demonstrated a material change in circumstances in addition to C.J.’s stated preference. We do not find that the district court abused its discretion in its consideration of these factors and its determi- nation that there had been a material change in circumstances that affected C.J.’s best interests. (b) Best Interests of Child Next, we consider the second element in a review of a child custody modification: whether the modified custody  - 922 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 arrangement was in C.J.’s best interests. Stacey argues that even if the district court did not err in finding a material change in circumstances, it abused its discretion in determining that a move of C.J.’s sole legal and physical custody to Duke was in C.J.’s best interests. [15] Consideration of the child’s best interests involves a combination of both mandatory and permissive factors. Neb. Rev. Stat. § 43-2923(6) (Reissue 2016) requires that certain factors must be considered, including (1) the relationship of the child to each parent prior to the commencement of the action; (2) the desires and wishes of a sufficiently mature child, if based on sound reasoning; (3) the general health, welfare, and social behavior of the child; (4) credible evidence of abuse inflicted on any family or household member; and (5) credible evidence of child abuse or neglect or domestic intimate part- ner abuse. 27 [16] Other relevant considerations that may also be con- sidered include the stability of the child’s existing routine, minimization of contact and conflict between the parents, and the general nature and health of the child. 28 No one factor is dispositive, and various factors may weigh more or less heav- ily, depending on the case. 29 In support of her argument that the district court abused its discretion in finding that C.J.’s interests would be best served by the modified decree, Stacey again cites to Slingsby. 30 To distinguish this case, Stacey contends that the district court’s “lack of analysis and reasoning in this case pales in com- parison to the trial court’s thorough analysis in Slingsby.” 31 We disagree. 27 Jones, supra note 12. 28 See id. 29 See id. 30 See Slingsby, supra note 15. 31 Brief for appellant at 16.  - 923 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 Contrary to Stacey’s assertions, the district court thor- oughly analyzed how a change in custody would be in C.J.’s best interests. The district court gave particular weight to the shared interests between C.J. and Duke in farming. It found that C.J. wished to become a farmer and determined that Duke, who was retired but owned farmland, could teach C.J. to farm if they lived together. Based on Duke’s testimony, the district court deemed him “an honest and sincere man who wants the best for [C.J.] and is a good role model for his son.” The district court also found that Duke and C.J. had worked well together and enjoyed each other’s company during Duke’s parenting time over the years. Thus, the district court found that C.J.’s stated preference to live with Duke made sense and provided strong evidence that a change in custody would be in C.J.’s best interests. Moreover, the district court found that living with Duke would be in C.J.’s best interests because Stacey had demon- strated that she was “extremely overprotective” and tended to alienate her sons from Duke in a way that was damaging to C.J.’s “general health, welfare, development and social well- being.” According to the district court: In comparing [Stacey’s and Duke’s] character, their atti- tude and stability, their capacity to provide the physi- cal care and satisfy the educational needs of [C.J.], and considering the general health, welfare, development and social behavior of [C.J.], the Court finds that it would be in [C.J.’s] best interest for him to reside with [Duke]. Based on the district court’s due consideration of these fac- tors, which meet the statutory criteria, we do not find that it was an abuse of discretion for the district court to find that a modification of custody was in C.J.’s best interests. We hold that Duke met his burden for a modification of the 2011 divorce decree. Thus, the district court did not abuse its discretion in modifying the divorce decree in 2018 to move C.J.’s sole legal and physical custody to Duke. Stacey’s first assignment of error is without merit.  - 924 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 2. Exclusion of Testimony Stacey assigns, second, that the district court failed to con- sider relevant evidence that Duke had physically abused both H.J. and C.J. in the past. During direct examination at trial, Stacey’s counsel asked Stacey whether she had made any allegations in the past against Duke regarding physical abuse. Duke objected before Stacey could answer, and the district court sustained Duke’s objection. According to the district court, Stacey’s answer to the question was irrelevant to the present case because it would pertain only to allegations of physical abuse made prior to 2011, and hence before the most recent decree was entered. Stacey contends that it was reversible error for the district court to sustain Duke’s objection and exclude her testimony as irrelevant. [17,18] The admission or exclusion of evidence is not revers- ible error unless it unfairly prejudiced a substantial right of the complaining party. 32 Erroneous exclusion of evidence does not require reversal if the evidence would have been cumulative and other relevant evidence, properly admitted, supports the trial court’s finding. 33 As analyzed above, the district court found ample evidence that the modified order would be in the best interests of C.J. Even if the district court had considered Stacey’s testimony about her pre-2011 abuse allegations against Duke, such evi- dence would not have undermined the evidence in the record. When the Court of Appeals in 2012 reviewed Stacey’s chal- lenge to the 2011 divorce decree in case No. A-11-330, it observed in an unpublished memorandum opinion that “[t]he record is replete with evidence regarding Stacey’s concerns about the children while in Duke’s care. However, the instances of alleged abuse have all been unfounded.” 32 AVG Partners I v. Genesis Health Clubs, ante p. 47, 948 N.W.2d 212 (2020). 33 See id. - 925 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 The record before the district court contained ample evidence of these pre-2011 allegations. The earlier Court of Appeals opinion was in the record and cited by the district court. Stacey does not assert that any of her testimony would have raised allegations not already expressed in the record. Thus, even if it was error for the district court to exclude Stacey’s testimony about past abuse allegations, it was not reversible error because Stacey’s testimony would have been cumulative. We hold that the district court did not abuse its discretion in excluding Stacey’s testimony. Stacey’s second assignment of error is without merit. 3. Motion for New Trial or Reconsideration Stacey assigns, third, that the district court abused its discre- tion in not fully granting her motion for a new trial or recon- sideration. The district court granted Stacey’s motion in part when it designated as confidential its summaries and quota- tions from C.J.’s testimony. However, Stacey assigns that this remedy was too little and that an entirely new trial should have been ordered. Neb. Rev. Stat. § 25-1142 (Reissue 2016) sets forth eight grounds on which a motion for new trial may be sustained. 34 Stacey cites to the first and sixth among these, which require that a new trial be granted if (1) [i]rregularity in the proceedings of the court, jury, referee, or prevailing party or any order of the court or referee or abuse of discretion by which the party was prevented from having a fair trial [or] (6) that the verdict, report, or decision is not sustained by sufficient evidence or is contrary to law. 35 Neither of these bases for a new trial are availing here. As analyzed above, the district court’s decision was not contrary 34 See Cinatl v. Prososki, ante p. 477, 949 N.W.2d 505 (2020). 35 § 25-1142.  - 926 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports JAEGER v. JAEGER Cite as 307 Neb. 910 to law. Instead, it was amply supported by evidence in the record. And aside from conclusory statements in her brief, Stacey offers no evidence that she was in fact deprived of a fair trial. We hold that the district court did not abuse its discretion in denying Stacey’s motion for new trial. Stacey’s third assign- ment of error is without merit. VI. CONCLUSION We do not find that it was an abuse of discretion for the dis- trict court to move C.J. to Duke’s sole legal and physical cus- tody. Nor do we find that the district court abused its discretion in excluding Stacey’s testimony about past abuse allegations and overruling Stacey’s motion for a new trial. Accordingly, we affirm the decision of the district court. Affirmed. Cassel, J., not participating.

2020-11-20 19:24:08.195571+00

APPEAL OF CONSOLIDATED MUTUAL OIL CO. Consolidated Mut. Oil Co. v. Commissioner Docket No. 2486. United States Board of Tax Appeals 2 B.T.A. 1067; 1925 BTA LEXIS 2174; October 28, 1925, Decided Submitted July 8, 1925. *2174 1. Expense of litigation held to be a capital expenditure. 2. The expense of redrilling and deepening an oil well to put it on a productive basis is a capital expenditure. 3. Depreciation deductions on oil wells disallowed. Louis Titus, Esq., for the taxpayer. John D. Foley, Esq., for the Commissioner. TRAMMELL *1067 Before GRAUPNER, TRAMMELL, and PHILLIPS. This appeal involves the determination of a deficiency in income and profits taxes for 1918 in the amount of $6,349.84, which is based upon the action of the Commissioner in (1) disallowing as a deduction the sum of $958.30, expended by the taxpayer for shorthand reporting and transcribing testimony in a case entitled "United Statesv. Record Oil Co., Consolidated Mutual Oil Co., and others"; (2) disallowing a deduction claimed by the taxpayer of $12,373.13, being an amount expended in rebuilding a derrick, resetting a pipe and deepening an oil well to put it on a commercial basis; and (3) disallowing a deduction claimed on account of depreciation of oil wells; and (4) reducing the amount of depletion claimed by the taxpayer from $105,880.77 to $88,234.86. The allegation*2175 of error alleged in the petition with respect to the invested capital of the taxpayer was waived at the hearing. FINDINGS OF FACT. The taxpayer is a corporation organized and existing under the laws of California, with its office in San Francisco. In its income-tax return for 1918 it deducted as expense $958.30 paid out as reporter's fees in reporting and transcribing testimony in a suit brought by the United States against the taxpayer. The object of this suit was to oust the taxpayer from possession of certain oil lands, to enjoin it from removing oil therefrom, and to account for all oil theretofore taken. *1068 The court decided in favor of the taxpayer, holding that the suit was improperly brought in that an attack was not made directly upon the final certificate which had been issued by the General Land Office or to set the same aside for fraud. An oil well was completed in 1916 and was pumped for several months. The oil, however, was mixed with so much water that it was not a commercial product. At the end of 1916 the derrick was blown down by a tornado. During 1918 the derrick was rebuilt, the pipe reset, the well was drilled some 200 feet deeper, *2176 and it was recemented in such a way as to shut off the water. Thereafter it was pumped, but the oil was mixed with water for at least 30 days. Thereafter the water greatly subsided and the well began to produce oil in sufficient quantities in comparison with the water so that it was a commercial product. The expense of redrilling and repairing the well was $12,373.13. During the year 1918 the company wrote off for depreciation on its physical property $31,231.74. The nature of the property, the cost and the depreciation claimed are as follows: Character of propertyCostDepreciation Wells$448,705.52$25,404.13 Buildings and structures7,003.90408.00 Tanks, oil and gas lines37,001.642,050.74 Water system2,749.46153.00 Boiler plants and steam lines20,073.411,270.39 Miscellaneous plant assets600.9534.21 Drilling and field tools31,586.061,675.37 Horses and vehicles4,360.91207.35 Furniture and fixtures264.1514.61 Office equipment103.475.76 Shop machinery and tools150.048.18 The practice of the company had uniformly from the beginning been to write off 1 per cent per month of all the foregoing tangible property. *2177 The Commissioner allowed the taxpayer a deduction, on account of exhaustion, wear, and tear of its physical property, an amount in excess of the amount claimed by the taxpayer, except with respect to the oil wells themselves. The Commissioner disallowed the amount of $25,404.13, claimed as depreciation on the wells, the net result being that the Commissioner disallowed depreciation in the amount of $18,754.51. No competent testimony was introduced to show any depletion of the oil well. DECISION. The determination of the Commissioner is approved. OPINION. TRAMMELL: With respect to the amount paid out by the taxpayer as reporter's fees in reporting and transcribing the record in the *1069 suit brought by the United States to restrain it from taking oil from its oil wells and to account for the oil taken, we are of the opinion that such amount was a capital expenditure. The redrilling and deepening of the oil well in order to put it on a commercial basis is not an ordinary and necessary expense but is a capital expenditure which may be returned to the taxpayer through deductions allowed on account of exhaustion, wear and tear of the physical property involved*2178 or through the depletion allowance as the oil is extracted from the ground. The well was not upon a commercial basis when the taxpayer undertook to redrill and deepen it and it is immaterial that the well was redrilled and deepened to put it on a commercial basis instead of being drilled to completion in the first place. With respect to the question as to whether the taxpayer should have been permitted to take a deduction on account of the exhaustion, wear and tear of its oil wells as separate and distinct from its physical property in connection therewith, the Board has no evidence upon which it can base a finding or reach the conclusion that the determination of the Commissioner was not correct. If it be conceded that the oil wells themselves depreciate and become exhausted in proportion as the oil is extracted from the land, or upon any other basis, we have no evidence as to the approximate life of the oil wells. The record does not disclose whether the Commissioner allowed the taxpayer a deduction on account of the exhaustion of its oil wells in connection with the depletion allowance, or whether the cost of drilling the wells entered into the cost of the oil extracted and*2179 was included in depletion allowances. We are unable to find from the record, therefore, that the determination of the Commissioner disallowing a claim for exhaustion of the oil wells was not correct.

2020-11-20 19:37:54.894418+00

WILLIAMS TRUST, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Williams Trust v. Commissioner Docket Nos. 82276, 84833. United States Board of Tax Appeals 39 B.T.A. 612; 1939 BTA LEXIS 1007; March 21, 1939, Promulgated *1007 Petitioner, a trust, owns several parcels of real estate located in the city of Detroit. These properties are valuable business properties and wherever possible are leased on a net basis and for long terms. They are substantial income-producing properties. With respect to the form of its organization, its methods of operation, the rights of the beneficiaries in the trust and its properties, and the powers of the trustees, the petitioner is substantially similar to a statutory corporation. Held, that it is an association within the meaning of section 1111(a)(2) of the Revenue Act of 1932. Chester J. McGuire, Esq., for the petitioner. Edward C. Adams, Esq., for the respondent. TURNER *612 This is a proceeding for the redetermination of deficiencies in income tax for the years 1932 and 1933 in the amounts of $9,422.24 and $7,340.52, respectively. The sole issue presented is whether petitioner is an association taxable as a corporation. FINDINGS OF FACT. The petitioner is a trust created under the Williams trust agreement, which was executed on September 22, 1920, by the Security Trust Co., a Michigan corporation, Luther S. Trowbridge*1008 and Edwin C. Lewis, individuals, as trustees, and Josepha W. Douglas, Gershom Mott Williams, and the estate of John R. Williams by Maie H. Williams and William J. Gray, as the original beneficiaries under the said declaration of trust. The instrument was also signed by Maie H. Williams, Juliette Leiter, Dorothy McCombs, and Francise Pitney, the widow and three daughters of John R. Williams, deceased. The Security Trust Co. was designated as corporate trustee, while Luther S. Trowbridge and Edwin C. Lewis were termed managing trustees. It was recited in the trust instrument that the Security Trust Co., by accepting delivery of deeds theretofore executed by the record owners, was about to take fee simple title to seven described parcels of real estate in the city of Detroit. This real estate was to be held by the Security Trust Co. in accordance with the provisions of the *613 trust instrument and subject to the management and control of Luther S. Trowbridge and Edwin C. Lewis, and their successors. The managing trustees were to collect all income, rents, and profits from the properties and to pay all taxes, assessments, and public charges of any kind. They were given*1009 full power and authority to lease the properties for any term, "to erect, construct, tear down, alter, reconstruct, rebuild or remodel such buildings or other improvements * * * on said real estate or any part thereof" as they in their sole discretion might think best, and in order to carry out these purposes the trustees were to have the power to borrow such sums of money as the managing trustees might consider necessary, giving as security for the payment of the money so borrowed a mortgage or deed of trust on any or all of the properties. They were given the power "at any time to sell and convey the fee simple title in and to any or all of said real estate or the buildings or improvements thereon" and to determine the mothod and terms of the sale as their judgment indicated. They could grant and acquire easements, make contracts for party walls and foundations, execute contracts with public officials relating to sewers, sidewalks, etc., insure the buildings, make repairs, hire suitable offices, employ agents and attorneys, settle claims, and incur and pay proper expenses. It was expressly covenanted and agreed that the legal title to the seven parcels of real estate heretofore*1010 referred to and to any lands thereafter acquired by the trust was to be vested solely in the corporate trustee. The corporate trustee was required, however, to acknowledge or otherwise validate and deliver such conveyances, mortgages, or other documents necessary to effect and carry out the acts and desires of the managing trustees. With respect to long term leases or the sale of property belonging to the trust, the trust agreement contained the following: It is, however, expressly provided that the Trustees shall not exercise the power to make absolute sale, or to make any lease for a term longer than twenty-five (25) years, of said real estate, or any part thereof, without first having obtained the consent in writing of the owners of a majority in amount of the registered trustees receipts issued hereunder and outstanding. By the terms of the trust instrument any trustee might resign or might be removed by the vote or action of two-thirds in amount of all the beneficiaries of the trust "holding registered receipts, evidenced by a written declaration to that effect, executed and acknowledged and recorded in said Register's Office, or other proper Office, as in the case of*1011 a deed of real estate." Vacancies in the number of trustees were to be filled similarly by action of two-thirds in amount of the beneficiaries. It was further provided that any trustee, by power of attorney, might delegate to any person full authority to execute all of the powers of such trustee. *614 The managing trustees were given the power, during the life of the last survivor of Gershom Mott Williams, Josepha W. Douglas, Maie H. Williams, Juliette W. Leiter, Dorothy F. McCombs, and Francise Pitney or for 21 years after the date of the trust instrument, to set aside a portion of the net annual income not in excess of 10 percent as a contingent fund which was to be disposed of in whole or in part in the payment of expenses, debts, costs, or charges authorized to be incurred or paid by the trustees, or in distribution to the beneficiaries. In the case of sale of any of the lands the proceeds thereof were to be forthwith distributed to the owners of trustees' receipts, and the trustees were given no power of reinvestment of such proceeds. The contingent fund and income accumulated prior to distributions could be invested in such bonds as are open to investment of the*1012 funds of savings banks in the State of Michigan. The net income was to be distributed to the beneficiaries quarterannually, or oftener in the discretion of the managing trustees, and the latter were required to furnish each beneficiary with an annual inventory of the estate and a statement of all moneys received and paid out. The trustees were to be entitled to reasonable compensation to be fixed from time to time by agreement between themselves and a majority in amount of the beneficiaries. Under the terms of the agreement neither the trustees nor the beneficiaries were to be personally liable for any money borrowed or for any other debt or liability of the trust, and all persons dealing with the trust were required to look only to the property of the trust for the payment of their claims. The original beneficiaries of the Williams trust agreement and the respective interests owned by each were as follows: Gershom Mott WilliamsOne-third Josepha W. DouglasOne-third Estate of John R. Williams, deceasedOne-third The agreement provided that the beneficiaries had no right of possession, management, or control of the trust estate and no widow, widower, heir*1013 or devisee of any beneficiary had any right of dower, homestead, inheritance, or partition in the trust properties; that the rights of the beneficiaries were solely against and through the trustees and such rights were personal and not a claim, title, or interest in the property; and further that the trustees were the absolute representatives of all the beneficiaries and it was not necessary that the latter be named as parties in any suit of any kind brought against or on behalf of the trust. The corporate trustee was required to issue to each beneficiary a receipt showing the proportional part to which he was entitled and each receipt was to provide on the face thereof that such receipt *615 should not be sold or otherwise disposed of to any person outside of the immediate family of the holder thereof, without first notifying all other registered receipt holders of the price and terms of the proposed disposition and giving them the prior right to purchase. The corporate trustee was to keep a written register and the receipts could be transferred only on the register by the beneficiary named therein. All books of the trust were to be kept open for inspection. The agreement*1014 further provided that at the expiration of 20 years after the death of the last survivor of the original beneficiaries and the children of Gershom Mott Williams and Josepha W. Douglas, or earlier with written direction from holders of two-thirds of the receipts, the trustees were to terminate the trust by selling, conveying, and transferring all of the property held by them as trustees and by dividing the proceeds of such sales among the registered beneficiaries. This clause was inserted by counsel in order to avoid failure of the agreement through the creation of a forbidden perpetuity. The agreement could be amended upon the consent in writing of holders of three-fourths in amount of the receipts. Gershom Mott Williams, Josepha W. Douglas, and John R. Williams were the children of Thomas Williams and the grandchildren of General Johm R. Williams. General Williams died October 20, 1854, leaving part of his extensive real estate holdings in and about the city of Detroit to his son Thomas and his daughter Mary, referred to herein as Mary W. McKinstry. Thomas Williams died on August 5, 1862. He devised all of his real estate to his three children, Gershom Mott Williams, Josepha*1015 W. Douglas, and John R. Williams, with an intervening life estate in his widow, Mary N. Williams, who died January 31, 1914. Mary W. McKinstry died March 2, 1876. She devised two stores to a brother, J. Devereux Williams, for life with remainder over to the three children of Thomas Williams. The residue of her property was devised in trust, eventually to be distributed to the three children of Thomas Williams. That trust terminated on December 31, 1918. John R. Williams died on March 24, 1919. His estate, part of which consisted of his interest in the properties devised to him by his father, Thomas Williams, and his aunt, Mary W. McKinstry, and which had not been disposed of at the time of his death, was devised in trust for the benefit of his widow, Maie H. Williams, and his three daughters, Juliette Leiter, Dorothy McCombs, and Francise Pitney. Properties devised by Thomas Williams and Mary W. McKinstry to or for the benefit of Gershom Mott Williams, Josepha W. Douglas, and John R. Williams consisted of 126 descriptive units which, with a few exceptions, were city lots. These units, according to the detailed statement attached to and made a part of a stipulation of the*1016 parties, *616 were grouped into 57 parcels. During the period beginning with August 10, 1864, up to and including the year 1916, 47 of the 57 parcels were disposed of. Two other parcels, described as properties located in the village of Mottville, St. Joseph County, Michigan, were disposed of in a manner and on dates unknown. Another parcel was conveyed by warranty deed, executed by the trustee of the Mary W. McKinstry estate, but the record fails to disclose the date of conveyance. From another parcel sales were made from 1915 through 1923. The remaining 6 parcels were included in the 7 parcels conveyed to the corporate trustee under the trust agreement previously described herein. Of the 47 parcels sold between 1864 and 1916, 13 parcels were business properties located in the downtown section of the city of Detroit. These 13 parcels were sold on the following dates: July 16, 1866; May 1, 1872; March 27, 1875; December 15, 1882; December 9, 1885; January 10, 1889; December 20, 1890; August 21, 1895; November 1, 1896; July 12, 1902; April 14, 1905; July 5, 1911; March 18, 1912. The relative size and importance of these parcels of real estate with reference to each other*1017 or with respect to the 6 parcels transferred to the trust herein are not shown by the record. In September 1920 Josepha W. Douglas was 59 years of age, was in ill health, and shortly thereafter became a semi-invalid. She resided in Colorado and had one child. She died in March 1938. Gershom Mott Williams was 62 years of age, and was suffering from angina pectoris. He resided in Annapolis, Maryland, but spent a greater part of the summers in Europe. He died in Paris in 1923. He had seven children. Maie H. Williams was over 50 years of age and resided in Washington, D.C., where she owned extensive real property. Her three daughters likewise resided out of Detroit and also had children. For some time prior to September 1920 the properties devised by Thomas Williams and Mary W. McKinstry to Gershom Mott Williams, Josepha W. Douglas, and John R. Williams had been managed by successive law firms acting informally as agents for the heirs. Some of the heirs became dissatisfied with the informal manner in which the properties were being handled, and Maie H. Williams and Juliette Leiter and her husband, Joseph Leiter, went to Detroit to discuss the matter with the two attorneys, *1018 Luther S. Trowbridge and Edwin C. Lewis, who were acting as managing agents. Joseph Leiter, who acted as spokesman and to some extent also spoke for other members of the family, expressed the feeling that the properties should be handled in a more formal manner and the attorneys should be given formal authority. The John R. Williams branch of the family desired to facilitate liquidation and some concern was expressed over legal complications which might arise in the event any *617 of the older heirs died leaving minor children or testamentary trusts. They felt that such complications might delay liquidation of the properties or even hinder the making of suitable leases. Most of the negotiations were carried on between Joseph Leiter and Edwin C. Lewis, and as a result of the discussions the Williams trust agreement was prepared and executed as previously stated. Of the seven parcels of real estate conveyed to the corporate trustee under the trust agreement herein, four were properties devised by Thomas Williams to his children, Gershom Mott Williams, Josepha W. Douglas, and John R. Williams, two were properties devised to these same individuals by Mary W. McKinstry, and*1019 the seventh property was a small parcel purchased in 1912 by the said three individuals in order to round out the block in which parcel No. 2 was located, upon the belief that such purchase would facilitate the sale of the latter. At the time the trust was created the seven parcels conveyed to it were free of lien or mortgage indebtedness. All seven parcels were improved and located in downtown Detroit. Following is a descriptive summary thereof: Use of floors Type ofParcel LocationFloorsFirstUpper buildingnumber Mercantile127 East Jefferson4RetailStorage. Do2Woodward and Jefferson.Theatre and retailPoor condition. Do32026 Woodward2Dime Savings BankDime Savings Bank. Do42100 Woodward2Retail Do52218-22 Woodward2do Do61403 Woodward6One occupancy (S. S. Kresge Co.)One occupancy (S. S. Kresge Co.). Dock properties.7Facing Detroit River2Freight (White Star Line).Offices (White Star Line). Parcel No. 1 was in somewhat of a wholesale district and, though relatively unimportant when considered with the other parcels, the annual rents increased from $3,000*1020 for 1921 to $6,000 for 1929. Thereafter the rents dropped to as low as $750.38 in 1933 and during part of 1932 the property was unoccupied. Parcel No. 2 was a large piece of property located on Woodward Avenue in a portion of the best retail district in Detroit. It was known as the Avenue Theatre property and was one of the two most valuable parcels transferred in trust. It was under lease to the Woodward Jefferson Realty Co. for a term of 99 years, at a rental of $4,166.56 per month, or $49,999.92 per year, for the first 20 years of the term, which began May 1, 1916. The expiration date was April 30, 2015. Parcel No. 3 had a frontage of only 48 feet, but was so situated that it was an important part of the trust estate. For 1921, the first full year after transfer to the trust, it produced rents in the amount *618 of $6,999.96. Thereafter the rents increased steadily to $20,000 per year in 1930. They continued at the same rate through 1932 and into 1933 when the tenant, the Dime Savings Bank, failed. The property was vacant during the remainder of the year. Parcel No. 4 was small but well located. For 1921 the rents on this parcel amounted to $3,499.92. For*1021 1925 through 1928 it produced $9,999.96 per annum; for 1929, $11,666.60; and for 1930 and 1931, $12,499.92 per annum. For 1932 the rents were reduced to $10,416.61 and for 1933 the total amount received was $6,458.68. Parcel No. 5 had a frontage of 50 feet, but was out of the retail district and was therefore of lessor importance. It was rented on a net basis for the years 1921 and 1922, at annual rentals of $12,343.41 and $6,099.84, respectively. Thereafter it was rented on a gross basis. For 1923 the rent was $5,400; for 1924, $11,600; for 1925, $12,000, at which figure it remained through 1929. For 1930, 1931, 1932, and 1933 the amounts received were $4,500, $3,100, $2,700, and $1,428.13, respectively. Parcel No. 6 ranked with parcel No. 2 in importance. It was under lease to the S. S. Kresge Co. for a period of 30 years from May 1, 1920, at a rental of $5,000 per month, or $60,000 per year. The lease was on a net basis and the rental continued at the same figure throughout the entire period from the creation of the trust through 1933. Parcel No. 7, referred to as the White Star Dock properties, was situated along the water front and extended for approximately a*1022 block. It was occupied by the White Star Line, a Michigan corporation, and at the time of its conveyance to the trust herein was under option to that company for a price of $150,000. With the exception of leases on parcel No. 1 for 1929 through 1933, parcel No. 4 for 1933, and parcel No. 5 for 1923 through 1933, the leases on the above properties contained provisions requiring the tenants to pay all or part of the taxes, insurance, and other items of expense necessary for the maintenance and upkeep of the properties. The law firm of Trowbridge & Lewis had been managing the properties of the Williams family for some time prior to the execution of the trust agreement, and thereafter they served as managing trustees under the trust. The duties performed by them before and after the execution of the trust instrument were comparable. Lewis was suceeded as trustee on September 29, 1924, by John B. Williams, a son of Gershom Mott Williams, and Trowbridge was succeeded as trustee on April 20, 1925, by Renville Wheat. Williams and Wheat have continued as managing trustees up to the present time. Williams took care of the management details personally until 1929, when the J. B. Williams*1023 Co., a property managing corporation organized and operated by Williams, was employed to take over such *619 duties. As compensation for its services that company receives a collection fee of 5 percent. Wheat handles the legal matters connected with the management of the trust. The Security Trust Co., the corporate trustee, was merged with the Detroit Trust Co. in 1929 to form the Detroit & Security Trust Co. The name of the merged company was later changed to the Detroit Trust Co. It has continued to act as corporate trustee. Since the execution of the trust agreement in 1920, the trust has maintained no offices, had no telephone, and kept no minutes. No formal meetings have been held and, beyond the substitution of John B. Williams and Renville Wheat as managing trustees for Trowbridge and Lewis, no officers have been elected. The principal activities of the managing trustees have been the depositing of rent checks, distributing the proceeds to the beneficiaries, supervising repairs, and making leases. It was the policy of the trustees to make net leases when possible because such leases required less activity on their part. During the period from the inception*1024 of the trust to the close of 1933, the trustees executed approximately twenty-one leases and approximately seven extension and rental reduction agreements. Of the leases executed approximately five were net leases which required the tenant to pay all taxes, insurance premiums, and repairs and alterations to the interior and the exterior of the buildings, etc.; approximately three were gross leases which required the petitioner to take care of such items of expense; and the remainder can not be strictly classified as net or gross leases, since such items of expense were divided between petitioner and lessee. In 1920 a $300,000 mortgage was placed on parcel No. 6 to provide the executors of the estate of John R. Williams with funds to pay death taxes. Of that sum the trustees distributed $188,000 to the executors of the John R. Williams estate and $30,000 to Gershom Mott Williams for personal use, and used the balance to pay indebtedness incurred on the properties prior to the formation of the trust. In 1924 another mortgage for $200,000 was placed on parcel No. 6 and the entire amount so procured was turned over to the executors of Gershom Mott Williams to pay death taxes. In*1025 1926 the trust had on hand sufficient funds to pay off the two mortgages, but since they had approximately three years to run the mortgagee refused to take payment in full. The trustees invested these funds in one, two, and three-year bonds, some of which were redeemed while others were defaulted. In 1935 the balances due on the mortgages were $135,000 and $37,500, respectively. Parcel No. 7 was sold in 1921 to the White Star Line for a consideration of $150,000, pursuant to the terms of a contract made prior to the formation of the trust herein, The proceeds from this sale *620 were applied in part to reduce the mortgage which had been placed on parcel No. 6 by the trustees late in 1920 to accommodate the estate of John R. Williams as above described. The proceeds not so used were distributed to the beneficiaries of the trust. Parcel No. 2 was sold in 1926 for $1,200,000. The proceeds from the sale of parcel No. 2 were divided into three parts, one part to Josepha W. Douglas, one to the estate of Gershom Mott Williams, and the third to the estate of Johm R. Williams. In making distribution the trustees withheld the amounts owed by the estates of Gershom Mott Williams*1026 and John R. Williams in respect of the mortgages previously described. The trustees have taken no active or affirmative steps toward the sale of the trust properties. Because of the size of the properties the market therefor is limited, and, since the commissions upon the sale of such properties would be substantial in amount, it has been their opinion that the real estate operators would not overlook any reasonable opportunity to make such a sale. It has further been their opinion that the advertising of the properties for sale would tend to reduce the prices that might be obtained instead of aiding in their disposition. About the time the Williams trust was created the question of widening Woodward Avenue, one of the principal streets of Detroit, was being considered and discussed by various civic groups. All during the 1920's and up through the taxable years this matter was in such a state of indecision that persons owning footage on that avenue were reluctant to erect new buildings and the market for such property was adversely affected. The widening of the avenue was not completed until 1936. Parcels 3, 4, and 5 are located on Woodward Avenue within the sidened area. *1027 The real estate depression in Detroit, which started in the late 1920's, adversely affected the market for all of the properties belonging to the trust. The beneficiaries of the John R. Williams estate desired to liquidate their interests in the trust at a faster rate than was being accomplished, and at or shortly after the date on which the Avenue Theatre property was sold their interests in the trust were acquired by Josepha W. Douglas and the estate of Gershom Mott Williams in equal parts. The proceeds from the sale of the Avenue Theatre property were utilized in this transaction. At the time the trust was created on September 22, 1920, trustees' receipts in the amount of one-third each had been issued to Josepha W. Douglas, Gershom Mott Williams, and the estate of Johm R. Williams. Gershom Mott Williams died in 1923 and on July 18, 1924, a trustees' receipt covering his interest was issued to John B. Williams and the Security Trust Co., trustees under his will. On November 4, 1926, trustees' receipts were issued to Josepha W. Douglas and the estate of *621 Gershom Mott Williams for interests of one-sixth each to reflect the acquisition of the one-third interest previously*1028 owned by the estate of John R. Williams. From 1920 to the close of 1933 the total operating receipts of the trust were $1,661,465.65, of which amount $1,541,946.31 represented rentals, $26,228.19 represented taxes collected from net lease tenants, and $93,291.15 was interest received on mortgages, bonds, bank balances, notes, and accounts receivable. During this same period the total disbursements were $347,022.90, leaving an excess of receipts over disbursements in the sum of $1,314,422.75 prior to distributions to holders of trustees' receipts. The disbursements consisted of real estate taxes paid, $106,123.63; insurance, $11,234.48; repairs, $3,630.06; interest, $100,606.73; appraisals and commissions to real estate agents, $25,888.70; legal expenses, $5,582.83; miscellaneous fees and expenses, $8,806.29; trustees' fees, $85,150.18. On its financial statement dated December 31, 1932, the Williams trust listed assets in the aggregate amount of $2,012,133.88, consisting of cash, $9,100.90; accounts receivable, bonds, loans receivable, and mortgages receivable of a total amount of $212,649; and real estate in the amount of $1,790,383.98. Its liabilities, exclusive of the outstanding*1029 beneficial interests shown in the amount of $1,796,943.38, consisted of a reserve for depreciation in the amount of $13,317.25, mortgages payable in the amount of $172,500, and surplus in the amount of $29,373.25. Its revenues for the year 1932 were shown as $94,893.57, while the expenses shown totaled $29,950.91, leaving an excess of revenues over expenses in the amount of $64,942.66. On the financial statement of the trust for December 31, 1933, assets were shown totaling $2,039,531.94, consisting of cash in the amount of $22,967.03; cash in closed banks, $10,513.01; accounts receivable, bonds, and loans receivable, $158,967.92; real estate, $1,790,383.98; and stocks, $56,700. Its liabilities, exclusive of the outstanding beneficial interests shown in the amount of $1,796,943.38, consisted of accounts and mortgages payable, $172,828.80; reserve for depreciation, $15,980.70; and surplus, $53,779.06. Its revenues for 1933 were shown in the amount of $72,568.34, while the list of expenditures totaled $19,762.50, leaving an excess of revenues over expenses for the year 1933 in the amount of $52,805.81. Facts relating to the filing of the returns, payment of the deficiencies herein, *1030 and added depreciation have been stipulated by the parties and are found as stipulated. OPINION. TURNER: That some trusts are of such nature as to require their classification as associations and hence as corporations within the meaning of the revenue acts (in the instant case, section 1111(a)(2) *622 of the Revenue Act of 1932) 1 is well settled. ; ; ; ; ; ; . Due, however, to the great variety of trusts, the dissimilarities in their purposes and operations, and the many variations in the powers of the trustees and the rights of the beneficiaries, it is at times difficult to distinguish between trusts which, as associations, are taxable as corporations and ordinary trusts dealt with under the statutory heading of estates and trusts. *1031 Noting as an impossibility the translation of "the statutory concept of an 'association' into the particularity of detail that would fix the status of every sort of enterprise or organization", the Supreme Court, in , after reviewing its prior decisions on the subject and after discussing the development and trend of rulings and regulations seeking to apply these decisions to cases arising from time to time, declared that the recurrent disputes emphasized "the need of a further examination of the Congressional intent". The Court then proceeded to pronounce certain principles which may be applied in determining whether or not a trust is an association and therefore a corporation within the meaning of the statute. The Court said in part: What, then, are the salient features of a trust - when created and maintained as a medium for the carrying on of a business enterprise and sharing its gains - which may be regarded as making it analogous to a corporate organization? *1032 A corporation, as an entity, holds the title to the property embarked in the corporate undertaking. Trustees, as a continuing body with provision for succession, may afford a corresponding advantage during the existence of the trust. Corporate organization furnishes the opportunity for a centralized management through representatives of the members of the corporation. The designation of trustees, who are charged with the conduct of an enterprise, who act "in much the same manner as directors", may provide a similar scheme, with corresponding effectiveness. Whether the trustees are named in the trust instrument with power to select successors, so as to constitute a self-perpetuating body, or are selected by, or with the advice of, those beneficially interested in the undertaking, centralization of management analogous to that of corporate activities may be achieved. An enterprise carried on by means of a trust may be secure from termination or interruption by the death of owners of beneficial interests and in this respect their interests are distinguished from those of partners and are akin to the interests of members of a corporation. And the trust type of organization facilitates, *1033 as does corporate organization, the transfer of beneficial interests without *623 affecting the continuity of the enterprise, and also the introduction of large numbers of participants. The trust method also permits the limitation of the personal liability of participants to the property embarked in the undertaking. With respect to the form of its organization, its methods of operation, the rights of beneficiaries in the trust and its properties, the powers of the trustees, and the relationship of the trust and its beneficiaries to third parties, there can be no doubt that the Williams trust meets the above test of an association. The legal title to the real estate is vested solely in the corporate trustee and the rights of the beneficiaries are declared to be personal. The beneficiaries have no right of possession, management, or control of the trust estate and no widow, widower, heir, or devisee of any beneficiary has any right of dower, homestead, inheritance, or partition in the trust properties. The rights are solely against and through the trustees and do not constitute a claim, title, or interest in the properties themselves. Suits are to be brought and defended*1034 in the name of the trust and the beneficiaries are not necessary parties. The beneficial interests are represented by trustees' receipts which may be sold and transferred without termination of the trust and the existence of the trust is not affected by the death of any beneficiary. Neither the trustees nor the beneficiaries are personally liable for any money borrowed or for any other debt or liability of the trust and all persons dealing with the trust are required to look only to the property of the trust for the payment of their claims. Subject to the control of the beneficiaries through a majority vote, or a two-thirds vote on certain matters, the trustees, similar to the directors of a corporation, have the authority and power to do and perform any and all acts necessary in the management and operation of the properties belonging to the trust. The divorcement of the properties, their management, and operation from the beneficiaries is as well defined and distinct as if the properties had been transferred to any standard business corporation. And while it is not essential to the classification of a trust as an association that the beneficiaries have control over the trust*1035 comparable to that of stockholders over a corporation, , and , such comparable control is present in the instant case. Among other things the beneficiaries have the right, by a two-thirds vote, to remove and elect trustees. The property of the trust may not be sold and leases for periods of more than 25 years may not be entered into except with the consent of the majority in amount of the registered trustees receipts outstanding. It is also provided that the beneficiaries, by a tow-thirds vote, may terminate the trust. In stating "the salient features of a trust * * * which may be regarded as making it analogous to a corporate organization" and *624 which formed the basis for the comparisons just concluded, it is noted that the Court assumed a trust "created and maintained as a medium for the carrying on of a business enterprise and sharing in its gains." Previously in its opinion the Court, in discussing the characteristics of an association as distinguished from an ordinary trust, had said: "But the nature and purpose of the co-operative undertaking will differentiate*1036 it from an ordinary trust. In what are called 'business trusts' the object is not to hold and conserve particular property, with incidental powers, as in the traditional type of trusts, but to provide a medium for the conduct of a business and sharing its gains." On the thought there expressed the petitioner rests its principal argument, which is that the Williams trust is not a trust organized "to provide a medium for the conduct of a business" and the sharing by the beneficiaries in its gains, but rather that it is a trust of the "traditional type" organized "to hold and conserve" the trust properties and to effect the sale thereof. With this contention of the petitioner we are unable to agree. If, for instance, the beneficiaries herein had elected to organize a statutory corporation and to transfer the properties to it for purposes and functions similar to those of the Williams trust, there is little or no likelihood that it could be successfully contended that such a corporation, in owning, managing, leasing, and even selling the said properties, was not a business corporation engaged in business activities for profit. The only substantial difference between such a case and*1037 the instant case would be that on the one hand the functions were performed by an organization existing under statute, while on the other, by an organization of substantially the same form but existing under common law. Neither is it at all likely that the petitioner, with respect to a claim for the deduction of its operating expenses, would concede or argue that those expenses were not paid or incurred in the carrying on of a trade or business. We are unable to conclude, as we did in , that the trust was organized for the "single purpose of liquidation." Nor does the trust instrument herein contain any declaration of a purpose to liquidate or sell the trust properties such as was present in . Furthermore in that case there was an absence of operation for profit such as we have in the instant case. That same obvious distinction exists between the instant case and , a case strongly relied upon by petitioner. Looking to the trust instrument for the purposes of organization, *1038 as we are directed to do by the Supreme Court in , and ,*625 we find no specific expression of purposes, but from examination of the powers and duties of the trustees it appears that the trust was to own, manage, operate, and lease the properties transferred to it, to pay all expenses incidental to such operations, and to distribute the gains derived from such activities to the beneficiaries at specified intervals, or, at the discretion of the trustees, oftener. The petitioner argues, however, that the inclusion in the trust instrument of a provision to the effect that the proceeds from the sale of any parcel of real estate were to be distributed to the beneficiaries and the omission of any provision authorizing reinvestment were tantamount to the declaration of a dominant purpose to sell the property. In our opinion, no such conclusion is indicated. It may well be that the parties creating the trust did not desire the operations to extend beyond the management of the specific properties conveyed to the trust, but that fact alone does not change or alter*1039 the intent to own and operate the properties for profit unless and until they should be sold. Provision may be made for the termination of a corporation or association if, as, and when the property of such corporation or association is sold, but such provision is not, in our opinion, sufficient ground for the conclusion that liquidation or sale of the properties of the particular corporation or association was the dominant purpose for its organization. In , the operation was limited to a single property which the trustees had the power to sell. Furthermore it was provided that the trust might be terminated by such sale. There is no indication in the report of the case of any power in the trustees to reinvest the proceeds of such sale, and yet the Supreme Court held the trust to be an association. In , we have found nothing to indicate a power in the trustees to reinvest the proceeds from the sale of the trust property, but to the contrary the statement of powers and duties of the trustees indicates that the proceeds from such a sale were to be distributed. *1040 The trust instrument in , as in the instant case, required distribution of the proceeds from the sale of trust property and there appears to have been no power to reinvest. Similarly, in , there appears to have been no specific power to reinvest the proceeds from the sale of the trust property, and yet at the time of its transfer to trust the said property was under option to sell. In each of the cases cited the organization in question was held to be an association. In our opinion the facts of record indicate that the desire to unify and simplify the ownership and management of the properties for profit furnished the primary and dominant motive for the creation of the trust rather than the desire to sell or liquidate the properties. *626 The properties conveyed in trust obviously had a value of three million dollars or more and were producing for the trustors a substantial annual revenue. The management of the properties through an agent was becoming more complicated and increasingly difficult. John R. Williams had died the previous year, leaving*1041 his widow and three daughters to share in his estate, none of whom resided in Detroit. The daughters were married and had children of their own. Josepha W. Douglas, who resided in Colorado, was 59 years of age and in ill health. She had one child. Gershom Mott Williams, who had seven children, was 62 years of age and was suffering from angina pectoris. According to the record he spent all of his time away from Detroit. His death occurred in 1923. It is at once apparent therefore that centralized ownership and control of the properties were equally if not more essential and desirable to their continued operations for profit than for the purpose of effecting their sale. The record does contain some testimony tending to show an expectation that the properties transferred to petitioner should ultimately be sold. There is also some testimony to the effect that the John R. Williams beneficiaries desired to speed liquidation of the properties, which desire played its part in the creation of the trust. It also appears, however, that these same beneficiaries desired that the activities relating to the management and leasing of the properties be conducted in a more formal manner*1042 than had been the case up to that time. They felt that the divorcement of actual ownership and management of the properties from the beneficiaries by transfer to such a trust would not only facilitate conveyance in the case of sale, but would also facilitate the management and leasing of the properties. it is not without significance that the speedier liquidation of the interests of the John R. Williams beneficiaries was accomplished as a result of the organization of the Williams trust but without the sale of more than two of the parcels of real estate transferred in trust, and, further, without interference with the continued activities of the trust in holding, managing, and leasing the remaining properties and in distributing the income derived therefrom to the remaining holders of trustees' receipts. We do not overlook the fact that two of the seven parcels of real estate were sold after conveyance to petitioner, but it should be noted that one parcel was under option of sale when the trust was created (in this connection see *1043 ), and the circumstances and occasion for the sale of the second parcel do not, so far as the record shows, indicate anything of particular significance unless it is that the sale provided the means for the John R. Williams beneficiaries to more speedily liquidate their interests in the trust without interfering with its continued existence as owner and manager of the remaining properties. *627 As an indication that the trust was never intended to serve any purpose other than that of holding and conserving the particular properties pending their sale, the petitioner points also to its policy of making net leases whenever possible so as to minimize its work. In that connection we do not understand that it necessarily follows that activities regularly carried on do not constitute the conduct of a business merely because the party in charge of the enterprise has through a particular method of operation been able to reduce those activities to a minimum. We are rather of the opinion that it is the nature and effect of the activities when related to the subject matter, due regard being given to the circumstances, *1044 which determine the question as to the conduct of a business. Furthermore only a minority of the leases negotiated in this instance were in a strict sense net leases, while the majority were either gross leases or had some features of a gross lease. In , the trust was determined to be an association, and yet it owned one parcel of property and that parcel was under a long term net lease. A similar situation existed in The petitioner also regards as significant the fact that six of the seven parcels conveyed to it in 1920 were all that remained of some 126 descriptive units, or 57 parcels, of real estate devised to Josepha W. Douglas, Gershom Mott Williams, and John R. Williams in 1862 and 1876, all other parcels having been sold prior to 1920. Petitioner stresses the fact that 13 of the parcels sold were also located in the downtown section of the city of Detroit. The last of the said 13 parcels was sold in 1912. As we have indicated in our facts, the relative size and importance of the parcels sold with reference to each other or with reference to the parcels*1045 transferred in trust are not shown, and, in the light of other facts of record, we can not conclude that the sale of the 13 parcels and the other parcels sold necessarily has any bearing on the motive for transferring the remaining parcels in trust in 1920. That the owning, managing, and leasing of properties for gain was of major and not minor importance is further indicated by the results of those operations as disclosed by the statement of operating cash receipts and disbursements. Although the evidence of record does not disclose the relative importance of the seven parcels of real estate transferred in trust in dollars and cents, it does appear that parcel No. 2 and parcel No. 6 were the major properties and were of approximately equal importance, while parcel No. 1 and parcel No. 5 were of the least importance. Parcel No. 2 was sold in 1926 for $1,200,000. Parcel No. 7 was sold in 1921, in accordance with the option existing prior to the creation of the trust, for $150,000. Taking into consideration the prices at which these properties were *628 sold as some indication of the value of the respective parcels, the rent derived from the leasing of the properties over*1046 the period of years from September 1920, when the trust was created, through the taxable year 1933 was not insignificant. The excess of receipts over disbursements amounted to $1,214,442.75, and this even though parcel No. 2, which had been second in the production of income, was sold in 1926. In explanation of the fact that five of the seven parcels have not been sold but are still maintained as rental properties, the petitioner cffered testimony to the effect that the market for certain of these properties was adversely affected throughout the period from its organization to 1936 by the agitation over the widening of Woodward Avenue, and from the late 1920's on by the general depressed state of the Detroit real estate market. We note, however, that in spite of these depressing factors the trustees, in keeping with the powers given to them and in the performance of their duties as prescribed by the trust instrument, succeeded in maintaining the properties as income-producing properties from the inception of the trust in September 1920 throughout the taxable years 1932 and 1933, which are before us. It is also noticeable that, except for the one or two years when the general*1047 business depression was most pronounced, the trustees succeeded in procuring substantially increased rents on practically every parcel of real estate it owned. According to the testimony of Williams, one of the managing trustees, parcels No. 1 and No. 5 were relatively unimportant, but even so, the rent on parcel No. 1 ranged from $3,000 net in 1921 to $6,000 under a gross lease for 1929, while on parcel No. 5 the rent was $12,343.41 for 1921, $6,099.84 for 1922, and from $5,400 to $12,000 per annum for 1923 through 1929, although the rents were substantially reduced on both properties for the years 1930 through 1933. In the case of parcel No. 3 the rents increased during the period from 1921 through 1932 from $6,999.96 to $20,000.04, and continued at the latter rate until the lessee became insolvent in 1933. In the case of parcel No. 4 the rents increased from $3,499.92 in 1921 to as high as $12,499.92 in 1931. Thereafter, even though the lease did not expire until April 30, 1934, the rents were reduced to $10,416.61 in 1932 and to $6,458.68 for 1933. For parcel No. 6 the rents were maintained throughout the entire period at $60,000 per year as provided by a long term lease with*1048 S. S. Kresge Co. The production of income through the ownership and leasing of the properties was obviously of major importance. It is our opinion therefore that the facts in this case definitely show that a primary objective in the organization of the Williams trust was the unified and simplified ownership and management of its properties for the purpose of producing profits, and, since it was *629 organized and operated in much the same manner as a corporation, it is an association within the meaning of section 1111(a)(2) of the Revenue Act of 1932. The fact that the properties may be, or might have been, sold if a favorable market had developed or should develop, thereby resulting in the dissolution of petitioner, does not alter the nature of the organization nor the character of its operations prior to such termination or dissolution. Decision will be entered under Rule 50. Footnotes

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If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS GOVERNOR GRETCHEN WHITMER, UNPUBLISHED December 3, 2020 Appellant, v No. 353878 Board of State Canvassers BOARD OF STATE CANVASSERS and CHAD BAASE, Appellees. Before: MURRAY, C.J., and K. F. KELLY and STEPHENS, JJ. PER CURIAM. Appellant, Governor Gretchen Whitmer, appeals by right the June 8, 2020 decision of appellee Board of State Canvassers, certifying the petition of appellee Chad Baase, who sought approval of a petition to recall appellant. We affirm. I. FACTUAL BACKGROUND On May 29, 2020, Baase submitted a recall petition for the Board to determine whether its language was clear and factual. The petition provided that registered and qualified voters petitioned to recall the officer “GRETCHEN WHITMER” from the office of “GOVERNOR . . . .” The petition then stated the reasons for seeking the recall: For signing Executive Order 2020-04, Declaration of State of Emergency, on March 10, 2020; For signing Executive Order 2020-17, Temporary restrictions on non-essential medical and dental procedures, on March 20, 2020; For signing Executive Order 2020-21, Temporary requirement to suspend activities that are not necessary to sustain or protect life, on March 23, 2020; For signing Executive Order 2020-32, Temporary restrictions on nonessential veterinary services, on March 30, 2020; For signing Executive Order 2020-33, Expanded emergency and disaster declaration, on April 1, 2020; For signing Executive Order 2020-42, Temporary requirement to suspend activities that are not necessary to sustain or protect life– Rescission of Executive Order 2020-21, on April 9, 2020; For signing Executive Order 2020-67, Declaration of state of emergency under the Emergency Powers of -1-  the Governor Act, 1945 PA 302 , on April 30, 2020; For Signing Executive Order 2020-68, Declaration of states of emergency and disaster under the Emergency Management Act, 1976 PA 390 , on April 30, 2020; For signing Executive Order 2020-92, Temporary requirement to suspend certain activities that are not necessary to sustain or protect life–Rescission of Executive Orders 2020-77 and 2020-90, on May 18, 2020. At the hearing, appellant argued that the petition was not sufficiently clear because it did not identify appellant in the petition’s reasons section, it contained a long run-on sentence, and its descriptions of the orders were vague, ambiguous, and did not include the exceptions or exemptions in the executive orders. The Board determined that the petition factually and clearly stated the reasons for recall. II. ANALYSIS This Court reviews de novo the Board’s determination that the language of a recall petition meets statutory requirements, because resolving the issue involves questions of statutory construction, which this Court also reviews de novo. Hooker v Moore, 326 Mich. App. 552 , 555; 928 NW2d 287 (2018). “Each elective officer, except a judicial officer, is subject to recall by the voters . . . .” MCL 168.951(1). See Const 1963, art 2, § 8. A recall petition must be submitted to the Board before it may be circulated. MCL 168.951a(2). The Board must determine whether each reason stated in the petition is factual and sufficiently clear “to enable the officer whose recall is sought and the electors to identify the course of conduct that is the basis for the recall.” MCL 168.951a(3). First, appellant argues that the Board applied an incorrect standard by giving Baase’s petition the benefit of the doubt when it determined whether the reasons for the recall were sufficiently clear. However, we have said that “[d]oubt as to clarity should be resolved in favor of the proponents of the recall. . . . [T]he standard of review for clarity of statement is very lenient.” Donigan v Oakland Co Election Comm, 279 Mich. App. 80 , 84; 755 NW2d 209 (2008) (quotation marks and citations omitted). Thus, the Board’s apparent acceptance of a Board member’s opinion that the Board “should give the benefit of the doubt to [Baase],” and that the voters would be able to understand the petition because it was “factually clear,” was not the application of an incorrect standard. Second, we also reject appellant’s argument that the recall petition was not sufficiently clear because it did not separately identify appellant as the official to be recalled in the reasons area of the petition, and that the Board exceeded its power of review by considering the petition’s heading. As outlined below, the Board’s review is not as narrowly prescribed as appellant suggests. A petition for recall must “[b]e in the form prescribed by the secretary of state.” MCL 168.951a(1)(e). “Each reason for the recall must be based upon the officer’s conduct during his or her current term of office. . . .” MCL 168.951a(1)(c). MCL 168.951a(3) provides in pertinent part that the Board “shall determine . . . whether each reason for the recall stated in the petition is factual and of sufficient clarity to enable the officer whose recall is sought and the electors to identify the course of conduct that is the basis for the recall.” -2-  Baase used the petition form, approved by the Director of Elections, in which the electors petition for the recall of an officer from an office for stated reasons. The Board’s duty is to determine whether the electors and officer can identify the course of conduct that forms the basis of the recall, and the petition form identifies the name and title of the officer. Nothing within MCL 168.951a(3) precludes the Board from considering the information before the word “reason(s)” when deciding whether the reasons for recall are clear. Electors will read the entire sentence, which includes the officer’s name and title. The Board did not err by considering the entire form when approving the petition. Third, appellant argues that the recall petition was not clear because the body of the petition was a run-on sentence that was ungrammatical, confusing, and difficult to parse. Appellant also argues that individual clauses in the recall petition were unclear because the summary statements were confusing and contained ambiguous words. Again, we disagree. This Court exercises judicial restraint when reviewing the clarity of recall petitions because the Michigan Constitution reserves the power of recall to the people, and laypersons often draft recall petitions. Donigan, 279 Mich. App. at 84 . We do not “require meticulous and technically detailed statements of the charges in recall petitions” because it would usurp the power of the people. Id. at 85 (quotation marks and citations omitted). A petition is sufficiently clear if it allows the officer and electors to identify the petition’s charges. Id. at 83. Again, questions of clarity should be resolved in favor of the petitioner. Id. at 84. Accepting for the sake of argument that Baase’s petition is ungrammatical, the law does not require a petition to be drafted with perfect grammar; the law only requires the petition to be sufficiently clear. The reasons for recall were that appellant signed nine executive orders, each of which was identified by its order number and a brief summary. While appellant argues that the word “activities,” which was contained in one order summary, is ambiguous because an activity may encompass many things, the charge was not that appellant engaged in activities—it was that she signed executive orders. The word “activities” in Baase’s description of an executive order was contained in the title of that order. See Executive Order No. 2020-42. The Board did not err when it declined to reject Baase’s petition on the basis that its technical execution was not perfect. Fourth, appellant argues that the petition misrepresented the executive orders because the summary statements did not describe the orders’ exceptions and exemptions. We reject this argument because the petition’s descriptions of the orders were not false or misleading. Whether a statute applies in a certain case is an issue of statutory interpretation. In re Forfeiture of $176,598, 465 Mich. 382 , 385; 633 NW2d 367 (2001). When interpreting a statute, this Court’s goal is to give effect to the intent of the Legislature. US Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich. 1 , 13; 795 NW2d 101 (2009). We may consult a dictionary definition to determine the commonly understood meaning of undefined terms. See Griffith v State Farm Mut Auto Ins Co, 472 Mich. 521 , 526; 697 NW2d 895 (2005). MCL 168.951a(1)(c) provides in pertinent part: “If any reason for the recall is based on the officer’s conduct in connection with specific legislation, the reason for the recall must not misrepresent the content of the specific legislation.” To misrepresent is “to give a false or misleading representation.” Merriam-Webster’s Collegiate Dictionary (11th ed). -3-  We hold that MCL 168.951a(1)(c) does not apply to the executive order descriptions because they are not legislation.1 Additionally, even if that statutory provision did apply, comparing Baase’s petition to the executive orders, his descriptions of the executive orders provide the headings that appear on the orders themselves. See Executive Order No. 2020-04; Executive Order No. 2020-17; Executive Order No. 2020-21; Executive Order No. 2020-32; Executive Order No. 2020-33l; Executive Order No. 2020-42 (including “Rescission of Executive Order 2020-21” in its title); Executive Order No. 2020-67; Executive Order No. 2020-68; Executive Order No. 2020-92 (including “Rescission of Executive Orders 2020-77 and 2020-90” in its title). Baase’s summaries are appellant’s own summaries of the contents of the orders. While Baase’s summaries do not include all possible exceptions and exemptions, his descriptions were not false or misleading.2 Affirmed. /s/ Christopher M. Murray /s/ Kirsten Frank Kelly /s/ Cynthia Diane Stephens 1 Although certain limited executive orders effectively become legislation when the Legislature does not timely object, Aguirre v Michigan, 315 Mich. App. 706 , 715 n 4; 891 NW2d 516 (2016), those are limited to executive orders transferring powers between executive branch departments, or creating new departments. Const 1963, art 5, § 2. See Mich Mut Ins Co v Dir, Dep’t of Consumer and Indus Servs, 246 Mich. App. 227 , 236-237; 632 NW2d 500 (2001). The listed executive orders did not transfer statutory duties amongst executive departments, and were not issued pursuant to Const 1963, art 5, § 2. 2 Because we have rejected appellant’s arguments on the merits, we decline to address the Board’s alternative reasons to affirm. -4-

2020-12-04 10:07:20.695614+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20201203_C351087_35_351087.OPN.PDF

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS AMJED DAOUD, UNPUBLISHED December 3, 2020 Petitioner-Appellant, v No. 351087 Michigan Tax Tribunal MICHIGAN DEPARTMENT OF TREASURY, LC No. 19-000143-TT Respondent-Appellee. Before: REDFORD, P.J., and RIORDAN and TUKEL, JJ. PER CURIAM. Petitioner, Amjed Daoud, appeals by right the opinion and judgment of the Michigan Tax Tribunal (“MTT”) affirming respondent’s determination that petitioner was a “responsible person” under the statute governing corporate officer tax liability, MCL 205.27a(5). We affirm. I. FACTS & PROCEDURAL HISTORY In 2014, Sam Daoud sought to open a bar and restaurant but he was ineligible to receive a liquor license which was necessary to operate the business. His brother, petitioner, agreed to title the business in his name and apply for the liquor license. To this end, petitioner formed TK of Canton, LLC (TK) by executing an Operating Agreement and filing Articles of Organization, which named petitioner as TK’s resident agent. The Operating Agreement named petitioner as sole member with 100 percent ownership of TK and designated Sam a “manager.” Petitioner also executed on TK’s behalf a form tilted Registration for Michigan Taxes. Petitioner signed the form as “president.” TK, Sam, and petitioner also entered into a Management Agreement, which further delineated Sam and petitioner’s respective roles in relation to TK. The Management Agreement designated Sam as an “independent contractor” manager of TK and directed that Sam would oversee the management and daily operation of TK, including payment of operating expenses, and that Sam would receive the balance of TK’s net profits after payment of expenses. The Management Agreement further dictated that Sam would “oversee, arrange for, and assume responsibility” for timely payment of TK’s taxes and that petitioner could terminate the Management Agreement in the event that Sam violated it, including for failure to pay TK’s taxes. -1- Additionally, in 2014 and again in 2016, petitioner executed powers of attorney on behalf of TK authorizing certain individuals to discuss all TK’s tax matters with Treasury. Unbeknownst to petitioner, TK began experiencing financial difficulties and Sam stopped paying TK’s sales and withholding taxes. For the 2015 tax year, TK filed its tax returns but did not remit any tax payments and Sam did not inform petitioner that the 2015 taxes had not been paid until such time that TK was forced to close in September 2016 due to nonpayment of rent. Having not received the 2015 tax payments, respondent Department of Treasury issued tax assessments for that tax year. When TK again failed to remit the taxes, respondent sought to hold petitioner, as the sole member of TK, derivatively liable for TK’s sales and withholding taxes under MCL 205.27a(5), the statute governing corporate officer tax liability. At an informal conference hearing on the matter, petitioner argued that he was not liable for the taxes under the statute because he was not the person responsible for payment of TK’s taxes. Specifically, petitioner asserted that he never signed any of TK’s tax returns, that Sam was solely responsible for TK’s finances and tax payments under the terms of the Management Agreement, and that petitioner had no access to TK’s financial documents and he did not know that TK’s taxes had not been paid. Respondent countered that petitioner, as the sole member of TK, had all responsibility as a corporate officer over TK because he had signed TK’s Registration for Michigan Taxes form as president and sole officer of TK, executed various powers of attorney on TK’s behalf, and executed and amended TK’s Articles of Incorporation. The hearing referee found that respondent made a prima facie case that petitioner was a “responsible person” under MCL 205.27a(5) and that petitioner failed to rebut respondent’s evidence. Thereafter, respondent issued final assessments against petitioner for the amounts due, including penalties and interest. Petitioner appealed to the MTT. Following a hearing on the matter, the MTT issued a preliminary opinion which concluded that respondent had established a prima facie case that petitioner was a “responsible person” under the statute and stated: There is no dispute that [p]etitioner was a member of the LLC, in fact, he was the sole member. By signing the Registration for Michigan taxes, [p]etitioner became responsible for filing the returns and paying taxes. Petitioner was aware of the responsibility to pay sales tax, and given that [p]etitioner was the sole member of the LLC, and thus the only person responsible for the filing of taxes, the [MTT] concludes that [r]espondent has established a prima facie case that the failure to pay the taxes was intentional or reckless. The MTT rejected petitioner’s claim that the Management Agreement, which delegated all authority to Sam for management of TK’s finances and payment of taxes, rebutted respondent’s prima facie case because petitioner “consciously disregarded the risk that taxes would not be paid” when he “delegated responsibility to a convicted felon, but failed to inquire whether taxes were being paid.” Accordingly, the MTT affirmed respondent’s final assessments. Petitioner filed exceptions to the preliminary opinion and argued that the MTT adopted an erroneous legal standard by relying on Valentino v Dep’t of Treasury, Docket No. 14-005039-R (October 4, 2017) to conclude that petitioner had willfully failed to pay taxes. Petitioner argued that Valentino was factually distinguishable because in that case, the corporate officer had -2- delegated tax payments to a “mere employee” who could not be held responsible, whereas in this case, Sam could be held responsible for nonpayment of taxes under the Management Agreement. Petitioner further argued that he had not acted recklessly given that he had ensured that taxes would be paid by entering into the Management Agreement and that Sam had actively withheld information regarding TK’s finances. The MTT issued a final judgment and concluded that—to the extent petitioner argued that a third party (Sam) was contractually bound to make the tax payments—it lacked jurisdiction to consider contractual disputes. With respect to Valentino, the MTT noted that petitioner attempted to distinguish that case on the basis that Sam was a contractor and not an employee to whom authority had been delegated, but petitioner had provided no support for his assertion and had failed to meaningfully distinguish Valentino. Accordingly, petitioner failed to show good cause to modify the preliminary judgment and the MTT adopted it as its final decision. Petitioner moved for reconsideration, asserting that respondent had failed to show that petitioner was a “responsible person” or had “willfully” failed to pay the taxes. The MTT denied the motion because petitioner failed to demonstrate palpable error. This appeal followed. II. STANDARDS OF REVIEW Review of the MTT’s decision is limited. Autodie, LLC v Grand Rapids, 305 Mich. App. 423 , 427; 852 NW2d 650 (2014). In the absence of a claim of fraud, we review the MTT’s decision “for the misapplication of law or the adoption of a wrong legal principle.” SBC Health Midwest, Inc v City of Kentwood, 500 Mich. 65 , 70; 894 NW2d 535 (2017). Factual findings are final if they are supported by competent, material, and substantial evidence on the whole record. Mich Props, LLC v Meridian Twp, 491 Mich. 518 , 527; 817 NW2d 548 (2012). An error of law, or misapplication of the law, occurs when the MTT’s decision is not supported by competent, material, and substantial evidence. Forest Hills Coop v Ann Arbor, 305 Mich. App. 572 , 586; 854 NW2d 172 (2014). “Substantial evidence is that which a reasonable mind would accept as adequate to support a decision, being more than a mere scintilla, but less than a preponderance of the evidence.” Lawrence v Mich Unemployment Ins Agency, 320 Mich. App. 422 , 431; 906 NW2d 482 (2017) (citation and quotation marks omitted). We review de novo matters of statutory interpretation. SBC Health Midwest, Inc, 500 Mich. at 70 . When construing the meaning of statutory language, our goal is to discern the Legislature’s intent. TMW Enters v Dep’t of Treasury, 285 Mich. App. 167 , 172; 775 NW2d 342 (2009). The best and most reliable indicator of that intent is the plain language used and, thus, the starting point for analysis is the language of the text itself. Id. We view the statutory language in context, considering “both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme.” Sun Valley Foods Co v Ward, 460 Mich. 230 , 237; 596 NW2d 119 (1999) (citation and quotation marks omitted). III. ANALYSIS Petitioner argues that the MTT committed error requiring reversal when it concluded that petitioner was liable for taxes pursuant to MCL 205.27a(5). We disagree. -3-  Under Michigan’s Limited Liability Corporation Act, MCL 450.4101 et seq., members of a limited liability company (LLC) are generally not personally liable for the obligations or debts of the LLC. MCL 450.4501(4). However, MCL 205.27a(5), a provision of the Revenue Act, MCL 205.1 et seq., governing corporate officer tax liability, provides an exemption to this general immunity and imposes personal liability on corporate officers who are “responsible persons.” That subsection provides: If a business[1] liable for taxes administered under this act fails . . . to pay the tax due, any of its . . . members . . . who the department determines . . . is a responsible person is personally liable for the failure for the taxes [enumerated herein.] [MCL 205.27a(5).] MCL 205.27a(5) also establishes respondent’s burden of proof as a prima facie standard: The department has the burden to first produce prima facie evidence as described in subsection (15) or establish a prima facie case that the person is the responsible person under this subsection through establishment of all elements of a responsible person as defined in subsection (15). [MCL 205.27a(5) (emphasis added).] “In general, ‘or’ is a disjunctive term, indicating a choice between two alternatives . . . .” Paris Meadows, LLC v City of Kentwood, 287 Mich. App. 136 , 148; 783 NW2d 133 (2010). Respondent can proffer the specified “prima facie evidence” described in subsection (15), see MCL 205.27a(15)(b), to establish that petitioner is a “responsible person” subject to personal liability. Alternatively, respondent can establish a “prima facie case” that petitioner meets all the definitional elements of a “responsible person” under subsection (15). Additionally, MCL 205.27a(15)(b) provides: “Responsible person” means an officer, member, manager of a manager-managed limited liability company, or partner for the business who controlled, supervised, or was responsible for the filing of returns or payment of any of the taxes described in subsection (14) during the time period of default and who, during the time period of default, willfully failed to file a return or pay the tax due for any of the taxes described in subsection (14). The signature, including electronic signature, of any officer, member, manager of a manager-managed limited liability company, or partner on returns or negotiable instruments submitted in payment of taxes of the business during the time period of default, is prima facie evidence that the person is a responsible person. A signature, including electronic signature, on a return or negotiable instrument submitted in payment of taxes after the time period of default alone is not prima facie evidence that the person is a responsible person for the time period of default but may be considered along with other evidence to make a prima facie case that the person is a responsible person. With respect to a return or negotiable instrument submitted in payment of taxes before the time period of default, the signature, including electronic signature, on that document along with 11 For purposes of this provision, “business” is defined, in part, to include limited liability companies. MCL 205.27a(15)(a). -4-  evidence, other than that document, sufficient to demonstrate that the signatory was an officer, member, manager of a manager-managed limited liability company, or partner during the time period of default is prima facie evidence that the person is a responsible person. [Emphasis added.] Here, petitioner did not sign any tax returns or negotiable instrument in payment of taxes on behalf of TK during the period at issue or otherwise. Therefore, because it lacked prima facie evidence that petitioner was a responsible person, respondent was required to establish a prima facie case. As noted, to make a prima facie case, MCL 205.27a(5) directs that respondent establish all the elements of a “responsible person as defined in subsection (15).” Subparagraph (c) and (d) define the terms “period of default” and “willful” as used in subparagraph (b): (c) “Time period of default” means the tax period for which the business failed to file the return or pay the tax due under subsection (5) and through the later of the date set for the filing of the tax return or making the required payment. (d) “Willful” or “willfully” means the person knew or had reason to know of the obligation to file a return or pay the tax, but intentionally or recklessly failed to file the return or pay the tax. [MCL 205.27a(15)(c)-(d).] Thus, reading subparagraphs (b), (c), and (d) together, to establish a prima facie case of corporate officer tax liability, respondent must show that (1) the officer controlled, supervised, or was responsible for the payment (or filing) of the enumerated taxes during the tax period for which the business failed to pay (or file) the tax and, (2) during that period, the officer “willfully” failed to pay (or file) the tax. See Shotwell v Dep’t of Treasury, 305 Mich. App. 360 , 369; 853 NW2d 414 (2014), vacated in part on other grounds 497 Mich. 977 (2015) (addressing the first element of this test). Once respondent establishes a prima facie case (or alternatively produces prima facie evidence), the burden shifts to the petitioner to provide rebuttal evidence. See Yoost v Caspari, 295 Mich. App. 209 , 225-226; 813 NW2d 783 (2012) (acknowledging that “prima facie” is a legal term envisioning sufficient evidence to support a fact or given set of facts, but such facts may be rebutted with opposing evidence). The evidence respondent submitted in the instant case reflects that petitioner controlled, supervised, and was responsible for the payment of TK’s taxes during the time period at issue. Petitioner filed TK’s Articles of Organization listing himself as sole member of the LLC, registered TK for Michigan sales and withholding taxes, signed the form as TK’s “president,” and executed a power of attorney effective during the default period which allowed a third party to review TK’s records for tax purposes Petitioner also executed TK’s Operating Agreement, under which petitioner was listed as the sole member with 100 percent interest in TK’s assets. In his capacity as sole member, petitioner entered into a Management Agreement, in which he directed TK’s manager, Sam, to file and pay TK’s taxes. In the event Sam failed to do so, petitioner retained the right to terminate the Agreement. All of these actions reflect petitioner’s position as sole member of the LLC holding responsibility over all of TK’s activities. On this record, sufficient competent evidence supports the MTT’s finding that petitioner maintained supervision, control, and responsibility over TK’s tax matters during the default period. -5-  On appeal, petitioner argues that the Operating Agreement and Management Agreement rebut respondent’s evidence that petitioner had control over TK’s tax payments because the documents demonstrate that petitioner contractually delegated his authority to Sam to manage TK’s operations, including filing and payment of taxes, thereby constraining petitioner’s authority to control, supervise, or be responsible for TK’s taxes. However, petitioner does not cite any legal authority that a corporate officer’s broad delegation of authority to a subordinate divests that officer of their corporate authority or responsibilities concerning tax payments. Rather, our jurisprudence suggests the contrary conclusion: that a corporate officer with supervisory powers over tax payments cannot escape personal liability for the LLC’s unpaid taxes by delegating those tax duties to a third party. See Spithogianis v Limbach, 53 Ohio St 3d 55, 57; 559 NE2d 449 (1990) (corporate officers responsible for business’s tax payments cannot escape personal liability for tax failure by delegating duties to others); Livingstone v Dep’t of Treasury, 434 Mich. 771 , 794; 456 NW2d 684 (1990) (recognizing that the transmutation of business taxes to corporate officer tax liability reflects the intent to recoup unpaid business tax); Can Creek Ranch Ass’n, Inc v Montmorency Twp, 206 Mich. App. 498 , 504; 522 NW2d 690 (1994) (“Neither a private individual nor a corporation may rely on self-imposed restrictions on the sale of property as a means of avoiding taxes.”). Moreover, the Operating Agreement and Management Agreement reserve power in petitioner as sole member of TK, which evinces a clear intent to preserve petitioner’s control over the LLC. Under the Management Agreement, for example, petitioner could terminate Sam as manager for, inter alia, violation of any terms of the Agreement, including nonpayment of taxes. Likewise, while the Operating Agreement granted Sam management duties, it subjected certain decisions to petitioner’s approval and required that at least annual financial reports be provided to petitioner. Consequently, these agreements constitute substantial, competent, and material evidence supporting the MTT’s finding that petitioner, as the sole member of TK, ultimately was responsible for payment of TK’s taxes. Although petitioner views the legal effect of these agreements differently, the MTT’s factual finding is supported by competent, material, and substantial evidence, and it is therefore final. Curis Big Boy, Inc v Dep’t of Treasury, 206 Mich App 139; 520 NW2d 369 (1994).2 Petitioner next argues that the MTT committed an error of law by considering petitioner’s signature on the Registration of Michigan Taxes form, as well as his signature on the power of attorney, as establishing a “prima facie case.” Petitioner points out that MCL 205.27(15)(b) references the “signature requirement” three times—listing only two types of signed documents, a return and negotiable instruments signed in payment of taxes. Petitioner then argues that to a establish a “prima facie case,” only a signed return or a negotiable instrument for payment of taxes during the default period will suffice. However, petitioner misconstrues the statute. As explained above, respondent may establish corporate officer tax liability by producing prima facie evidence 2 Petitioner also argues that the MTT erred by not considering the Management Agreement as binding Sam to be liable for TK’s taxes, based on its supposed reasoning that it lacked jurisdiction to do so. Petitioner misreads the MTT’s statement with respect to its jurisdiction. The MTT merely noted that it had no authority to decide a contractual dispute that could arise between Sam and petitioner on the basis of the Management Agreement. -6- that the person is a responsible person or by presenting a prima facie case that the person is a responsible person. Signed returns and negotiable instruments for payment of taxes during the period at issue are relevant to proffering prima facie evidence that a person is a responsible person. See MCL 205.27a(15)(b). When respondent lacks such prima facie evidence, it may establish corporate officer tax liability by showing a prima facie case, i.e., that the person was an officer with supervisory powers over the filing of returns or payment of taxes and willfully failed to file or pay the taxes. See MCL 205.27a(5) and (15)(b). Contrary to petitioner’s assertion, signed tax returns and negotiable instruments for payment of tax are not required to establish a prima facie case. Rather, respondent may rely on other evidence to establish the elements of a “responsible person.” In this instance, a signed registration for Michigan businesses taxes and an executed power of attorney was relevant and petitioner has cited no authority supporting the proposition that such documents should be disregarded. Moreover, to adopt petitioner’s construction of the statute as requiring signed tax returns and signed negotiable instruments for payment of taxes during the default period to establish a prima facie case would render superfluous the substantive requirements for proving a prima facie case. We avoid a statutory construction that renders statutory language redundant or nugatory. Karpinski v St John Hosp, 238 Mich. App. 539 , 543; 606 NW2d 45 (1999) (“When construing a statute, the court should presume that every word has some meaning and should avoid any construction that would render the statute, or any part of it, surplusage or nugatory.”). Petitioner next argues that the MTT erred in construing the willfulness requirement. According to petitioner, the MTT effectively held that a corporate officer’s broad delegation of taxing responsibility is ipso facto reckless, thereby transforming the statute governing corporate officer tax liability into a strict liability statute. Petitioner contends that the MTT erroneously relied on Valentino, which is distinguishable from the instant case because petitioner was not involved in TK’s daily operations. We disagree. The MTT did not hold that a delegation of taxing authority to a subordinate, in and of itself, constitutes “recklessness” within the meaning of the statute. Instead, the MTT considered the delegation by itself to be a mere risk, not enough alone to establish a conscious disregard or indifference to whether taxes had been paid. To reach its ultimate conclusion, the MTT considered other more pivotal circumstances in conjunction with the delegation, mainly whether petitioner took any steps to ensure or confirm that the taxes had been paid under his delegation of authority. Consequently, petitioner is incorrect that the MTT somehow transformed MCL 205.27a(5) into a strict liability statute, so as to subject every corporate officer who delegates taxing authority to personal tax liability. To the extent petitioner argues that the MTT erred by relying on Valentino because that case is factually distinguishable, the differences between that case and the instant matter are inapposite and not outcome-determinative. In Valentino, the petitioner was an officer of the business, he had signed the business’s tax returns, and he knew that the business had fallen behind on tax payments in the past and entered into a payment plan. Valentino, slip op at 5, 7. The officer had delegated authority to an employee to pay the taxes using the petitioner’s signature, but that employee had quit during the period at issue and the taxes had gone unpaid. Id. at 5. Despite this knowledge, the officer did not look at the business’s books and records to see what was due and did not consult the business’s accounts to see if the taxes had been paid in his name. Id. at 7. Here, -7- just as in Valentino, petitioner was in a position as the sole member to find out if TK’s taxes were being paid but he took no steps to do so. Thus, petitioner’s efforts to distinguish Valentino are unavailing. In sum, sufficient competent evidence supported the MTT’s finding that petitioner willfully failed to pay TK’s taxes and petitioner fails to demonstrate that the MTT erroneously construed and applied the statute. IV. CONCLUSION The MTT properly concluded that petitioner was a “responsible person” under the statute governing corporate officer tax liability, MCL 205.27a(5). Accordingly, we affirm. /s/ James Robert Redford /s/ Michael J. Riordan /s/ Jonathan Tukel -8-

2020-01-17 22:02:17.162908+00

Marquette

*241OPINION. Marquette: The petitioner contends that he is entitled to allowance for depletion of his royalty interest in oil lands for the year 1923. He received his royalty interest by gift June 14, 1923. Section 202 (a) (2) of the Revenue Act of 1921 provides: That the basis for ascertaining the gain derived or loss sustained from a sale or other disposition of property, real, personal, or mixed, acquired after February 28, 1913, shall be the cost of such property; except that— ⅝ ⅝ sfc ⅛ sfc ⅜ ⅜ (2) In the case of such property acquired by gift after December 31, 1920, the basis shall be the same as that which it would have in the hands of the donor or the last preceding owner by whom it was not acquired by gift. * * * The respondent contends that under the section just quoted any profit on the sale of the petitioner’s property here involved should be determined on the same basis as it would be if it was sold by the *242donor; that the petitioner must use for depletion the basis which the donor would use in computing gain or loss, and that since the donor was not entitled to any 1913 value or to any discovery value, then the petitioner, who was the donee, is on the same basis and is not entitled to depletion allowance. This very question was before the Board and was decided in Magdaline McKinney et al., 16 B. T. A. 804. In discussing and determining the question, it was said: * * * There are, however, other considerations which lead us to believe that the paragraph quoted does not control in the case of depletion claimed under the 1921 Act. The reports of the Congressional Committees (67th Cong., 1st sess., H. It. 350; S. 275) disclose that the paragraph in question was added for the purpose of subjecting gains to income tax and preventing evasion by means of gifts. The provision was designed to deal with a sale by the donee, and there is nothing to indicate that Congress intended that it should affect the basis for depletion deductions. The provisions of the Revenue Act of 1921 with respect to depletion are, so far as is here material, the same as are contained in the Revenue Act of 1918. Sec. 214 (a) (10). It provided that the allowance for depletion should be based upon cost, with the exceptions therein noted. Since the section fixes the basis on which depletion is to be allowed, there is no necessity of referring to other sections to fix the basis. * * * We consider that decision controlling in the present proceeding and this petitioner is entitled to allowance for depletion for the year 1923 based upon the fair market value of his royalty interest on the date he acquired it, namely, June 14, 1923. The respondent’s determination of a deficiency amounting to $32.49 for the year 1924 is sustained. Reviewed by the Board. Judgment will he entered under Bule 50. Smith and Van Fossan dissent.

2020-01-17 22:02:17.207268+00

Trammell

*249OPINION. Trammell : The petitioner contends that the transaction set out in our findings of fact by which it disposed of its assets and acquired therefor money and preferred stock of the Walworth Alabama Co. was a reorganization resulting in no taxable income under the statute. The respondent contends that it was a sale resulting in taxable income. The pertinent provisions of the Revenue Act of 1926 are as follows; Seo. 203. (a) Upon the sale or exchange of property the entire amount of the gain or loss, determined under section 202, shall be recognized, except as hereinafter provided in this section. ******* (b) (3) No gain or loss shall be recognized if a corporation a party to a reorganization exchanges property, in pursuance of the plan of reorganization, solely for stock or securities in another corporation a party to the reorganization. * * * * * * * (e) If an exchange would be within the provisions of paragraph (3) of subdivision (b) if it were not for the fact that the property received in exchange consists not only of stock or securities permitted by such paragraph to be received without, the recognition of gain, but also of other property or money, then— (1) If the corporation receiving such other property or money distributes it in pursuance of the plan of reorganization, no gain to the corporation shall be recognized from the exchange, * * * ******* (h) A.s used in this section and sections 201 and 204 — • (1) The term “reorganization” means (A) a merger or consolidation (including the acquisition by one corporation of ⅜ * ⅜ substantially all the properties of another corporation), * * * *250(2) The term “ a party to a reorganization ” includes a corporation resulting from a reorganization * * ⅜. Section 286 of the Revenue Act of 1926 provides: “ This title (The Income Tax), shall take effect as of January 1, 1925, * * The evidence discloses that the Walworth Alabama Co., the new corporation created under the laws of Alabama acquired “ substantially all the properties of another corporation ” that is, of the petitioner, and this fact brings the transaction within the plain language of the definition of a reorganization as contained in paragraph 203 (h) (1). The transaction, however, did not come within the provisions of section 203 (b) (3) above quoted for the reason that the petitioner exchanged its property for cash and securities and not solely for stock or securities in another corporation, a party to the reorganization. However, section 203 (e) provides that if an exchange would be within the provisions of paragraph (3) of subdivision (b) if it were not for the fact that the property received in exchange consists not only of stock or securities permitted by such paragraph to be received without the recognition of gain, but also other property or money, then if the corporation receiving such other property or money distributes it in pursuance of a plan of reorganization, no gain to the corporation shall be recognized from the exchange. In this case, previous to the consummation of the exchange of the assets of the petitioner for securities and money, there was a plan evidenced by minutes of the corporation indicating a purpose to immediately distribute the money received for the assets. This money was distributed in pursuance of such plan. Under the definition of a reorganization as contained in paragraph 203 (h) (1) (A) the acquisition of substantially all the property of one corporation by another is a reorganization. The plan to distribute the money which was received in part payment for the assets was a part of the plan of reorganization as defined by the statute. In the case of the Fostoria Milling & Grain Co., 11 B. T. A. 1401, we said: “The test (of whether it was a reorganization) is not identity of stock ownership in the two companies, but whether some interest of the stockholders in the old is preserved to them in the new.” This may well be true where the statute does not specifically define a reorganization to include something else. Under the 1926 Act the statute specifically states that a reorganization shall include the acquisition of substantially all the assets of another corporation. Definitions of a reorganizaion or what a reorganization might be in the absence of the definition in the statute do not have the effect of changing what the statute specifically provides shall be included ip, a reorganization. *251Considering the definition of a reorganization and the other provisions contained in section 203 of the Revenue Act of 1926, it is our opinion that the transaction here involved comes within the plain language of the statute and does not give rise to taxable gain. In view of the foregoing, it is our opinion that the Commissioner erred in holding that the transaction resulted in tax liability to the petitioner. Reviewed by the Board. Judgment will be entered under Rule 50.

2020-12-04 11:08:12.543873+00

http://caseinfo.nvsupremecourt.us/document/view.do?csNameID=60259&csIID=60259&deLinkID=798038&onBaseDocumentNumber=20-43748

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2020-01-17 22:02:17.293394+00

Seawell

*256OPINION. Seawell: It is contended on behalf of the petitioners that the Marion Machine Foundry & Supply Co. of Marion, Ind., was in 1923 the true owner of the stock of the California corporation and that the Commissioner erred in asserting deficiencies against petitioners as the owners of the same, as a taxable dividend. The issue must be determined in the light of the evidence of what was actually done relative to the stock of the California company, which action was based on the assumption that the Indiana company, a corporation, could not own or hold the stock of the California company, another corporation. The only formal action taken bj^ the Indiana company, as a corporation, was the passage of the resolution on November 25, 1922, by its stockholders, and adopted by its directors on December 12, 1922, providing that the stock of the California corporation should be accepted by the stockholders of the Indiana corporation in payment of the sum of $50,000 owing it by one Sharon, and that Henry L. Erlewine be named as trustee for the stockholders of the Indiana corporation to hold in trust the stock of the California corporation for the use and benefit of the stockholders of the *257Indiana corporation, such stock to be issued to the stockholders of the Indiana corporation in proportion to their then holdings therein and assigned and transferred to said Erlewine, trustee, and that such a trust agreement be prepared and entered into by and between said Erlewine as trustee and the respective stockholders of the Indiana corporation. Agreements of the kind indicated and in part literally set forth in our findings of fact were executed by the stockholders of the Indiana corporation, including the petitioners and 0. Sharon, the organizer of the California corporation. The names of neither of- the corporations, the Indiana nor the California, are signed to either of the agreements of January 6, 1923, or March 29, 1923, such agreements, however, being signed by all the stockholders of the Indiana corporation, who thus contracted with one another to have the stock of the California corporation, to which they were entitled, controlled by one of their number, Henry L. Erlewine, as trustee. In order that no misunderstanding might arise about the rights of the individual stockholders relative to the stock of the California corporation, the agreement of March 29, 1923, was executed, wherein it is made plain that the stockholders individually rather than the Indiana corporation had the right of disposition of the stock of the California corporation issued and standing in their names. The evidence does not, it is true, indicate that the Indiana corporation formally declared a dividend. It does appear, however, that the assets of such corporation to the amount of $50,000 were appropriated for the purpose of paying in or acquiring the capital stock of the California corporation and that each of the stockholders was credited with his proportionate share of such stock. No formal dividend declaration was necessary to constitute a distribution as a taxable dividend. Peabody v. Eisner, 247 U. S. 347; United States v. Phellis, 257 U. S. 156. The Commissioner’s determination is presumed to be correct and as the petitioners raised no question as to available earnings of the Indiana corporation being sufficient that a dividend of $50,000 could have been declared and as there is no evidence to the contrary adduced, it may be presumed that the accumulated earnings were, in fact, sufficient to cover the distribution of the California corporation stock among the Indiana corporation stockholders, as indicated in aforesaid agreements and as shown by the journal entries on the books of the Indiana corporation, where the number of shares of the California corporation standing in the name of each stockholder of the Indiana corporation is set out. *258The fact that the trust agreement of January 6, 1923, recognizes the Indiana corporation as an interested party in the California corporation and might receive benefits therefrom is not controlling as to actual ownership of the stock of the latter, in the light of the facts and circumstances of the cases. The Indiana and California corporations were separate and distinct entities, organized at different times, in different States and governed by different laws. The acquisition of the stock of the latter by the former or by the stockholders of the former (whichever view may be taken) did not constitute such stock Indiana corporation stock, of the kind and character of its own capital stock, but was merely so much property, in the form of stock in another corporation and a distribution of such stock among stockholders in proportion to their holdings in the Indiana corporation, as the evidence shows was done in the instant cases, was in our opinion, in fact or in effect, in the nature of an informal property dividend or distribution of the stock of another corporation among stockholders of the Indiana corporation and as such is a taxable distribution or dividend and not a stock dividend, in the sense in which that phrase is used in the statute. The resolution passed by the stockholders on November 25, 1922, and the journal entries on the books of the Indiana corporation indicate that the California corporation stock was of par value and was so accepted, and there being no evidence introduced to establish that the fair market value of the same was ever any less, we are of the opinion that the Commissioner committed no error and accordingly approve his determination in the instant cases. Reviewed by the Board. Judgment will be entered for the respondent.

2020-12-04 11:08:12.638615+00

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2020-12-04 11:08:12.816821+00

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2020-12-04 13:02:13.359901+00

http://www.jud.ct.gov/external/supapp/Cases/AROap/AP201/201AP48.pdf

*********************************************** The “officially released” date that appears near the be- ginning of each opinion is the date the opinion will be pub- lished in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the be- ginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. ***********************************************  CHRYSOSTOME KONDJOUA v. COMMISSIONER OF CORRECTION (AC 43322) Moll, Alexander and DiPentima, Js. Syllabus The petitioner, who had previously been convicted, on a guilty plea, of the crime of sexual assault in the third degree, sought a second writ of habeas corpus, claiming that his guilty plea was not made knowingly, intelligently and voluntarily because, at the time of his plea, he was under the influence of medication, he did not receive the benefit of an interpreter and his trial counsel had coerced him. The habeas court sua sponte dismissed the petition pursuant to the applicable rule of practice (§ 23-29 (3)) as an improper successive petition. Thereafter, the habeas court denied the petition for certification to appeal, and the petitioner appealed to this court. Held: 1. The habeas court did not abuse its discretion in denying the petition for certification to appeal, the petitioner having failed to demonstrate that his claim involved an issue that was debatable among jurists of reason, that a court could resolve the issue in a different manner, or that the question raised was adequate to deserve encouragement to proceed further. 2. The petitioner could not prevail on his claim that the habeas court improp- erly dismissed his second habeas petition as an improper successive petition, as the second petition presented the same legal ground and sought the same relief as the first petition, and the petitioner failed to state new facts not reasonably available at the time of the first petition. Argued October 7—officially released December 8, 2020 Procedural History Petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Newson, J., rendered judgment dismissing the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed. Peter G. Billings, for the appellant (petitioner). Jennifer F. Miller, assistant state’s attorney, with whom, on the brief, were Margaret E. Kelley and Mat- thew C. Gedansky, state’s attorneys, and Angela Mac- chiarulo, senior assistant state’s attorney, for the appel- lee (respondent).  Opinion DiPENTIMA, J. The petitioner, Chrysostome Kond- joua, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus as an improper successive petition pursuant to Practice Book § 23-29 (3). On appeal, the petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly dismissed his habeas petition as successive. We dismiss the appeal. In the petitioner’s appeal from the denial of his first habeas petition, we set forth the following facts and procedural history. ‘‘The petitioner is a Cameroonian citizen who has resided in the United States since 2010 as a long-term, permanent resident with a green card. He was arrested on November 29, 2013, and charged with the sexual assault in the first degree of an eighty- three year old woman, for whom he had been working. The petitioner entered a plea of not guilty and elected a jury trial. ‘‘On December 16, 2014, after the jury had been picked and evidence was set to begin, the petitioner accepted a plea agreement to the reduced charge of sexual assault in the third degree. Before accepting the petitioner’s guilty plea, the trial court canvassed him. The trial court found that the plea was made knowingly, intelligently, and voluntarily, and ordered a presentence investigation. On March 4, 2015, the court sentenced the petitioner to the agreed disposition of five years of imprisonment, execution suspended after twenty months, with ten years of probation. The petitioner also was required to register as a sex offender for ten years. The petitioner did not file a direct appeal. ‘‘While the petitioner was serving his sentence, the United States Department of Homeland Security (department) initiated deportation proceedings against him. The department cited the petitioner’s March, 2015 conviction for sexual assault in the third degree as the ground for removal and stated that the petitioner was subject to removal because he had been convicted of an aggravated felony and a crime of moral turpitude, in violation of § 237 (a) (2) (A) (iii) and § 237 (a) (2) (A) (i) of the Immigration and Nationality Act, respec- tively. A warrant for the petitioner’s arrest was served on July 14, 2015, and the petitioner was taken into the department’s custody. ‘‘On June 19, 2015, the petitioner, then self-repre- sented, filed a petition for a writ of habeas corpus. Appointed counsel thereafter filed an amended petition. On October 17, 2017, counsel filed a second amended petition . . . . It alleged two claims: Ineffective assis- tance of trial counsel for the improper advice concern- ing the immigration consequences of a guilty plea and a due process challenge to his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made. On December 19, 2017, the respondent, the Com- missioner of Correction, filed a return alleging that the petitioner’s due process claim was in procedural default. The petitioner filed a reply denying the allega- tions in the respondent’s return on December 28, 2017. ‘‘On May 16, 2018, the habeas court issued a memo- randum of decision in which it denied the petition. The habeas court found that the petitioner failed to establish that trial counsel had rendered ineffective assistance. . . . Regarding the petitioner’s second claim, the court found that the petitioner had not established cause and prejudice sufficient to overcome the procedural default.’’ (Footnotes omitted.) Kondjoua v. Commis- sioner of Correction, 194 Conn. App. 793 , 795–99, 222 A.3d 974 (2019), cert. denied, 334 Conn. 915 , 221 A.3d 809 (2020). On appeal, this court rejected the petition- er’s claims that the first habeas court erred in rejecting his ineffective assistance of counsel claim and in con- cluding that his second claim, that his plea was not made knowingly, intelligently, and voluntarily, was pro- cedurally defaulted. Id., 799–807. The self-represented petitioner filed a second habeas action on August 17, 2018. The petitioner alleged that his plea was not made knowingly, intelligently, and voluntarily because he had been under the influence of medication that caused him to become passive and to accept a guilty plea ‘‘unconsciously,’’ he did not receive the benefit of an interpreter, and his counsel coerced him to plead guilty.1 On July 11, 2019, the court, without holding a hearing on the petition, dismissed the petition sua sponte and found the following: ‘‘Upon review of the complaint in the above titled matter, the court hereby gives notice pursuant to Practice Book § 23-29 that the matter has been dismissed for the following reasons: (1) The petition is successive, in that it presents the same grounds as the prior petition . . . previously denied . . . and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition. More specifically, the prior petition made claims of ineffective assistance of counsel and a claim that the petitioner’s guilty plea was not know- ingly, voluntarily, and intelligently made, and a fair read- ing of the present complaint presents the same legal grounds, but without any new facts or evidence not known at the time of the prior petition, and seeks the same relief.’’ The habeas court denied the petition for certification to appeal from the dismissal of the second habeas action. This appeal followed. I The petitioner claims that the court erred in denying his petition for certification to appeal from the court’s dismissal of his second petition for being successive.  ‘‘Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. . . . A petitioner may establish an abuse of discretion by demonstrating that the issues are debat- able among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . The required determination may be made on the basis of the record before the habeas court and the applicable legal principles. . . . ‘‘In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the peti- tioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.’’ (Internal quotation marks omitted.) Mourning v. Commissioner of Correction, 169 Conn. App. 444, 448, 150 A.3d 1166 (2016), cert. denied, 324 Conn. 908 , 152 A.3d 1246 (2017). On the basis of our review of the petitioner’s substan- tive claim, we conclude that he has not shown that the court abused its discretion in denying his petition for certification to appeal. II The petitioner claims that the court improperly dis- missed his second habeas petition as successive. Specif- ically, he argues that he raised new factual allegations and a new legal ground in his second petition. He con- tends that his first habeas petition centered on ineffec- tive assistance rendered by trial counsel in failing to advise him of the immigration consequences of his guilty plea and that his second petition focused on the involuntariness of his plea as a result of the psychologi- cal effect of his medication, the lack of an interpreter, and the coercive conduct by trial counsel. We are not persuaded. Our standard of review is well established. ‘‘The con- clusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, sub- ject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must deter- mine whether they are legally and logically correct . . . and whether they find support in the facts in the record.’’ (Internal quotation marks omitted.) Zollo v. Commissioner of Correction, 133 Conn. App. 266 , 276, 35 A.3d 337 , cert. granted, 304 Conn. 910 , 39 A.3d 1120 (2012) (appeal dismissed May 1, 2013). Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . . (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . . .’’ See Diaz v. Commis- sioner of Correction, 125 Conn. App. 57 , 64–65, 6 A.3d 213 (2010) (Practice Book § 23-29 (3) memorialized abil- ity to dismiss petition that presents same ground as previously denied petition and that fails to state new facts or to proffer new evidence not reasonably avail- able at time of prior petition), cert. denied, 299 Conn. 926 , 11 A.3d 150 (2011). ‘‘In Negron v. Warden, [ 180 Conn. 153 , 158, 429 A.2d 841 (1980)], [our Supreme Court] observed that pursu- ant to Practice Book § 531 [now § 23-29], [i]f a previous application brought on the same grounds was denied, the pending application may be dismissed without [a] hearing, unless it states new facts or proffers new evi- dence not reasonably available at the previous hearing. [The court] emphasized the narrowness of [its] con- struction of Practice Book [§ 23-29] by holding that dismissal of a second habeas petition without an eviden- tiary hearing is improper if the petitioner either raises new claims or offers new facts or evidence. . . . Negron therefore strengthens the presumption that, absent an explicit exception, an evidentiary hearing is always required before a habeas petition may be dismissed.’’2 (Emphasis omitted; internal quotation marks omitted.) Mejia v. Commissioner of Correction, 98 Conn. App. 180 , 188–89, 192, 908 A.2d 581 (2006). Pursuant to Practice Book § 23-29 (3), the habeas court sua sponte dismissed the second habeas petition as successive. In his first habeas petition, the petitioner claimed that his trial counsel had provided ineffective assistance by failing to advise him properly of the immi- gration consequences of pleading guilty and made a due process challenge to his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made. See Kondjoua v. Commissioner of Correction, supra , 194 Conn. App. 798 –99. Specifically, with respect to the second claim, the petitioner had alleged that his guilty plea was not made knowingly, intelligently, and voluntarily due to the failure of trial counsel to advise him adequately of the immigration consequences of his guilty plea. See id., 805. In his second habeas petition, the petitioner again claimed that his guilty plea was not made knowingly, intelligently, and voluntarily. Instead of claiming, as he had in his first petition, that the involuntary nature of his guilty plea was due to inadequate advice by trial counsel, the petitioner alleged in his second petition that the involuntary nature of the plea was caused by the effects of medication, the lack of an interpreter, and coercion by trial counsel. The petitioner argues that his second petition is not successive because his first petition alleged ineffective assistance of counsel and the second petition alleges the involuntariness of his guilty plea. We disagree. Both petitions challenge the voluntariness of the guilty plea. Although the factual allegations in the two operative petitions are not the same, it does not necessarily follow that the claims are not identical. ‘‘Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language. . . . They raise, however, the same generic legal basis for the same relief. Put differently, two grounds are not identical if they seek different relief.’’ (Internal quotation marks omitted.) Carter v. Commis- sioner of Correction, 133 Conn. App. 387 , 393, 35 A.3d 1088 , cert. denied, 307 Conn. 901 , 53 A.3d 217 (2012). The legal ground and the relief sought by the peti- tioner here is the same in both the first and second petitions. Moreover, the petitioner cannot prevail on his argument that the second petition alleges new facts not reasonably available at the time of the first petition. See, e.g., McClendon v. Commissioner of Correction, 93 Conn. App. 228 , 231, 888 A.2d 183 (successive petition premised on same legal grounds and seeking same relief will not survive dismissal unless petition is supported by allegations not reasonably available to petitioner at time of original petition), cert. denied, 277 Conn. 917 , 895 A.2d 789 (2006); see also Practice Book § 23-29 (3). In the first habeas action, the petitioner’s original nonoperative petition ‘‘alleged a due process violation claiming that his guilty plea was not made knowingly, intelligently, or voluntarily because he was under the influence of medication, trial counsel pressured him to plead guilty, and he had trouble understanding and communicating with trial counsel because English is not his first language and he did not always have the benefit of an interpreter during their conversations.’’ Kondjoua v. Commissioner of Correction, supra , 194 Conn. App. 798 n.3. Although that petition was later amended to eliminate these precise grounds; see id., 798–99; the petitioner clearly knew of their existence at the time of the first petition, defeating any argument now made on appeal that these grounds were not rea- sonably available at the time of the first petition. The habeas court was not required to determine the merits of the second habeas petition because, pursuant to Practice Book § 23-29 (3), the second petition pre- sented the same ground as the first petition and the petitioner failed to state new facts not reasonably avail- able at the time of the prior petition. See McClendon v. Commissioner of Correction, supra , 93 Conn. App. 231 ; see also Practice Book § 23-29 (3). The petitioner, therefore, has not shown that the resolution of this claim involves an issue that is debatable among jurists of reason, that a court could resolve the issue in a different manner, or that the question is adequate to deserve encouragement to proceed further. Accord- ingly, we conclude that the habeas court did not abuse its discretion in denying his petition for certification to appeal. The appeal is dismissed. In this opinion the other judges concurred. 1 The petitioner also alleged that his trial counsel had rendered ineffective assistance. On appeal, the petitioner does not challenge the court’s dismissal of his ineffective assistance claim as successive. 2 The petitioner does not raise as a ground for reversal the lack of an evidentiary hearing.

2020-12-04 14:08:51.159495+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007475PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:08 AM CST - 762 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 State of Nebraska, appellee, v. Forrest R. Cox III, appellant. ___ N.W.2d ___ Filed November 13, 2020. No. S-19-780. 1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment or the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966), an appellate court applies a two-part standard of review. Regarding his- torical facts, an appellate court reviews the trial court’s findings for clear error. But whether those facts trigger or violate Fourth or Fifth Amendment protections is a question of law that an appellate court reviews independently of the trial court’s determination. 2. Constitutional Law: Search and Seizure: Evidence: Police Officers and Sheriffs. The exclusion of evidence obtained in violation of the Fourth Amendment is not itself a constitutional right; rather, it is a rem- edy designed to deter constitutional violations by law enforcement. 3. ____: ____: ____: ____. In situations where the exclusion of evidence as a remedy would not deter law enforcement, several exceptions to the exclusionary rule have been recognized. One of those exceptions applies to evidence obtained by police in objectively reasonable reliance on a statute later found to be unconstitutional. 4. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error. When a motion to suppress is overruled, the defendant must make a specific objection at trial to the offer of the evidence which was the sub- ject of the motion to suppress in order to preserve the issue for review on appeal. Put another way, a failure to object to evidence at trial, even though the evidence was the subject of a previous motion to suppress, waives the objection, and a party will not be heard to complain of the alleged error on appeal. 5. Verdicts: Appeal and Error. Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not  - 763 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 whether in a trial that occurred without the error, a guilty verdict surely would have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. Appeal from the District Court for Douglas County: Kimberly Miller Pankonin, Judge. Affirmed. Thomas C. Riley, Douglas County Public Defender, and Natalie M. Andrews for appellant. Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Heavican, C.J. INTRODUCTION Forrest R. Cox III was convicted of first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. At issue on appeal is whether the district court erred in admitting cell phone records for Cox’s phone and whether Cox invoked the right to counsel during questioning by law enforcement. We affirm. FACTUAL BACKGROUND Cox was charged in connection with a shooting at a conve- nience store in Omaha, Nebraska, on the evening of March 6, 2017. The victim of the shooting, Laron Rogers, died on March 22 as a result of injuries he sustained. Trial Testimony According to testimony and evidence presented at trial, an employee of the convenience store called emergency services upon learning of a shooting in the parking lot of the store. Rogers was lying on the ground. Rogers was initially stabilized and taken to a hospital, but he did not respond to questions about who had shot him.  - 764 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 Two different witnesses at the scene of the shooting testified that Rogers was leaning into a white vehicle without license plates, which vehicle was identified by both witnesses as a Chevy Impala. According to the witnesses, it appeared that Rogers was talking to the occupants of the vehicle. A gunshot was heard, and Rogers walked a few steps before collaps- ing. The witnesses both testified that the white Impala then drove off. Law enforcement later obtained surveillance video from the scene and confirmed that the suspect vehicle was a white Impala. During the course of the investigation, law enforcement vis- ited Rogers’ place of employment, a cell phone store, and spoke with the store manager. The manager showed law enforcement video clips that were taken earlier on the day of Rogers’ shooting. The video clips showed two men inside the store. According to the manager, coworkers had seen Rogers outside the store interacting with the men prior to the men entering the store. Law enforcement was able to identify Cox at the time the clips were viewed. Shortly thereafter, the other man was identi- fied as Rufus Dennis. The manager provided law enforcement with a piece of paper with “Bubba” and the phone number “. . . 6473” written on it. According to one of Rogers’ coworkers, the phone number on the piece of paper was the phone number provided by Cox as he sought assistance with his cell phone at the store. Other evi- dence at trial revealed that Cox’s nickname was “Bubba.” That same coworker also testified that Rogers left work at approximately 6 p.m. but stayed in the parking lot, sitting in his car with a friend. The friend was a manager at a different branch of the same cell phone company that employed Rogers. She had stopped by to pick up phones for her store and stayed to smoke marijuana and talk with Rogers in his car after he got off work. The friend testified that Rogers smoked and dealt marijuana. According to the friend, while she was in Rogers’ car, two men in a white Chevy Impala, with no license plates and  - 765 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 displaying in-transit stickers, parked at the store. One of the men—whom she identified at trial as Cox—stopped at Rogers’ car to talk to Rogers. The friend said that Cox wanted to buy some marijuana, but that Rogers did not have enough on hand. Rogers and Cox exchanged telephone numbers and agreed to be in touch later that day. Cox and the other man, unknown to the friend but later identified as Dennis, went into the store; the friend and Rogers left the store’s parking lot in their sepa- rate vehicles. During the course of the investigation, law enforcement determined that Rogers owed his drug supplier money. Both Rogers’ fellow employee and Rogers’ friend testified that Rogers had asked them for money, though both declined to give him any. After leaving work, Rogers went to the home he shared with his mother and father. He asked his father for money and received $200. In addition, bank records show that Rogers withdrew nearly $950 from his bank accounts on the day of the shooting. That money was not recovered. After identifying Cox and obtaining the paper with the phone number on it, law enforcement sought subscriber infor- mation for that number. A warrant was issued, and the cell phone records from January 1 to March 24, 2017, includ- ing cell site location information (CSLI), were provided to law enforcement. In addition, law enforcement had access to Rogers’ cell phone. According to the record, Rogers sent a text message to Cox at 6:37 p.m. the day of the shooting that said, “This Ronno.” Cell phone records show that there were several phone calls between Rogers and Cox on March 6, 2017, in the hour or so leading up to the shooting, but that there were no calls between the two within the approximately 2 months preceding the shooting. CSLI records further showed that Cox’s phone was in the area of the shooting at the time and that he was not in the area of his purported alibi. Evidence offered at trial also linked Cox to a white Chevy Impala. When questioned by law enforcement, Dennis admit- ted that he had access to a white Impala that was registered  - 766 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 in the name of his mother. Dennis led officers to the white Impala, which was parked near Cox’s brother’s residence. The car was impounded. The license plate screws on the car looked new, and there were what appeared to be glue marks from in-transit stickers in the window. Inside the car was a steering wheel cover and two remaining license plate screws in original packaging, along with a receipt from an auto parts store for the purchase of a steering wheel cover and license plate screws. Further investigation revealed video showing Cox purchasing those items. Law enforcement was unable to locate Cox until February 26, 2018. During his interview, Cox acknowledged that his phone number was the same number ending in 6473; that he knew Rogers; that he had met with Rogers on March 6, 2017, the day of shooting; and that he wanted to obtain marijuana. Cox denied shooting Rogers and said he was with a female friend during the evening of the shooting. That friend, who tes- tified that Rogers was her uncle, also testified that she did not recall seeing Cox on March 6 or 7 and that she did not see him until early April. In addition, as previously noted, Cox’s CSLI data suggested that he was not at this friend’s home on the day of the shooting. Procedural History Prior to trial, Cox filed motions to suppress his cell phone records and the statements he made to law enforcement in his February 26, 2018, interview. As to the statements, Cox argued that his rights under Miranda v. Arizona 1 were violated when he invoked his right to remain silent and officers continued to question him. As for the cell phone records, Cox argued that the warrant was obtained without probable cause as explained in Carpenter v. U.S. 2 1 Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966). 2 Carpenter v. U.S., ___ U.S. ___, 138 S. Ct. 2206 , 201 L. Ed. 2d 507 (2018).  - 767 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 In its order, the district court denied the motion to suppress the statements. With respect to the cell phone records, the court noted that the State had conceded that “the search warrant, although obtained prior to Carpenter . . . , has not been rem- edied post-Carpenter. Accordingly, the State concedes this issue and Cox’s motion to suppress these records is granted.” However, while the motion to suppress the cell phone records was pending, the State filed a second affidavit seeking a war- rant for the cell phone records. The second affidavit included additional averments intended to cure the previous deficiency. A second warrant was then issued, and Cox filed another motion to suppress. The second motion was denied. At trial, in response to questioning about Cox’s cell phone records, counsel for Cox objected on the basis of the motion to suppress. That objection was denied. Counsel for Cox objected at the next opportunity, stating: “Judge, I would just ask that my same objection be noted for the record and a standing objection for any new matters with respect to . . . 6473.” The court granted counsel’s “request for a standing objection.” Counsel also objected to the admission of exhibit 162 on the basis of his motion to suppress. Exhibit 162 was a video of law enforcement’s first interview with Cox. In addition to showing that video, the detective who conducted the interview testified. Cox offered few objections to this testimony and made no objections on Miranda grounds. Prior to the case being submitted to the jury, the State aban- doned its theory that the murder was premeditated and pro- ceeded solely on a felony murder theory. Cox was found guilty on all counts and sentenced to life imprisonment for felony murder, 25 to 30 years’ imprisonment for use of a deadly weapon, and 40 to 45 years’ imprisonment for possession of a firearm by a prohibited person. ASSIGNMENTS OF ERROR Cox assigns, restated and consolidated, that the district court erred in (1) admitting cell phone records for Cox’s cell  - 768 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 phone in violation of Cox’s Fourth Amendment rights and (2) admitting statements made by Cox that were in violation of Cox’s Fifth Amendment rights as explained in Miranda. STANDARD OF REVIEW [1] In reviewing a trial court’s ruling on a motion to sup- press based on a claimed violation of the Fourth Amendment or the safeguards established by the U.S. Supreme Court in Miranda, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear error. But whether those facts trigger or violate Fourth or Fifth Amendment protections is a question of law that an appellate court reviews independently of the trial court’s determination. 3 ANALYSIS On appeal, Cox assigns that the district court erred in admit- ting his cell phone records and in admitting statements made after he invoked his right to remain silent during his February 26, 2018, interrogation. Admissibility of Cell Phone Records Cox assigns that the district court erred in denying his sec- ond motion to suppress his cell phone records, including his CSLI. Cox’s argument is rooted in the U.S. Supreme Court’s decision in Carpenter. 4 In Carpenter, the Court concluded that individuals had a reasonable expectation of privacy in their record of physical movements as captured by CSLI. Because of this expecta- tion of privacy, the Court concluded that a warrant was, in most cases, required before such records could be acquired. The conclusion reached in Carpenter effectively overruled this court’s earlier decision in State v. Jenkins, 5 in which 3 State v. Schriner, 303 Neb. 476 , 929 N.W.2d 514 (2019). 4 Carpenter v. U.S., supra note 2. 5 State v. Jenkins, 294 Neb. 684 , 884 N.W.2d 429 (2016).  - 769 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 we held that the acquisition of CSLI did not implicate the Fourth Amendment. Since Carpenter, this court has had the opportunity to address the applicability of the exclusionary rule and suppres- sion of evidence as a remedy for a Fourth Amendment viola- tion of the type at issue in this appeal. 6 In both State v. Brown 7 and State v. Jennings, 8 we declined to apply the exclusionary rule to CSLI obtained without a warrant supported by probable cause, explaining in each case that the rationale for the exclu- sionary rule would not be met on the facts presented. In both of these cases, officers relied upon the Stored Communications Act to support court orders seeking cell phone records, and specifically CSLI. At the time the court orders were sought and executed, the U.S. Supreme Court had not yet decided Carpenter. We concluded that officers in each case were fol- lowing the statute as written and that the statute in question was not clearly unconstitutional. [2,3] The exclusion of evidence obtained in violation of the Fourth Amendment is not itself a constitutional right. 9 Rather, it is a remedy designed to deter constitutional violations by law enforcement. 10 Thus, in situations where the exclusion as a remedy would not deter law enforcement, several excep- tions to the exclusionary rule have been recognized. 11 One of those exceptions applies to evidence obtained by police in objectively reasonable reliance on a statute later found to be unconstitutional. 12 6 State v. Jennings, 305 Neb. 809 , 942 N.W.2d 753 (2020); State v. Brown, 302 Neb. 53 , 921 N.W.2d 804 (2019). 7 State v. Brown, supra note 6. 8 State v. Jennings, supra note 6. 9 Id. 10 Id. 11 Id. 12 Id.  - 770 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 In this case, law enforcement sought a court order based upon a statute that was, many months later, determined to be unconstitutional. Similar to Brown and Jennings, law enforce- ment’s reliance on a court order issued under the Stored Communications Act, at a time when the act had not yet been found by the U.S. Supreme Court or by this court to implicate the Fourth Amendment, was not objectively unreasonable. We observe that the district court originally granted Cox’s motion to suppress below on the basis of the State’s conces- sion, but that the evidence was eventually admitted follow- ing the denial of a second motion to suppress. The district court reasoned that a subsequent warrant essentially cured any Fourth Amendment violation. Of course, this reasoning varies from the reasoning we employ today, and in particular, this court’s reasoning relies upon the good faith exception to the Fourth Amendment’s war- rant requirement. We have previously held that an appellate court may not, sua sponte, rely on the good faith exception to the warrant requirement. 13 We explained that the concern with an appellate court’s reaching the issue of good faith sua sponte is that a defendant must have sufficient opportunity to defend against the application of the exception. 14 But a review of the record shows that this scenario is not presented here. The State raised the issue of good faith in its brief on appeal. Cox also argues the issue in his brief on appeal. The district court did not err in admitting the CSLI evidence at trial. There is no merit to Cox’s first assignment of error. Admissibility of Statements Cox also assigns that the district court erred in denying his motion to suppress statements made to law enforcement after he invoked his right to remain silent. He argues, in turn, that the district court erred in admitting those statements. Because 13 State v. Tompkins, 272 Neb. 547 , 723 N.W.2d 344 (2006). 14 Id. - 771 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 Cox failed to object to the investigating detective’s testimony about his statements, we find no error in the admission of these statements. At issue are statements made during law enforcement’s first interview of Cox on February 26, 2018. The State offered a video of that interview, exhibit 162, which was shown to the jury. The record shows, and the State acknowledges, that Cox objected to exhibit 162 on the basis of the earlier motion to suppress. But Cox did not seek a continuing objection, or object on the basis of Miranda, to any other testimony regard- ing the statements he made during the interview. Rather, the detective testified, without objection, that Cox agreed that he knew Rogers, that the 6473 number was his, and that he provided the name of his alibi. In addition, Cox told the detective that he was dropped off at his brother’s residence after seeing Rogers at the cell phone store and that he had been in a white Chevy Impala. Other evidence showed that the white Impala in this case, found near the brother’s residence, was later seized. [4] When a motion to suppress is overruled, the defendant must make a specific objection at trial to the offer of the evi- dence which was the subject of the motion to suppress in order to preserve the issue for review on appeal. 15 Put another way, a failure to object to evidence at trial, even though the evidence was the subject of a previous motion to suppress, waives the objection, and a party will not be heard to complain of the alleged error on appeal. 16 Because there was no objection to the statements made by Cox and testified to by the interviewing detective, Cox has waived any right to assert error. The video that was shown and objected to was cumulative to that testimony as well as to other evidence presented at trial. Namely, several witnesses at the cell phone store testified that Rogers spoke to Cox at the 15 State v. Piper, 289 Neb. 364 , 855 N.W.2d 1 (2014). 16 See State v. Montoya, 305 Neb. 581 , 941 N.W.2d 474 (2020).  - 772 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. COX Cite as 307 Neb. 762 store, both Cox’s and Rogers’ cell phone records supported contact between the two, and other evidence tied Cox to the white Chevy Impala. [5] Even if the proper objections had been made, however, we would still find no reversible error in the admission of the statements, because any error would have been harmless. Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error, a guilty verdict surely would have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unat- tributable to the error. 17 During the challenged interview, Cox did not admit to the crime or even admit to being in the area at the time of the crime. When these statements are compared to the cell phone records of calls between Rogers and Cox, the CSLI, and the fact that Cox had control over a white Chevy Impala, which had been identified by multiple witnesses as being involved in the shooting, there was sufficient evidence unattributable to any error in offering the video and statements. There is no merit to Cox’s second assignment of error. CONCLUSION The decision of the district court is affirmed. Affirmed. 17 State v. Devers, 306 Neb. 429 , 945 N.W.2d 470 (2020).

2020-12-04 14:08:46.131045+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007489PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:08 AM CST - 817 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 In re Interest of A.A. et al., children under 18 years of age. State of Nebraska, appellee, v. Joshua C. appellant. ___ N.W.2d ___ Filed November 20, 2020. Nos. S-20-009, S-20-244. 1. Jurisdiction: Appeal and Error. A jurisdictional question that does not involve a factual dispute is a question of law that an appellate court resolves independently of the conclusions reached by the trial court. 2. Constitutional Law: Due Process. The determination of whether the procedures afforded to an individual comport with constitutional require- ments for due process presents a question of law. 3. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court’s findings; how- ever, when the evidence is in conflict, an appellate court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over the other. 4. Jurisdiction: Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1911 (Reissue 2016), for an appellate court to acquire jurisdiction of an appeal, there must be a final judgment or final order entered by the tribunal from which the appeal is taken. 5. Jurisdiction: Words and Phrases. Subject matter jurisdiction deals with the court’s ability to hear a case. 6. ____: ____. Subject matter jurisdiction is the power of a tribunal to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject mat- ter involved. 7. Juvenile Courts: Jurisdiction. To obtain jurisdiction over a juvenile and the juvenile’s parents, the court’s only concern is whether the condi- tion in which the juvenile presently finds himself or herself fits within the asserted subsection of Neb. Rev. Stat. § 43-247 (Reissue 2016).  - 818 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 8. Constitutional Law: Due Process: Parent and Child. The relationship between parent and child is constitutionally protected and cannot be affected without procedural due process. 9. Due Process. The concept of due process embodies the notion of funda- mental fairness and defies precise definition. 10. ____. Due process is flexible and calls for such procedural protections as the particular situation demands. 11. Constitutional Law: Parent and Child. The mere existence of a bio- logical link does not merit substantial constitutional protection; rather, the parental liberty interest in a child stems from the more enduring relationship developed upon a biological parent’s commitment to the responsibilities of parenthood. 12. Constitutional Law: Due Process: Parent and Child. An unwed bio- logical father who has grasped the opportunity to establish a familial relationship with his biological child has an interest in personal contact with his child, which interest is given substantial protection under the Due Process Clause of the 14th Amendment. 13. Parental Rights. When parental control fails, the State must play its part as parens patriae. 14. ____. The rights of parenthood, even of a fit parent, are not beyond limitation by the State’s powers and duties as parens patriae. 15. ____. Where a child is cared for by a fit parent, the State’s interest in caring for the child is de minimis. 16. Parental Rights: Child Custody. Only the paramount interest which the public has in the protection of the rights of the child can subjugate the rights of parents to maintain custody of their children. 17. ____: ____. The parental preference doctrine holds that in a child cus- tody controversy between a biological parent and one who is neither a biological nor an adoptive parent, the biological parent has a superior right to the custody of the child. 18. Parental Rights: Child Custody: Presumptions. Under the parental preference doctrine, unless the State affirmatively shows a parent is unfit or has forfeited the right to custody, due regard for the parent’s natural right to the custody of a child requires that a parent be presump- tively regarded as the proper guardian. 19. Parental Rights: Child Custody: Proof. Only exceptional circum- stances involving proof of serious physical or psychological harm to the child or a substantial likelihood of such harm will negate the superior right of a fit parent who has not forfeited parental rights to custody under the parental preference doctrine. 20. Juvenile Courts: Jurisdiction: Child Custody: Proof. When the allegations of a petition for adjudication invoking the jurisdiction of  - 819 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 the juvenile court are against one parent only, the State cannot deny the other parent’s request for temporary physical custody in lieu of a foster care placement unless it pleads and proves by a preponderance of the evidence that the other parent is unfit or has forfeited custody or that there are exceptional circumstances involving serious physi- cal or psychological harm to the child or a substantial likelihood of such harm. 21. Parental Rights: Child Custody. Because parental preference derives not simply from biology but from the enduring relationship developed upon a biological parent’s commitment to the responsibilities of parent- hood, children removed from their homes due to the fault or habits of one parent need not immediately and without some minimal investiga- tion be placed with the other biological parent whose status as having an actual relationship of parental responsibility is unknown. 22. Juvenile Courts: Jurisdiction: Parental Rights: Child Custody. The nonoffending parent’s exercise of the parental preference of custody is not entirely unfettered during the juvenile court’s continuing jurisdiction under the juvenile code. 23. Juvenile Courts: Parental Rights. The juvenile court, in the exercise of its parens patriae responsibilities, may develop a transition plan con- stituting a reasonable intrusion of limited duration into the nonoffending parent’s rights to autonomy in the care and custody of the child. 24. Juvenile Courts: Due Process: Parental Rights: Child Custody. It does not violate due process for the juvenile court in its determination of the child’s best interests and in its role as adjudicator of the custody rights between two parents to require the nonoffending parent’s coopera- tion with goals of reunification back into the home from where the child was taken. 25. Due Process: Notice. Procedural due process generally requires that notice be given of such a nature as to reasonably convey the required information. 26. Parental Rights: Child Custody: Notice. In the context of denying parental preference in a placement decision during proceedings under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), reasonable notice must include the factual bases for seeking to prove that the parent is unfit or has forfeited parental rights or that exceptional circumstances exist involving serious physical or psychological harm to the child or a sub- stantial likelihood of such harm. 27. ____: ____: ____. Allegations as to the fault or habits of the custodial parent do not operate to give notice to the noncustodial parent that the State seeks to rebut that parent’s right to parental preference in its place- ment decisions.  - 820 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 28. Handicapped Persons: Parent and Child: Parental Rights: Presumptions. There is no presumption that a disabled parent is unfit, that a disabled parent has forfeited parental rights, or that exceptional circumstances exist involving serious physical or psychological harm to the child or a substantial likelihood of such harm because a parent is disabled. 29. Handicapped Persons: Parent and Child: Presumptions. The simple fact that a parent is disabled does not overcome the presumption that the parent is a better caretaker of the parent’s own child than the State is. 30. Juvenile Courts: Jurisdiction: Final Orders: Appeal and Error. A juvenile court is not wholly divested of jurisdiction during the pendency of an appeal from a final order. 31. Courts: Juvenile Courts: Jurisdiction: Appeal and Error. The extent of the continuing jurisdiction of the separate juvenile courts and the county courts sitting as juvenile courts during the pendency of an appeal is not without limits and must be determined by the facts of each case. 32. Juvenile Courts: Jurisdiction: Parental Rights. The juvenile courts’ continuing jurisdiction does not include the power to terminate a juve- nile’s relationship with the child’s parents. 33. Judges: Recusal: Time. The issue of judicial disqualification is timely if submitted at the earliest practicable opportunity after the disqualifying facts are discovered. 34. Judges: Recusal: Presumptions. There exists a presumption of judicial impartiality, and a party alleging that a judge acted with bias or preju- dice bears a heavy burden of overcoming that presumption. 35. Judges: Recusal. A judge’s opinions based on facts presented dur- ing a hearing, even if those opinions are stated before the hearing’s conclusion, are not indicative of bias by the judge unless they display a deep-seated favoritism or antagonism that would make fair judg- ment impossible. Appeal from the Separate Juvenile Court of Lancaster County: Reggie L. Ryder, Judge. Judgment in No. S-20-009 reversed, and cause remanded with directions. Judgment in No. S-20-244 affirmed. Matt Catlett, of Law Office of Matt Catlett, for appellant. Douglas J. Peterson, Attorney General, C.J. Roberts, Special Assistant Attorney General, and Patrick Condon, Lancaster County Attorney, and Haley N. Messerschmidt for appellee.  - 821 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. I. NATURE OF CASE Upon allegations that the mother had endangered her 6-year- old child who was living with her, the Nebraska Department of Health and Human Services (DHHS) was given temporary legal and physical custody of the child and his half siblings, who were placed together in temporary foster care. No allega- tions were made against the child’s legal father, who did not at that time live with the child and did not have notice of the hearing on temporary custody. There was an acknowledgment of paternity, and the father had lived with and helped support the child and his mother for approximately 5 years up until the father developed Guillain-Barre syndrome approximately 7 months before the petition for adjudication was filed. After the father became aware that his child was in foster care, he moved for temporary physical placement, which the juvenile court denied. The court reasoned that the father was “unfit” for placement at that time due to his unwillingness to cooperate with DHHS in forming a placement plan that addressed con- cerns stemming from a physical disability. In case No. S-20-009, the father appeals the denial of his motion for placement, arguing that the State did not sustain its burden to affirmatively prove him unfit by a preponder- ance of the evidence before depriving him of his fundamental liberty and privacy interests in caring for and guiding his child without undue interference. He also challenges the jurisdic- tion of the juvenile court based upon filing dates and scriv- ening details pertaining to the ex parte order removing the children from the mother’s home. While his appeal in case No. S-20-009 was pending, the court proceeded with adjudica- tion of the child over the father’s objection. In the appeal in case No. S-20-244, the father argues that his appeal in case No. S-20-009 divested the juvenile court of jurisdiction to issue the adjudication order.  - 822 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 II. BACKGROUND Joshua C., the legal father of B.C., appeals in case No. S-20-009 from the juvenile court’s order denying his motion for temporary physical placement of B.C. in his home pending the adjudication of B.C. under a petition making allegations of endangerment by the mother. In case No. S-20-244, Joshua appeals from the court’s subsequent order adjudicating B.C. due to the fault or habits of B.C.’s mother. We have consoli- dated the two cases, Nos. S-20-009 and S-20-244, for purposes of oral argument and disposition. 1. October 14, 2019, Ex Parte Emergency Temporary Order (a) Motion On October 14, 2019, a Monday, a motion for an ex parte order for emergency temporary custody was file stamped in the separate juvenile court of Lancaster County. Three chil- dren, A.A., M.A., and B.C., were listed in the caption. In the motion, the county attorney asserted that “the above-named juveniles are endangered in such conditions or surroundings that the juveniles’ welfare and best interest require immedi- ate removal.” The affidavit in support of the motion, dated October 11, 2019, listed in its caption four children, D.W., A.A., M.A., and B.C. In the affidavit, Officer Jarid Freyermuth stated that on October 11, 2019, he was dispatched on a report of “belated child neglect” in Lincoln, Nebraska. D.W., age 12, had reported that his mother had threatened him with a steak knife an hour prior, during the course of an argument about not properly storing an open bag of hotdogs. The mother had reportedly cornered D.W. while armed with the knife and, when he put his hands on her upper chest area to defend himself, placed the tip of the knife on his shoulder and said, “‘[I]f you touch me I’ll stab your hands.’”  - 823 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 Freyermuth reported that D.W.’s siblings, A.A., M.A., and B.C., corroborated D.W.’s description of the incident and that the mother ultimately admitted to arming herself with the knife and threatening D.W. Freyermuth reported that she denied, however, “touching D.W. with the knife even when faced with the fact that D.W. had an injury resembling being touched with the knife.” According to the affidavit, D.W. was turned over to his father, while an employee of DHHS took emergency custody of the other three children. The mother was taken to jail on October 11, 2019, upon charges of felony child abuse, terroris- tic threats, and use of a weapon to commit a felony. Freyermuth averred that the children were in such condi- tion or surroundings that their welfare required the court to assume temporary custody immediately by endorsement upon the summons or separate order directing that the children be taken into custody at once, with proper arrangements being made for their temporary custody and care pending a hearing on a petition. (b) Order The juvenile court signed an ex parte order for emergency temporary custody on Saturday, October 12, 2019. The order was not file stamped until Monday, October 14. The caption for the order listed A.A., M.A., and B.C. D.W. was not named in the caption. The order described that pur- suant to Neb. Rev. Stat. § 43-248(2) (Cum. Supp. 2018), the “above-named juveniles’ needs require that they be taken into emergency custody and placed with [DHHS].” Pursuant to the ex parte order, a temporary custody hearing was scheduled for October 16, 2019. Notice of the hearing was to be sent to the parents and guardians identified in the affida- vit. Joshua was not identified. The court found in the ex parte order that DHHS could, at its discretion, return the children home pending the place- ment hearing. The ex parte order was to expire if the county  - 824 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 attorney failed to file a petition by October 15, 2019, at 4:30 p.m. A guardian ad litem was appointed. 2. October 14, 2019, Petition A petition was filed in juvenile court on Monday, October 14, 2019, at approximately 4 p.m. All four children, A.A., M.A., B.C., and D.W., were named in the caption. The peti- tion alleged that A.A., M.A., B.C., and D.W. were within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), by reason of the fault or habits of their mother, or that they were in a situation injurious to life or limb or their health or morals, based on the incident on October 11 in which she threatened one of them with a knife. The adjudication was based on no other events. No allegations were made against Joshua. While the alleged father of D.W. was listed in the petition as a person to be served with a summons, no other father was identified. Likewise, only the father of D.W., and the children’s mother, were identified in the praecipe for summons, dated October 17, 2019, to be served with copies of the petition. The record does not reflect that the court published notice, because a parent’s name was unknown, as provided for in Neb. Rev. Stat. § 43-268 (Reissue 2016). 3. October 17, 2019, Temporary Custody Order A hearing on the motion for temporary custody was held on October 16, 2019. Neither Joshua nor his counsel was present. The appellate record does not contain a transcription of the October 16 hearing. In an order on October 17, 2019, the court found that although DHHS was making reasonable efforts to eliminate the need for out-of-home placement, remaining in the home at that time would be contrary to the children’s health, safety, and welfare, and that it was in their best interests to remain in out-of-home placement. The court ordered that temporary legal and physical custody remain with DHHS. The mother was  - 825 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 given reasonable rights of supervised parenting time so long as she was not in custody. Only A.A., M.A., and B.C. were listed in the caption for the order of temporary custody. Joshua was not served with a copy of the order. 4. Joshua’s Intervention and Request for Placement on October 30, 2019 On October 30, 2019, Joshua, through his attorney, filed a motion for leave to intervene and for immediate placement of B.C. with him. In the motion, Joshua alleged that he was B.C.’s biological father and that with the exception of a 1-year separa- tion from B.C.’s mother, from B.C.’s birth in August 2013 until July 2019, B.C. and his mother had lived with Joshua, during which time Joshua had provided continuous care and support for B.C. Joshua did not explain when he received actual notice of the juvenile proceedings relating to B.C. Joshua described only that on or about October 29, 2019, a DHHS employee had informed him that DHHS would not consider placing B.C. in his care and custody. Joshua did not in the motion challenge the prior orders of the court on due process or any other grounds. He did not move for legal custody. Hearings on the motion were held on November 21 and December 23, 2019. (a) November 21, 2019, Hearing At the November 21, 2019, hearing, Joshua testified that he has lived for approximately 8 years in Superior, Nebraska, where he owns a four-bedroom house in the center of town. Joshua testified that he was in a romantic relationship with B.C.’s mother from approximately July 2012 until July 2019. During that time, they conceived B.C., who was born in August 2013. Joshua testified that he had signed an acknowl- edgment of paternity but had forgotten to bring it to the  - 826 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 November 21 hearing. There was no evidence of an adjudica- tion of custody rights between the two parents. B.C. and B.C.’s mother lived with Joshua during the entirety of their relationship with the exception of a year when she and B.C. had moved out, 2 or 3 years before the hearing, and then moved back in. Joshua described that in late February 2019, he developed Guillain-Barre syndrome. He was hospitalized for a month and then spent approximately 6 months in rehabilitation centers until returning home in September. It was during his illness that his relationship with B.C.’s mother ended. At the time of the hearing, Joshua had been home for approximately 2 months. B.C. visited Joshua 5 to 10 times while Joshua was residing at rehabilitation centers. Joshua tes- tified that he had seen B.C. only twice since returning home, during two weekend visits arranged with B.C.’s current place- ment caretaker. Joshua lives alone, but has a 15-year-old child who stays with him every Wednesday overnight and every other Thursday through Sunday. As of the time of the hearing, Joshua was still unable to get around without a wheelchair. He had the aid of home health care in the mornings. He was unable to fully sit himself up in his wheelchair without assistance. Before developing Guillain- Barre syndrome, Joshua worked as a pipewelder. Since his illness, he has relied on Social Security disability payments. Joshua testified that he was financially able to provide for B.C. Joshua did not believe his physical limitations impaired his ability to properly parent or supervise B.C. Joshua testified that his grandfather had agreed to take B.C. to and from school. The school bus stopped only “three blocks away.” Joshua could also reach out to his mother, if she was not working, as well as to “[f]riends and just people in the community,” for school transportation. Joshua named a couple of people who had volunteered to help. Joshua explained that  - 827 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 the transportation company he uses would be able to transport B.C. to any appointments. As far as feeding B.C., Joshua testified that “[t]here’s the local grocery store and then there’s the Dollar General.” Joshua testified that he was not yet cooking any of his own meals, but that his mother, his grandfather, and the aides had all said they would be willing to prepare meals for B.C. Alternatively, he could order takeout or delivery. Joshua described a nightly routine for B.C. that would involve homework, television, showering, and brushing teeth. He did not foresee its being a problem that he generally did not have assistance overnight. Joshua said that DHHS had been in contact with him about a placement plan. There had been some discussion about placing B.C.’s half siblings with Joshua as well. Joshua was willing to serve as such a placement. The plan that was developed was originally going to involve having Joshua’s mother stay overnight. At that time, his mother was spending the night in Joshua’s home to help care for him. She had been staying the night at Joshua’s house from the time of his return from the rehabilitation centers up until approxi- mately 2 weeks before the November 21, 2019, hearing. Joshua explained that as of early November 2019, his mother no longer wished to stay overnight. Joshua did not reach out to notify DHHS that his mother would no longer be staying the night, but confirmed that was true when DHHS called and asked. Joshua testified that he was willing to have a conversation with DHHS about any logistical concerns of how to address emergencies or other childcare issues that might arise in the middle of the night. Joshua conceded that he had refused to sign a medical release to allow DHHS to review his medical records relating to his Guillain-Barre syndrome prognosis, explaining, “I’m just not prepared to do it right now, okay.” At the close of the day on November 21, 2019, the court noted that the hearing would be continued in order to allow  - 828 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 the parties to present additional evidence. The court told Joshua that he had “come a long way.” The court stated that it needed to see the acknowledgment form. The court continued to explain that, also, “we need to make sure there’s a plan,” elaborating: [W]e’ve talked about evenings. We haven’t talked about weekends when he’s not in school. We haven’t talked about a snow day that we’re probably going to have. We haven’t talked about two or three weeks of not being in school during Christmas. We’ve got to make sure we’ve got a plan. It sounds like you’ve thought about it a little bit but I’d want to make sure before I’m going to say he’s in your care, that we’ve got a daily consistent plan and schedule. Who’s going to be coming over. Who can we call at 2:00 in the morning if he has a nose bleed, a fever. If he falls out of bed. If he’s scared and I understand you would like to be there and right now you’re limited on doing that. So we’ve got to make sure we’ve got a safe and smart plan . . . . I’ve got to make sure we’ve got, you know, a plan that’s — that’s really pretty much consist­ ent. Who’s going to be on call at 2:00 in the morning. Who’s going to be there on the weekends. Who’s going to be preparing the meals because on the weekends we’ve got breakfast, lunch, we’ve got dinner. And we’ve got snacks. We’ve got a lot of things that six year olds need help with so we’ll certainly hear more about that at the next hearing[.] (b) December 23, 2019, Hearing At the continuation of the hearing on December 23, 2019, Joshua offered into evidence the acknowledgment of pater- nity containing the notarized signatures of both Joshua and B.C.’s mother in August 2013, which the court received. The exhibit reflects that the acknowledgment had been filed with DHHS as required by Neb. Rev. Stat. § 43-1408.01 (Reissue 2016). As soon as the acknowledgment was received, the  - 829 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 court orally pronounced that Joshua’s motion to intervene was granted, and the only motion still pending was placement. (i) Joe Knott’s Testimony Joe Knott, an employee of DHHS, testified that an inspec- tion of Joshua’s home found it to be in appropriate condition and that DHHS had previously “ironed out a plan” with Joshua for placement of the children with him around November 4, 2019. That plan, however, had “deteriorated” by the time of the scheduled placement due to the sudden departure of Joshua’s mother as an overnight caretaker. Accordingly, place- ment was delayed. Knott checked in a few more times throughout that week to see if there had been any change in the situation. After a couple of conversations in which Joshua indicated nothing had changed, Knott was unable to reach Joshua. Knott testified that he “left voicemails trying to figure out a way that we could remedy the situation and kind of make sure that we had some- thing that was in place so that it would allow us to move for- ward with placement, but I did not hear back from [Joshua].” At some point, B.C., A.A., and M.A. were placed together in another home. Since the unsuccessful prior attempts at moving forward with placement with Joshua, communication between Joshua and DHHS had involved one conversation about the two visits with B.C. and B.C.’s half siblings facilitated by B.C.’s current placement and one conversation about “placement and things that we’d like to see.” After that, Knott understood Joshua had “been advised by his attorney not to speak with us.” According to Knott, B.C.’s mother had indicated “she did not want any of her ex’s to have placement of the children.” This conversation apparently occurred after the November 21, 2019, hearing. She had originally told Knott that B.C. was “well bonded” with Joshua. Knott described that if Joshua were willing to work with DHHS, DHHS would gather information about reasonable accommodations that Joshua would be making “in terms of  - 830 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 finding individuals that are willing [and] able to assist him with the placement to make sure that it can be done effec- tively, and that there’s no safety concerns for [B.C.,] who’s six years old.” Knott opined that “just being able to identify those individuals that would be willing and able to help in certain situations I think would be very helpful and go a long way into helping us develop and firm up a plan.” Knott noted that DHHS would want to run background checks on any poten- tial caretakers. Since the November 21, 2019, hearing, Knott and a case- worker had reached out to Joshua’s attorney via email several times, requesting that they have discussions to work out a placement plan or visitation. Neither Joshua nor his attorney had responded to such requests. Knott expressed having certain concerns until DHHS could work with Joshua in developing a plan regarding the logistics of placement, mainly about how Joshua would handle hypothetical emergent situations that could arise in the middle of the night. Knott testified that he believed that because B.C. was a state ward, DHHS had certain obligations to ensure the safety of any placement—apparently including with a noncustodial parent against whom no allega- tions had been made. According to Knott, “the biggest barrier” to placement with Joshua was “not being able to have an open and honest conversation” with him. Part of Knott’s testimony was adduced upon questioning by the juvenile court judge. The judge asked if, since the prior hearing, Knott had been given any more specifics about assistance with meal preparation or general preparedness to care for B.C. over the upcoming holiday break, which Knott testified he had not. Further, Knott agreed, upon the judge’s questioning, that it was possible “that had [Joshua] cooperated with [DHHS] and [its] efforts from the last hearing to come up with a plan, [Knott] could’ve been in a position today to recommend [B.C.] be placed with [Joshua] in his home today.” Knott also agreed with the judge that it was “fair to say” that Joshua’s “unwillingness to do that has delayed in progress in  - 831 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 that regard.” Finally, the court asked several questions of Knott regarding DHHS’ requirements, responsibilities, and expecta- tions once a child becomes a state ward. Knott affirmed that DHHS felt a responsibility to be able to follow up on place- ments, going to the home at least once a month for private con- versations with the child and caregivers to see how things were going. Knott testified he was concerned that Joshua would not allow that. (ii) B.C.’s Mother’s Testimony B.C.’s mother testified at the hearing that during the course of her relationship with Joshua, which she said ended in May 2019, they had arguments that sometimes became “physical.” She described one incident over winter break in 2015 when Joshua was intoxicated and threatened to shoot himself, shoot her, and then shoot the children. It was unclear if Joshua was brandishing a weapon at that time. The police intervened, arrested Joshua, and confiscated his weapons. She testified that Joshua was initially charged with terroristic threats but that the charges might have been dropped. B.C.’s mother testified that her “only concern” with B.C.’s being placed in Joshua’s care was “if he’s mentally capable of handling certain situations.” When asked, she also affirmed she was concerned with excessive drinking. She testified that when she moved out, Joshua had approximately 13 guns locked in a gun safe he had acquired after the terroristic threats incident. (c) December 23, 2019, Order Granting Intervention and Denying Placement At the close of the evidence, Joshua’s counsel argued that a parent who is not the subject of a petition to adjudicate the child retains constitutional parental preference such that a child removed from the home under a petition alleging fault or habits of the other parent must automatically be placed with the par- ent who is not the subject of the petition. Joshua’s counsel referred to the motion for placement as being “actually a little bit awkward because the Court has  - 832 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 not acquired jurisdiction over this child”—an allegation that was apparently elaborated upon in the trial brief that is not in the record. Also, Joshua’s counsel referred to the court’s “argu- mentative suggestions — suggestive and leading questions” of Knott. But Joshua’s counsel did not move to disqualify the juvenile court judge. The court disagreed with Joshua’s arguments, including that it had to place B.C. with him because of the parental prefer- ence doctrine. The court stated that based on the evidence pre- sented, Joshua was “currently a parent who’s unfit to have his child placed in his care.” It also found that it was not in B.C.’s best interests for the placement to occur. In support of these conclusions, the court cited “[t]he lack of any ability to try to overcome the concerns.” The court explained that it had “made it very clear” a month before what its concerns were and that DHHS had “made a number of efforts to try to overcome those issues and concerns and unfitness.” The court stated, “[T]here hasn’t been any coopera- tion whatsoever.” In an order filed on December 23, 2019, the court found that Joshua was B.C.’s father and allowed Joshua to intervene. The same order memorialized the court’s denial of Joshua’s motion for placement. The court found that Joshua was not “currently a fit and proper parent to have custody,” noting that Joshua “has not been willing to work with DHHS to develop a plan to overcome the barriers to approving that placement.” Due in part to such lack of cooperation, the court found that “it would not be safe” for B.C. “to be placed in the home of his father at this time.” Such placement would be “contrary to the health, safety, and welfare” of B.C. and would not be in B.C.’s best interests. The court ordered DHHS to continue to make efforts to work with Joshua to overcome the barriers to placement, noting that once a plan is in place that ensures the safety and well-being of B.C., Joshua could petition the court for placement and a further hearing would be timely scheduled. Joshua appealed the December 23, 2019, order.  - 833 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 5. February 27, 2020, Order of Adjudication Subsequently, the juvenile court held a hearing on adjudica- tion. Joshua objected to the hearing on the ground that his pend- ing appeal of the denial of his motion for placement divested the court of jurisdiction to adjudicate B.C. The court found the case law relied upon by Joshua inapposite and found that the mother had an interest in case progression so that a rehabilita- tive plan could be developed to place B.C. back in her care as soon as possible. The juvenile court accepted the mother’s plea of no contest to the petition for adjudication. In an order dated February 27, 2020, the court overruled Joshua’s objection. The court articulated as part of its findings that “[t]he current goal in this case is to return the juveniles to the custody of [their mother].” That same date, the court issued an order adjudicating B.C. and his half siblings as lacking proper parental care by reason of the fault or habits of their mother and determining that they were in a situation dangerous to their life or limb or injurious to their health or morals. At some point, the court had placed B.C. and his half siblings in a different foster care home from where they were first placed. The court ordered all prior tem- porary orders to remain in effect. III. ASSIGNMENTS OF ERROR In his appeal in case No. S-20-009 from the denial of his motion for placement, Joshua assigns, restated, that the juvenile court (1) erred by denying his motion for temporary placement; (2) was biased when considering his motion for placement; (3) erred by imposing, contrary to his superior parental right to custody and due process, the burden of proof on Joshua in rela- tion to the placement decision; (4) treated him differently from the father of D.W., in violation of equal protection principles; and (5) issued void orders in the ex parte order of emergency temporary custody and the October 16, 2019, continuation of such temporary custody.  - 834 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 In his appeal from the adjudication order in case No. S-20-244, Joshua assigns that (1) the juvenile court erred in overruling his objection to proceeding with the hearing on the petition as to B.C. on the ground that the juvenile court had no jurisdiction to adjudicate B.C. due to the pending appeal in case No. S-20-009; (2) the juvenile court’s order on February 27, 2020, adjudicating B.C. is void for lack of jurisdiction; and (3) the juvenile court judge’s remark that “[t]he current goal in this case is to return the juveniles to the custody of [their mother]” was prejudicial and required disqualification. IV. STANDARD OF REVIEW [1] A jurisdictional question that does not involve a factual dispute is a question of law that an appellate court resolves independently of the conclusions reached by the trial court. 1 [2] The determination of whether the procedures afforded to an individual comport with constitutional requirements for due process presents a question of law. 2 [3] Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court’s findings; however, when the evidence is in conflict, an appellate court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over the other. 3 V. ANALYSIS 1. Jurisdiction Over Appeal [4] We first address whether we have jurisdiction over the order denying Joshua’s motion for placement that is being appealed in case No. S-20-009. Under Neb. Rev. Stat. § 25-1911 (Reissue 2016), for an appellate court to acquire jurisdiction 1 See In re Interest of Enyce J. & Eternity M., 291 Neb. 965 , 870 N.W.2d 413 (2015). 2 In re Interest of Kane L. & Carter L., 299 Neb. 834 , 910 N.W.2d 789 (2018). 3 In re Interest of Karlie D., 283 Neb. 581 , 811 N.W.2d 214 (2012).  - 835 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 of an appeal, there must be a final judgment or final order entered by the tribunal from which the appeal is taken. 4 Also, Neb. Rev. Stat. § 43-2,106.01(1) (Reissue 2016) provides that “[a]ny final order or judgment entered by a juvenile court may be appealed to the Court of Appeals in the same manner as an appeal from district court to the Court of Appeals,” and § 43-2,106.01(2)(c) specifies that such appeal may be taken by “[t]he juvenile’s parent.” Because the juvenile proceedings are still ongoing, there has yet to be a judgment. 5 The State asserts that the December 23, 2019, order denying Joshua’s motion for placement is not a final, appealable order as defined by Neb. Rev. Stat. § 25-1902 (Supp. 2019). The State acknowledges that orders governing temporary placement away from a parent ordinarily constitute final orders pursuant to § 25-1902(1)(b), as orders affecting a substantial right made during a special proceed- ing. 6 It argues, however, that the denial of Joshua’s motion for placement was a mere continuation of the court’s prior order on October 17 of temporary physical custody remaining with DHHS, outside of the mother’s home, and that the December 23 order therefore did not have a substantial effect on Joshua’s substantial rights. We have said that when an “‘order from a juvenile court is already in place and a subsequent order merely extends the time for which the previous order is applicable, the sub- sequent order by itself does not affect a substantial right and does not extend the time in which the original order may be appealed.’” 7 But when we have thus found a subsequent 4 State v. Lotter, 301 Neb. 125 , 917 N.W.2d 850 (2018). 5 See Neb. Rev. Stat. § 25-1301(1) (Reissue 2016). 6 See, In re Interest of R.R., 239 Neb. 250 , 475 N.W.2d 518 (1991); In re Interest of R.G., 238 Neb. 405 , 470 N.W.2d 780 (1991), disapproved on other grounds, O’Connor v. Kaufman, 255 Neb. 120 , 582 N.W.2d 350 (1998). 7 See, e.g., In re Guardianship of Rebecca B. et al., 260 Neb. 922 , 931, 621 N.W.2d 289 , 295 (2000).  - 836 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 order to “‘merely extend[] the time’” of the prior order, the interests of the person who wished to appeal the subsequent order had been specifically adjudicated by the prior order and that person had notice of the prior proceedings and accordingly had the opportunity to appeal it. 8 Here, the October 17, 2019, order was issued before Joshua intervened. He was given no notice of the proceedings leading up to the October 17 order, did not participate in that place- ment hearing, and was not given notice of the order itself. Furthermore, in making its placement decision in the October 17 order, the court had not been presented with Joshua as a possible placement. The juvenile court had not been asked, pursuant to a motion for placement, to adjudicate B.C.’s tem- porary custody in light of the parental preference doctrine as applies to Joshua. Rather, the court considered only whether the mother was at that time unfit for physical custody such that B.C. should remain outside of her home. Different rights were affected by the October 17 order maintaining B.C.’s temporary custody outside of the mother’s home and the December 23 order denying Joshua’s motion for temporary custody. The court’s December 23, 2019, order denying Joshua’s motion for custody did not merely extend the time of the appli- cability of the October 17 order of temporary custody outside of the mother’s home and in foster care. Instead, it was the juvenile court’s first adjudication of Joshua’s parental right to temporary physical custody of B.C. over the State’s interest in custody. The December 23 order presented Joshua’s first oppor- tunity to appeal its determination of that issue. The December 23 order was final under § 25-1902(1)(b), and we have jurisdic- tion over the appeal in case No. S-20-009. 2. Subject Matter Jurisdiction Joshua makes several arguments that seek to vacate the underlying order granting the State temporary legal custody over B.C., which necessitated Joshua’s motion for placement 8 See id. - 837 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 so that B.C. would not be in foster care. He believes that the October 17, 2019, order is “void” 9 for lack of subject matter jurisdiction. We disagree. Joshua’s reasoning is complicated. He argues that the October 14, 2019, ex parte order of emergency temporary cus- tody was void for four reasons. First, he argues there was no order of temporary custody filed within 48 hours as required by Neb. Rev. Stat. § 43-250(2) (Cum. Supp. 2018), which, he notes, does not expressly exclude nonjudicial days. Second, Joshua asserts that the ex parte order was void because there was no petition filed in accordance with § 43-247 and Neb. Rev. Stat. § 43-261(1)(a) (Reissue 2016) at the time of the ex parte order and because there is no statute authorizing a juve- nile court to issue such an order in the absence of a petition. Third, Joshua takes issue with the fact that the motion for the ex parte order was file stamped at the exact same time as the order granting the same, this allegedly being “problematic” 10 and implicating procedural due process because the order was not in response to a motion. Fourth, he alleges that because the ex parte order did not attach the affidavit, it is “impossible to know for certain” 11 whether the affidavits relied on by the court were made part of the record of the proceedings as required in In re Interest of R.G. 12 The alleged voidness of the ex parte order in turn alleg- edly rendered the October 16, 2019, hearing void, which, in turn, allegedly rendered the October 17 order continuing temporary custody void, “because it was premised on a hear- ing that, legally, was never ordered to occur.” 13 Joshua asserts that it does not matter that a petition for adjudication under § 43-247(3)(a) was filed between the filing of the ex parte 9 Brief for appellant in case No. S-20-009 at 19. 10 Id. at 48. 11 Id. 12 In re Interest of R.G., supra note 6. 13 Brief for appellant in case No. S-20-009 at 20.  - 838 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 order and the hearing, because the untimely petition could not “resuscitate a void order” and “there is no statutory or judicial authority in Nebraska for a juvenile court ordering or holding a hearing on the issue of a juvenile’s pre-adjudication detention or placement in the absence of a prior, valid pre-adjudication detention or placement order or a properly filed motion by the State.” 14 [5,6] Subject matter jurisdiction deals with the court’s abil- ity to hear a case. 15 Subject matter jurisdiction is the power of a tribunal to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. 16 [7] We have held that to obtain jurisdiction over a juvenile and the juvenile’s parents, the court’s only concern is whether the condition in which the juvenile presently finds himself or herself fits within the asserted subsection of § 43-247. 17 The juvenile court’s subject matter jurisdiction in this case was conferred by § 43-247, which provides that “[t]he juvenile court . . . shall have . . . jurisdiction of ” any juvenile defined in § 43-247(3) and of the “parent, guardian, or custodian.” Section 43-247(3) describes the circumstances of the juvenile, including one who is in a situation dangerous to life or limb or injurious to the health or morals of such juvenile. Section 43-247(5) describes “[t]he parent, guardian, or custodian of any juvenile described in this section.” While procedural due process requires that a petition for adjudication allege specific factual allegations as to why the juvenile falls under § 43-247(3)(a), 18 it has been held that 14 Id. at 42 (emphasis omitted). 15 In re Interest of Devin W. et al., 270 Neb. 640 , 707 N.W.2d 758 (2005). 16 Id. 17 See, In re Interest of Sloane O., 291 Neb. 892 , 870 N.W.2d 110 (2015); In re Interest of Devin W. et al., supra note 15. 18 See, e.g., In re Interest of Trenton W. et al., 22 Neb. Ct. App. 976 , 865 N.W.2d 804 (2015).  - 839 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 even inadequacies in the petition pertaining to parental notice do not divest the juvenile court of its subject matter jurisdic- tion. 19 Not all juveniles over which the juvenile court exercises subject matter jurisdiction pursuant to § 43-247 have been temporarily removed from the home pursuant to an ex parte order. There is nothing in the juvenile code indicating that the procedures governing ex parte orders are integral to the juve- nile court’s subject matter jurisdiction to subsequently issue a temporary custody order following a petition for adjudication under § 43-247 and an evidentiary hearing. Irregularities pertaining to the ex parte custody order could not render the October 17, 2019, order void. We need not address the merits of these alleged irregularities leading to the October 14 temporary ex parte order that is no longer in effect and is moot. 20 The ex parte order has no bearing on the December 23 order on Joshua’s motion for placement. The juvenile court has jurisdiction to determine the proper place- ment of B.C. while the juvenile case brought under the petition for adjudication under § 43-247(3)(a) remains open. We pro- ceed to the merits of its December 23 order. 3. Placement Joshua argues that when a petition under § 43-247(3)(a) is based on the conduct of one parent, unless the State affirma- tively pleads and proves the unfitness of the other parent who does not reside in the home the child was removed from, the parental preference doctrine requires that the child be placed with the other parent instead of in foster care. Joshua elabo- rates that procedural due process requires that the noncusto- dial parent be given notice of specific allegations of unfitness before the State can deprive such parent of temporary custody pursuant to that parent’s constitutionally protected parental 19 See In re Interest of Taeven Z., 19 Neb. Ct. App. 831 , 812 N.W.2d 313 (2012). 20 See State on behalf of Pathammavong v. Pathammavong, 268 Neb. 1 , 679 N.W.2d 749 (2004).  - 840 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 preference. And a parent who is not described in a petition for adjudication is not given the necessary notice unless other filings are made. Joshua points out that the State never alleged in any filings in juvenile court that he was unfit or had forfeited his superior right to custody, and he asserts that the court violated his due process rights both by litigating unfitness and by placing upon him at the hearings on his motion for placement the burden of demonstrating that he was fit to parent B.C. He argues that once he established his constitutionally protected status as a parent, the motion for placement should have been granted without further inquiry. He was not required to cooperate with DHHS in forming a plan that would provide assurances of B.C.’s safety, because the parental preference doctrine dictates that absent a showing of unfitness, he has a superior right to custody without undue State interference. Alternatively, Joshua argues that the evidence did not establish by a preponderance of the evidence that he was unfit. The State, for its part, points out that it has been granted temporary legal custody over B.C. and is attempting to duti- fully exercise its parens patriae responsibility to ensure B.C.’s welfare wherever he is placed. And the juvenile code contem- plates jurisdiction over not only the child described therein, but also over such child’s parents. 21 The State notes that the juve- nile court concluded that B.C.’s welfare could not be ensured without more cooperation from Joshua in creating a safety plan. Thus, the juvenile court determined that the State had proved that at least at the moment, Joshua was “unfit.” It denies that it placed the burden on Joshua to prove himself fit. The question presented in this appeal is where the net weight lies in the balance between the State’s parens patriae interest in protecting B.C.’s welfare and Joshua’s liberty and privacy interests in the care, custody, and management of his 21 See, § 43-247(5); In re Interest of Devin W. et al., supra note 15; In re Interest of Sabrina K., 262 Neb. 871 , 635 N.W.2d 727 (2001).  - 841 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 child. 22 This case specifically raises questions concerning what level of State intrusion into the rights of a noncustodial parent, against whom no allegations have been made, is justified by a pending adjudication of the child under § 43-247(3)(a) due to allegations against the custodial parent and after a deter- mination that the child would be at significant risk of harm if maintained in the custodial parent’s home. It also raises issues of how the noncustodial parent’s disability is treated in relation to determining temporary custodial rights. [8-10] The relationship between parent and child is consti- tutionally protected and cannot be affected without procedural due process. 23 Due process of law is the “basic and essential term in the social compact which defines the rights of the indi- vidual and delimits the powers which the state may exercise.” 24 But due process, “‘unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’” 25 The concept of due process embodies the notion of fundamental fairness and defies precise definition. 26 Due process is flexible and calls for such procedural protec- tions as the particular situation demands. 27 The constitutional protections in the realm of parental rights and parens patriae responsibilities must be “elaborated with care.” 28 In determining where the net weight lies, we must evaluate Joshua’s interests that were at stake in the tempo- rary placement of B.C. in foster care rather than in Joshua’s 22 See Lassiter v. Department of Social Services, 452 U.S. 18 , 101 S. Ct. 2153 , 68 L. Ed. 2d 640 (1981). 23 State ex rel. Grape v. Zach, 247 Neb. 29 , 524 N.W.2d 788 (1994). 24 In re Gault, 387 U.S. 1 , 20, 87 S. Ct. 1428 , 18 L. Ed. 527 (1967). 25 Mathews v. Eldridge, 424 U.S. 319 , 334, 96 S. Ct. 893 , 47 L. Ed. 2d 18 (1976). 26 In re Interest of Sloane O., supra note 17. 27 Id. 28 See, e.g., Troxel v. Granville, 530 U.S. 57 , 101, 120 S. Ct. 2054 , 147 L. Ed. 2d 49 (2000) (Kennedy, J., dissenting).  - 842 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 home. We must determine the risk of erroneous deprivation of such interests through the procedures used and the probable value, if any, of additional or substitute procedural safeguards. And we must evaluate the State’s interest in the placement decision, including the function involved and the fiscal and administrative burdens that additional procedural requirements would entail. 29 [11] “[P]arents have a fundamental liberty interest in caring for and guiding their children, and a corresponding privacy interest—absent exceptional circumstances—in doing so with- out the undue interference of strangers to them and to their child”; these interests, however, “‘“do not spring full-blown from the biological connection between parent and child.”’” 30 The “mere existence of a biological link does not merit [sub- stantial] constitutional protection.” 31 Rather, such liberty inter- est stems from the more enduring relationship developed upon a biological parent’s “commitment to the responsibilities of parenthood.” 32 If the parent fails to grasp the opportunity to develop a relationship with the parent’s offspring and does not accept “some measure of responsibility for the child’s future,” “the Federal Constitution will not automatically compel a State to listen to his opinion of where the child’s best inter- ests lie.” 33 [12] The U.S. Supreme Court has held that an unwed bio- logical father who has grasped the opportunity to establish 29 See, Santosky v. Kramer, 455 U.S. 745 , 102 S. Ct. 1388 , 71 L. Ed. 2d 599 (1982); Lassiter v. Department of Social Services, supra note 22; Mathews v. Eldridge, supra note 25. 30 Troxel v. Granville, supra note 28, 530 U.S. at 87 (Stevens, J., dissenting). See, also, e.g., Prince v. Massachusetts, 321 U.S. 158 , 64 S. Ct. 438 , 88 L. Ed. 645 (1944); In re Interest of Enyce J. & Eternity M., supra note 1. See, also, State on behalf of Tina K. v. Adam B., ante p. 1, 948 N.W.2d 182 (2020). 31 Lehr v. Robertson, 463 U.S. 248 , 261, 103 S. Ct. 2985 , 77 L. Ed. 2d 614 (1983). 32 Id. 33 Id., 463 U.S. at 262.  - 843 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 a familial relationship with his biological child has an inter- est in personal contact with his child, which interest is given substantial protection under the Due Process Clause of the 14th Amendment. 34 “The private interest . . . of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection.” 35 It has been established both that Joshua is B.C.’s biological father and that he has cared for and supported B.C. throughout most of B.C.’s life. Joshua is also B.C.’s legal father by virtue of the acknowledgment of paternity. Under these facts, Joshua has a fundamental liberty interest in the care, custody, and manage- ment of B.C. that is entitled to substantial protection under the Due Process Clause of the 14th Amendment. [13] The State has an interest in the placement of B.C. that is derived from its role as parens patriae. 36 That interest is also important. 37 Parens patriae means, in essence, that the State has a right to protect the welfare of its resident children. 38 When parental control fails, the State must play its part as parens patriae. 39 The State has an interest in determining the status and custody that will best meet the child’s needs and wants, which is invoked both in proceedings under the juvenile code and when the State must adjudicate custody rights as between two parents. 40 34 See, e.g., Lehr v. Robertson, supra note 31; In re Adoption of Corbin J., 278 Neb. 1057 , 775 N.W.2d 404 (2009). 35 Stanley v. Illinois, 405 U.S. 645 , 651, 92 S. Ct. 1208 , 31 L. Ed. 2d 551 (1972). 36 In re Interest of Enyce J. & Eternity M., supra note 1. 37 See In re Interest of Anthony G., 255 Neb. 442 , 586 N.W.2d 427 (1998). 38 In re Interest of Karlie D., supra note 3. 39 See In re Interest of S.R., D.R., and B.R., 239 Neb. 871 , 479 N.W.2d 126 (1992). 40 See, e.g., Copple v. Copple, 186 Neb. 696 , 185 N.W.2d 846 (1971); State ex rel. Cochrane v. Blanco, 177 Neb. 149 , 128 N.W.2d 615 (1964); Meyerkorth v. State, 173 Neb. 889 , 115 N.W.2d 585 (1962); In re Application of Reed, 152 Neb. 819 , 43 N.W.2d 161 (1950); In re Interest of Stephanie H. et al., 10 Neb. Ct. App. 908 , 639 N.W.2d 668 (2002).  - 844 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 When called upon, the State, through the juvenile court, merely performs its duty of seeing that the child was properly cared for. 41 The juvenile court is a product of the solicitude of the law for the welfare of infants. 42 Its powers and duties are described in detail in our statutes, and because of their humani- tarian and beneficent purpose, these statutes should be liber- ally construed to the end that their manifest purpose may be effectuated to the fullest extent compatible with their terms. 43 Neb. Rev. Stat. § 43-246 (Supp. 2019) provides in relevant part that the juvenile code shall be construed to ensure the rights of all children to care and protection and a safe and stable living environment, “with due regard to parental rights.” [14-16] The “‘rights of parenthood,’” even of a fit ­parent, are not “‘beyond limitation’” 44 by the State’s powers and duties as parens patriae. Thus, for example, the State may impose through laws of neutral and general applicability certain educa- tional requirements, restrictions on child labor, and compulsory vaccination, even when against the parents’ ­wishes. 45 But, as the U.S. Supreme Court has explained, the “State registers no gain towards its declared goals when it separates children from the custody of fit parents.” 46 Where a child is cared for by a fit parent, the State’s interest in caring for the child is “de minimis.” 47 “[T]he State cannot presume that a child and his parents are adversaries.” 48 Only the paramount interest 41 See DeBacker v. Brainard, 183 Neb. 461 , 161 N.W.2d 508 (1968). 42 Stew. v . McCauley, 178 Neb. 412 , 133 N.W.2d 921 (1965). 43 See id. 44 Douglas Cty. v. Anaya, 269 Neb. 552 , 560, 694 N.W.2d 601 , 607 (2005), quoting Prince v. Massachusetts, supra note 30. See, also, Copple v. Copple, supra note 40; State ex rel. Cochrane v. Blanco, supra note 40; Meyerkorth v. State, supra note 40. 45 See, e.g., Prince v. Massachusetts, supra note 30; Douglas Cty. v. Anaya, supra note 44. 46 Stanley v. Illinois, supra note 35, 405 U.S. at 652 . 47 Id., 405 U.S. at 657 (emphasis omitted). 48 Santosky v. Kramer, supra note 29, 455 U.S. at 760 .  - 845 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 which the public has in the protection of the rights of the child can subjugate the rights of parents to maintain custody of their children. 49 Due to the allegations against the mother, the State has been called upon to play its role as parens patriae for B.C. And dur- ing proceedings under § 43-247(3)(a), the juvenile court has broad jurisdiction regarding placement. 50 B.C. was removed from his mother’s home upon probable cause that he was seriously endangered in his surroundings and that immediate removal was necessary for his protection. 51 B.C. remained in DHHS’ continuing temporary physical custody pending adju- dication in accordance with the juvenile code’s requirement that the court find that being placed back in the mother’s home would be contrary to B.C.’s health, safety, or welfare. 52 But aside from its general mandate that due regard be given to parental rights, 53 the juvenile code’s provisions governing physical custody pending disposition do not specifically con- template situations where only one parent resides in the home from which the child was removed. [17-19] We have held in situations where a child is removed from one parent’s home pursuant to the juvenile code that the juvenile court’s discretion regarding placement pending dispo- sition is limited by Nebraska’s “parental preference doctrine,” which governs the rights of the other parent against whom no allegations have been made. 54 The parental preference doctrine holds that in a child custody controversy between a biologi- cal parent and one who is neither a biological nor an adoptive parent, the biological parent has a superior right to the custody 49 See In re Interest of Sloane O., supra note 17. 50 See, e.g., In re Interest of Karlie D., supra note 3. 51 See § 43-248. 52 See Neb. Rev. Stat. § 43-254 (Cum. Supp. 2018). 53 § 43-246(2). 54 See In re Interest of Kamille C. & Kamiya C., 302 Neb. 226 , 233, 922 N.W.2d 739 , 746 (2019).  - 846 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 of the child. 55 Under the parental preference doctrine, unless the State affirmatively shows a parent is unfit or has forfeited the right to custody, due regard for the parent’s natural right to the custody of a child requires that a parent be presump- tively regarded as the proper guardian. 56 Only exceptional circumstances involving proof of serious physical or psycho- logical harm to the child or a substantial likelihood of such harm will negate the superior right of a fit parent who has not forfeited parental rights to custody under the parental prefer- ence doctrine. 57 Thus, in In re Interest of Sloane O., 58 we held that due proc­ ess protected the custody rights of a mother whose child had been adjudicated due to the faults or habits of the father, which rights were “subject only to the State’s interest in protecting [the child] from harm.” 59 In considering the mother’s motion for temporary custody, we held that the juvenile court should have presumed under the parental preference doctrine that the mother was the best person to parent the child unless and until the State affirmatively demonstrated otherwise. 60 The mother in In re Interest of Sloane O. had been physi- cally separated from the father, and a divorce action was pending. We held that evidence that the mother had previously witnessed incidents of the father’s chaining the child to a couch was insufficient to meet the State’s burden to prove the mother unfit and overcome parental preference. 61 We reversed 55 Id. 56 See, e.g., In re Interest of Sloane O., supra note 17; In re Interest of Jaydon W. & Ethan W., 25 Neb. Ct. App. 562 , 909 N.W.2d 385 (2018); In re Interest of Miah T. & DeKandyce H., 23 Neb. Ct. App. 592 , 875 N.W.2d 1 (2016); In re Interest of Stephanie H. et al., supra note 40. 57 See State on behalf of Tina K. v. Adam B., supra note 30. 58 In re Interest of Sloane O., supra note 17. 59 Id. at 903, 870 N.W.2d at 118. 60 See id. 61 See In re Interest of Sloane O., supra note 17.  - 847 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 the juvenile court’s denial of the mother’s motion for custody and remanded the cause for further proceedings to consider the most up-to-date information regarding the child. 62 The Court of Appeals, in In re Interest of Stephanie H. et al., 63 held similarly when it reversed the juvenile court’s order denying the noncustodial mother’s motion for placement after her children had been removed from the custodial father’s home under allegations of sexual abuse. The Court of Appeals held that fundamental fairness demanded that the mother “be given prompt notice of any allegations against her which the State or [DHHS] contends make placement of her children with her contrary to the children’s best interests.” 64 The burden of proof was thereafter upon the State to overcome the parental preference doctrine. Evidence in In re Interest of Stephanie H. et al. that the mother was living with a man for the preceding 6 months, knowing he was on “‘work release’” 65 but not knowing whether he had a criminal record, did not “remotely resembl[e] an affirmative showing” 66 that the mother was unfit or that she had forfeited her parental rights. The State had neither alleged nor proved that the mother should not have custody of her children. 67 The Court of Appeals reversed the order of the juvenile court and remanded the cause with directions to place the children with the mother pending adjudication. The court noted, however, that its mandate did not preclude the State from coming forward in the future “with allegations and proof that [the mother was] not a fit custodial parent of her children.” 68 62 See id. 63 In re Interest of Stephanie H. et al., supra note 40. 64 Id. at 921-22, 639 N.W.2d at 680. 65 Id. at 913, 639 N.W.2d at 674. 66 Id. at 924, 639 N.W.2d at 682. 67 In re Interest of Stephanie H. et al., supra note 40. 68 Id. at 926, 639 N.W.2d at 683.  - 848 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 Likewise, in In re Interest of Jaydon W. & Ethan W., 69 the Court of Appeals reversed the juvenile court’s denial of the noncustodial father’s motion for custody in ongoing proceed- ings for a child adjudicated due to the fault or habits of the custodial mother. DHHS had objected to the father’s custody based on regression in the children’s behavior after visita- tion and a protection order that had expired approximately 11⁄2 years earlier. The juvenile court indicated custody would be revisited after DHHS completed further assessments ordered by the court. But, relying on the parental preference doctrine, the Court of Appeals described that the initial question must be whether the presumption that the children’s best interests are served by reuniting them with their father has been rebutted by clear and convincing evidence that the father is unfit or has forfeited his right to custody. The Court of Appeals found that it had not. While the Court of Appeals expressed in In re Interest of Jaydon W. & Ethan W. that it understood the juvenile court’s “reluctance to uproot the children from their long-term foster home, especially given their recent behavioral concerns,” 70 it held that the father’s right to custody could be “disrupted only upon a finding that he is unfit or has forfeited his right to custody.” 71 Still, the Court of Appeals explained that the juvenile court was not required to “order the children be turned over to [the father] immediately.” 72 It was constitutionally permissible and in the children’s best interests to implement a transition plan. The Court of Appeals remanded the cause with directions for the court to do so. [20] Our case law is clear that when the allegations of a petition for adjudication invoking the jurisdiction of the juve- nile court are against one parent only, the State cannot deny 69 In re Interest of Jaydon W. & Ethan W., supra note 56. 70 Id. at 576, 909 N.W.2d at 396. 71 Id. 72 Id. at 576-77, 909 N.W.2d at 397.  - 849 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 the other parent’s request for temporary physical custody in lieu of a foster care placement unless it pleads and proves by a preponderance of the evidence that the other parent is unfit or has forfeited custody or that there are exceptional circum- stances involving serious physical or psychological harm to the child or a substantial likelihood of such harm. [21] We note, however, that the State is not required to grant a nonoffending biological parent’s request for custody before confirming that the parent has actually acquired con- stitutionally protected parental status. We observe that in In re Interest of Sloane O. and In re Interest of Stephanie H. et al., the custody and visitation rights of the nonoffending parent had been adjudicated by the district court. 73 Because parental preference derives not simply from biology but from the enduring relationship developed upon a biological parent’s commitment to the responsibilities of parenthood, children removed from their homes due to the fault or habits of one parent need not immediately and without some minimal inves- tigation be placed with the other biological parent whose status as having “an actual relationship of parental responsibility” 74 is unknown. Only once that relationship is established does such a parent who wishes for temporary physical custody during the pendency of juvenile proceedings have a parental preference that cannot be denied without notice and an affirm­ ative showing by a preponderance of the evidence 75 that the parent is unfit or has forfeited the parental relationship or that an exceptional circumstance of serious physical or psycho- logical harm to the child or a substantial likelihood of such harm exists. [22-24] Furthermore, as the Court of Appeals recognized in In re Interest of Jaydon W. & Ethan W., due process is 73 In re Interest of Sloane O., supra note 17; In re Interest of Stephanie H. et al., supra note 40. 74 Lehr v. Robertson, supra note 31, 463 U.S. at 260 . 75 In re Interest of R.G., supra note 6.  - 850 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 “flexible,” 76 not “‘a fixed content unrelated to time, place and circumstances.’” 77 Accordingly, the nonoffending parent’s exercise of the parental preference of custody is not entirely unfettered during the juvenile court’s continuing jurisdiction under the juvenile code. The juvenile court, in the exercise of its parens patriae responsibilities, may develop a transition plan constituting a reasonable intrusion of limited duration into the nonoffending parent’s rights to autonomy in the care and cus- tody of the child. Likewise, it does not violate due process for the juvenile court in its determination of the child’s best inter- ests and in its role as adjudicator of the custody rights between two parents to require the nonoffending parent’s cooperation with goals of reunification back into the home from where the child was taken. 78 After all, the parental preference doctrine serves no role in determining the custody rights between two biological or legal parents. [25-27] It was established at the hearing on Joshua’s motion for placement that he is a parent entitled to substantial protec- tion under the Due Process Clause of the 14th Amendment. Yet, there was never a formal allegation placing Joshua on notice that he would have to defend against an attempt by the State to prove he had lost the presumption of parental prefer- ence. Procedural due process generally requires that notice be given of such a nature as to reasonably convey the required information. 79 In the context of denying parental preference in a placement decision during proceedings under § 43-247(3)(a), reasonable notice must include the factual bases for seek- ing to prove that the parent is unfit or has forfeited parental 76 In re Interest of Jaydon W. & Ethan W., supra note 56, 25 Neb. Ct. App. at 572 , 909 N.W.2d at 394. 77 Mathews v. Eldridge, supra note 25, 424 U.S. at 334 . 78 See Vivek S. Sankaran, Parens Patriae Run Amuck: The Child Welfare System’s Disregard for the Constitutional Rights of Nonoffending Parents, 82 Temple L. Rev. 55 (2009). 79 See Mullane v. Central Hanover Tr. Co., 339 U.S. 306 , 70 S. Ct. 652 , 94 L. Ed. 865 (1950).  - 851 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 rights or that exceptional circumstances exist involving serious ­physical or psychological harm to the child or a substantial like- lihood of such harm. 80 While as to the parent from whose home the child was removed, such notice is ordinarily contained in the petition for adjudication, 81 allegations as to the fault or hab- its of the custodial parent do not operate to give notice to the noncustodial parent that the State seeks to rebut that parent’s right to parental preference in its placement decisions. We agree with Joshua that because he was not given notice that his fitness, forfeiture, or exceptional circumstances were to be adjudicated at the hearing on his motion for placement, the juvenile court could not properly deprive him of his right to custody under the parental preference doctrine. The court found Joshua unfit, but without specific allegations of unfit- ness. The court violated Joshua’s rights to procedural due process. Without a proper adjudication that the State had rebut- ted Joshua’s parental preference by a preponderance of the evidence, the parental preference doctrine required temporary placement of B.C. with Joshua, who has developed an enduring relationship with B.C. and has committed to the responsibilities of parenthood. We therefore reverse the district court’s order denying Joshua’s motion for placement on procedural due process grounds and remand the cause with directions to grant Joshua temporary physical placement after establishing, with the most up-to-date information, an appropriate plan for B.C.’s transition into Joshua’s temporary physical custody. Granting Joshua’s motion for temporary physical placement does not mean that the juvenile court lacks any authority over B.C. and Joshua. 82 At the time of B.C.’s removal, the mother was the de facto custodial parent, and the State’s current goal is reunification with her and placement back into the home B.C. was removed from. Joshua has not sought custody in 80 See id. 81 See In re Interest of Xavier H., 274 Neb. 331 , 740 N.W.2d 13 (2007). 82 See, § 43-247(3) and (5); In re Interest of Devin W. et al., supra note 15.  - 852 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 district court or through a bridge order 83 in juvenile court. The juvenile court has the power to require cooperation with orders of visitation with the mother and its reunification plan. Temporary physical custody with a noncustodial parent ought not create a “substantial and unnecessary hindrance to efforts of reunification” with the custodial parent. 84 Furthermore, a plan for B.C.’s welfare during the transition from his foster placement to Joshua’s care is an appropriate exercise of the State’s parens patriae jurisdiction so long as the plan is a tem- porary and minor intrusion into Joshua’s parental rights. We note that on remand, the State is free to attempt to prop- erly plead factual bases for an allegation that Joshua is unfit and again try to prove that placement with Joshua is not required under the parental preference doctrine. Parents have no double jeopardy defense against repeated efforts by the State to modify temporary placement during a juvenile proceeding. 85 Therefore, in order to provide guidance for an issue that is likely to resur- face on remand, we discuss the lower court’s approach to its fitness determination for Joshua, who is currently experiencing a physical disability. It appears that the State and the juvenile court were operating under the wrong standards. Instead of evaluating whether the State had affirmatively proved Joshua unfit, the juvenile court seemed to shift the burden onto Joshua to prove himself fit. The court con- cluded that Joshua’s lack of “cooperation” in allaying “con- cerns” rendered him unfit. But the “concerns” described did not themselves establish unfitness. Rather, they were ques- tions about how Joshua, wheelchair bound, would be able to address hypothetical scenarios that may or may not arise. The court and DHHS were worried about Joshua’s testimony that he required assistance from home health care aides in 83 See Neb. Rev. Stat. § 43-246.01 (Reissue 2016). 84 In re Interest of Ethan M., 15 Neb. Ct. App. 148 , 158, 723 N.W.2d 363 , 371 (2006). 85 See Santosky v. Kramer, supra note 29.  - 853 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 the morning getting into his wheelchair, that he could not sit up on his own yet, and that he did not have overnight care. They had concerns about the fact that Joshua did not prepare his own meals. Joshua testified that he did not believe the lack of an over- night caretaker would endanger B.C., and he listed ways in which he could provide adequate food for B.C. When specific overnight scenarios were presented to Joshua during his tes- timony, he had adequate answers as to how he would handle them. For example, when asked about what he would do if there were a fire, Joshua responded that he would call the fire department. Joshua owns a four-bedroom home in the cen- ter of town which DHHS evaluated as being in appropriate condition. Joshua is able to support himself and B.C. on his disability income. Joshua has made arrangements for B.C.’s transportation to and from school, as well as to and from any appointments B.C. might have. While Joshua is not able to pre- pare meals himself, he testified as to several different options that would provide B.C. with sufficient food. B.C. lived with Joshua up until Joshua developed Guillain-Barre syndrome, the mother having described Joshua and B.C. as well bonded, and Joshua described a daily routine for B.C.’s care. Joshua described disability services, family, and members of the com- munity he could reach out to as needed when difficult situa- tions arise. Still, the juvenile court, in its determination of unfitness, relied on the lack of a written safety plan developed in cooper­ ation with DHHS that would address in more detail how B.C. would be cared for when Joshua lacked home health care or when B.C. would be in the home for longer periods of time. The court had concerns about the details of how Joshua would care for B.C. on weekends, snow days, and holidays, and how he might address nosebleeds and fevers developed in the mid- dle of the night. The court appeared to presume that because of Joshua’s disability, Joshua was unfit unless he could provide a detailed response to all of the posed hypothetical scenarios,  - 854 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 to be memorialized in a safety plan. Such a presumption is unlawful. [28] While not directly controlling, we note that the Legislature has declared in Neb. Rev. Stat. § 42-364.18 (Cum. Supp. 2018) that individuals with disabilities “continue to face unfair, preconceived, and unnecessary societal biases as well as antiquated attitudes regarding their ability to successfully par- ent their children.” And in Neb. Rev. Stat. § 42-364(2) (Cum. Supp. 2018), the Legislature declared that “no presumption shall exist that either parent is more fit or suitable than the other” based on either “the sex or [the] disability of the parent.” Likewise, we hold that there is no presumption that a disabled parent is unfit, that a disabled parent has forfeited parental rights, or that exceptional circumstances exist involving seri- ous physical or psychological harm to the child or a substantial likelihood of such harm because a parent is disabled. [29] It is conceivable that a lack of adequate accommoda- tions could render a disabled parent unable to care for a child, thereby affecting the State’s placement decision. However, the simple fact that a parent is disabled does not overcome the presumption that the parent is a better caretaker of the parent’s own child than the State is. The lack of a detailed safety plan to account for possible hypothetical scenarios that Joshua may have to address differently from a parent who is not wheelchair bound did not affirmatively prove him unfit. The only evidence of unfitness presented at the hearing that was not related to Joshua’s disability was a couple of “hectic” visitations involving both B.C. and his half siblings, “unfounded” past intakes, the mother’s description of the inci- dent in 2015, and the mother’s general concern over exces- sive drinking. Parental unfitness means a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rear- ing and which caused, or probably will result in, detriment to a child’s wellbeing. 86 The juvenile court did not appear to rely 86 Tilson v. Tilson, ante p. 275, 948 N.W.2d 768 (2020).  - 855 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 on such evidence in finding Joshua unfit under that definition, and, having reversed on procedural due process grounds, we need not determine in this appeal whether it would have been sufficient to sustain the State’s burden. We appreciate the juvenile court’s concern for the welfare of the child it has been called upon to protect due to the fault or habits of the mother. And the State is not bound to wait until a tragedy has befallen a child before intervention occurs upon proof that the fault or habits of a parent present a risk of harm to the child. 87 But no notice was provided to Joshua that his fitness was at issue; therefore, the court erred in finding him unfit and in denying his parental preference to physical cus- tody, which he sought to enforce through his motion for tempo- rary placement. In the event the State attempts again to prove Joshua unfit after proper notice has been given, we clarify that a physical disability does not shift the burden to the disabled parent to prove fitness despite such disability. 4. Equal Protection Because we reverse the December 23, 2019, order on pro- cedural due process grounds, we need not address Joshua’s arguments that the denial of his motion for placement violated equal protection. 5. Jurisdiction Over Adjudication Pending Appeal We next address Joshua’s argument in case No. S-20-244 that his appeal from the December 23, 2019, order denying his motion for placement deprived the juvenile court of jurisdic- tion to accept B.C.’s mother’s plea and adjudicate B.C. due to the fault or habits of his mother. Joshua points out that he is a party to the case in which the adjudication order was ren- dered and that his parental rights are affected by the adjudica- tion order that establishes with more permanency the court’s 87 See In re Interest of M.B. and A.B., 239 Neb. 1028 , 480 N.W.2d 160 (1992).  - 856 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 jurisdiction and legal custody over B.C., as well as its jurisdic- tion over Joshua pursuant to § 43-247(5). [30] Nebraska case law generally holds that once an appeal has been perfected, the lower court is divested of its subject matter jurisdiction over that case. 88 However, we have held that a juvenile court is not wholly divested of jurisdiction during the pendency of an appeal from a final order. 89 Neb. Rev. Stat. § 43-295 (Reissue 2016), which is directly applicable to the separate juvenile courts, states: Except when the juvenile has been legally adopted, the jurisdiction of the court shall continue over any juvenile brought before the court or committed under the Nebraska Juvenile Code and the court shall have power to order a change in the custody or care of any such juve- nile if at any time it is made to appear to the court that it would be for the best interests of the juvenile to make such change. Additionally, state law clearly provides, through Neb. Rev. Stat. § 43-2,106 (Reissue 2016), that in counties where there is no separate juvenile court, the county court sitting as a juvenile court shall continue to exercise supervision of the juvenile until a hearing is had in the appellate court and the appellate court enters an order making other disposition. Section 43-2,106 states in full: When a juvenile court proceeding has been instituted before a county court sitting as a juvenile court, the origi- nal jurisdiction of the county court shall continue until the final disposition thereof and no appeal shall stay the enforcement of any order entered in the county court. After appeal has been filed, the appellate court, upon application and hearing, may stay any order, judgment, 88 See, e.g., State v. Abram, 284 Neb. 55 , 815 N.W.2d 897 (2012); Billups v. Scott, 253 Neb. 293 , 571 N.W.2d 607 (1997); Anderzhon/Architects Inc. v. 57 Oxbow II Partnership, 250 Neb. 768 , 553 N.W.2d 157 (1996); Flora v. Escudero, 247 Neb. 260 , 526 N.W.2d 643 (1995). 89 See In re Interest of Jedidiah P., 267 Neb. 258 , 673 N.W.2d 553 (2004).  - 857 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 or decree on appeal if suitable arrangement is made for the care and custody of the juvenile. The county court shall continue to exercise supervision over the juvenile until a hearing is had in the appellate court and the appel- late court enters an order making other disposition. If the appellate court adjudges the juvenile to be a juvenile meeting the criteria established in subdivision (1), (2), (3), or (4) of section 43-247, the appellate court shall affirm the disposition made by the county court unless it is shown by clear and convincing evidence that the disposition of the county court is not in the best interest of such juvenile. Upon determination of the appeal, the appellate court shall remand the case to the county court for further proceedings consistent with the determination of the appellate court. Somewhat similarly, in dissolution proceedings, Neb. Rev. Stat. § 42-351(2) (Reissue 2016) provides that when final orders are pending on appeal the court that issued such orders shall retain jurisdiction to provide for such orders regarding support, custody, par- enting time, visitation, or other access, orders shown to be necessary to allow the use of property or to prevent the irreparable harm to or loss of property during the pend­ ency of such appeal, or other appropriate orders in aid of the appeal process. Such orders shall not be construed to prejudice any party on appeal. In In re Interest of Jedidiah P., 90 we noted that while there is no statute governing the separate juvenile courts which, similarly to § 43-2,106, clearly articulates such courts’ con- tinuing jurisdiction during the pendency of an appeal, we could “discern no reason for a juvenile court not to retain such authority, regardless of whether it is a county court sitting as a juvenile court or a separate juvenile court.” Therefore, we 90 In re Interest of Jedidiah P., supra note 89, 267 Neb. at 263 , 673 N.W.2d at 557.  - 858 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 held that a separate juvenile court continues to exercise super- vision of the juvenile during an appeal. 91 [31] The extent of the continuing jurisdiction of the sepa- rate juvenile courts and the county courts sitting as juvenile courts during the pendency of an appeal is not without limits and must be determined by the facts of each case. 92 The ques- tion is the level of supervision the separate juvenile court may properly exercise during the pendency of the appeal, which is governed by §§ 43-295 and 43-2,106. 93 [32] We have held that the juvenile courts’ continuing juris- diction does not include the power to terminate a juvenile’s relationship with the child’s parents. 94 In contrast, our courts have found juvenile courts to have continuing jurisdiction dur- ing the pendency of an appeal to issue an order to show cause seeking enforcement of prior orders requiring a speech and language assessment 95 and to order the temporary suspension of visitation. 96 In In re Interest of Andrew H. et al., 97 the Court of Appeals held that an order of permanent disposition during the pendency of an appeal of an adjudication order went beyond the court’s continuing jurisdiction to exercise supervision over 91 See id. 92 See In re Interest of Becka P. et al., 296 Neb. 365 , 894 N.W.2d 247 (2017); In re Interest of Jedidiah P., supra note 89. See, also, e.g., In re Interest of Phoenix L., 270 Neb. 870 , 708 N.W.2d 786 (2006), disapproved on other grounds, In re Interest of Destiny A. et al., 274 Neb. 713 , 742 N.W.2d 758 (2007); In re Interest of Stacey D. & Shannon D., 12 Neb. Ct. App. 707 , 684 N.W.2d 594 (2004). 93 In re Interest of Jedidiah P., supra note 89. 94 See id. 95 In re Interest of Becka P. et al., supra note 92. 96 In re Interest of Angeleah M. & Ava M., 23 Neb. Ct. App. 324 , 871 N.W.2d 49 (2015), disapproved on other grounds, In re Estate of Abbott-Ochsner, 299 Neb. 596 , 910 N.W.2d 504 (2018). 97 In re Interest of Andrew H. et al., 5 Neb. Ct. App. 716 , 564 N.W.2d 611 (1997).  - 859 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 the juvenile; but in In re Interest of Jedidiah P., 98 we held that the juvenile court had continuing jurisdiction during the pendency of an appeal of the adjudication order to issue an order of disposition changing the juvenile’s custody from the juvenile detention center to a residential treatment center and granting temporary legal custody of the juvenile to DHHS. The difference was that in In re Interest of Jedidiah P., the order of disposition was a temporary placement order, while in In re Interest of Andrew H. et al., the court had issued a per- manent dispositional order adopting a case plan and ordering custody outside the home until completion. Under the specific facts presented here, we find that the juvenile court had continuing jurisdiction to accept the ­mother’s plea and adjudicate B.C. while Joshua’s appeal from the order denying his motion for placement was pending. Joshua’s reli- ance on In re Interest of Joshua M. et al. 99 to argue otherwise is misplaced. We held in In re Interest of Joshua M. et al. that the juvenile court lacked jurisdiction to terminate parental rights to three children during the pendency of appeals from a final order of placement outside the home preadjudication as to one child and from final orders modifying dispositional orders to place outside the home the two other children. The juvenile court did not proceed in this case to a termination of parental rights. We note that successful appeals challenging orders of adju- dication would eliminate a juvenile court’s jurisdiction over the juvenile and its power to issue permanent dispositional orders, while successful appeals from temporary placement orders would not. Neb. Rev. Stat. § 43-278 (Reissue 2016) provides that absent a showing of good cause, an adjudication hearing shall be held no more than 90 days after a petition is filed. As the juvenile court noted, B.C.’s mother had an inter- est in promptly adjudicating her children so that she could 98 In re Interest of Jedidiah P., supra note 89. 99 In re Interest of Joshua M. et al., 251 Neb. 614 , 558 N.W.2d 548 (1997).  - 860 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 more quickly proceed to a rehabilitative plan and placement of the children back in her care. Joshua’s appeal from the denial of his motion for temporary placement can have no effect on the juvenile court’s underlying jurisdiction in this case to promptly proceed with its statutory duties. The court’s order of adjudication was a proper exercise of the juvenile court’s ongoing supervisory powers during the pendency of Joshua’s appeal in case No. S-20-009. Accordingly, we hold that the order of adjudication is not void. 6. Disqualification Lastly, because judicial disqualification is not subject to a harmless error analysis 100 and this is a continuing matter, we address Joshua’s assignments of error challenging the juvenile court judge’s impartiality. Joshua argues that the juvenile court judge demonstrated personal bias and prejudice against him through leading questions of Knott during the December 23, 2019, hearing and the statement in the order of adjudication that “[t]he current goal in this case is to return the juveniles to the custody of [their mother].” [33] The Nebraska Revised Code of Judicial Conduct requires that “[a] judge shall hear and decide matters assigned to the judge, except when disqualification is required . . . .” 101 The code further states that “[a] judge shall disqualify him- self or herself in any proceeding in which the judge’s impar- tiality might reasonably be questioned . . . .” 102 Under the code, such instances in which the judge’s impartiality might reasonably be questioned specifically include where “[t]he judge has a personal bias or prejudice concerning a party or a party’s lawyer . . . .” 103 The issue of judicial disqualification 100 See Tierney v. Four H Land Co., 281 Neb. 658 , 798 N.W.2d 586 (2011). 101 Neb. Rev. Code of Judicial Conduct § 5-302.7. 102 Neb. Rev. Code of Judicial Conduct § 5-302.11(A). 103 § 5-302.11(A)(1).  - 861 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF A.A. ET AL. Cite as 307 Neb. 817 is timely if submitted at the earliest practicable opportunity after the disqualifying facts are discovered. 104 [34,35] Assuming without deciding that the question of the juvenile court judge’s disqualification was not waived, we find no merit to Joshua’s assertion that the juvenile court judge should have been disqualified. There exists a presumption of judicial impartiality, and a party alleging that a judge acted with bias or prejudice bears a heavy burden of overcoming that presumption. 105 A judge’s opinions based on facts presented during a hearing, even if those opinions are stated before the hearing’s conclusion, are not indicative of bias by the judge unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. 106 The juvenile court judge’s questioning and comment simply reflected the court’s opinions based on the facts presented at the hearings and the judge’s understanding of the law. Under the objective standard of reasonableness applicable to disqualification, the juvenile court judge’s questions and comment would not cause a rea- sonable person to question his impartiality. 107 VI. CONCLUSION In case No. S-20-009, we reverse the December 23, 2019, order denying Joshua’s motion for placement and remand the cause with directions for further proceedings to develop a transition plan. In case No. S-20-244, we affirm the order of adjudication. Judgment in No. S-20-009 reversed, and cause remanded with directions. Judgment in No. S-20-244 affirmed. 104 Tierney v. Four H Land Co., supra note 100. 105 In re Interest of Jamyia M., 281 Neb. 964 , 800 N.W.2d 259 (2011). 106 See In re Interest of J.K., 300 Neb. 510 , 915 N.W.2d 91 (2018). 107 See id.

2020-12-04 14:08:37.099523+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007505PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:08 AM CST - 882 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports WEILAND v. WEILAND Cite as 307 Neb. 882 Timothy H. Weiland, appellee and cross-appellant, v. Ann M. Weiland, appellant and cross-appellee. ___ N.W.2d ___ Filed December 4, 2020. No. S-20-034. 1. Divorce: Judgments: Appeal and Error. The meaning of a divorce decree presents a question of law, in connection with which an appellate court reaches a conclusion independent of the determination reached by the court below. 2. Divorce: Property Division: Pensions. Marital assets are subject to equitable division in a dissolution proceeding, and retirement benefits whether vested or not vested are eligible for inclusion in the mar- ital estate. 3. Divorce: Property Division: Armed Forces: Pensions. A military pen- sion is a marital asset. Appeal from the District Court for Douglas County: Gregory M. Schatz, Judge. Affirmed in part, vacated in part, and in part reversed and remanded with directions. Andrew J. Hilger, of Law Office of Andrew J. Hilger, for appellant. Steven J. Riekes and Elizabeth Stuht Borchers, of Marks, Clare & Richards, L.L.C., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.  - 883 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports WEILAND v. WEILAND Cite as 307 Neb. 882 Miller-Lerman, J. NATURE OF CASE This case arises from a divorce action between Timothy H. Weiland, appellee and cross-appellant, and Ann M. Weiland, appellant and cross-appellee, who were married in 1984 and whose marriage was dissolved in 1996. Timothy served in the U.S. Marine Corps Reserve from 1982 through 2005. In the dissolution decree, Ann was “granted one-half of the points accumulated during the marriage by [Timothy] up to the time of the decree, and shall receive the credits for those points and the equivalent amount of money in the event that [Timothy’s] retirement benefits vest.” After the retirement benefits vested and in order for Ann to start receiving retirement benefits, the parties each moved the district court for Douglas County for clarification of the decree. Following a hearing, the district court ordered Timothy to pay Ann a fixed award of $465.38 per month for the retire- ment benefits and further ordered Timothy to pay Ann her share of Timothy’s retirement benefits he had received and not paid to Ann. Ann appeals, and Timothy cross-appeals, each challenging the fixed monthly amount of Ann’s marital share of Timothy’s military pension. As explained below, the district court erred when it assigned a fixed monthly dollar value. Although we honor Ann’s entitlement to an award of military pension benefits and affirm Ann’s entitlement to back payments, we vacate the fixed monthly benefit award and the fixed monthly amount of back payments; further, we reverse, and remand with directions to determine the equitable distribu- tion of Timothy’s military retirement expressed as a formula that honors the points awarded in the decree and is consistent with a hypothetical retired pay award valued as of the date of the decree. STATEMENT OF FACTS Timothy entered the U.S. Marine Corps Reserve on August 6, 1982, and the parties were married in 1984 in Omaha, Douglas County, Nebraska. When the parties divorced on  - 884 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports WEILAND v. WEILAND Cite as 307 Neb. 882 September 30, 1996, Timothy had not yet retired from the military. The only issue on appeal is the equitable distribution of Timothy’s military retired pay consistent with the divorce decree and applicable legal principles. The divorce decree pro- vided, in relevant part, as follows: 17. That the Petitioner [Timothy] accumulates points which apply to his retirement in the military. The Respondent [Ann] is granted one-half of the points accu- mulated during the marriage by the Petitioner up to the time of the decree, and shall receive the credits for those points and the equivalent amount of money in the event that Petitioner’s retirement benefits vest. Timothy retired from the military on January 12, 2005, and his pension rights vested after he turned age 60 on September 5, 2017. During his career, Timothy had earned a total of 5,822 retirement points, and after the pension rights vested, he began receiving $2,050 per month from the pension. Thereafter, Ann applied for her share of the pension to the Defense Finance and Accounting Service of the U.S. Department of Defense. However, the accounting service would not calculate or pay Ann’s share to her until the district court clarified certain infor- mation necessary to determine Ann’s share. Through cross-motions, Ann and Timothy each requested that the district court clarify the decree. Ann also filed a motion to modify the decree to state the number of military retirement points earned during the marriage and a motion for back pay- ments to require Timothy to pay Ann her share of the pension he had already received. At trial, the parties stipulated that at the time of the September 30, 1996, decree, Timothy had earned 3,334 Reserve retirement points. However, Ann and Timothy assign different values to the cash value of one-half of 3,334 points and propose differ- ent formulas to determine the fixed amount Ann should receive monthly from Timothy’s military retirement amount. We exam- ine the proposed formulas in the analysis section, below. Ann valued her interest at $586 per month, and Timothy valued Ann’s interest at $383 per month.  - 885 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports WEILAND v. WEILAND Cite as 307 Neb. 882 The district court filed a supplemental order on January 6, 2020, in which it found that it had jurisdiction to modify and clarify the decree to the extent necessary to effect its terms. The court awarded Ann $465.38 per month, beginning November 2019. The court also ordered Timothy to pay $9,549.60 to Ann, representing back payments of $465.38 per month for the 27 months between September 2017 and November 2019, less the income taxes already paid by Timothy. Ann appeals, and Timothy cross-appeals. ASSIGNMENTS OF ERROR Ann claims, summarized and restated, that the district court erred because its clarification of the parties’ decree did not award her an amount based on a proportion of Timothy’s total retirement points. Timothy cross-appeals and claims, summarized and restated, that the district court erred in the amount it awarded to Ann by not utilizing a hypothetical date of retirement as of the date of the decree to determine Ann’s interest in his retirement. STANDARD OF REVIEW [1] The meaning of a divorce decree presents a question of law, in connection with which an appellate court reaches a conclusion independent of the determination reached by the court below. Braun v. Braun, 306 Neb. 890 , 947 N.W.2d 694 (2020). ANALYSIS On appeal and cross-appeal, Ann and Timothy each con- tend that the district court erred by modifying the decree and awarding Ann the fixed monthly amount of $465.38. Ann claims that the fixed monthly amount should be $586, whereas Timothy claims that the fixed monthly amount should be $383. We reject both proposals. Instead, in order to be faithful to the language of the original equitable decree and consist­ ent with Nebraska jurisprudence as well as federal authority, we conclude that the district court erred when it awarded a fixed monthly amount. We vacate the fixed dollar amount and  - 886 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports WEILAND v. WEILAND Cite as 307 Neb. 882 reverse, and remand to clarify that Ann is entitled to a hypo- thetical retired pay award valued as of the date of the decree plus back payments as explained below. [2,3] In Nebraska, marital assets are subject to equitable division in a dissolution proceeding and retirement benefits “whether vested or not vested” are eligible for inclusion in the marital estate. Neb. Rev. Stat. § 42-366(8) (Reissue 2016). In Longo v. Longo, 266 Neb. 171 , 663 N.W.2d 604 (2003), we recognized that a military pension was a marital asset. When, as here, a decree is entered prior to the retirement of one of the parties who is a military service member, a clari- fying order may later be necessary to determine the rights of the parties. See Schwartz v. Schwartz, 275 Neb. 492 , 747 N.W.2d 400 (2008), overruled on other grounds, Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661 , 782 N.W.2d 848 (2010). Our cases have recognized that it is proper for a court to compensate a spouse only for the years for which the mar- riage coincided with the military service in determining the nonmilitary spouse’s share of pension benefits. See Longo v. Longo, supra . Historically, spousal interests in military retirement have been determined in several different ways consistent with fed- eral law, including the Uniformed Services Former Spouses’ Protection Act (USFSPA), Pub. L. No. 97-252, § 1001, 96 Stat. 730 (codified as amended at 10 U.S.C. § 1408 (2018)), and Department of Defense rules and regulations. See Department of Defense Financial Management Regulation (DoD FMR) 7000.14-R, vol. 7B. Federal law has evolved over time. See, e.g., Longo v. Longo, supra (discussing history of division of military pensions). In considering military pension orders sub- sequent to dissolution, we have affirmed a fixed monthly dol- lar amount where the decree so provided, see Longo v. Longo, supra , and recognized the validity of a point-value method, see Schwartz v. Schwartz, supra . It is generally agreed that the purpose of the passage of the USFSPA in 1982 was, in part, to permit the States to apply their state dissolution law to division of nondisability  - 887 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports WEILAND v. WEILAND Cite as 307 Neb. 882 military retired pay. See Starr v. Starr, 70 Va. App. 486 , 828 S.E.2d 257 (2019). A Senate report stated that the USFSPA was intended to remove the federal pre-emption found to exist by the United States Supreme Court [in McCarty v. McCarty, 453 U.S. 210 , 101 S. Ct. 2728 , 69 L. Ed. 2d 589 (1981),] and permit State and other courts of com- petent jurisdiction to apply pertinent State or other laws in determining whether military retired or retainer pay should be divisible. Nothing in this [USFSPA] requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other prin- ciples of marital property determination and distribution. S. Rep. No. 97-502, at 12 (1982), reprinted in 1982 U.S.C.C.A.N. 1555, 1596, 1611. Thus, Nebraska’s equitable division of military pensions is compatible with federal law. A limitation on former spouses’ retired pay was included in the National Defense Authorization Act for Fiscal Year 2017. See Pub. L. No. 114-328, 130 Stat. 2164 (Dec. 23, 2016). The amendment to 10 U.S.C. § 1408(a)(4)(B) reads as follows: [I]n the case of a division of property as part of a final decree of divorce . . . that becomes final prior to the date of a member’s retirement, the total monthly retired pay to which the member is entitled shall be[:] . . . the amount of retired pay to which the member would have been entitled using the member’s retired pay base and years of service on the date of the decree of divorce, dissolution, annulment or legal separation, as computed [with appropriate] cost-of-living adjustments[.] Prior to the 2016 amendment to 10 U.S.C. § 1408, “states could determine the marital share of a military retirement based on the length of service to either the date of retirement or to the date of divorce.” Starr v. Starr, 70 Va. App. at 494 , 828 S.E.2d at 261. As stated in Fulgium v. Fulgium, 240 Md. App. 269 , 281-82, 203 A.3d 33 , 40-41 (2019), [t]his amendment to § 1408 was intended to modify “the division of military retired pay in a divorce decree to  - 888 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports WEILAND v. WEILAND Cite as 307 Neb. 882 the amount the member would be entitled based upon the member’s pay grade and years of service at the time of the divorce rather than at the time of retirement.” S. Rept. 114-255, National Defense Authorization Act for Fiscal Year 2017, at 168 (114th Congress, 2016); Kristy N. Kamarck, Cong. Research Serv., RL31663, Military Benefits for Former Spouses: Legislation and Policy Issues, at 15 (2018) (hereinafter “CRS Report”). Rather than dividing actual retired pay at the time of retirement, the benefit would be frozen at the time of divorce. The rationale for using a “date of divorce” method for pension valuation was that a former spouse would not receive a windfall benefit from promotions and other pay increases that accrued from the date of divorce to the date of retire- ment, to which the former spouse made no contribution. See CRS Report, 15. . . . In the National Defense Authorization Act for Fiscal Year 2018, Congress made technical corrections to this provision to clear up language problems in the [National Defense Authorization Act for Fiscal Year 2017]. See Pub. L. 115-91, 131 Stat. 1283, 1429 (Dec. 12, 2017); Brentley Tanner & Amelia Kays, Winds of Change: New Rules for Dividing the Military Pension at Divorce, 30 J. Am. Acad. Matrimonial Law 491, 497 (2017-2018). The current version of the statute provides that, in the situation where there is a final decree of divorce prior to the date of the member’s retirement, dis- posable retirement pay is based on “the amount of retired pay to which the member would have been entitled using the member’s retired pay base and years of service on the date of the decree of divorce, dissolution, annulment, or legal separation, as computed under section 1406 or 1407 of this title, whichever is applicable, increased by the sum of specified cost of living adjustments[.]” 10 U.S.C. § 1408(a)(4)(B). As stated in Starr v. Starr, 70 Va. App. 486 , 491, 828 S.E.2d 257 , 260 (2019),  - 889 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports WEILAND v. WEILAND Cite as 307 Neb. 882 [i]n summary, in determining the total interest of a member’s military retirement for purposes of [state] equi- table distribution, . . . the Amendment simply requires that the trial court use the date of divorce as the hypo- thetical date of retirement so that the amount of retired pay “us[es] the member’s retired pay base and years of service on the date of the decree of divorce.” 10 U.S.C. § 1408(a)(4)(B). In the view of Starr v. Starr, after its adoption, this provision freezes a spouse’s interest in the service member’s military service as of the date of divorce, precluding consideration of military service or pay increases after the date of divorce. At this juncture, we read the language of the decree against the foregoing legal authority. In the decree, Ann was awarded points having a future value which were “accumulated during the marriage” but only “up to the time of the decree.” Given the language of the decree, we conclude that Ann is entitled to an award reflecting her property interest in Timothy’s retired pay valued as if he had retired at the time of property divi- sion and further conclude that this approach is consistent with Nebraska jurisprudence as well as federal authority. Because the decree was expressed as points rather than a fixed dollar amount, we now discuss the parties’ competing formulas. The approaches advanced by the parties have been called the date of retirement approach as advocated for by Ann and the date of divorce approach as advocated for by Timothy. See 2 Brett R. Turner, Equitable Distribution of Property, § 6:25 (4th ed. 2019). Using the date of retirement approach, Ann claims that the best interpretation of the decree would mean that the equiva- lent value of her half of the points is $586 per month. She arrives at this figure by dividing half the points Timothy had earned on the date of the decree (1,667) by his total number of retirement points (5,822) and multiplying this fraction of his career earnings (1667/5822) by Timothy’s monthly retirement amount ($2,050) to determine her share of a fixed monthly benefit.  - 890 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports WEILAND v. WEILAND Cite as 307 Neb. 882 Timothy contends that the value of the pension benefit is governed by 10 U.S.C. § 1408, including the 2016 amend- ment codifying the date of divorce approach, and Department of Defense rules and regulations. Timothy’s approach requires developing a hypothetical retired pay award and is essentially a frozen benefit, as reflected in DoD FMR 7000.14-R, vol. 7B, ch. 29, ¶ 290213: Hypothetical retired pay award is an award based on a percentage of retired pay that is calculated using vari- ables provided in a court order that are different from the member’s actual retirement variables. The retired pay cal- culated using the ordered variables is called the member’s hypothetical retired pay. A hypothetical award typically attempts to define the property interest in the retired pay as if the member had retired at the time the court divided the member’s military retired pay based upon the mem- ber’s rank, or high-3 amount, and years of service accrued to that point in time. Thus, the former spouse does not benefit from the member’s pay increases due to promo- tions or increased service time after the divorce. Formulas to determine the value of military retirement and hypothetical retirement dates based on the laws in effect at the time of the decree are available in DoD FMR 7000.14-R, vol. 7B, ch. 29. Under the approach quoted above, Timothy contends that Ann’s 1,667 retirement points are equivalent to $383 per month, reached by calculating the hypothetical value of his retirement points as though he was able to retire on the date of the decree with the same military record, years of service, sal- ary, and rank as of the date of the decree. As we have noted, the decree entered in this case pro- vided Ann credit for “one-half of the points accumulated [by Timothy] during the marriage” and “up to the time of the decree.” We agree with Timothy that a hypothetical retired pay award is most consistent with the language of the parties’ decree and with principles of equitable distribution. However,  - 891 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports WEILAND v. WEILAND Cite as 307 Neb. 882 contrary to Timothy’s contention, given the plain language of the decree describing Ann’s interest in the retirement ben- efit as points rather than a fixed dollar amount, the result- ing court order should not be a fixed award, but should be expressed as a formula that honors the original decree and freezes Ann’s points to the value of Timothy’s retirement amount as of the date of the decree. Given the decree, the marital estate includes only that portion of the pension which is earned during the marriage, which is an acceptable divi- sion in Nebraska. Reichert v. Reichert, 246 Neb. 31 , 516 N.W.2d 600 (1994). See Longo v. Longo, 266 Neb. 171 , 663 N.W.2d 604 (2003). Under the decree, the value of Ann’s points should not be inflated to allow her to benefit from Timothy’s pay increases after the divorce decree due to subse- quent promotions or length of service. Ann’s date of retirement approach would inappropriately compensate her in excess of the original decree by taking into account the advance- ment of Timothy’s career from 1996 through 2005, after they had divorced. Although the parties could estimate the present value of Ann’s points using the hypothetical retired pay formulas pro- vided by the Department of Defense regulations, as Timothy did in his briefing, we find that a fixed dollar award is inap- propriate given the language of the original decree. Changing Ann’s interest from a portion of points, as stated in the decree, to a fixed dollar award, as ordered by the district court, may well be appropriate at present, but ultimately modifies Ann’s interest over time. A fixed award ignores the long-term effect of cost-of-living adjustments, and thus Ann would earn rela- tively less over time than was reflected in her original award. The district court erred when, at the behest of the parties, it strayed from provisions of the decree and entered judgment for Ann based on a theory of a fixed dollar retirement award. We reverse and vacate the district court’s order and remand the matter with directions to value Timothy’s hypothetical retired base pay, to be determined based on the average basic  - 892 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports WEILAND v. WEILAND Cite as 307 Neb. 882 pay for the most recent 36 months (known as high-3) prior to the hypothetical retirement date of September 30, 1996. Applicable Department of Defense regulations provide guid- ance for the district court to create a hypothetical retired pay formula based on the relevant facts. To enable the Defense Finance and Accounting Service to calculate the hypothetical retired pay amount, the clarifying court order must provide the following: (1) the percentage the former spouse was awarded; (2) the hypothetical years of creditable service, or, in the case of a reservist, the Reserve retirement points on which the hypo- thetical retired pay is to be based; (3) the hypothetical retired pay base; and (4) the hypothetical retirement date. See DoD FMR 7000.14-R, vol. 7B, ch. 29, ¶ 290608(F). The decree should be clarified to reflect that Ann is awarded 50 percent of the disposable military retired pay Timothy would have received had he become eligible to receive military retired pay with a “retired pay base (high-3) of [$]______” and with 3,334 Reserve retirement points on September 30, 1996. See DoD FMR 7000.14-R, vol. 7B, ch. 29, figure 29-1. CONCLUSION Under the parties’ 1996 divorce decree, the district court erred when it assigned a fixed monthly dollar value to Ann’s interest in Timothy’s military retirement benefits. Although we honor Ann’s entitlement to an award of military pension ben- efits and affirm Ann’s entitlement to back payments, we vacate the award of fixed past and future monthly retirement benefits to Ann and remand the matter for further clarification of the decree, consistent with directions in this opinion, to deter- mine the equitable distribution of Timothy’s military retirement expressed as a formula that honors the points awarded in the decree and consistent with a hypothetical retirement date as of the date of the decree, September 30, 1996. Affirmed in part, vacated in part, and in part reversed and remanded with directions.

2020-12-04 14:01:52.211233+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv0287-33-0

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-287V UNPUBLISHED JUDITH WALTERS, Chief Special Master Corcoran Petitioner, Filed: August 20, 2020 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Yuri Jelokov, Farrish Johnson Law Office, Mankato, MN, for petitioner. Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES1 On February 22, 2019, Judith Walters filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered left upper extremity injures that resulted from the administration and adverse effects of an influenza (flu) vaccination received on September 20, 2016. Petition at 1. Petitioner further alleges the vaccine was administered within the United States, she experienced the residual effects of her injuries for more than six months, and there has been no prior award or settlement of a civil action for damages as a result of her condition. Id. at 1-2. The case was assigned to the Special Processing Unit of the Office of Special Masters. On August 20, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation for Petitioner’s SIRVA. On August 20, 2020, Respondent filed his Rule 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). 4(c) report and proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $125,180.77. Proffer at 5. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the Proffer, I award Petitioner a lump sum payment of $125,180.77 in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under § 15(a). The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2

2020-12-04 14:08:40.210076+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007508PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:08 AM CST - 927 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 Donna Parks, appellee, v. Hy-Vee, Inc., appellant. ___ N.W.2d ___ Filed December 4, 2020. No. S-20-195. 1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018), an appellate court may modify, reverse, or set aside a Workers’ Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensa- tion court do not support the order or award. 2. ____: ____. On appellate review, the factual findings made by the trial judge of the Workers’ Compensation Court have the effect of a jury ver- dict and will not be disturbed unless clearly wrong. 3. Workers’ Compensation: Judgments: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact in a work- ers’ compensation case, an appellate court considers the evidence in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the appellate court gives the successful party the benefit of every inference reasonably deducible from the evidence. 4. Workers’ Compensation. As the trier of fact, the Workers’ Compensation Court is the sole judge of the credibility of witnesses and the weight to be given their testimony. 5. Workers’ Compensation: Appeal and Error. An appellate court is obligated in workers’ compensation cases to make its own determina- tions as to questions of law. 6. Actions: Appeal and Error. The law-of-the-case doctrine reflects the principle that an issue litigated and decided in one stage of a case should not be relitigated at a later stage.  - 928 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 7. Stipulations. In Nebraska, parties are free to make stipulations that gov- ern their rights, including the issues to be decided, and such stipulations will be respected and enforced by courts so long as the agreement is not contrary to public policy or good morals. 8. Workers’ Compensation. A preexisting disease and an aggravation of that disease may combine to produce a compensable injury. 9. Statutes: Intent. When interpreting a statute, the starting point and focus of the inquiry is the meaning of the statutory language, understood in context. 10. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to inter- pretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. 11. Statutes. It is not within the province of the courts to read meaning into a statute that is not there or to read anything direct and plain out of a statute. Appeal from the Workers’ Compensation Court: Daniel R. Fridrich, Judge. Affirmed. Paul T. Barta and Micah C. Hawker-Boehnke, of Baylor Evnen, L.L.P., for appellant. Travis Allan Spier and Nolan Niehus, Senior Certified Law Student, of Atwood, Holsten, Brown, Deaver & Spier Law Firm, P.C., L.L.O., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik, and Freudenberg, JJ. Papik, J. Donna Parks incurred a work-related injury in 2008 while employed by Hy-Vee, Inc., and sought workers’ compensation benefits. The initial award granted compensation for past and future medical expenses for her low-back injury but found that she had not reached maximum medical improvement (MMI). It did not address aggravation of Parks’ mental health issues. In 2017, following the filing of motions by both parties, the parties stipulated to the compensation court’s resolution of several issues. After a trial, the compensation court resolved  - 929 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 those issues and entered a further award. Relying on expert opinions, the compensation court granted Parks compensa- tion for chronic pain and aggravation of her mental health issues, both caused by the work-related low-back injury. The compensation court later modified the further award upon Parks’ motion pursuant to Neb. Rev. Stat. § 48-180 (Cum. Supp. 2018). Hy-Vee now appeals, alleging that the compensation court failed to properly apply the law-of-the-case doctrine and exceeded its power in modifying the further award. Finding no merit to Hy-Vee’s arguments, we affirm. BACKGROUND Injury and Initial Award. In 2008, Parks was working in the Hy-Vee floral department when she was partially pulled into a trash compactor while emptying a heavy bin. In 2010, she sought workers’ compensa- tion benefits for injuries she claimed to have incurred. At trial on the matter, the compensation court received evi- dence that Parks had sustained a work-related low-back injury. Further, Parks testified on direct examination that she was not claiming an aggravation of preexisting mental health issues as a result of the work accident. She further testified that her state of mind had been stable since she began working for Hy-Vee in 2004. Parks did not seek temporary disability benefits, because she was employed by Hy-Vee at the time of trial. The compensation court determined that Parks suffered a compensable low-back injury during her employment with Hy-Vee. It did not address Parks’ mental health issues. The award concluded that Parks had not reached MMI regarding her low-back injury and made no finding as to permanent loss of earning power or entitlement to vocational rehabilitation services. It ordered Hy-Vee to pay past and future medical expenses reasonably necessary for evaluation and nonsurgical treatment of the low-back injury. Thereafter, Parks received regular and varying treatment for her compensable low-back injury, but she continued to  - 930 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 experience pain. In 2012, her treating physician, Dr. Daniel M. Wik, recommended implanting a spinal cord stimulator. In 2014, Wik and an orthopedic surgeon agreed that Parks had reached MMI, and she was assigned work restrictions. Shortly thereafter, a functional capacity evaluation by the agreed-upon vocational rehabilitation counselor concluded that Parks was permanently and totally disabled. Hy-Vee voluntarily paid per- manent partial disability benefits from 2014 until 2018. Subsequent Motions. Meanwhile, in 2017, Parks filed a motion to enforce the award. She requested that Hy-Vee pay for or authorize (1) a psychological evaluation to determine her candidacy for a spi- nal cord stimulator, (2) a back brace and massage therapy, and (3) various medications. Parks also sought medical expenses incurred after April 28, 2011, permanent disability benefits, and vocational rehabilitation. Hy-Vee subsequently filed a petition for modification of the award. It asserted, among other things, that after the initial award, Parks had alleged she suffered a compensable mental health injury that Hy-Vee disputed, and that she was not totally disabled. In response, Parks filed an answer admitting that she was alleging a mental health injury and requesting that the compensation court dismiss Hy-Vee’s petition for modifica- tion for failure to state a claim because Hy-Vee sought judicial determinations on MMI and disability status, issues not previ- ously ruled upon by the compensation court. Evidence at Trial. The parties presented evidence at a consolidated trial to determine the extent and nature of Parks’ compensable dis- ability and associated expenses. Prior to the trial, the par- ties stipulated the issues to be resolved. Relevant here, those issues included (1) whether the work accident caused Parks to have chronic pain or a chronic pain syndrome, (2) whether the work accident aggravated her preexisting mental health issues, (3) whether medical and mileage expenses identified  - 931 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 in exhibit 69 were reasonable and necessary for treatment of Parks’ work-related conditions, (4) the extent of Parks’ perma- nent disability resulting from the work-related injuries, and (5) “any additional benefits the [c]ourt deems warranted based on evidence at the time of hearing.” The parties also stipulated that Parks had reached MMI on March 3, 2014, regarding her low-back injury and associated lower extremity symptoms. Parks presented evidence that her chronic pain was caused by the work accident. Parks had received treatment from Wik monthly since 2010 for persistent low-back pain. In 2011, Wik attributed Parks’ low-back pain to the work injury. In 2018, Wik reported that it remained his opinion that all of Parks’ low- back diagnoses were caused by the work accident. Parks also presented the report of Dr. Dennis P. McGowan, a spine surgeon who examined her in March 2019. He diagnosed Parks with “[s]prain to low back caused by 6/2/2008 work injury with continuous disabling low back pain.” Parks testified that she had experienced constant and vary- ing degrees of low-back pain since the accident. The pain radiated down her legs and involved some numbness and tin- gling in her right leg and foot. Parks acknowledged significant struggles with her mental health in the past, particularly after her husband suffered an aneurysm in 1990. At that time, Parks was hospitalized for what she called a nervous breakdown. Parks testified that as a result, she obtained Social Security disability benefits. Parks testified that when she started work- ing for Hy-Vee in 2004, she was off those disability benefits and her physical and mental health were good. She stated that she was happy to be working and that it was a good point in her life. Other than Parks’ testimony about a cut to her finger, there is no evidence that Parks received medical treatment from 2004 to 2008. Parks testified about her efforts to remain employed in some form after her work accident, within her physical restrictions. Contrary to Parks, Hy-Vee posited that Parks’ chronic pain was caused by a somatic symptom disorder or psychological  - 932 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 disorder unrelated to the work accident. It presented the February 2017 report of Dr. Terry Davis, a psychiatrist who conducted a psychiatric evaluation and mental status exami- nation and reviewed a chronology of Parks’ medical records and the records produced by Wik. He opined that all of Parks’ current pain was the result of a preexisting somatic symp- tom disorder that was not caused or aggravated by the work accident. Davis described the disorder as a state in which psychological factors initiate, exacerbate, or maintain bodily symptoms. That is, Parks’ ongoing back pain complaints were most likely psychogenic and not due to any physical, medical, anatomical, or physiologic cause. He noted that Parks had a history of serious emotional and psychological problems that predated the 2008 work accident and included somatic symp- toms as early as 1990. Davis explained that a somatic episode can be brought about unconsciously to manipulate or control relationships, express emotions, or cope with stress. Because of his opinion that Parks’ back pain was psychogenic and due to the subjective nature of her complaints, Davis concluded that Parks’ symptoms were unlikely to respond to any medical or physical treatment, including a spinal cord stimulator. Dr. John R. Massey conducted a medical examination of Parks in September 2018 and reviewed Davis’ evaluation. He agreed with Davis’ opinion that Parks’ pain was caused by a somatic symptom disorder rather than the work accident. The parties also presented evidence regarding the causal connection between Parks’ mental health issues and the work accident. Parks’ evidence showed that her mental health issues were exacerbated by the low-back injury she incurred at work in 2008. In her testimony, Parks acknowledged that she was diagnosed with depression, anxiety, and posttraumatic stress disorder in the 1990’s, but, as noted above, she testified that her mental health had stabilized before she began working for Hy-Vee and that it continued to be stable through the initial trial. However, Parks testified that her mental health changed when Hy-Vee denied coverage for the spinal cord stimulator and she had “no hope for any other treatment.”  - 933 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 In February 2017, Wik, who consistently attributed Parks’ low-back pain to the work accident, diagnosed Parks with “anxiety due to chronic low back pain.” In January 2019, Parks began treatment with Dr. Dianna M. Clyne, a psychia- trist. Parks reported to Clyne that her low-back pain made her depression and anxiety worse. Clyne reviewed Parks’ medi- cal documentation, including that of her previous psychiatric hospitalizations. She diagnosed Parks with depressive disorder and anxiety disorder, which she attributed to the work injury and low-back pain. According to Clyne, Parks was at MMI for her depression and anxiety, at least until her low-back condi- tion improved. In March 2019, McGowan reported that Parks’ preexisting psychiatric conditions were not related to the work accident, but a few months later, he opined that Parks’ pre­ existing anxiety and depression had worsened as a result of the work-related low-back injury. Hy-Vee denied any causal connection between the work acci- dent and Parks’ depression and anxiety. As explained above, Hy-Vee presented opinion evidence that Parks’ chronic pain, which Parks identified as the source of her worsening anxiety and depression, was not caused by the work accident but by a somatic symptom disorder. Further, Davis specifically opined that Parks did not suffer from any psychological symptoms or injury that was caused by or exacerbated by the work accident. He noted that Parks suffered from depression and anxiety for many years before the work accident. Exhibit 69 set forth medical expenses that Parks alleged were work related. The parties stipulated that exhibit 69 accu- rately reflected the total billed charges, third-party payments, and writeoffs; Parks’ out-of-pocket expenditures and mileage incurred; and the outstanding balances as set forth in itemized billing statements from providers. Parks’ testimony did not specifically request compensation for the expenses itemized in exhibit 69, and according to statements in posttrial orders made by the compensation court, nor did her counsel’s written closing arguments.  - 934 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 Further Award. Following trial, the compensation court dismissed with prej- udice Hy-Vee’s petition for modification and entered a further award. It awarded Parks permanent total disability benefits but denied vocational rehabilitation. The compensation court found that while the evidence did not show that Parks had a chronic pain syndrome, it sup- ported a finding of chronic pain caused by the work accident. In analyzing the issue, the compensation court concluded that the opinions of Davis and Massey violated the law-of-the- case doctrine and “should be rejected for that reason alone,” but additionally observed that even “[p]utting aside the legal problem with [Hy-Vee’s] position,” it found Parks’ witnesses more persuasive on the issue than Hy-Vee’s. In particular, the compensation court noted that it was not persuaded by the opinions of Davis and Massey that Parks’ pain was psy- chogenic in nature and noted that it was persuaded by Wik’s opinion that Parks was suffering physical pain caused by her work accident. The compensation court also cited the opinion of McGowan, who had diagnosed Parks with a work-related low-back sprain “with continuous disabling low back pain.” Further, the compensation court found Parks’ testimony about her pain credible and observed that she had sought treatment for her pain and continued to work. In the court’s view, these factors demonstrated that Parks suffered “actual physical pain caused by her work accident,” not pain caused by a somatic symptom disorder. As to Parks’ depression and anxiety, the compensation court again relied on the opinion of Wik, whose office notes showed a causal connection between Parks’ depression and anxiety, her work accident, and her low-back pain. The compensation court also noted McGowan’s opinion that Parks’ depression and anxiety were worsened by the work-related low-back injury and Clyne’s opinion that her depression and anxiety were exacerbated by it. Further, the compensation court relied on Parks’ own testimony that her depression and anxiety were made worse by her pain. It again rejected Hy-Vee’s assertion,  - 935 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 based on Davis’ opinion, that Parks suffered from a somatic symptom disorder and that her depression and anxiety were not caused or exacerbated by the work accident. Finally, the compensation court awarded Parks the mile- age expenses identified in exhibit 69. It noted that exhibit 69 also identified medical expenses, but it did not include those expenses in the further award. The compensation court expressed confusion about whether Parks sought an order directing Hy-Vee to reimburse her for medical expenses. It noted that in her testimony, Parks had not asked the compensa- tion court to order that she be reimbursed for those expenses, and that Parks’ counsel had not mentioned the medical expenses identified in exhibit 69 in written closing arguments. Modification of Further Award. Less than a week after the further award, Parks filed a motion to modify it pursuant to § 48-180. Parks sought past medical expenses identified in exhibit 69, which were not part of the further award. At the hearing on the motion, the compensation court explained that there was no failure of proof as to compensabil- ity for the medical expenses at issue. Instead, the court stated it had not awarded compensation for the medical expenses because Parks had not explicitly asked for it in her testimony or written closing arguments. The compensation court modified the further award to include all of the medical expenses identified in exhibit 69 and ordered Hy-Vee to pay providers for outstanding balances and reimburse anyone who had already paid the providers, includ- ing Parks. Hy-Vee appeals. ASSIGNMENTS OF ERROR Hy-Vee assigns, consolidated and renumbered, that the com- pensation court erred in (1) applying the law-of-the-case doc- trine to disregard the somatic symptom disorder diagnosis and relying on that determination to reject every argument made  - 936 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 by Hy-Vee, (2) failing to apply the law-of-the-case doctrine to Parks’ alleged mental health injury, and (3) using § 48-180 to correct a mistake made by Parks’ counsel. STANDARD OF REVIEW [1] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018), an appellate court may modify, reverse, or set aside a Workers’ Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judg- ment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the mak- ing of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277 , 944 N.W.2d 765 (2020). [2,3] On appellate review, the factual findings made by the trial judge of the Workers’ Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Id. In testing the sufficiency of the evidence to support the findings of fact in a workers’ compensation case, an appel- late court considers the evidence in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the appellate court gives the successful party the benefit of every inference reasonably deducible from the evidence. Id. [4] As the trier of fact, the Workers’ Compensation Court is the sole judge of the credibility of witnesses and the weight to be given their testimony. Id. [5] An appellate court is obligated in workers’ compensa- tion cases to make its own determinations as to questions of law. Frans v. Waldinger Corp., 306 Neb. 574 , 946 N.W.2d 666 (2020). ANALYSIS Chronic Pain. We begin our analysis with Hy-Vee’s argument that the com- pensation court erred in finding that Parks’ chronic low-back  - 937 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 pain was caused by her work injury and not a somatic symp- tom disorder. Hy-Vee claims that the compensation court entirely based its finding on an incorrect application of the law-of-the-case doctrine. We are not persuaded. [6] The law-of-the-case doctrine reflects the principle that an issue litigated and decided in one stage of a case should not be relitigated at a later stage. Gardner v. International Paper Destr. & Recycl., 291 Neb. 415 , 865 N.W.2d 371 (2015). The compensation court concluded this doctrine precluded it from relying on the opinions of Davis and Massey that Parks’ chronic pain resulted from a somatic symptom disorder. The compensation court viewed these opinions as contradictory to the initial award’s finding that Parks had injured her lower back in the work accident. Hy-Vee asserts that nothing in the opinions of Davis or Massey calls the work injury itself into question and that thus, the compensation court erroneously based its rejection of a somatic symptom disorder on the law- of-the-case doctrine. But while the compensation court relied on the law-of-the- case doctrine as a basis for finding that a somatic symptom disorder was not the cause of Parks’ pain, that was not the only basis upon which it relied. After analyzing the law-of-the-case doctrine as it related to the opinions of Davis and Massey and stating that their opinions “should be rejected for that reason alone,” the compensation court went on to say that even if the “legal problem” posed by the law-of-the-case doctrine were set to the side, it was not persuaded by Davis and Massey that Parks’ pain was caused by a somatic symptom disorder. The compensation court then explained why it was not persuaded by Davis and Massey and why it was persuaded by Wik that Parks was suffering from pain due to her work-related low- back injury. The compensation court thus made a factual find- ing, independent of any of its legal conclusions regarding the law-of-the-case doctrine, that Parks’ pain was caused by her work-related low-back injury. Given the compensation court’s independent factual find- ing regarding the cause of Parks’ pain, we need not consider  - 938 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 Hy-Vee’s law-of-the-case argument so long as the compensa- tion court’s factual finding was not clearly erroneous. We agree with Parks that it was not. In support of its factual finding, the compensation court cited the opinion of Wik, who attributed Parks’ current low-back pain to the work accident. The com- pensation court acknowledged that this opinion conflicted with the opinions of Davis and Massey but expressly found Wik more persuasive. Hy-Vee is critical of this finding, but it was a credibility determination that the compensation court alone was entitled to make. See Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277 , 944 N.W.2d 765 (2020). The compensation court further relied on the report of McGowan, who in 2019 diagnosed Parks with “[s]prain to low back caused by 6/2/2008 work injury with continuous disabling low back pain.” This evidence was sufficient to support the compensation court’s factual determi- nation that Parks’ chronic low-back pain was caused by her work accident. Reading the further award and the record as a whole, we conclude that the evidence was sufficient to support the com- pensation court’s factual finding that Parks’ chronic low-back pain resulted from her work accident, as well as the portions of the further award, as modified, stemming from that deter- mination, including the conclusion that Parks was entitled to coverage for various treatments and the expenses set forth in exhibit 69. Aggravation of Depression and Anxiety. In challenging the compensation awarded for Parks’ depres- sion and anxiety, Hy-Vee again turns to the law-of-the-case doctrine. But this time Hy-Vee assigns that the compensa- tion court should have applied the doctrine to bar Parks from receiving compensation for an aggravation of her preexisting depression and anxiety. In large part, Hy-Vee argues that the compensation court violated the law-of-the-case doctrine by making determinations that it could not make in modifying the initial award. As we will explain, however, we do not agree that the court entered a modification order and Hy-Vee’s  - 939 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 reliance on the law-of-the-case doctrine is misplaced. Further, contrary to Hy-Vee’s assertions otherwise, the compensation court’s award of compensation for an aggravation of Parks’ mental health issues was supported by the evidence. We first address Hy-Vee’s argument that the procedural posture of this case precluded Parks from receiving compensa- tion for an aggravation of her depression and anxiety. Hy-Vee classifies the further award as a modification order pursuant to Neb. Rev. Stat. § 48-141(2) (Reissue 2010). According to Hy-Vee, even if Parks’ mental health conditions worsened after the initial award, it was not within the scope of a modification order to award compensation for that change in her condition, because it represented a “completely new” injury. Reply brief for appellant at 11. Section 48-141 provides that “the amount of any agreement or award payable periodically may be modified” upon an appli- cation of a party “(2) . . . on the ground of increase or decrease of incapacity due solely to the injury.” To establish a change in incapacity as the term is used in § 48-141, an applicant must show a change in impairment and a change in disability; impairment refers to a medical assessment whereas disability relates to employability. See Rader v. Speer Auto, 287 Neb. 116 , 841 N.W.2d 383 (2013), citing Jurgens v. Irwin Indus. Tool Co., 20 Neb. Ct. App. 488 , 825 N.W.2d 820 (2013). The procedural history of this case demonstrates that the fur- ther award was not a modification order pursuant to § 48-141. The initial award made no determinations regarding the degree and duration of Parks’ disability; nor did it award periodic payments. Hy-Vee subsequently paid some periodic benefits by agreement for a time, but those payments ceased before the trial that produced the further award. In the meantime, Parks filed her motion to enforce the award, raising several issues disputed between the parties, and Hy-Vee filed its motion to modify. In response, Parks asked that Hy-Vee’s motion to mod- ify be dismissed for failure to state a claim, because Hy-Vee sought judicial determinations on issues not previously ruled upon by the compensation court.  - 940 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 The parties thereafter stipulated that the compensation court should consider whether Parks’ work-related low-back injury caused chronic pain; whether Parks’ work-related low-back injury and resulting chronic pain aggravated her preexisting mental health conditions; and whether, having reached MMI, she was permanently disabled, along with “any additional ben- efits the [c]ourt deems warranted based on evidence at the time of the hearing.” The court tried these issues, among others, at a consolidated trial. These issues were aimed at determining the degree and duration of Parks’ disability for the first time. Because they had not yet been determined and there was no agreement pertaining to them in effect, there was no “agree- ment or award” regarding “incapacity” for the compensation court to modify. See § 48-141(2). Indeed, the further award recognized as much by dismissing Hy-Vee’s motion to modify the initial award, with prejudice. Hy-Vee maintains that Parks could obtain compensation for the aggravation of her mental health conditions only by filing a “new petition for this newly emerged claim.” Reply brief for appellant at 12. But Neb. Rev. Stat. § 48-162.03(1) (Cum. Supp. 2018) grants the compensation court broad authority to rule on any motion except motions for new trial. The requests for relief that prompted the further award—Parks’ motion to enforce the award, Hy-Vee’s motion to modify the award, and Parks’ prayer for dismissal of Hy-Vee’s motion to modify— were all related to that pending case and “encompassed by the motion practice under the broad language of § 48-162.03(1).” See Fentress v. Westin, Inc., 304 Neb. 619 , 630, 935 N.W.2d 911 , 921 (2019). No new petition was necessary. [7] Further, Hy-Vee stipulated that the compensation court could decide whether the work accident aggravated Parks’ preexisting mental health issues. Hy-Vee is thus now asking us to find that the compensation court erred in taking up an issue that the parties stipulated it should resolve. However, we have said that in Nebraska, parties are free to make stipulations that govern their rights, including the issues to be decided, and that such stipulations will be respected and  - 941 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 enforced by courts so long as the agreement is not contrary to public policy or good morals. See Archer Daniels Midland Co. v. State, 290 Neb. 780 , 861 N.W.2d 733 (2015). In this case, we see nothing to persuade us that the compensation court erred in honoring the parties’ stipulations regarding the issues to be decided. Hy-Vee contends that whatever the parties’ stipulations, they did not authorize the compensation court to disregard the law-of-the-case doctrine. Hy-Vee argues the doctrine applies here because the compensation court did not find in its initial award that Parks’ mental health was affected by the work acci- dent. According to Hy-Vee, this precludes the compensation court from considering the issue. As we have noted, however, the doctrine reflects the principle that an issue litigated and decided in one stage of a case should not be relitigated at a later stage. Gardner v. International Paper Destr. & Recycl., 291 Neb. 415 , 865 N.W.2d 371 (2015). See, also, 18B Charles Alan Wright et al., Federal Practice and Procedure § 4478 at 628 (5th ed. 2019) (“[a]ctual decision of an issue is required to establish the law of the case”; “[l]aw of the case does not reach a matter that was not decided”). Here, the question of whether Parks had suffered an aggravation of her depression and anxiety as a result of her work-related low-back injury was not litigated and decided in the initial trial. Parks did not assert any mental health injuries at that time, and therefore, the initial award made no finding pertaining to the matter. Hy-Vee is thus mistaken that the law-of-the-case doctrine precluded the compensation court from finding compensable mental health injuries in the further award. Lastly, Hy-Vee contends that the compensation court erred in determining that Parks’ aggravated mental health condition was caused by the work accident, contrary to the opinions of Davis upon which Hy-Vee based much of its evidence. However, the compensation court made credibility determi- nations, discounted Davis’ hypotheses, and relied on Parks’ evidence, all of which were within its authority to do. See  - 942 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277 , 944 N.W.2d 765 (2020). And Parks’ evidence regarding her mental health was sufficient to support the compensation court’s award. Parks herself acknowledged her preexisting mental health issues, but said they had stabilized before the accident. Parks testified that her mental health condition continued to be stable until after the initial trial, when Hy-Vee denied coverage for the spinal cord stimulator and she had “no hope” for other treatment of her chronic low-back pain. In 2017, Wik, who attributed Parks’ low-back pain to the work accident, diag- nosed Parks with anxiety due to chronic low-back pain. And in 2019, Parks reported to Clyne that her low-back pain made her depression and anxiety worse. Clyne diagnosed Parks with depression and anxiety disorders due to the work injury and low-back pain. A few months later, McGowan opined that Parks’ preexisting anxiety and depression had worsened as a result of the work-related low-back injury. [8] A preexisting disease and an aggravation of that disease may combine to produce a compensable injury. Manchester v. Drivers Mgmt., 278 Neb. 776 , 775 N.W.2d 179 (2009). To be compensable, a subsequent injury or aggravation related to the primary injury must be a direct and natural result of the work accident. See Sweeney v. Kerstens & Lee, Inc., 268 Neb. 752 , 688 N.W.2d 350 (2004). Parks’ evidence demonstrated such a direct and natural connection: Her evidence showed that the aggravation of her depression and anxiety was caused by her work-related low-back injury. Accordingly, the compensation court did not err in finding it compensable. Section 48-180 Modification. Finally, Hy-Vee claims that the compensation court exceeded the authority granted to it in § 48-180 by modifying the further award to make Hy-Vee responsible for all of the expenses listed in exhibit 69. Section 48-180 provides: The Nebraska Workers’ Compensation Court may, on its own motion or on the motion of any party, modify  - 943 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 or change its findings, order, award, or judgment at any time before appeal and within fourteen days after the date of such findings, order, award, or judgment. The time for appeal shall not be lengthened because of the modifica- tion or change unless the correction substantially changes the result of the award. Before addressing Hy-Vee’s argument, we briefly note some relevant history regarding § 48-180. Prior to a 2011 amend- ment, § 48-180 authorized modification by the compensation court, but only “for the purpose of correcting any ambiguity, clerical error, or patent or obvious error.” See 2011 Neb. Laws, L.B. 151, § 11. In its earlier form, § 48-180 was understood as a “statutory embodiment of nunc pro tunc principles.” Walsh v. City of Omaha, 11 Neb. Ct. App. 747 , 755, 660 N.W.2d 187 , 194 (2003). As a result of the 2011 amendment, the compensa- tion court’s authority to modify previously entered findings, orders, awards, and judgments is no longer limited to nunc pro tunc orders. See Carr v. Ganz, 26 Neb. Ct. App. 14 , 916 N.W.2d 437 (2018). Hy-Vee acknowledges that the 2011 amendment to § 48-180 expanded the compensation court’s modification authority, but contends that the compensation court nonetheless lacked the authority to modify the further award here. Hy-Vee argues that in its current form, § 48-180 authorizes the compensation court to make substantive modifications to its prior rulings, but only to correct its own mistakes, not to remedy a mistake or oversight of a party. Hy-Vee contends that the compensation court did not initially award compensation for all of the medi- cal expenses identified in exhibit 69 because Parks failed to specifically request such relief and that the compensation court could not, under Hy-Vee’s understanding of § 48-180, remedy her failure to do so. In response to Hy-Vee’s argument, we observe initially that the modification at issue is not, in our view, easily catego- rized as a correction of a mistake or oversight on the part of Parks. The compensation court stated that it did not initially  - 944 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 include all of the medical expenses identified in exhibit 69 in the further award because Parks did not, in her testimony, express a desire to be reimbursed for medical bills and because the written closing arguments submitted by her counsel also did not specifically request such reimbursement. Hy-Vee does not, however, point us to any procedural rule or other legal authority that required such a request from Parks. Neither are the written closing arguments at issue a part of our record on appeal. Furthermore, the parties stipulated prior to trial that one of the issues to be determined was “[w]hether medical and mileage expenses identified in Trial Exhibit 69 were reasonable and necessary for treatment of [Parks’] work-related injuries/ conditions.” And, as the compensation court stated in its modi- fication order, it did not omit the medical bills identified in exhibit 69 from its initial further award because Parks failed to prove an entitlement to compensation for them. Although the compensation court may not have initially understood that Parks was seeking compensation for all of the medical bills identified in exhibit 69, given the foregoing facts, we have doubts about whether that can be attributed to a mistake or oversight of Parks. In any event, we need not decide whether Parks or the com- pensation court is to blame for the initial omission from the fur- ther award of the medical bills identified in exhibit 69. Such an assignment of fault is not necessary, because the compensation court’s modification authority under § 48-180 does not turn on whether modification is being made to correct a mistake of the court or of a party. We reach this conclusion through applica- tion of familiar principles of statutory interpretation. [9-11] When interpreting a statute, the starting point and focus of the inquiry is the meaning of the statutory language, understood in context. Rogers v. Jack’s Supper Club, 304 Neb. 605 , 935 N.W.2d 754 (2019). 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. Id. It is not  - 945 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 within the province of the courts to read meaning into a statute that is not there or to read anything direct and plain out of a statute. Id. Hy-Vee’s argument that § 48-180 authorizes modification only to correct an error made by the court cannot survive an application of these principles. The text of § 48-180 does not differentiate between “mistakes” made by the court and those made by parties. Indeed, it does not mention “mistakes” or a similar concept at all. Nor does it otherwise limit the reasons for which a compensation court may modify its findings, order, award, or judgment: Under § 48-180, the court may do so “on its own motion or on the motion of any party.” The interpreta- tion advanced by Hy-Vee thus requires that meaning not found in the text of § 48-180 be read into the statute. We do not inter- pret statutes in this manner. See, e.g., State v. Garcia, 301 Neb. 912 , 920 N.W.2d 708 (2018). Unable to make an argument in support of its preferred interpretation based on the statutory text, Hy-Vee resorts to the absurd results doctrine. Under that doctrine, a court may devi- ate from the plain language of the statutory text if application of the plain language would lead to “‘manifest absurdity.’” See Rogers v. Jack’s Supper Club, supra , 304 Neb. at 613, 935 N.W.2d at 761 , quoting Anthony, Inc. v. City of Omaha, 283 Neb. 868 , 813 N.W.2d 467 (2012). But the bar of manifest absurdity is not easily cleared. We have refused to apply the doctrine if the result dictated by the plain language is not “so absurd that the Legislature could not possibly have intended it.” Thomas v. Peterson, ante p. 89, 97, 948 N.W.2d 698 , 705 (2020), citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 234-39 (2012). See, also, Blank v. Blank, 303 Neb. 602 , 930 N.W.2d 523 (2019) (Papik, J., concurring). Rather than arguing that application of the plain language will result in an absurd result in this case, Hy-Vee primarily contends that if its preferred interpretation is not adopted, there will be absurd results in other cases. Hy-Vee asks us  - 946 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports PARKS v. HY-VEE Cite as 307 Neb. 927 to consider various hypothetical scenarios in which parties, for example, fail to offer key pieces of evidence or fail to adequately plead the relief sought and then later seek to rem- edy their failure by asking for modification under § 48-180. Hy-Vee’s hypothetical scenarios, however, are not before us in this case. The question raised by Hy-Vee’s absurdity argument is whether applying the plain language of § 48-180 to authorize the modification of the further award under these circumstances is a result so absurd that the Legislature could not possibly have intended to allow for it. Hy-Vee comes nowhere near clearing that high bar. As noted above, the parties stipulated prior to trial that whether the medical expenses identified in exhibit 69 were reasonable and necessary for treatment of Parks’ work- related injuries was one of the issues presented for resolution. There is also no dispute on appeal that Parks adequately proved at trial that such expenses were, in fact, reasonable and neces- sary. We see no basis to conclude that the Legislature, in enact- ing § 48-180, could not possibly have intended to authorize the compensation court to modify the further award in the manner it did under these circumstances. CONCLUSION We find that the compensation court’s further award was not premised on legal error, that the record supports the findings of fact upon which the further award was based, and that the com- pensation court did not act in excess of its powers in modifying the further award. Accordingly, we affirm. Affirmed. Stacy, J., not participating.

2020-12-04 14:08:48.662594+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007476PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:08 AM CST - 773 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 State of Nebraska, appellee, v. Alan E. Stack, appellant. ___ N.W.2d ___ Filed November 13, 2020. No. S-19-833. 1. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 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. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential ele- ments of the crime beyond a reasonable doubt. 2. Verdicts: Insanity: Appeal and Error. The verdict of the finder of fact on the issue of insanity will not be disturbed unless there is insufficient evidence to support such a finding. 3. Sentences: Appeal and Error. An appellate court will not disturb a sen- tence imposed within the statutory limits absent an abuse of discretion by the trial court. 4. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A defendant who moves for dismissal or a directed verdict at the close of the evidence in the State’s case in chief in a criminal prosecution and who, when the court overrules the dismissal or directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge correctness in the trial court’s overruling the motion for dismissal or a directed verdict but may still challenge the sufficiency of the evidence. 5. Homicide: Intent. Both second degree murder and voluntary man- slaughter involve intentional killing; they are differentiated only by the presence or absence of the sudden quarrel provocation. 6. Homicide: Words and Phrases. A sudden quarrel is a legally recog- nized and sufficient provocation which causes a reasonable person to lose normal self-control.  - 774 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 7. Homicide: Intent. It is not the provocation alone that reduces the grade of the crime, but, rather, the sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the reason so that the elements necessary to constitute murder are absent. 8. Homicide: Words and Phrases. A sudden quarrel does not neces- sarily mean an exchange of angry words or an altercation contem- poraneous with an unlawful killing and does not require a physical struggle or other combative corporal contact between the defendant and the victim. 9. Insanity: Proof. The insanity defense requires proof that (1) the defend­ ant had a mental disease or defect at the time of the crime and (2) the defendant did not know or understand the nature and consequences of his or her actions or that he or she did not know the difference between right and wrong. 10. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in con- sidering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. 11. Sentences. In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant’s (1) age, (2) men- tality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) moti- vation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime. 12. ____. The appropriateness of a sentence is necessarily a subjective judg- ment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. Appeal from the District Court for Sarpy County: Stefanie A. Martinez, Judge. Affirmed. Gregory A. Pivovar, and, on brief, John P. Hascall, Deputy Sarpy County Public Defender, for appellant. Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.  - 775 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 Papik, J. Alan E. Stack appeals his convictions and sentences for second degree murder and use of a deadly weapon to commit a felony. Circumstantial evidence presented at Stack’s bench trial linked him to the murder of a woman with whom he lived. In this appeal, Stack challenges the sufficiency of the evidence and the district court’s finding that the evidence supported a conviction of second degree murder, rather than sudden quar- rel manslaughter. He also claims that the district court erred in rejecting his insanity defense and imposed excessive sentences. Finding no merit to Stack’s contentions, we affirm. I. BACKGROUND 1. Procedural Overview On November 16, 2017, family members found Beverley Diane Bauermeister dead in her home. Severe head trauma was evident. Bauermeister’s elderly mother was in another room, alive but immobile. Stack, a heavy drinker, was living with Bauermeister and her mother at the time of Bauermeister’s death. Stack was ultimately charged with second degree murder; abuse of a vulnerable or senior adult; and use of a deadly weapon, other than a firearm, to commit a felony. Stack filed a notice of intent to rely on the insanity defense. He claimed that a mental defect impaired his mental capacity so that he did not understand the nature and consequences of his actions and that he did not have the ability to form the requisite intent. At the subsequent bench trial, the State presented circum- stantial evidence that tied Stack to the crimes charged. At the close of the State’s case, Stack made a motion to dismiss all counts, which the district court overruled. Stack proceeded to present evidence in his defense, including testimony in support of his insanity defense. The State presented additional evidence opposing Stack’s defense. Once the parties rested, the district court ruled that there was insufficient evidence to find that Stack was either insane or could not form the specific intent to commit the crimes  - 776 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 alleged. It convicted Stack of second degree murder and use of a deadly weapon to commit a felony, but it acquitted him of the abuse charge. Following a sentencing hearing, the district court sentenced Stack to consecutive terms of 80 years’ to life imprisonment for second degree murder and 40 to 50 years’ imprisonment for use of a deadly weapon to commit a felony. Stack now appeals. 2. Circumstantial Evidence at Trial (a) Crime Scene and Stack’s Arrest Stack and Bauermeister had been living together for more than 15 years but were not in a dating relationship at the time relevant to this case. By all accounts, Stack was an alcoholic. Stack and Bauermeister shared a trailer home with Bauermeister’s 90-year-old mother. Bauermeister’s mother was wheelchair-bound, was unable to get out of bed on her own, and could not take care of her own basic needs. Bauermeister’s daughter testified that she and Bauermeister communicated daily, but Bauermeister did not respond to her daughter’s attempts to reach her after they had a disagree- ment on November 8, 2017. On November 16, Bauermeister’s daughter and brother discovered Bauermeister deceased on her living room floor. They found Bauermeister’s mother in a bedroom, lying on her hospital bed in her own urine and feces. Bauermeister’s mother was admitted to a hospital due to severe dehydration. When law enforcement searched the residence, they observed that Bauermeister had severe head trauma, blood around her hair, yellow brain matter in her hair, and brown hair strands in her hand and on the carpet near her. The scene was processed for DNA and blood evidence. There was blood spatter in the living room area and additional possible blood evidence between the living room and Stack’s bedroom. On the floor of Stack’s bedroom, officers located a “Crosman 66 Powermaster BB rifle[/pellet gun],” .177 caliber, with a sight near the tip of the gun barrel. A gray or silver pellet was in the clip of the gun. A detective who investigated the scene  - 777 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 testified that he observed what appeared to be dried blood- stains and brain matter on areas of the gun. The same day Bauermeister’s body was discovered, law enforcement took Stack into custody. They located him parked in Bauermeister’s truck, which he sometimes drove. The offi- cer who transported Stack to the station testified that he could smell the strong odor of an alcoholic beverage coming from Stack. At the station, Stack’s clothing was collected. In photo­ graphs taken shortly after his arrest, Stack appears to have brown hair. (b) Autopsy Dr. Michelle Elieff, a general and forensic pathologist, con- ducted an autopsy of Bauermeister’s body on November 17, 2017. Based on the decomposition of the body, Elieff esti- mated that Bauermeister had been deceased for days, perhaps up to a week. Elieff identified the cause of death as extensive blunt force head injuries and two penetrating wounds to the head. The extensive blunt force injuries included multiple skull fractures and multiple scalp lacerations. Regarding the pen- etrating wounds, Elieff explained they were “what we refer to as missile wounds; they are a type of gunshot wound that are resulting from small projectiles, pellet-type projectiles.” Elieff recovered a missile projectile, consistent with a pellet, from behind Bauermeister’s right eye. Elieff opined that the right angle or rectangular component on the sight of the pellet gun found in Stack’s bedroom could be consistent with Bauermeister’s pattern injuries. She also opined that the circular tip of the barrel of the gun could have caused the injuries. (c) Electronic Evidence Upon Stack’s arrest, Bauermeister’s cell phone was found in her truck and later processed. There were 41 missed calls between November 14 and 16, 2017. The last four outgoing calls occurred between November 10 and 13. Twenty-seven text messages were received between November 9 and 16,  - 778 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 but it could not be determined who had viewed the messages. The last outgoing text message occurred on November 8. The last message from Bauermeister’s social media account was also sent on November 8. During the search of the crime scene, officers seized a lap- top computer from Stack’s bedroom. A “Skype” account on the laptop bore the username “Al Stack.” The laptop showed mul- tiple internet searches on November 7, 2017, for the make and model of pellet gun found in Stack’s bedroom, a “Crosman 66 Powermaster BB rifle[/pellet gun],” .177 caliber. On November 8, there were various searches for iterations of whether a .177 caliber pellet can penetrate a human skull. The next day, there were multiple searches inquiring about various methods of suicide, among them were searches for “[i]s it possible to kill yourself with a pellet gun” and “kill yourself with a pellet gun.” Nearly 2 hours after the last of these searches, there were searches for “can a .177 cal. penetrate a human skull” and “can a .177 cal. 66 powermaster penetrate a human skull.” On November 10, at 9:22 p.m., a search was made for “decomposition of a human body timeline.” Searches for “what gets supplied for you in jail and prison” and “are socks and under[wear] provided in jail or prison” were made on the morning of November 12. Based upon the history on the cell phone and the laptop, along with the crime scene, the detective who processed the electronic evidence opined that Bauermeister was killed on or about November 10, 2017. (d) DNA Evidence Forensic DNA analyst Mellissa Helligso tested numerous items for the presence of blood and for DNA. She used buccal swabs from Stack and Bauermeister for DNA comparison. Helligso observed what appeared to be bloodstains on the front and back of Stack’s pants, but she only tested a swab from one 2-inch long stain. That swab tested positive for blood. It generated a DNA mixture from two individuals. Bauermeister was not excluded as a major contributor. The  - 779 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 probability of an unrelated individual matching the major DNA profile, given that Bauermeister expressed the profile, was 1 in 1.08 nonillion, which Helligso testified “is 30 zeros.” Stack was not excluded as a partial profile contributor. The probability of an unrelated individual matching the partial profile, given that Stack expressed such a profile, was 1 in 1.66 billion. Also positive for blood were swabs from Stack’s left shoe, which had a few areas of visible blood; from various areas of the pellet gun; and from Bauermeister’s fingernails and her cell phone. DNA testing showed that Bauermeister was not excluded as the source. The probability of an unrelated individual matching the DNA profile, given that Bauermeister expressed such a profile, was 1 in 1.08 nonillion. Helligso tested a swab from various textured areas of the gun for “touch DNA” contributed by skin cells. The swab gen- erated a DNA profile from a mixture of two individuals. Stack and Bauermeister were not excluded as contributors. As to Stack, the probability of an unrelated individual matching the DNA profile, given that Stack expressed such a profile, was 1 in 36.3 sextillion. Regarding Bauermeister, the probability of an unrelated individual matching the DNA profile, given that Bauermeister expressed such a profile, was 1 in 17.9 quintil- lion. Helligso testified that she cannot know when DNA was deposited on an item and that she has found touch DNA on an item up to 2 years after it has been handled by a person. Helligso attempted to test a brown hair strand found in Bauermeister’s hand, but she could not obtain a DNA profile from the root area. And she did not have the capability in her laboratory to test the remainder of the strand for a different form of DNA. (e) Jailhouse Recordings While incarcerated for the present offenses, Stack spoke to his brother. A recording of their conversation was received as evidence. In the conversation, Stack told his brother about  - 780 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 his relationship with Bauermeister and his limited memory of the days surrounding her death: Stack’s brother: So you just don’t even remember what happened . . . ? Stack: No, I remember a couple of days before, I mean, how irritated I was getting and drunk because that was the only thing that would calm me down . . . . [T]here’s not much I can say, I mean, I can say how evil and mean [Bauermeister] was to me for a long period of time because that’s what I remember from before, but I don’t remember damn near probably five days. I just don’t. Stack’s brother: Well, I would assume you were hammered. Stack: Yeah I was drinking over a case of beer and I went back to booze too. I was drinking booze. .... Stack: . . . [T]he night they found me in the parking lot. They arrested me. .... Stack’s brother: So what did you do for those days? Stack: I don’t remember. I just drunk, drank. I don’t remember. I drank and drove around. I didn’t eat any- thing. I was, I was upset. I don’t know. I remember, I don’t know what I really remember. It seems like I remember at one point I knew I was gonna be dead or something because I went back home and seen, seen the house and I had to just stay drunk. .... Stack’s brother: . . . I mean, um, I get, I get that you blacked out, um, but you said you went, you actually, after you had done it there was a point in time when you went back there? Stack: I’m a, I slightly remember it, yeah, because I knew I had to leave, get outta there and I don’t remember how long it was that I was driving around in the truck before they found me . . . I didn’t have no clue where  - 781 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 I was. All I know is I was drinking booze and beer con- stantly, not eating and that’s all I can explain. Minutes later in the conversation, Stack continued: [T]o me, that’s not me. I obviously fucking lost it or something. I don’t know. I know I was drinking hard and I know I was fed up a long time before that. It got to that point. I know that, I remember that much. For me to believe everything or what actually happened, I just don’t know, and I don’t even really want to talk about it now. .... Stack’s brother: . . . [I]f you’re hammered and you do what apparently it looks like you did, I don’t think it makes you any less guilty. Stack: No, I don’t think it does either. . . . . . . I mean I did want to be alone. That’s what I was thinking weeks, weeks before. I started to get real drunk again I was and I did want to be alone, I did want to be alone. I didn’t want to listen to her mouth anymore. I remember thinking things like that but that’s not, that hasn’t got anything to do with it. I don’t. But that’s, I mean that’s why I was in no hurry to call anybody any- way because I didn’t want to sit here and try to explain shit to everybody that I don’t even understand myself. The district court also received a recording of a telephone conversation Stack had with his sister while in jail awaiting trial for the present offenses: Stack: They pulled some shit off of my computer or somethin’ I think is what they’re sayin’. They don’t, they don’t know what I was doin’ with it. I don’t even know what they . . . . But I know what I looked up on the com- puter. I was looking up suicides and I was looking up what I could shoot with my BB gun and stuff like that. I know that’s what I looked up because that was before I went on a drinking rampage[.] .... Stack’s sister: But you remember searching stuff like that?  - 782 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 Stack: Mm. . . hm . . . that was before I went off the reservation. Stack’s sister: Yeah, okay, alright, mm, ok so you do remember that so I don’t know do you think maybe you did a search on something else that you don’t remember? Stack: It’s possible. I mean I don’t know about that. I mean I remember what I did do as far as, you know as far as suicide I know I did do that because I remember that because . . . . Stack’s sister: Okay. Stack: I was the one who wanted out. I wasn’t going to do anything about her. 3. Testimony Relevant to Insanity Defense (a) Testimony of Dr. Terry Davis In support of his insanity defense, Stack presented the testimony of Dr. Terry Davis, a board-certified forensic and addiction psychiatrist. Davis interviewed Stack in March 2018 and performed a mental status examination. He also reviewed Stack’s medical record from an emergency room visit on November 17, 2017; information from Bauermeister’s fam- ily; police reports; and a transcript of a recorded conversation between Stack and his brother. Davis diagnosed Stack with a mild neurocognitive disorder and a severe level of alcohol use disorder. Davis testified that in Stack’s evaluation and the records he reviewed, Stack con- sistently said that he did not remember killing Bauermeister, but he had brief memories from being in “his” truck on November 16, 2017, and speaking to an officer. Davis testified about other statements Stack made in the evaluation that were received for the limited purpose of diag- nosis, not the truth of the matter asserted. Stack informed Davis that he drank “constantly” before he was arrested and that he drank beer daily. He also stated that he drank hard liquor but switched to beer primarily after he developed pancreatitis. He  - 783 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 said that he did not have much of a memory of 1 or 2 months prior to Bauermeister’s death because of his alcohol use. Davis testified that severe alcohol use disorder can impair one’s cognitive functioning on a permanent basis. Davis explained that an individual who drinks a large amount of alcohol may experience a blackout, or a period of “anterograde amnesia,” and may not form lasting memories of what occurred during the blackout period. He testified that immediate and short-term memory are impaired during an alcoholic blackout. According to Davis, the blood alcohol concentration range for a blackout varies from person to person, but the range is typically between “.20 and .30 on the milligram percent scale.” Davis observed that Stack’s medical record from several hours after his arrest showed that his blood alcohol content was .119. And Stack reported that he previously experienced blackouts. Davis testified that Stack is more at risk for a blackout because of his mild neurocognitive disorder, but that the disorder itself would not cause a blackout. It was Davis’ opinion that, assuming Stack killed Bauermeister and did not have a memory of killing her, Stack was unable to form the specific intent to kill because he expe- rienced an alcoholic blackout resulting from a combination of his alcohol ingestion and his alcohol-induced mild neurocogni- tive disorder. Again assuming that Stack killed Bauermeister, Davis opined that he suffered at that time from a mental dis- ease or defect, specifically an alcohol-induced mild neurocog- nitive disorder. Further, as a result of that disorder, in combi- nation with his consumption of alcohol, Stack experienced an alcoholic blackout, which caused him to be unable to know and understand the nature and consequences of his actions. Davis opined that Stack’s substance-induced mild neuro- cognitive disorder alone did not mean that Stack could not form the intent to kill Bauermeister, nor did it alone cause him not to know the nature and consequences of his actions. He explained that Stack’s voluntary ingestion of alcohol was necessary to cause the blackout that, in combination with the  - 784 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 mild neurocognitive disorder, was the basis of Davis’ opinions on intent and insanity. (b) Testimony of Klaus Hartmann and Mindy Abel Dr. Klaus Hartmann, a board-certified forensic psychiatrist, evaluated Stack in December 2018 and reviewed the same or similar information as Davis, along with Davis’ report. Dr. Mindy Abel, a clinical psychologist, was present for Hartmann’s interview with Stack and conducted diagnostic testing. Hartmann testified that he disagreed with the method Davis used to diagnose Stack with mild neurocognitive disor- der. Using a different method, Hartmann and Abel concluded that Stack did not have a neurocognitive disorder because he was able to remember the events leading up to and after Bauermeister’s death. Hartmann testified that even people with mild neurocognitive disorders should know the consequences of their actions and appreciate what they are doing. Hartmann and Abel recognized that Stack had a history of blackouts. But Hartmann testified that someone who suffers from an alcoholic blackout knows and understands the consequences of their actions. Hartmann opined that Stack was not insane when Bauermeister was killed. 4. Sentencing After rejecting Stack’s insanity defense and finding him guilty of second degree murder and use of a deadly weapon to commit a felony, the district court ordered a presentence investigation report. It then conducted a sentencing hearing at which victim impact statements were received and the par- ties presented arguments. Considering the customary factors, the presentence investigation report, the victim impact state- ments, and the parties’ arguments, the district court sentenced Stack within statutory limits. It imposed consecutive terms of 80 years’ to life imprisonment for second degree murder and 40 to 50 years’ imprisonment for use of a deadly weapon to commit a felony.  - 785 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 II. ASSIGNMENTS OF ERROR Stack assigns that the district court erred in (1) declining to direct a verdict and finding the evidence sufficient to sup- port the verdicts; (2) determining that the evidence supported a finding of second degree murder rather than manslaughter; (3) overruling his insanity defense; and (4) imposing exces- sive sentences. III. STANDARD OF REVIEW [1] In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circum- stantial, or a combination thereof, the standard is the same: 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. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Martinez, 306 Neb. 516 , 946 N.W.2d 445 (2020). [2] The verdict of the finder of fact on the issue of insan- ity will not be disturbed unless there is insufficient evidence to support such a finding. State v. France, 279 Neb. 49 , 776 N.W.2d 510 (2009). [3] An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Leahy, 301 Neb. 228 , 917 N.W.2d 895 (2018). IV. ANALYSIS 1. Sufficiency of Evidence We begin with Stack’s challenge to the sufficiency of the evidence. He argues that he was entitled to a directed verdict; that the circumstantial evidence in this case warrants a differ- ent standard of review; that the evidence does not support a conviction for second degree murder; and that if the district  - 786 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 court convicted him of any homicide offense, it should have been sudden quarrel manslaughter. As we will explain, these claims lack merit. (a) Directed Verdict [4] Stack asserts that the district court erred by declining to grant a directed verdict in response to the motion to dismiss he made at the close of the State’s case. But Stack waived this argument. The record shows that after Stack’s motion was denied, he put on evidence in his defense. A defendant who moves for dismissal or a directed verdict at the close of the evidence in the State’s case in chief in a criminal prosecution and who, when the court overrules the dismissal or directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge correctness in the trial court’s overruling the motion for dismissal or a directed verdict but may still challenge the sufficiency of the evidence. State v. Vann, 306 Neb. 91 , 944 N.W.2d 503 (2020). We therefore con- sider only Stack’s assertion that the evidence as a whole was insufficient to support his convictions. (b) Standard of Review Because the standard of review defines our view of the evidence, we consider it before turning to the facts of this case. In arguing that the evidence was insufficient, Stack asks us to return to a standard of review that we have long since abandoned. It is well established that in reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 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. The rel- evant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements  - 787 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 of the crime beyond a reasonable doubt. State v. Martinez, 306 Neb. 516 , 946 N.W.2d 445 (2020). Stack acknowledges the controlling standard of review, but he adds that “there are situations that just require this Court to take a different view of circumstantial evidence cases.” Brief for appellant at 21. Stack suggests that we apply the “accused’s rule,” which provides that when two equal presumptions from circumstantial evidence—one in favor of innocence and the other in favor of guilt—are presented, a presumption in favor of innocence is to be preferred and applied. See State v. Pierce, 248 Neb. 536 , 537 N.W.2d 323 (1995). For support, he cites some federal circuit courts that have applied a similar rule. See, e.g., U.S. v. Glenn, 312 F.3d 58 (2d Cir. 2002) (if evidence viewed in light most favorable to verdict gives equal or nearly equal circumstantial support to theory of guilt and theory of innocence of crime charged, appellate court must reverse conviction); U.S. v. Flores-Rivera, 56 F.3d 319 (1st Cir. 1995) (same). But see, e.g., U.S. v. Vargas-Ocampo, 747 F.3d 299 (5th Cir. 2014) (abandoning rule). Based on the evidence here, we have doubts that an appli- cation of the accused’s rule would lead to a finding of insuf- ficient evidence. But we need not resolve that issue, because we decline Stack’s invitation to resurrect a rule that we have repeatedly rejected. Prior to 1981, this court applied the accused’s rule when reviewing circumstantial evidence. See State v. Pierce, supra . But observing various reasons why circumstantial evidence should be treated the same as direct evidence, we abandoned the accused’s rule in State v. Buchanan, 210 Neb. 20 , 312 N.W.2d 684 (1981). In Buchanan, we held that one accused of a crime may be convicted on the basis of circumstantial evidence if, taken as a whole, the evidence establishes guilt beyond a reasonable doubt, and we disclaimed any require- ment that the State disprove every hypothesis but that of guilt. Over the years, we have briefly veered from this approach, only to steer definitively back to it and place circumstantial  - 788 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 evidence on equal footing with direct evidence. See, State v. Skalberg, 247 Neb. 150 , 526 N.W.2d 67 (1995), overruled, State v. Pierce, supra ; State v. Dawson, 240 Neb. 89 , 480 N.W.2d 700 (1992), abrogated, State v. Pierce, supra ; State v. Trimble, 220 Neb. 639 , 371 N.W.2d 302 (1985), overruled, State v. Morley, 239 Neb. 141 , 474 N.W.2d 660 (1991), dis- approved on other grounds, Victor v. Nebraska, 511 U.S. 1 , 114 S. Ct. 1239 , 127 L. Ed. 2d 583 (1994). Most recently, in State v. Olbricht, 294 Neb. 974 , 885 N.W.2d 699 (2016), this court thoroughly recounted the demise of the accused’s rule in Nebraska and again rejected the suggestion that it should be applied. And in light of our jurisprudence on the matter, we see no reason to apply the accused’s rule here. (c) Circumstantial Evidence Supports Stack’s Convictions With our well-established standard of review in mind, we now determine whether there was sufficient evidence to sup- port Stack’s convictions for second degree murder and use of a deadly weapon to commit a felony. Stack challenges the sufficiency of the evidence on two bases. First, he argues that the evidence did not prove that he was the person who killed Bauermeister or that his pellet gun, which he does not dispute is a deadly weapon other than a firearm, was used to kill her. Second, he argues in the alternative that the district court should have convicted him of voluntary sudden quarrel man- slaughter, rather than second degree murder. But both of these arguments fail. [5] To prove second degree murder, a felony offense, the State was required to show beyond a reasonable doubt that Stack caused Bauermeister’s death “intentionally, but with- out premeditation.” See Neb. Rev. Stat. § 28-304 (Reissue 2016). Voluntary manslaughter, also a felony, is a lesser degree offense, not a lesser-included offense, of second degree mur- der. See State v. Smith, 284 Neb. 636 , 822 N.W.2d 401 (2012). That is, it is possible to commit second degree murder with- out committing voluntary manslaughter. See id. Both second - 789 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 degree murder and voluntary manslaughter involve intentional killing; they are differentiated only by the presence or absence of the sudden quarrel provocation. State v. Smith, supra (where there is evidence that killing occurred intentionally without premeditation and that defendant acted under provocation of sudden quarrel, fact finder has option of conviction of second degree murder or voluntary manslaughter depending on reso- lution regarding sudden quarrel provocation.) See, also, Neb. Rev. Stat. § 28-305(1) (Reissue 2016). In disputing the theory that he committed second degree murder by killing Bauermeister with his pellet gun, Stack takes a selective view of the evidence, focuses on other pos- sible explanations for Bauermeister’s death, and characterizes the investigation as incomplete. In essence, Stack contends that the State failed to disprove every hypothesis, other than Stack’s guilt, that could be drawn from the circumstantial evidence. And according to Stack, even if the evidence did show that he killed Bauermeister with his pellet gun intention- ally and without premeditation, evidence of multiple blows demonstrated that a sudden quarrel occurred and that volun- tary manslaughter was the proper conviction. To support this position, Stack further cites a lack of evidence about recent fighting or animosity between Stack and Bauermeister and a lack of evidence conclusively showing when the internet searches occurred in relation to Bauermeister’s death. That is, Stack suggests that the circumstantial evidence supports the presumption that a sudden quarrel occurred to the same extent that it supports the opposite conclusion and that we should resolve the matter in favor of the less onerous offense. However, as explained above, whether arguing that he did not kill Bauermeister or that he did so upon a sudden quarrel, Stack depends on an improper standard of review. Viewing the evidence in the light most favorable to the prosecution, as our standard of review requires, a rational trier of fact could have found beyond a reasonable doubt that Stack used his pellet gun, a deadly weapon other than a firearm, to kill  - 790 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 Bauermeister intentionally, but without premeditation and not upon a sudden quarrel. The State presented circumstantial evidence that Stack, without premeditation, intentionally killed Bauermeister with his pellet gun. The record shows that over time, Stack had become irritated with Bauermeister and wanted to be alone. Bauermeister was found on November 16, 2017, in the resi- dence she and Stack shared, dead due to blunt force head trauma from multiple blows and multiple missile injuries, both consistent with a pellet gun Stack owned. Testing showed an extremely high probability that blood found on the pellet gun was Bauermeister’s and that touch DNA on the weapon belonged to Stack. In Bauermeister’s hand and on the floor nearby were strands of brown hair, like Stack’s. Stack was apprehended with Bauermeister’s cell phone, which had blood on it that was most likely Bauermeister’s. Testing of two spots among multiple bloodstains revealed an extremely high prob- ability that Bauermeister’s blood was on the pants and one of the shoes Stack was wearing when he was arrested. Stack’s computer reflected that from November 7 through 9, the days before Bauermeister’s estimated date of death, there were inter- net searches regarding whether a pellet gun could kill someone, among searches for suicide methods. In postarrest statements to his sister, Stack admitted to conducting internet searches related to suicide and what he could shoot with his pellet gun. On November 10, there was a search for “decomposition of a human body timeline,” followed by searches inquiring what items are provided in prison. In a conversation after his arrest, Stack did not contradict his brother’s suggestion that Stack had killed Bauermeister and confirmed that he was at the crime scene after her death. [6-8] Furthermore, upon our review of the record, we see no evidence of a sudden quarrel. A sudden quarrel is a legally recognized and sufficient provocation which causes a reason- able person to lose normal self-control. State v. Smith, 284 Neb. 636 , 822 N.W.2d 401 (2012). It is not the provocation alone that reduces the grade of the crime, but, rather, the  - 791 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the rea- son so that the elements necessary to constitute murder are absent. Id. Although there was evidence that Stack was irri- tated with Bauermeister, in the absence of some provocation, a defendant’s anger with the victim is not sufficient to establish the requisite heat of passion. State v. Smith, 282 Neb. 720 , 806 N.W.2d 383 (2011). And the fact that Stack may have been intoxicated is not a proper consideration in determining whether the killing arose from a sudden quarrel. See State v. Smith, 284 Neb. 636 , 822 N.W.2d 401 (2012). Further, contrary to Stack’s suggestion, a sudden quarrel does not necessarily mean an exchange of angry words or an altercation contempo- raneous with an unlawful killing and does not require a physi- cal struggle or other combative corporal contact between the defendant and the victim. Id. In sum, under the proper standard of review, we conclude the evidence was sufficient to support Stack’s convictions. 2. Insanity Defense Any person prosecuted for an offense may plead that he or she is not responsible by reason of insanity at the time of the offense. Neb. Rev. Stat. § 29-2203(1) (Reissue 2016). A suc- cessful insanity defense would be dispositive in Stack’s favor, regardless of the evidence that he killed Bauermeister with a deadly weapon. See State v. Bigelow, 303 Neb. 729 , 931 N.W.2d 842 (2019) (successful insanity defense operates as complete defense). Therefore, even though the evidence was sufficient to prove the elements of second degree murder and use of a deadly weapon other than a firearm to commit a fel- ony, we must address Stack’s claim that the district court erred by finding that he had failed to prove he was legally insane at the time he committed those offenses. [9] Generally, under Nebraska’s common-law definition, the insanity defense requires proof that (1) the defendant had a mental disease or defect at the time of the crime and (2) the defendant did not know or understand the nature and  - 792 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 consequences of his or her actions or that he or she did not know the difference between right and wrong. Id. The defend­ ant carries the burden to prove the defense by a preponderance of the evidence. See § 29-2203(1). The verdict of the finder of fact on the issue of insanity will not be disturbed unless there is insufficient evidence to support such a finding. State v. France, 279 Neb. 49 , 776 N.W.2d 510 (2009). To support his insanity defense, Stack relies on the testimony of Davis, who opined that Stack had a mild neurocognitive dis- order and that as a result of such mental disease or defect in combination with his alcohol consumption, Stack experienced an alcoholic blackout, which caused him to be unable to know and understand the nature and consequences of his actions. However, as the State points out, under § 29-2203(4), “insanity does not include any temporary condition that was proximately caused by the voluntary ingestion . . . of intoxicating liquor.” Pursuant to this statute, the State argues, Stack was not legally insane under Davis’ opinion because it was based on Stack’s experiencing a blackout, a temporary condition caused by voluntary alcohol consumption. Stack contends that because voluntary intoxication was not the sole basis for Davis’ opinion that he was insane, Stack is not precluded from the benefit of the insanity defense. Although we have discussed the relation- ship between intoxication and insanity, we have not, since the adoption of § 29-2203(4), considered whether voluntary intoxication in combination with a mental disease or defect can be the basis for a successful insanity defense. See, State v. Bigelow, supra; State v. Hotz, 281 Neb. 260 , 795 N.W.2d 645 (2011). And based on the record in this case, we need not do so today. Here, even if the State’s argument concerning voluntary intoxication is set to the side, there was sufficient evidence that Stack did not fulfill a crucial element of legal insanity: a mental disease or defect. As mentioned, Stack’s expert, Davis, opined that Stack had a mental disease or defect in the form of a mild neurocognitive disorder. However, the State’s experts, Hartmann and Abel, disagreed. Their diagnostic  - 793 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 testing showed that Stack did not suffer from a mild neuro- cognitive disorder. Thus, Davis’ opinion on the issue of legal insanity was in direct conflict with the evidence presented by the State, and it was the province of the district court to resolve that conflict. See State v. Martinez, 306 Neb. 516 , 946 N.W.2d 445 (2020) (appellate court does not resolve conflicts in evidence, pass on credibility of witnesses, or reweigh evi- dence; such matters are for finder of fact). Given the opinions of Hartmann and Abel, the record contained sufficient evidence for the district court to conclude that Stack was not legally insane at the time of Bauermeister’s murder. Stack’s assertion to the contrary lacks merit. 3. Excessive Sentences Lastly, Stack contends that his sentences were excessive. He does not and cannot dispute that he was sentenced within statutory limits. Instead, Stack argues that the sentences do not fit the crime or him as an offender. He points out that given his age, he will effectively have no opportunity for parole for crimes that he characterizes as not especially depraved and heinous. He also cites his limited criminal record and his poor health as mitigating factors. We are not persuaded. [10-12] Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. State v. Price, 306 Neb. 38 , 944 N.W.2d 279 (2020). In determining a sentence to be imposed, relevant factors cus- tomarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime. Id. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor  - 794 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. STACK Cite as 307 Neb. 773 and attitude and all the facts and circumstances ­surrounding the defendant’s life. Id. According to the record, the district court considered the familiar factors above, along with other information in the presentence investigation report and evidence received at the sentencing hearing. Thus, it took into account the factors Stack says justified a lesser penalty along with other factors. Those other factors included the particularly violent nature of Bauermeister’s murder and the circumstances surrounding it. Based on the record in this case and the relevant consid- erations, we conclude that the district court did not abuse its discretion in sentencing Stack. V. CONCLUSION Finding no merit to the errors assigned and argued by Stack, we affirm. Affirmed.

2020-12-04 14:08:38.748174+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007504PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:08 AM CST - 874 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. BLOCHER Cite as 307 Neb. 874 State of Nebraska, appellee, v. Samantha R. Blocher, appellant. ___ N.W.2d ___ Filed December 4, 2020. No. S-19-1076. 1. Judgments: Speedy Trial: Appeal and Error. A trial court’s deter- mination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. 2. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law, which an appellate court reviews independently of the lower court’s determination. 3. Speedy Trial. If a defendant is not brought to trial before the running of the time for trial as provided for in Neb. Rev. Stat. § 29-1207 (Reissue 2016), as extended by excluded periods, he or she shall be entitled to his or her absolute discharge from the offense charged and for any other offense required by law to be joined with that offense. 4. ____. To calculate the deadline for trial under the speedy trial statutes, a court must exclude the day the State filed the information, count forward 6 months, back up 1 day, and then add any time excluded under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016). Appeal from the District Court for Lancaster County: Lori A. Maret, Judge. Affirmed. Matt Catlett, of Law Office of Matt Catlett, for appellant. Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.  - 875 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. BLOCHER Cite as 307 Neb. 874 Heavican, C.J. INTRODUCTION Samantha R. Blocher was arrested in Lancaster County and charged with one count of possession of methamphetamine. The day before her pretrial docket call, Blocher was arrested in Douglas County for shoplifting. Blocher did not appear for her Lancaster County docket call, and the district court issued a bench warrant for Blocher’s arrest. Blocher was arrested on the warrant by authorities at Douglas County Department of Corrections, but was not returned to Lancaster County. She was eventually convicted and sentenced for the shoplifting charge in Douglas County. After serving her sentence in Douglas County, Lancaster County sheriff’s depu- ties took custody of Blocher and transported her to Lancaster County. Blocher was again ordered to appear for a pretrial docket call. She filed a motion to discharge, which was denied. Blocher appeals. The issue presented by this appeal is whether the time Blocher spent incarcerated in Douglas County was properly attributable to Blocher for purposes of her speedy trial rights. The district court found that it was. We affirm the decision of the district court. BACKGROUND On February 7, 2019, Blocher was charged by ­information with possession of methamphetamine, a Class IV felony. She filed several pretrial motions on February 11, and those motions were disposed of by the district court on February 19. Blocher was ordered to appear for a jury docket call on April 17, 2019, but on April 16, Blocher was arrested for shoplift- ing in Douglas County. As a result, Blocher did not appear at the pretrial hearing in Lancaster County and a bench warrant was sought. That warrant was issued on April 19. Blocher was arrested on the warrant by authorities at Douglas County Department of Corrections on April 21, but was not transported back to Lancaster County.  - 876 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. BLOCHER Cite as 307 Neb. 874 Blocher was eventually convicted in Douglas County of third-offense shoplifting, a Class IV felony, and sentenced to jail time, most of it already served. She served the remain- der of her sentence. Immediately upon release on July 11, 2019, Blocher was arrested by Lancaster County sheriff’s deputies and transported to Lancaster County. A bond hearing was held on July 16. At that hearing, the Lancaster County District Court waived its earlier finding that Blocher had for- feited her bond, reasoning that Blocher had been in custody in Douglas County. On August 7, 2019, Blocher was ordered to appear in Lancaster County on August 21 for a docket call hearing in preparation for trial set during the jury term beginning September 9. On August 16, Blocher filed a motion for abso- lute discharge. A hearing was held, after which the district court issued a written order denying the motion. Blocher appeals. ASSIGNMENT OF ERROR Blocher assigns, restated, that the Lancaster County District Court erred in excluding from her speedy trial calculation the time she spent incarcerated while awaiting charges in Douglas County and while serving her sentence, and in turn denying her motion for discharge. STANDARD OF REVIEW [1] Generally, a trial court’s determination as to whether charges should be dismissed on speedy trial grounds is a fac- tual question which will be affirmed on appeal unless clearly erroneous. 1 [2] Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court’s determination. 2 1 State v. Lovvorn, 303 Neb. 844 , 932 N.W.2d 64 (2019). 2 Id. - 877 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. BLOCHER Cite as 307 Neb. 874 ANALYSIS [3] The statutory right to a speedy trial is set forth in Neb. Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016). 3 Section 29-1207(1) provides that “[e]very person indicted or informed against for any offense shall be brought to trial within six months, and such time shall be computed as provided in this section.” If a defendant is not brought to trial before the run- ning of the time for trial as provided for in § 29-1207, as extended by excluded periods, he or she shall be entitled to his or her absolute discharge from the offense charged and for any other offense required by law to be joined with that offense. 4 [4] To calculate the deadline for trial under the speedy trial statutes, a court must exclude the day the State filed the infor- mation, count forward 6 months, back up 1 day, and then add any time excluded under § 29-1207(4). 5 Section 29-1207(4) provides in relevant part: The following periods shall be excluded in computing the time for trial: (a) The period of delay resulting from other proceed- ings concerning the defendant, including, but not limited to, an examination and hearing on competency and the period during which he or she is incompetent to stand trial; the time from filing until final disposition of pretrial motions of the defendant, including motions to suppress evidence, motions to quash the indictment or informa- tion, demurrers and pleas in abatement, and motions for a change of venue; and the time consumed in the trial of other charges against the defendant; .... (d) The period of delay resulting from the absence or unavailability of the defendant. 3 Id. 4 Id. 5 Id.  - 878 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. BLOCHER Cite as 307 Neb. 874 We have held that a defendant who is given notice to appear for trial and fails to do so is absent or unavailable for purposes of § 29-1207(4)(d). In such a case, the time from the failure to appear until the “next reasonably available trial date” after the defendant reappears is attributable to the defendant. 6 A trial date within 6 months of the reappearance of the defendant is presumed to be reasonable. 7 The information in Lancaster County was filed against Blocher on February 7, 2019, so the State initially had until August 7 to bring Blocher to trial. But the State and Blocher agree that Blocher had filed pretrial motions on February 11. Those motions were disposed of on February 19. Under § 29-1207(4)(a), this delay of 8 days was attributable to Blocher and pushed the date by which the State had to try her until August 15. Blocher was ordered to appear for a pretrial docket call on April 17, 2019. She did not appear. On appeal, Blocher argues that she was ordered to appear unless “incarcerated” and that because she had been arrested and was confined in Douglas County, she therefore was not absent or unavailable. Blocher further asserts that even if she was absent or unavail- able, the time spent in Douglas County was not attributable to her, because Lancaster County was aware of her presence in Douglas County and did not do enough to ensure her presence at trial. We turn first to Blocher’s assertion that she was not absent or unavailable on April 17, 2019. The record shows that on April 3, the district court filed its order to appear at a docket call. That filing consisted of a cover letter that ordered “[a]ll defend­ants (except those incarcerated)” to appear. It also included a list of those individuals on the docket call which separately denoted those that were incarcerated. The filing 6 See State v. Petty, 269 Neb. 205 , 213, 691 N.W.2d 101 , 107 (2005). See, also, State v. McKenna, 228 Neb. 29 , 421 N.W.2d 19 (1988). 7 See Petty, supra note 6.  - 879 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. BLOCHER Cite as 307 Neb. 874 ended by noting that “[t]he defendant can only be excused from appearing at docket call upon order of the Court.” Blocher’s name is listed and is not separately denoted as incarcerated. Nor does Blocher argue that she did not receive notice that she was to attend. 8 We conclude that when Blocher failed to appear, she was absent or unavailable for purposes of § 29-1207(4)(d). At least on these facts, her arrest in Douglas County did not act to relieve her of her responsibility to appear. We turn next to Blocher’s assertion that even if she was initially absent or unavailable, that time is nevertheless unat- tributable to her, because Lancaster County “did not prove that it took any efforts to secure [her] appearance and that such efforts were unsuccessful, or that such efforts would have been futile.” 9 We disagree that on these facts, Lancaster County did not make any effort to secure Blocher’s presence. The record shows that upon Blocher’s failure to appear, a warrant was ordered for her arrest. That warrant was actually issued the next day and was served on Blocher 2 days later. At that time, Blocher was arrested by authorities at Douglas County Department of Corrections, but remained in Douglas County until the charges against her there were concluded and she finished serving her sentence. Blocher was immediately taken into custody by Lancaster County authorities and transported to Lancaster County. Blocher asserts only that she was charged, not by an indi- vidual county, but by the State, and that as such, it was within the power of Lancaster County to have her returned to Lancaster County for trial. But she directs us to no authority that would support the conclusion that one county in Nebraska may require another county to transfer custody of a defendant, and our research has revealed none. 8 See, e.g., State v. Richter, 240 Neb. 223 , 481 N.W.2d 200 (1992). 9 Brief for appellant at 8.  - 880 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. BLOCHER Cite as 307 Neb. 874 Moreover, while there is no Nebraska case law directly on point, we have said, under similar facts but in the context of a constitutional speedy trial analysis, that requiring a county to take steps to secure the presence of defendant “ignores the fact that such action could have affected his availability for pretrial proceedings and trial on the . . . charges [pending in another county], resulting in the delay of their disposition.” 10 The record shows that the State, acting through the Lancaster County Attorney, sought a bench warrant, which was issued within a few days after Blocher’s failure to appear. Blocher was arrested on that warrant a few days after it was issued. The warrant was eventually returned on July 12, 2019, noting that Lancaster County had taken custody of Blocher on July 11, as soon as she was released from her sentence in Douglas County. At that time, Blocher was returned to Lancaster County. We conclude that on these facts, Lancaster County acted with suf- ficient diligence to secure Blocher’s presence. We are not persuaded by Blocher’s reliance on State v. Steele, 11 because we find it distinguishable. In Steele, the defendant was out on bond on charges in Lancaster County, when a warrant was issued for his arrest in Colorado. Lancaster County arrested him on that warrant and later voluntarily returned the defendant to Colorado. However, the county failed to lodge a detainer against the defendant. In this case, though, Lancaster County did not voluntarily transfer custody to Douglas County, nor did it fail to take any necessary legal steps to secure Blocher’s return. Finally, we observe that while the district court relied on § 29-1207(4)(d) to support the entire time between Blocher’s arrest and eventual release in Douglas County, at least a portion of that time period would also appear to be prop- erly excluded under § 29-1207(4)(a), which excludes “[t]he 10 State v. Tucker, 259 Neb. 225 , 232, 609 N.W.2d 306 , 312 (2000). 11 State v. Steele, 261 Neb. 541 , 624 N.W.2d 1 (2001).  - 881 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. BLOCHER Cite as 307 Neb. 874 period of delay resulting from other proceedings concerning the defendant, including, but not limited to . . . the time con- sumed in the trial of other charges against the defendant.” While Blocher pled no contest to the charge in Douglas County and so did not go to trial, she was incarcerated dur- ing the pendency of charges against her in Douglas County. Broadly construed, § 29-1207(4)(a) applies to proceedings in the pending case as well as to proceedings in other pending cases; in addition, the plain language envisions that the periods of delay are not limited to those listed. The district court did not err in excluding the time period from April 17, 2019, until the September 9 trial date. That trial date was within 6 months of Blocher’s reappearance in Lancaster County and presumed to be the next reasonably available trial date. In turn, the district court did not err in denying Blocher’s motion to discharge. CONCLUSION The decision of the district court is affirmed. Affirmed.

2020-12-04 14:08:47.374989+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007477PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:08 AM CST - 795 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 TDP Phase One, LLC, appellee, v. The Club at the Yard, LLC, doing business as Rule G Night Club, and Eric F. Marsh, appellants. ___ N.W.2d ___ Filed November 13, 2020. No. S-19-1198. 1. Jurisdiction. The question of jurisdiction is a question of law. 2. Jurisdiction: Appeal and Error. It is the power and duty of an appel- late court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties. 3. Claims: Parties: Judgments: Appeal and Error. Where the proceed- ings below involved multiple claims for relief or multiple parties, and the court has adjudicated fewer than all the claims or the rights and liabilities of fewer than all the parties, then, absent a specific statute governing the appeal providing otherwise, Neb. Rev. Stat. § 25-1315 (Reissue 2016) controls and mandates that the order is not immediately appealable unless the lower court issues an express determination for the entry of judgment upon an express determination that there is no just reason for delay. 4. Statutes: Final Orders: Intent. The intent behind Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) was to prevent interlocutory appeals, not make them easier. 5. Claims: Parties: Judgments: Appeal and Error. Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) attempts to strike a balance between the undesirability of piecemeal appeals and the potential need for making review available at a time that best serves the needs of the parties. 6. ____: ____: ____: ____. Certification of a final judgment must be reserved for the “unusual case” in which the costs and risks of multiply- ing the number of proceedings and of overcrowding the appellate docket are outbalanced by the pressing needs of the litigants for an early and separate judgment as to some claims or parties.  - 796 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 7. Claims: Parties: Final Orders. The power Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) confers upon the trial judge should be used only in the “infrequent harsh case” as an instrument for the improved administration of justice, based on the likelihood of injustice or hardship to the parties of a delay in entering a final judgment as to part of the case. 8. Parties: Judgments: Appeal and Error. Every party seeking certifica- tion may eventually appeal the judgment in question. 9. Claims: Final Orders. A court should be particularly cautious in cer­ tifying as final a judgment on a claim which is not truly distinct from the claims on remaining issues, for even if the certified judgment is inher- ently final, the facts underlying the claim resulting in that judgment may be intertwined with the remaining issues. 10. Statutes. To the extent there is a conflict between two statutes on the same subject, the specific statute controls over the general. 11. Statutes: Appeal and Error. When a statute is not ambiguous, an appellate court ordinarily looks no further than the plain language of the statute. 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. 12. Actions: Parties: Final Orders: Appeal and Error. One may bring an appeal pursuant to Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) only when (1) multiple causes of action or multiple parties are present, (2) the court enters a final order within the meaning of Neb. Rev. Stat. § 25-1902 (Supp. 2019) as to one or more but fewer than all of the causes of action or parties, and (3) the trial court expressly directs the entry of such final order and expressly determines that there is no just reason for delay of an immediate appeal. 13. Claims: Parties: Final Orders: Appeal and Error. In the absence of an express determination that there is no just reason for delay and upon an express direction for the entry of judgment, orders, however desig- nated, adjudicating fewer than all claims or the rights of fewer than all the parties are not final. Absent an entry of judgment under Neb. Rev. Stat. § 25-1315 (Reissue 2016), no appeal will lie unless all claims have been disposed as to all parties in the case. Appeal from the District Court for Lancaster County: Lori A. Maret, Judge. Appeal dismissed. David A. Domina, of Domina Law Group, P.C., L.L.O., for appellants. Gregory S. Frayser and Nathan D. Clark, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellee.  - 797 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Freudenberg, JJ. Freudenberg, J. NATURE OF CASE After its tenant failed to pay rent and refused to vacate the premises, a commercial landlord brought suit for restitution of premises pursuant to the forcible entry and detainer (FED) stat- utes, Neb. Rev. Stat. §§ 25-21,219 through 25-21,235 (Reissue 2016 & Cum. Supp. 2018). The landlord also brought claims for breach of the lease agreement and breach of the guaranty agreement. The tenant counterclaimed for breach of contract, breach of implied covenant of good faith and fair dealing, money had and received, and fraud in the inducement of the lease and guaranty agreements. The tenant also brought suit against the property management company and its owners, as third-party defendants, for civil conspiracy to tortiously inter- fere with a business expectancy and fraud in the inducement of the lease and guaranty agreements. The tenant appeals from an order of summary judgment in favor of the landlord on its FED claim. The district court’s order did not resolve the remaining claims of either the ­landlord or the tenant, and no request was made of the district court to issue a certification under Neb. Rev. Stat. § 25-1315 (Reissue 2016). We hold that this court is without jurisdiction over the present appeal. BACKGROUND TDP Phase One, LLC (TDP), a commercial landlord, entered into a 10-year lease agreement with The Club at the Yard, LLC, doing business as Rule G Night Club (Rule G), signed by its managing member and guarantor, Eric F. Marsh, in 2013. The property at issue is located in the “Railyard,” an entertainment district in Lincoln, Nebraska, with a common area in the middle and tenants surrounding it. TDP owns the Railyard. The tenants surrounding the Railyard share costs of the common area, which they pay pursuant to the terms  - 798 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 of their lease agreements. When Rule G failed to pay rent in April through July 2019, TDP prepared a 3-day notice to quit, mailing the notice to Marsh and hand delivering a copy to the attorney of record at all relevant times for Rule G. TDP then brought suit against Rule G, alleging restitution of the premises pursuant to §§ 25-21,219 through 25-21,235, as well as claims of breach of contract relating to both the lease and the guaranty agreements. TDP asserted that Rule G failed to pay rent in breach of its lease, that Marsh refused to pay the rent owed as Rule G’s guarantor, and that Rule G refused to vacate the premises after TDP prepared and sent a 3-day notice to quit pursuant to § 25-21,221. In its restitution action, TDP sought restitution, costs, and such other relief as was just and equitable. Rule G challenged proper notice pursuant to § 25-21,221 and raised various defenses, including waiver, prior material breach, and that Rule G was entitled to a setoff due to its over- payment of rent. Rule G also counterclaimed against TDP for (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) money had and received, and (4) fraud in the inducement of the lease and the guaranty agree- ments. Finally, Rule G filed a third-party complaint against the management company for the property and its sole members, alleging they conspired to tortiously interfere with its business expectancies. TDP moved for partial summary judgment, seeking a deter- mination of its FED claim, asserting that there was no gen­ uine issue of material fact as to its right to restitution of the premises. The court determined that Rule G failed to make all payments of rent due under the lease agreement and failed to deliver possession of the property within 3 days of the notice. The court found this entitled TDP to immediate restitution of the property. In its order, the court rejected Rule G’s claim that TDP did not satisfy the notice requirement required by § 25-21,221. It declined to construe § 25-21,221 as requiring notice to be served in the same manner as a summons in a civil action.  - 799 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 Further, the court was not persuaded by Rule G’s arguments that TDP waived its FED claim by accepting rental payments after filing suit and that there was a genuine issue of material fact as to whether Rule G was entitled to a setoff for the over- payment of rent under the lease agreement. The court noted that the lease agreement clearly provided that the acceptance of rent is not a waiver of default and that setoff for overpayment of the rent was explicitly precluded by the lease agreement. The court further observed that Rule G’s fraudulent induce- ment claims were barred by the statute of limitations. It did not address any other counterclaims or third-party claims. Rule G and Marsh appeal the order granting summary judg- ment to TDP on its FED claim. However, neither sought a § 25-1315 certification from the district court. ASSIGNMENTS OF ERROR Rule G and Marsh assign that the district court erred in granting the partial summary judgment for TDP, because the district court erroneously (1) concluded overpayments could not be considered to prove that the rents were paid, (2) did not allow discovery concerning prepayments of rent and calcula- tions of rent credits, (3) found proper presuit notice was given under § 25-21,221, and (4) granted summary judgment for restitution against a lease guarantor who is not a party in pos- session of the leased premises. STANDARD OF REVIEW [1] The question of jurisdiction is a question of law. 1 ANALYSIS [2] Before reaching the assignments of error asserted by Rule G and Marsh, this court must first determine whether it has jurisdiction over this appeal. It is the power and duty of an appellate court to determine whether it has jurisdiction 1 State v. Harris, ante p. 237, 948 N.W.2d 736 (2020). See, also, Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301 , 854 N.W.2d 774 (2014).  - 800 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 over the matter before it, irrespective of whether the issue is raised by the parties. 2 In doing so, we find that we lack juris- diction over the present appeal, because it lacks certification under § 25-1315. Section 25-1315(1) provides in full: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determina- tion and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of deci- sion is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. [3] Where the proceedings below involved multiple claims for relief or multiple parties, and the court has adjudicated fewer than all the claims or the rights and liabilities of fewer than all the parties, then, absent a specific statute govern- ing the appeal providing otherwise, 3 § 25-1315 controls and mandates that the order is not immediately appealable unless the lower court issues an “express direction for the entry of judgment” upon “an express determination that there is no just reason for delay.” 2 Bailey v. Lund-Ross Constructors Co., 265 Neb. 539 , 657 N.W.2d 916 (2003). 3 See R & D Properties v. Altech Constr. Co., 279 Neb. 74 , 776 N.W.2d 493 (2009) (finding Neb. Rev. Stat. § 25-1315.03 (Reissue 2016) to be more specific and controlling statute over § 25-1315 and allowing appeal without § 25-1315 certification).  - 801 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 This case involved both multiple claims for relief and ­ ultiple parties, and the order of restitution appealed from m adjudicated both fewer than all the claims and the rights and liabilities of fewer than all the parties. TDP filed suit against Rule G for breach of contract, breach of guaranty, and restitu- tion of premises. Rule G in turn brought several counterclaims, as well as a third-party complaint against the property’s man- agement company for fraud and tortious interference. TDP filed a motion for partial summary judgment, and the district court entered an order of restitution granting TDP restitution of the premises. This order disposed only of TDP’s restitution- of-premises claim against Rule G. The district court has yet to adjudicate TDP’s breach of contract and guaranty claims, Rule G’s counterclaims against TDP, and Rule G’s third-party claims against the property’s management company. [4,5] The intent behind § 25-1315(1) was to prevent inter- locutory appeals, not make them easier. 4 Prior to the enactment of § 25-1315, an order that effected a dismissal with respect to one of multiple parties was a final, appealable order, and the complete dismissal with prejudice of one of multiple causes of action was a final, appealable order, but an order dismiss- ing one of multiple theories of recovery, all of which arose from the same set of operative facts, was not a final order for appellate purposes. 5 Section 25-1315 was an evident attempt by the Legislature to simplify the issue and clarify many of the questions regarding final orders when there are multiple parties and claims. 6 It attempts to strike a balance between the undesirability of piecemeal appeals and the potential need for making review available at a time that best serves the needs of the parties. 7 4 Rafert v. Meyer, 298 Neb. 461 , 905 N.W.2d 30 (2017). 5 Cerny v. Todco Barricade Co., 273 Neb. 800 , 733 N.W.2d 877 (2007). 6 Id. 7 Id.  - 802 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 [6-9] Certification of a final judgment must be reserved for the “unusual case” in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by the pressing needs of the litigants for an early and separate judgment as to some claims or par- ties. 8 The power § 25-1315(1) confers upon the trial judge should be used only in the “infrequent harsh case” as an instru- ment for the improved administration of justice, based on the likelihood of injustice or hardship to the parties of a delay in entering a final judgment as to part of the case. 9 Every party seeking certification may eventually appeal the judgment in question. 10 A court should be particularly cautious in certify- ing as final a judgment on a claim which is not truly distinct from the claims on remaining issues, for even if the certified judgment is inherently final, the facts underlying the claim resulting in that judgment may be intertwined with the remain- ing issues. 11 [10] To the extent there is a conflict between two statutes on the same subject, the specific statute controls over the general, 12 but we find no statute applicable here that conflicts with § 25-1315. The statute applicable in the present case, § 25-21,233, provides: “Any party against whom judgment has been entered in an action of [FED], or forcible detention only, of real property, may appeal as provided for in a civil action.” There is nothing in the language of § 25-21,233 indicating that an order of restitution resolving a FED claim, when it adjudi- cates fewer than all claims for relief and the rights and liabili- ties of fewer than all the parties in the action in which such claim was brought, should be immediately appealable without having to obtain a certified judgment pursuant to § 25-1315. 8 Rafert v. Meyer, supra note 4. 9 Id. 10 Cerny v. Todco Barricade Co., supra note 5. 11 Id. 12 Becher v. Becher, 299 Neb. 206 , 908 N.W.2d 12 (2018).  - 803 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 [11] When a statute is not ambiguous, an appellate court ordinarily looks no further than the plain language of the stat- ute. 13 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. 14 Section 25-21,233, by its plain language, directs that the party against whom judgment has been entered in a FED action may appeal only “as provided for in a civil action.” And § 25-1315 governs civil actions. Thus, by the plain language of § 25-21,233, when the FED claim is part of an action involving multiple claims or multiple parties, § 25-1315 governs the immediate appealability of an order determining the FED claim. The language of § 25-21,233 is distinguishable from § 25-1315.03, which we held in R & D Properties v. Altech Constr. Co. 15 to be a more specific statute that controls over § 25-1315 in determining whether the order described therein is immediately appealable. Section 25-1315.03 plainly states that an order granting or denying a new trial is “an appeal- able order,” with the time and manner for the appeal of such order to be as for an appeal from a judgment, decree, or final order. Thus, in R & D Properties, we found we had jurisdic- tion over an appeal from an order granting a new trial on the building owner’s claims against a contractor, even though a third-party claim against a subcontractor was still pending and the court did not issue a certification under § 25-1315. 16 The order granting a new trial was final and appealable with- out a § 25-1315 certification, because the language designat- ing the order granting a new trial as “an appealable order” plainly controlled over the mandate in § 25-1315 that “any order or other form of decision, however designated, which 13 See State v. McGuire, 301 Neb. 895 , 921 N.W.2d 77 (2018). 14 Moser v. State, ante p. 18, 948 N.W.2d 194 (2020). See, also, State v. McGuire, supra note 13. 15 R & D Properties v. Altech Constr. Co., supra note 3. 16 Id. - 804 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 adjudicates fewer than all the claims or the rights and liabili- ties of fewer than all the parties shall not terminate the action as to any of the claims or parties.” The plain language of § 25-21,233 does not designate an order determining the rights and liabilities in a FED action to be “an appealable order.” Rather, it generally states that any party against whom “judgment” has been entered in an action of FED or forcible detention only “may appeal as provided for in a civil action.” As already stated, § 25-1315 is part of how one may appeal in a civil action, when multiple claims or par- ties are involved. We also note that where there are multiple parties or multiple claims, fewer than all of which have been adjudicated, there is no “judgment” as defined by Neb. Rev. Stat. § 25-1301(1) (Cum. Supp. 2018). 17 While prior versions of § 25-21,233 had language directing, without caveat, that the judgment in the FED action could be appealed, this language had been adopted at a time when FED actions were not joined with other claims, and it has since been amended. At the time prior versions of § 25-21,233 were in effect, the language of the statute combined with the rule that FED claims cannot litigate questions outside of the immediate right to possession and statutorily designed incidents thereto, so that claims for damages related to rent costs and restitution were not joined in an action with claims nonrelated to rental damages or restitution of the property. 18 But, after the passage of the liberal joinder amendments in 1998, 19 the Legislature accounted for the possibility of joinder of FED and non-FED claims and, accordingly, the possible implication of § 25-1315, by qualifying in § 25-21,233 that the appeal must be “as pro- vided for in a civil action.” 17 See Boyd v. Cook, 298 Neb. 819 , 906 N.W.2d 31 (2018). 18 See Federal Nat. Mortgage Assn. v. Marcuzzo, supra note 1. 19 See, e.g., Neb. Rev. Stat. §§ 25-311, 25-320, 25-701, and 25-705 (Reissue 2016); Introducer’s Statement of Intent, L.B. 234, Judiciary Committee, 95th Leg., 1st Sess. (Feb. 21, 1997).  - 805 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 Nothing in the history of § 25-21,233 indicates any intent on the part of the Legislature after the passage of the liberal joinder amendments to allow orders determining FED claims to be immediately appealable even when fewer than all claims or the rights of fewer than all the parties in the action have been adjudicated. Section 25-21,233 originally stated: “Any party against whom judgment has been entered by this court in an action of [FED], or forcible detention only, of real property, may appeal therefrom to the district court, except that the right of appeal herein granted shall not be granted from judgments entered by default.” 20 At that time, FED actions originated in municipal courts and “by this court” referred to munici- pal courts. 21 In 1972, the Legislature amended § 25-21,233 by taking out “by this court,” because a reorganization of the courts in Nebraska was occurring and the municipal courts of Lincoln and Omaha, Nebraska, were limited to the cities’ corporate limits. 22 In 1981, the Legislature amended the FED statutory scheme to account for the fact that municipal courts no longer existed. The amendment allocated jurisdiction to both county and district courts to handle FED claims. 23 Also in 1981, the language of § 25-21,233 was amended to allow an appeal of a FED claim “as provided in sections 24-541.01 to 24-541.10 and 24-551.” Neb. Rev. Stat. §§ 24-541.01 to 24-541.10 (Reissue 1985), currently found at Neb. Rev. Stat. §§ 25-2728 to 25-2738 (Reissue 2016 & Cum. Supp. 2018), laid out the location, deadlines, and procedures for appealing cases from county court to district court. This language in § 25-21,233 20 1929 Neb. Laws, ch. 82, § 131, p. 312. 21 1929 Neb. Laws, ch. 82, § 117, p. 309. 22 Compare Neb. Rev. Stat. § 26-1,132 (Reissue 1964), with Neb. Rev. Stat. § 24-582 (Reissue 1975). See, also, Introducer’s Statement of Purpose, L.B. 1032, Judiciary Committee, 82d Leg., 2d Sess. (Jan 24, 1972). 23 Neb. Rev. Stat. § 24-568 (Reissue 1985).  - 806 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 was adopted in order to streamline the appeal process from county courts to district courts. 24 Lastly, in 2004, the Legislature corrected an error in § 25-21,233 indicating that FED claims brought in district court were appealed to district court. The 2004 amendment clarified that appeals of FED claims brought in district court were to be appealed as provided for in a civil action. The pre-2004 error was due to the jurisdictional language in § 25-21,219 giving jurisdiction of FED claims to county and district courts and then the language in § 25-21,233 allowing for appeals “as provided in sections 25-2728 to 25-2738,” which laid out the process to appeal cases from county to dis- trict court. The statutory scheme read with § 25-21,233 made it sound as if the appeals could go only to district court, based on the language “may appeal as provided in sections 25-2728 to 25-2738.” So the amendment in 2004 removed “in sections 25-2728 to 25-2738” and added “for in a civil action,” so that the appeals of FED actions would now be allowed as any other appeal would. 25 The current statutory scheme adopted in 2004, combined with the liberal joinder rules adopted in 1998, means that an action involving multiple claims, only one of which arises under the FED statutes, can be presented in a single action. With this possibility, the Legislature’s amendment of § 25-21,233 to state that an appeal from a “judgment” in a FED action may be appealed only as provided “for in a civil action” 26 indicates its intent that appeals involving FED claims 24 Introducer’s Statement of Intent, L.B. 42, Judiciary Committee, 87th Leg., 1st Sess. (Jan. 21, 1981). See, also, §§ 24-582 (Reissue 1985) and 24-568. 25 Compare § 25-21,219 (Reissue 1995) (giving jurisdiction of FED actions to county and district courts), § 25-21,233 (Reissue 1995) (providing specific appeal statutes), and §§ 25-2728 to 25-2738 (specific appeal statutes from § 25-21,223 that laid out appeal process from county to district court), with § 25-21,233 (Reissue 2008). 26 See 2004 Neb. Laws, L.B. 1207.  - 807 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 should now be governed by the normal appeal process for civil actions—which would require satisfying Neb. Rev. Stat. § 25-1902 (Supp. 2019) or § 25-1301(1) and, when implicated, § 25-1315. [12,13] We need not conduct an analysis of whether the FED order of partial summary judgment that Rule G and Marsh attempt here to appeal was a final order under § 25-1902 or a judgment under § 25-1301, because we conclude that § 25-1315 was implicated and the court did not certify the appeal as required by that statute. With the enactment of § 25-1315(1), one may bring an appeal pursuant to such sec- tion only when (1) multiple causes of action or multiple par- ties are present, (2) the court enters a final order within the meaning of § 25-1902 as to one or more but fewer than all of the causes of action or parties, and (3) the trial court expressly directs the entry of such final order and expressly determines that there is no just reason for delay of an immediate appeal. 27 In the absence of an express determination that there is no just reason for delay upon an express direction for the entry of judgment, orders, however designated, adjudicating fewer than all claims or the rights of fewer than all the parties are not final. 28 Absent an entry of judgment under § 25-1315, no appeal will lie unless all claims have been disposed as to all parties in the case. 29 The order of partial summary judgment in this matter adju- dicated both fewer than all claims presented in the underly- ing action and the rights of fewer than all the parties. The district court did not make an express direction for the entry of judgment upon an express determination that there is no just reason for delay. Therefore, we lack jurisdiction over TDP’s appeal. 27 Rafert v. Meyer, supra note 4. 28 See Boyd v. Cook, supra note 17. 29 Id. - 808 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports TDP PHASE ONE v. THE CLUB AT THE YARD Cite as 307 Neb. 795 CONCLUSION This court is without jurisdiction over the present appeal, because the order of restitution disposing of the FED action did not satisfy § 25-1315(1). Therefore, the appeal is dismissed. Appeal dismissed. Funke and Papik, JJ., not participating.

2020-11-20 19:22:03.87615+00

THE PROCTER & GAMBLE COMPANY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Procter & Gamble Co. v. Commissioner Docket No. 16521-84 United States Tax Court T.C. Memo 1990-638; 1990 Tax Ct. Memo LEXIS 713; 60 T.C.M. (CCH) 1463; T.C.M. (RIA) 90638; December 19, 1990, Filed William S. Corey, J. D. Fleming, Jr., Richard A. Burton, and Burgess L. Doan, for the petitioner. Howard Berger, for the respondent. HAMBLEN, Judge. HAMBLEN *2101 SUPPLEMENTAL MEMORANDUM OPINION This matter is before the Court on respondent's motion for reconsideration filed pursuant to Rule 161. 1 The merits of this case were decided in The Procter & Gamble Co. v. Commissioner, 95*714 T.C. (filed Sept. 18, 1990), and to the extent necessary for the disposition of this motion the facts and holdings in that opinion are incorporated herein by this reference. Background In The Procter & Gamble Co. v. Commissioner, 95 T.C. (filed Sept. 18, 1990), we decided that respondent's allocation of income from Procter and Gamble Espana, S.A. (Espana) to Procter and Gamble, A.G. (AG) was not warranted under section 482. We relied on Commissioner v. First Security Bank of Utah, 405 U.S. 394 (1972), in support of our holding. Consistent with the finding that an allocation of income from Espana to AG was not warranted, we concluded that respondent had improperly increased the subpart F income of Procter and Gamble Co. (petitioner). On October 18, 1990, respondent filed*715 a motion for reconsideration and a memorandum in support of the motion. On October 26, 1990, petitioner filed a motion to strike two contentions raised in respondent's motion for reconsideration. On November 2, 1990, respondent filed a notice of objection to petitioner's motion to strike. On November 8, 1990, petitioner filed a response to respondent's reply to petitioner's motion to strike. In his motion for reconsideration respondent sets forth eight grounds in support of his contention that the Court's opinion in this case is in error. Respondent argues that: (1) foreign law is immaterial with respect to the application of section 482; (2) administrative remedies must be exhausted to prove foreign law with respect to the application of section 482; (3) AG did not deal with Espana as it would have dealt with an unrelated party; (4) foreign law may not override the laws of the United States; (5) section 482 may be applied to allocate deductions from AG to Espana; (6) Spanish law did not prevent Espana from paying AG for its use of petitioner's intangible property; (7) AG's payments to petitioner for Espana's use of petitioner's intangible property are not deductible under section*716 162; and (8) the Court improperly invalidated the blocked income regulations. Discussion The granting of a motion for reconsideration rests within the discretion of the Court. The Court generally denies reconsideration of proceedings already concluded unless unusual circumstances or substantial error is shown. Vaughn v. Commissioner, 87 T.C. 164">87 T.C. 164, 166-167 (1986); Robin Haft Trust v. Commissioner, 62 T.C. 145">62 T.C. 145, 147*2102 (1974), vacated and remanded on other grounds 510 F.2d 43">510 F.2d 43 (1st Cir. 1975). As a preliminary point, we note that two of the grounds contained in respondent's motion for reconsideration represent new matters in this litigation. See Achiro v. Commissioner, 77 T.C. 881">77 T.C. 881, 890 (1981) (distinguishing a new theory from a new matter). First, respondent argues that section 482 may be applied to allocate deductions from AG to Espana. In addition, respondent argues that AG's payments to petitioner for Espana's use of petitioner's intangible property are not deductible under section 162. These arguments were not presented*717 to the Court when the case originally was submitted for disposition and would require the presentation of additional evidence for resolution at this time. Consistent with the spirit of the rules of pleading of this Court, the taxpayer is entitled to notice of the grounds upon which respondent's deficiency determination is based. As a general rule, such notice may be provided in the notice of deficiency or in respondent's answer to the petition for redetermination. See Rules 31(a) and 36(b); Commissioner v. Transport Mfg. & Equip. Co., 478 F.2d 731">478 F.2d 731, 735-736 (8th Cir. 1973), affg. on this issue 56 T.C. 388">56 T.C. 388 (1971) and 57 T.C. 469">57 T.C. 469 (1971); Nat Harrison Associates, Inc. v. Commissioner, 42 T.C. 601">42 T.C. 601, 617 (1964); Burrell Groves, Inc. v. Commissioner, 16 T.C. 1163">16 T.C. 1163, 1169 (1951). In the event respondent raises a new matter at such a late date that notions of fair play and justice would be abrogated by permitting him to rely on the new matter, then respondent will not be heard. See Achiro v. Commissioner, 77 T.C. at 891,*718 and cases cited therein. This principle is intended to facilitate orderly litigation and to promote judicial economy by discouraging piecemeal litigation. Robin Haft Trust v. Commissioner, 62 T.C. at 147. In Theatre Concessions, Inc. v. Commissioner, 29 T.C. 754">29 T.C. 754, 760-761 (1958), we stated: The fundamental purpose of pleadings is to inform the parties, and the Court, of the issues involved, and certainly the taxpayer is entitled to know, at least by the date of the hearing, the ground upon which the Commissioner has acted and the contention which he is required to meet in order to establish the error of the determination. The respondent cannot be allowed to profit by a contention, made long after the testimony has been heard, based upon a failure of proof of a fact which was not, in any practical sense, put in issue by the pleadings, and which was not germane to any theory theretofore advanced by respondent or even mentioned by respondent's counsel at the trial * * *. As was the case in Theatre Concessions, Inc., respondent may*719 be precluded from litigating a new matter even where respondent's new arguments arise under the same code sections as did the arguments upon which the case was tried. See Seligman v. Commissioner, 84 T.C. 191">84 T.C. 191, 197-199 (1985), affd. 796 F.2d 116">796 F.2d 116 (5th Cir. 1986); O'Meara v. Commissioner, 8 T.C. 622">8 T.C. 622, 628-629 (1947). The issue framed by the statutory notice and tried by this Court related solely to an allocation of income from Espana to AG pursuant to section 482. In this regard, the statutory notice provided in pertinent part: During the years ended June 30, 1978 and June 30, 1979, Procter and Gamble A.G. made available to Procter and Gamble Espana, S.A. certain patents, trademarks, manufacturing know-how, technical services and other valuable intangibles without arm's length consideration. Under the authority of section 482 of the Internal Revenue Code of 1954, additional gross income is allocated from Procter and Gamble Espana, S.A. to Procter and Gamble A.G. in the amounts of $ 1,232,653.00 and $ 1,795,005.00 for the years ended June 30, 1978 and June 30, 1979, respectively. It is determined these*720 allocations are necessary to prevent the evasion of taxes and to clearly reflect income. These reallocations result in additional subpart F income which must be included in your gross income under the provisions of section 951 of the Internal Revenue Code of 1954. [Emphasis added.] There was no mention in any of the pleadings filed in this case of an allocation of AG's deductions to Espana, nor of the effect of section 162 on AG's transactions. Moreover, there was no reference to facts pertinent to those issues in the stipulation of facts submitted by the parties. Finally, the issues were not raised by respondent during his opening statements at trial, nor in his post-trial briefs. Petitioner asserts that it had no prior notice whatsoever of the issues in question and respondent does not allege otherwise. Thus, to allow respondent to litigate these new matters at such a late date would certainly prejudice petitioner and place petitioner at a disadvantage. In particular, respondent's delay in raising the issues in question denied petitioner the opportunity to address the issues at trial and on brief. There has to be a point at which*721 respondent is bound by his pleadings if tax controversies are to be expeditiously resolved, and we have already passed that point. Koufman v. Commissioner, 69 T.C. 473">69 T.C. 473, 477 (1977). Thus, *2103 we conclude that the arguments in question were effectively waived by respondent and cannot now be considered by this Court. Respondent cites United States v. Goodyear Tire & Rubber Co., 493 U.S. , 110 S.Ct. 462 (1989), in support of his argument that foreign law is immaterial with respect to the application of section 482. In particular, respondent argues that his position is supported by the Supreme Court's reaffirmation of the statutory canon that "tax provisions should generally be read to incorporate domestic tax concepts absent a clear congressional expression that foreign concepts control." United States v. Goodyear Tire & Rubber Co., 493 U.S. at , 110 S.Ct. at 470. Respondent concludes that it should be presumed that Congress intended that its own criteria would be used to interpret the terms of a domestic tax statute such as section 482. *722 While there can be no debate, as a general matter, that Congress controls the taxing power of the United States, our opinion in this case does not improperly ignore domestic tax concepts with respect to the scope and application of section 482. To the contrary, we have applied domestic tax concepts regarding the application of section 482, as espoused by the Supreme Court in Commissioner v. First Security Bank of Utah, 405 U.S. 394">405 U.S. 394 (1972). Stated another way, in Commissioner v. First Security Bank of Utah, supra, the Supreme Court interpreted section 482 so that an allocation cannot be made when the taxpayer's receipt of the allocated income is prohibited by law. We see no sound basis for refusing to apply the foregoing principle where receipt of the income in question is precluded by foreign as opposed to domestic law. The common impediment, whether from domestic or foreign law, is the legal prohibition of payment. The remainder of respondent's contentions in his motion for reconsideration are points which the Court considered prior to issuing its original opinion in this case. While respondent's concerns are not without merit, the Court*723 is both compelled and obligated to follow the precedent of the Supreme Court in Commissioner v. First Security Bank of Utah, supra, as well as that of the Sixth Circuit in Salyersville National Bank v. United States, 650">613 F.2d 650 (6th Cir. 1980). Likewise, respondent has not convinced the Court that the principles stated in U.S. Padding Corp. v. Commissioner, 865 F.2d 750 (6th Cir. 1989), should not be applied in the context of this case. Respondent's remedy is to pursue an appeal in due course or to seek legislative clarification. Accordingly, respondent's motion for reconsideration is denied. In addition, petitioner's motion to strike is denied as moot. To reflect the foregoing, An appropriate order will be issued. Footnotes

2020-12-04 14:08:44.042295+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007494PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:08 AM CST - 862 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 In re Interest of Seth C., a child under 18 years of age. State of Nebraska, appellee, v. Seth C., appellant. ___ N.W.2d ___ Filed November 20, 2020. No. S-20-026. 1. Juvenile Courts: Appeal and Error. An appellate court reviews juve- nile cases de novo on the record and reaches its conclusions indepen- dently of the juvenile court’s findings. 2. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. 3. Statutes: Legislature: Intent. In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. 4. Statutes. A court must give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. 5. Statutes: Legislature: Intent. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, har- monious, and sensible. 6. Juvenile Courts: Minors. The foremost purpose and objective of the Nebraska Juvenile Code is to promote and protect the juvenile’s best interests. 7. ____: ____. The Nebraska Juvenile Code must be liberally construed to serve the best interests of juveniles who fall within it. 8. Juvenile Courts: Restitution: Words and Phrases. The word “includ- ing,” as used in Neb. Rev. Stat. § 43-286(1)(a) (Supp. 2017), introduces examples, not an exhaustive list, and connotes that the provided list  - 863 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 of components is not exhaustive and that there are other items includ- able that are not specifically enumerated. 9. Juvenile Courts: Restitution. The Nebraska Juvenile Code shall be construed to offer selected juveniles the opportunity to take direct per- sonal responsibility for their individual actions by reconciling with the victims and fulfilling the terms of any resulting agreement which may require restitution and community service. 10. ____: ____. Neb. Rev. Stat. § 43-286(1)(a) (Supp. 2017) contains a non- exhaustive list of what terms and conditions a juvenile court may order. 11. Juvenile Courts. A juvenile court has broad discretion as to the disposi- tion of a delinquent child. 12. ____. A juvenile court proceeding is not a prosecution for a crime, but a special proceeding that serves as an ameliorative alternative to a crimi- nal prosecution. 13. Juvenile Courts: Restitution: Records. Strict rules of evidence do not apply at dispositional hearings in juvenile cases, but a court’s order imposing restitution must still be supported by the record. 14. Juvenile Courts: Restitution. A restitution order imposed in an appro- priate manner serves the salutary purpose of making the offender under- stand that he or she has harmed not merely society in the abstract, but also individual human beings, and that he or she has a responsibility to the victim. This salutary purpose would be undermined by the imposi- tion of a restitution order that the juvenile is financially unable to pay. 15. Juvenile Courts: Restitution: Proof. When a juvenile court enters an order of restitution, the court may use any rational method of fixing the amount of restitution, as long as the amount is rationally related to the proofs offered at the dispositional hearing, and the amount is consistent with the purposes of education, treatment, rehabilitation, and the juve- nile’s ability to pay. Appeal from the Separate Juvenile Court of Lancaster County: Reggie L. Ryder, Judge. Affirmed. Joe Nigro, Lancaster County Public Defender, and Megan Kielty for appellant. No appearance for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.  - 864 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 Funke, J. Seth C. appeals an order of restitution entered by the sepa- rate juvenile court after Seth admitted to an amended allega- tion of disturbing the peace and quiet of another person. As a term of probation, the juvenile court ordered Seth to pay $500 in restitution for the victim’s medical expenses. Seth argues that the Nebraska Juvenile Code does not authorize a juvenile court to order restitution for medical expenses incurred by a victim. 1 We disagree and affirm the order of restitution for medical expenses. BACKGROUND On August 9, 2018, the State filed a juvenile petition in the separate juvenile court of Lancaster County alleging that Seth was a juvenile as defined under Neb. Rev. Stat. § 43-247 (Reissue 2016) and further alleging that Seth had committed conduct that would constitute assault in the third degree. Seth denied the allegation in the petition. On October 4, 2018, the juvenile petition was amended by interlineation to allege that Seth disturbed the peace and quiet of another person. That same day, Seth entered an admission to the amended petition. On October 16, the juvenile court entered an order of adjudication finding Seth to be a juvenile as defined by § 43-247(1), continuing his disposition to a later date and ordering the preparation of a predisposition investiga- tion report. According to police reports included with the predisposi- tional report, Seth and the victim were occupants in different vehicles involved in a road rage incident. Once both vehicles came to a stop, Seth got out of his vehicle, went to the vic- tim’s vehicle, and began punching the victim while the victim was still sitting in his vehicle. The victim was punched four to five times in the head before he got out of his vehicle and confronted Seth. Seth claimed that it was a mutual fight and 1 See Neb. Rev. Stat. § 43-286(1)(a)(i) (Supp. 2017).  - 865 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 that the victim’s hand was injured when the victim punched a concrete median. In June 2019, the juvenile court entered an “Agreement and Order of Probation” placing Seth on probation and outlining specific terms and conditions Seth was to complete. One of the terms required Seth to “pay restitution as ordered.” On December 12, 2019, a restitution hearing was held where evidence in the form of medical bills was received and testi- mony from the victim’s mother was given. The medical bills showed that the victim received treatment from a local hospi- tal and that $3,330.96 was still due and owing. The victim’s mother testified that though insurance paid for a portion of the medical expenses, the remaining balance had not been paid. Additionally, a victim impact statement was received which indicated that the medical expenses stemmed from the injury the victim sustained during the altercation with Seth. Seth testified that at the time of the hearing, he was 18 years of age and would be turning 19 in January 2020. He further testified that he was working approximately 40 hours per week at a wage of $10 per hour, for a net income of $800 to $900 per month. Seth also testified that he was living in an apartment with his girlfriend and received no financial support from his parents. He explained that he pays his own bills, which include monthly expenses of $375 for rent, $60 for his phone, and other costs for groceries and clothing. Because Seth was less than a month from turning 19 years old and because of Seth’s current financial status, the court acknowledged that it would be unrealistic to expect Seth to pay the full amount of restitution, $3,330.96, in the time he had remaining on probation. However, the court determined it would be in Seth’s rehabilitative interests to make a good faith effort to make the victim and his family whole. In response, Seth argued that under § 43-286, the juvenile court was autho- rized to order restitution for stolen or damaged property, but was not authorized to order restitution for medical expenses incurred as the result of physical damages (bodily injury).  - 866 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 In its order filed on December 13, 2019, the juvenile court rejected Seth’s argument. The court stated that the “very nature of the statute gives the court broad discretion as to what those terms may be.” The court opined that the inclusion of the pro- visions of restitution and community service programs in the statute provides mere examples of what the court may order, not the exclusive list of what the court is authorized to order. The court ordered Seth to pay restitution to the victim in the amount of $500, again noting that although Seth should be required to pay the full amount of restitution, the circumstances did not allow for it. Seth appeals. ASSIGNMENTS OF ERROR Seth assigns, restated, renumbered, and consolidated, that the juvenile court erred in finding that (1) an order of restitu- tion for bodily injury was authorized by statute, (2) there was sufficient evidence to support an order of restitution, and (3) Seth had the ability to pay the ordered restitution. STANDARD OF REVIEW [1,2] An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court’s findings. 2 Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. 3 ANALYSIS Statutory Authority In his first assignment of error, Seth asserts that the lan- guage of § 43-286 authorizes a juvenile court to order res- titution only for any property stolen or damaged and that as such, the court lacked the requisite statutory authority to order Seth to pay restitution for the medical expenses the victim incurred. We recognize that as a statutorily created court of 2 In re Interest of Octavio B. et al., 290 Neb. 589 , 861 N.W.2d 415 (2015). 3 In re Interest of Marcella G., 287 Neb. 566 , 847 N.W.2d 276 (2014).  - 867 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 limited and special jurisdiction, a juvenile court has only such authority as has been conferred on it by statute. 4 But we dis- agree that the statutes authorizing dispositions in juvenile cases are as limited as Seth argues. [3-5] A court determines a statute’s meaning based on its text, context, and structure. 5 In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. 6 A court must give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. 7 Components of a series or collec- tion of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different pro- visions are consistent, harmonious, and sensible. 8 [6,7] As we have routinely said, the foremost purpose and objective of the Nebraska Juvenile Code is to promote and protect the juvenile’s best interests. 9 Additionally, the Nebraska Juvenile Code must be liberally construed to serve the best interests of juveniles who fall within it. 10 Section 43-286, in relevant part, provides: (1) When any juvenile is adjudicated to be a juvenile described in subdivision (1), (2), or (4) of section 43-247: (a)(i) . . . The court may continue the dispositional por- tion of the hearing, from time to time upon such terms 4 See In re Interest of Donald B. & Devin B., 304 Neb. 239 , 933 N.W.2d 864 (2019). 5 Ash Grove Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947 , 947 N.W.2d 731 (2020). 6 Id. 7 Id. 8 First State Bank Neb. v. MP Nexlevel, ante p. 198, 948 N.W.2d 708 (2020). 9 In re Interest of Veronica H., 272 Neb. 370 , 721 N.W.2d 651 (2006). 10 See id. See, also, Neb. Rev. Stat. § 43-2,128 (Reissue 2016).  - 868 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 and conditions as the court may prescribe, including an order of restitution of any property stolen or damaged or an order requiring the juvenile to participate in commu- nity service programs, if such order is in the interest of the juvenile’s reformation or rehabilitation . . . . [8] Section 43-286(1)(a) uses the word “including” when it lists what the court may order as part of the disposition. We note that it is a widely accepted interpretation that the word “including” introduces examples, not an exhaustive list. 11 In fact, we have previously stated that the word “include,” as used in a statute, connotes that the provided list of components is not exhaustive and that there are other items includable that are not specifically enumerated. 12 Thus, it is clear and consist­ ent with our jurisprudence that the word “including,” as used in § 43-286(1)(a), connotes that the provided list of terms and conditions that the court may order is not exhaustive and that there may be other terms and conditions that are includ- able but not specifically enumerated in the statute. In other words, § 43-286(1)(a) does not limit the types of restitution a juvenile court may order to only restitution for property stolen or damaged. [9] Further, Neb. Rev. Stat. § 43-246(3) (Reissue 2016) provides that the Nebraska Juvenile Code shall be construed to reduce the possibility of juveniles committing future law ­violations through the provision of social and rehabili- tative serv­ices to such juveniles. Additionally, according to § 43-246(4), the Nebraska Juvenile Code shall be construed to offer selected juveniles the opportunity to take direct personal responsibility for their individual actions by reconciling with the victims and fulfilling the terms of any resulting agreement which may require restitution and community service. 11 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 132 (2012). 12 State v. Jedlicka, 305 Neb. 52 , 938 N.W.2d 854 (2020). See Stephens v. Stephens, 297 Neb. 188 , 899 N.W.2d 582 (2017).  - 869 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 Because §§ 43-246(3) and (4) and 43-286(1)(a) all relate to the juvenile code, § 43-286(1)(a) must be construed so as to maintain a sensible and consistent scheme with § 43-246(3) and (4). We believe it is consistent with the language of § 43-246(3), which makes reference to reducing the possibil- ity of the juvenile’s committing additional law violations, and § 43-246(4), which makes reference to requiring juveniles to make amends in various ways, including paying restitution, to interpret the reference to restitution for stolen or damaged property as merely one example of an offense for which the juvenile court could order restitution. [10] As a result, we conclude that § 43-286(1)(a) contains a nonexhaustive list of what terms and conditions a juvenile court may order when continuing disposition and that statuto- rily, the court was authorized to order Seth to pay restitution for medical expenses. However, we must also consider whether ordering restitution was in the interest of Seth’s reformation and rehabilitation. [11,12] As we previously indicated, § 43-286(1)(a) allows a juvenile court to prescribe certain terms and conditions as long as it is in the interest of the juvenile’s reformation or rehabili- tation. Additionally, a juvenile court has broad discretion as to the disposition of a delinquent child. 13 We have long recog- nized that a juvenile court proceeding is not a prosecution for a crime, but a special proceeding that serves as an ameliorative alternative to a criminal prosecution. 14 When liberally construing the Nebraska Juvenile Code, we conclude that requiring Seth to pay restitution for the victim’s medical bills is essential for Seth’s reformation and rehabilita- tion, because it gives Seth the opportunity to take direct per- sonal responsibility for his actions. Seth’s first assignment of error is without merit. 13 See In re Interest of J.M., 223 Neb. 609 , 391 N.W.2d 146 (1986). 14 In re Interest of Brandon M., 273 Neb. 47 , 727 N.W.2d 230 (2007).  - 870 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 Sufficiency of Evidence Seth’s second assignment of error contends that even if the juvenile court has the statutory authority to order restitution for medical expenses, the State presented insufficient evidence to support the award of restitution. In particular, Seth argues that there was insufficient evidence to find that the victim’s injuries were caused by Seth and that $500 was the appropriate amount of restitution. Seth is correct that there is evidence in the record that the victim’s injuries may have occurred when the victim struck a concrete median during the incident. Nonetheless, we conclude that the State presented sufficient evidence to prove the vic- tim’s physical injuries were caused by Seth. It is undisputed that Seth admitted to the allegation of dis- turbing the peace and quiet of another person stemming from the altercation with the victim. It is also undisputed that Seth was the initial physical aggressor in the incident, because the police reports show that Seth got out of his vehicle, walked over to the victim’s vehicle, and began punching the victim. Seth struck the victim four to five times before the victim got out of his vehicle and took Seth to the ground. As such, the record supports that the victim’s injuries were caused by Seth. As to the amount of the medical damages, Seth points to the fact that the medical bills do not indicate or list the victim’s injuries and that the only details regarding how the victim sus- tained the injuries, and the type of injuries the victim suffered, are found in the victim impact statement, which was filled out by the victim’s mother. Seth argues that the victim impact statement is hearsay and therefore not admissible evidence to be considered by the court. [13] According to Neb. Rev. Stat. § 43-283 (Reissue 2016), strict rules of evidence do not apply at dispositional hear- ings. As such, Seth’s hearsay argument lacks merit. However, we have said that despite § 43-283, a court’s order imposing restitution must still be supported by the record. 15 15 Id. - 871 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 Here, the juvenile petition alleged that the incident occurred on April 10, 2018; the medical bills indicate that the victim received treatment that same day; and the victim’s mother testified that $3,330.96 of the medical bills remains outstand- ing. Additionally, despite the evidence as to the unpaid portion of the medical bills, the court ordered Seth to pay restitution only in the amount of $500. Therefore, we conclude that on the record before us, there is sufficient evidence to support the amount of restitution which Seth was required to pay to the victim. Seth’s second assignment of error has no merit. Ability to Pay Restitution Seth’s third assignment of error is that the juvenile court erred in finding he had the ability to pay the $500 in restitution. [14] We have previously stated that a restitution order “‘imposed . . . in an appropriate manner serves the salutary purpose of making the offender understand that he has harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to’ the victim.” 16 We have also recognized that this “salutary purpose” would be undermined by the imposition of a restitution order that the juvenile is financially unable to pay. 17 [15] In In re Interest of Laurance S., 18 we noted that § 43-286(1)(a) does not prescribe any particular method by which to determine whether restitution is appropriate or the amount of restitution to be awarded. We further noted that when a juvenile court enters an order of restitution, the court should consider, among other factors, the juvenile’s earning 16 In re Interest of Laurance S., 274 Neb. 620 , 625, 742 N.W.2d 484 , 489 (2007) (quoting In re Brian S., 130 Cal. App. 3d 523 , 181 Cal. Rptr. 778 (1982)). 17 In re Interest of Laurance S., supra note 14. 18 Id. - 872 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 ability, employment status, financial resources, and other obli- gations. 19 Ultimately, we concluded that juvenile courts may use any rational method of fixing the amount of restitution, as long as the amount is rationally related to the proofs offered at the dispositional hearing, and the amount is consistent with the purposes of education, treatment, rehabilitation, and the juve- nile’s ability to pay. 20 At the restitution hearing in this matter, Seth testified that he works around 40 hours per week, earns around $800 to $900 per month (after taxes), and pays approximately $435 in various bills. The order of restitution was filed on December 13, 2019, and because Seth would reach the age of majority in January 2020, the court ordered him to pay $500 by that date. Seth contends that the court was essentially asking him to pay an amount more than he could afford, thus undermining the salutary purpose of restitution. In the original order of probation, the court ordered Seth to pay restitution in an amount to be determined. At the December 2019 hearing, evidence substantiated the total amount of resti- tution to be $3,330.96. Based upon the short time Seth could remain on probation, the court reduced the amount of resti- tution to $500. Additionally, the evidence showed that after paying his monthly expenses, Seth had approximately $500 to $600 of disposable income remaining each month. As such, the court took into consideration the fact that Seth would not be able to pay the full amount of restitution of $3,330.96 and reduced the restitution to an amount Seth would be able to pay. Therefore, we conclude that the juvenile court ordered restitution in an amount rationally related to the proofs offered at the dispositional hearing and that the amount was consist­ ent with the purposes of education, treatment, rehabilitation, and the juvenile’s ability to pay. As such, the court did not 19 Id. 20 Id.  - 873 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports IN RE INTEREST OF SETH C. Cite as 307 Neb. 862 violate the salutary purpose of ordering Seth to pay restitution in the amount of $500. Seth’s third assignment of error has no merit. CONCLUSION We conclude that the language of § 43-286(1)(a) contem- plates a nonexhaustive list of examples of terms and conditions that a juvenile court may order, and thus the juvenile court had the authority to order restitution for medical expenses as long as such order was in the interest of the juvenile’s reformation or rehabilitation. We find there was sufficient evidence in the record to support a finding that Seth caused the victim’s inju- ries and to support the amount of restitution ordered, that Seth had the ability to pay the $500 in restitution, and that the order to pay such restitution was made in the interest of Seth’s refor- mation and rehabilitation. Accordingly, we affirm the order of the juvenile court. Affirmed.

2020-06-05 15:05:01.435252+00

https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/121913.pdf?ext=.pdf

NOT DESIGNATED FOR PUBLICATION No. 121,913 IN THE COURT OF APPEALS OF THE STATE OF KANSAS In the Interest of A.P., A Minor Child. MEMORANDUM OPINION Appeal from Leavenworth District Court; GERALD KUCKELMAN, judge. Opinion filed June 5, 2020. Affirmed. Benjamin N. Casad, of Leavenworth, for appellant natural mother. Charles Joseph Osborn, of Osborn Law Office, LLC, of Leavenworth, for appellant natural father. Meredith D. Mazza, assistant county attorney, and Todd Thompson, county attorney, for appellee. Before STANDRIDGE, P.J., HILL and ATCHESON, JJ. PER CURIAM: J.P. (Father) and A.E. (Mother), the natural parents of A.P., separately appeal the ruling of the Leavenworth County District Court terminating their parental rights. Father contends the State failed to present sufficient evidence that he was an unfit parent. Mother alleges the State failed to present sufficient evidence that her unfitness as a parent was unlikely to change in the foreseeable future and the district court abused its discretion in determining that termination was in the best interests of A.P. We find no error in the district court's decisions and affirm. 1  FACTUAL AND PROCEDURAL HISTORY In January 2017, the Kansas Department for Children and Families (DCF) received a report that Mother was admitted to the hospital following a seizure at her home. Mother, who was 26 weeks pregnant, tested positive for amphetamines and was diagnosed with eclampsia, high blood pressure, and polysubstance abuse. Mother delivered A.P. by emergency Cesarean section. A.P. weighed two pounds and five ounces at birth and was considered a high risk for developmental delays due to her prematurity and drug exposure. On February 15, 2017, the State filed a petition in the district court to have A.P. declared a child in need of care. The court placed A.P. in the temporary custody of DCF upon her release from the hospital. Mother and Father appeared at an adjudication hearing, where they submitted a statement of no contest to the State's petition. The court adjudicated A.P. a child in need of care and ordered A.P. to remain in DCF custody. The court allowed the parents to visit at DCF's discretion and contingent upon passing a drug test. The district court held a dispositional hearing in April 2017, where it ordered DCF to develop a reintegration plan for each parent. After adopting DCF's proposed reintegration plan, the court held periodic review hearings over the next 18 months to discuss the parents' progress toward completing the tasks set forth in the plan. By December 2018, the district court found that reintegration was no longer a viable option, changed the case plan goal to adoption, and ordered the State to file a motion for termination of parental rights. On January 4, 2019, the State filed a motion to terminate Mother's and Father's parental rights. After the State made a proffer to the district court regarding Mother's unfitness, the court took the matter under advisement and scheduled a hearing on Father's 2 unfitness. In May 2019, the district court held a hearing where the State presented evidence relating to the unfitness of both parents. Father did not appear in person because he had entered a 30-day inpatient drug treatment program. As a result, Father's attorney asked the court to either continue the hearing or delay any ruling in the case in order to allow Father to present evidence later after his release from treatment. The district court denied Father's request to continue the hearing and heard testimony from the following witnesses. Kim Schroyer Kim Schroyer, the DCF investigator assigned to A.P.'s case, testified that she met with Mother for the first time on January 12, 2017. A.P. was still in the hospital at that time and was at risk for developmental delays due to drug exposure. Mother advised that she had not known she was pregnant and that she did not have any baby items other than a car seat. Mother admitted to using drugs since 1995 and that she had a long history of depression. Mother said she was willing to work with DCF and to do whatever was needed to bring A.P. home. Mother was asked to take a RADAC assessment to determine her need for drug treatment and to make an appointment for mental health services. Mother called Schroyer the next day to report that the sheriff's department had served a search warrant at the home she shared with Father and had discovered stolen property and drug paraphernalia. On February 7, 2017, Schroyer made an unannounced visit to Mother's home and asked her to submit to a urinalysis (UA) test. Mother did not take a test that day. Mother also had not completed her RADAC assessment, or a mental health intake, and had obtained no additional items needed to care for A.P. Mother and Father both submitted UA tests on February 9, 2017. Mother tested positive for amphetamines and methamphetamines; Father tested positive for marijuana, 3 amphetamines, and methamphetamines. Schroyer tried to contact Mother and Father on February 13 and 14, but they did not return her phone calls. Schroyer said that although Mother and Father could have stayed with A.P. in the hospital, they did not do so and only visited a few times a week. Mother advised that she could not always get a ride to the hospital and that she did not stay there because all "[A.P.] does is sleep." Although the initial plan was for A.P. to live with Mother and Father after her release from the hospital, Schroyer ultimately requested that A.P. be placed in protective custody due to the parents' lack of follow through with submitting UAs and obtaining items to take care of A.P. Dustin Shandy Dustin Shandy, a social worker with KVC Behavioral Healthcare, Inc. (KVC), testified that she was A.P.'s case manager from August 2017 to May 2018. Shandy said that the district court had approved a reintegration plan for the parents in May 2017, and the target date for completion of that plan was November 2017. Shandy advised that during her time on the case, the parents' progress was "hit or miss." Shandy testified that she regularly communicated with Mother in person or by phone but had limited communication with Father. Shandy said that she held four case plan meetings to review the parents' progress toward reintegration and explain what tasks they still needed to complete. Mother attended all the meetings, either in person or by phone. Father attended two of the meetings. Shandy testified that as part of the reintegration plan, Mother and Father were required to complete a parenting class. Mother completed the class but did not provide verification that she had done so. Father did not complete the class. Another case plan requirement was to participate in visits with A.P. Shandy testified that Mother's visitation was "on and off." Mother had consistent visits with A.P. 4 between October and December 2017. Mother's two-hour weekly visits were initially supervised by KVC. By December 2017, Mother's visitation had increased and was being supervised by Mother's mother. Shandy observed some of Mother's visits and did not have any concerns. But Mother's visits with A.P. were suspended in late December 2017 or early January 2018 after Mother tested positive for methamphetamine and amphetamines. Mother's visitation later resumed after she submitted two negative drug tests, but Mother only had five visits with A.P. over the next five months. Shandy did not notice any effect on A.P. when Mother's visits became inconsistent. Shandy testified that Father had some visitation prior to her involvement in the case. But during Shandy's time as case manager, Father never visited A.P. by himself and only came with Mother "a handful of times" when he was allowed to do so after submitting a negative UA test result. Before one of Father's visits, Shandy talked to him about his drug use and explained that he could have more visits with A.P. if he stopped using drugs. Father said little in response and rarely participated in the visits with A.P. Mother and Father were required to submit to two drug tests per week. During Shandy's involvement in the case, Mother did not show up for 60 of the tests and had 13 positive tests. Mother also had nine invalid tests, meaning that she could not or would not provide enough of a urine sample to test or that the temperature or color of the sample was inconsistent with urine from Mother. Father did not show up for 106 tests. Father was incarcerated during some of the time that he missed tests, but it is unclear from the record how long he was incarcerated. Father had five positive tests and six invalid tests. Shandy had concerns that Mother and Father were not submitting their own urine for the tests, and Mother and Father both refused to submit to mouth swabs when their UA tests provided invalid results. Shandy said that she was flexible in allowing Mother and Father to change their UA test schedule when they could not come to the office for testing, but she felt that they abused that privilege. Shandy spoke with Mother about the likely consequences of continued drug use on her ability to function as a parent. Shandy did not 5 know if Mother understood that her continued drug use could lead to the termination of her parental rights. According to Shandy, Mother denied that she had a problem and did not seem to recognize that her drug use was causing any problems. Shandy said that many of her conversations with Mother ended with Mother yelling and becoming angry. Mother and Father were required to maintain employment. When Shandy began working on A.P.'s case, neither Mother nor Father was employed. Shandy said that both parents were employed at a temp agency sometime during February and March 2018, but they were fired in March 2018. Mother asked Shandy to have her UA testing schedule changed for work, but Shandy later learned that Mother and Father had been fired from their jobs the week before. Despite Shandy's repeated requests, neither Mother nor Father ever provided her with any pay stubs or other verification of their employment during the 18 months they said they were working to achieve the goals in the case plan. Another case plan task was to complete a RADAC assessment and follow the recommendations. Both Mother and Father completed an assessment, but Mother did not follow the recommendation for completing outpatient treatment. Mother attended some classes but was discharged for nonattendance, and she continued to test positive for methamphetamine. Father's assessment recommended inpatient treatment. He began inpatient treatment in March 2017 but did not complete it. Thereafter, Father either continued to test positive for drugs or did not show up for testing. Mother and Father also were required to complete an intake at The Guidance Center and seek out mental health services as recommended. Mother completed her intake in March 2017 but only attended therapy "a handful of times." Shandy had no record of Father ever completing an intake. Mother and Father were required to obtain appropriate housing and provide proof of residency to KVC. Shandy testified that Mother and Father had housing when she took 6 over the case, but she was never able to schedule a walk-through of the house to determine whether it was appropriate for A.P. When Shandy made an unannounced visit to the house in January 2018, Mother's car was there but no one came to the door. Regina Angandja KVC social worker Regina Angandja testified that she had been A.P.'s case manager since June 2018. When she took over the case, Angandja contacted Mother but did not have any contact with Father for several months. Mother and Father attended two case plan meetings by phone to review the tasks necessary for reintegration. Angandja discussed with the parents that reintegration might not be viable if they did not complete the reintegration plan. Along with the case plan meetings, Mother and Father also had a chance to attend monthly meetings to review tasks and the reintegration plan. Mother attended several meetings from June to November 2018, but Father attended only one meeting. At the time of the May 2019 termination hearing, Angandja had not been in contact with Father since January 2019 or Mother since February 2019. Angandja acknowledged that Father was incarcerated during at least part of the time she was the case manager. Angandja testified about the parents' lack of progress on the case plan tasks. Angandja testified that Mother and Father had lived in the same house throughout the case and both of them understood that she would need to do a walk-through before visitation could occur there. Angandja said that during her time as case manager, she made monthly attempts to set up a home study to determine whether Mother and Father's house was safe and stable, but Mother never responded. Angandja testified that Mother and Father had reported employment at temporary agencies at various times throughout the case. Father only provided two pay stubs from April 2017, and Mother did not provide any proof of her employment. 7  Angandja said that Mother and Father had completed RADAC assessments but were not actively following the recommendations. Mother had participated in some treatment sessions but was unsuccessfully discharged from the program in June 2018 and had never provided verification that she ever returned to treatment. According to Angandja, Father had gone to inpatient treatment five times. Angandja last spoke to Father in January 2019 upon his release from inpatient treatment. At that time, Father submitted a negative UA result. But Father submitted another UA later that month that tested positive for methamphetamine. Angandja testified that as of May 2019, Mother and Father had been asked to take 152 UA tests. Mother did not show up for at least 73 of these tests and had 14 positive tests, 56 negative tests, and 9 invalid tests. Mother did not take any UA tests from January to April 2019. She tested positive for methamphetamine on April 22, 2019, when the court ordered her to take a test at the termination hearing. Angandja testified that she discussed with Mother the impact her drug use could have on her ability to successfully reintegrate with A.P. Rather than acknowledge that she should change her behavior or actions, Mother instead blamed KVC and the nurses at the hospital. Of the 152 UA tests Father was supposed to take, he did not show up for 120 of them. Father had 5 positive tests, 21 negative tests, and 6 invalid tests. Father had last submitted a UA in January 2019. Angandja testified that the parents were scheduled to have one-hour weekly visitation with A.P. As of May 1, 2019, Mother and Father had been eligible for 101 visits. Mother attended 20 visits and Father attended 4. Neither parent had visited A.P. since January 2019 because they had not complied with their UA requirements. Angandja testified that Mother and Father both failed to make progress toward the case plan requirement of seeking out mental health services. Due to Mother's history of mental health issues, Angandja felt it was important for Mother to seek out services. Mother reported to Angandja that she was attending monthly meetings beginning in March 2018 but never provided any documentation of her attendance at these meetings. 8 Angandja later learned that Mother had completed an intake but never went to any meetings, so she was discharged from the program in June 2018. Father only provided verbal assurance that he had completed a mental health intake. Angandja testified that KVC tried to help the parents make progress toward reintegration. Angandja reported 13 occasions in which she rescheduled their UA tests or changed the testing location at the parents' request. Angandja also provided the parents with gas cards after Mother reported car trouble. Mother and Father were initially required to submit to testing twice a week. Because of their transportation issues, Angandja allowed them to come in only once a week beginning in January 2019. Rather than make progress on this task, Mother and Father stopped submitting UAs altogether. Angandja testified that A.P. had been in the same licensed foster home in Lansing since her release from the hospital. Angandja said that A.P. was doing well, had bonded with her foster family, and had no developmental issues. According to Angandja, A.P.'s bond with Mother and Father was like that of a stranger. Mother Mother testified about her progress on the case plan tasks, including her completion of parenting classes. Mother admitted that she had tested positive for methamphetamine at the time of A.P.'s birth but noted that A.P. had not. Mother claimed that after A.P.'s birth, she called the hospital or tried to visit A.P. every day. Mother said that she wanted to keep working on her reintegration plan and wanted A.P. in her home. Mother said that she and Father had lived in the same house for the previous four and a half years. Mother claimed the residence was appropriate for A.P. and denied that KVC had ever contacted her to schedule a walk-through. Mother said she and Father had been working off and on at a temporary agency throughout the case. 9  Mother acknowledged that she started using drugs in 1995 but denied that she had been using continuously since that time. She claimed she had relapsed only in the last couple of years. Mother said that she had never sought drug treatment before this case. Mother testified that she had been complying with the RADAC recommendations by participating in outpatient treatment "off and on." Mother admitted that she did not engage in mental health or substance abuse treatment from September 2018 to May 2019 and that she was using methamphetamine during that time. Mother said she had returned to treatment in May 2019, attending an individual therapy appointment and two classes for relapse prevention. Mother advised that she intended to continue this treatment and would submit to inpatient treatment if required. But Mother did not agree that any additional treatment would be helpful. Mother expressed confidence that she could stop using drugs. Mother testified that she had not contacted her case manager or seen A.P. since January 2019. Mother claimed that her visits had been suspended due to the pending termination hearing and not because of her failure to submit negative UA results. Mother acknowledged that she needed to stay clean to see A.P. and that she had not been able to do so. Mother agreed that law enforcement had found a meth pipe in her house but denied knowing who it belonged to or that it belonged to her. Mother admitted that she had used methamphetamine right before A.P. was born and that she had used the drug before the April 2019 court hearing because she was anxious. Despite these admissions, Mother denied that she ever had a problem with methamphetamine. After considering the evidence outlined above and hearing oral argument from the parties, the district court found by clear and convincing evidence that Mother and Father were unfit by reason of conduct or condition which rendered them unable to properly care for A.P. and that the conduct or condition was unlikely to change in the foreseeable future. The district court also considered the physical, mental, and emotional health of 10 A.P., and determined that termination of parental rights was in A.P.'s best interests. Mother and Father filed this timely appeal. STANDARD OF REVIEW We begin with the legal standards that govern our review. In this case, the district court made two separate decisions that we must review. First, the district court made two findings related to Mother's and Father's fitness as parents—that Mother and Father were unfit for specific factual reasons and that their unfitness was unlikely to change in the foreseeable future. Those findings allowed the court to consider whether to terminate Mother's and Father's rights to their children. Second, the district court found that terminating Mother's and Father's parental rights was in their child's best interests. Our standard for reviewing the first decision—the district court's conclusions on parental fitness—is well established. The district court may make the fitness findings based only on clear and convincing evidence, K.S.A. 2019 Supp. 38-2269(a), so we must determine on appeal whether clear and convincing evidence supports the district court's findings. To do so, we determine whether the evidence, taken in the light most favorable to the State, could have convinced a rational fact-finder that these facts were highly probable. The appellate court cannot weigh conflicting evidence, pass on the credibility of witnesses, or otherwise independently decide disputed questions of fact. In re B.D.-Y., 286 Kan. 686 , 705, 187 P.3d 594 (2008). In short, any conflicts in evidence must be resolved to the State's benefit. The second decision—whether termination of parental rights is in the best interests of the child—is a discretionary judgment call for the district court. In re R.S., 50 Kan. App. 2d 1105 , 1114-15, 336 P.3d 903 (2014). Because it is within the sound discretion of the district court, an appellate court reviews this decision for an abuse of discretion. See 50 Kan. App. 2d at 1116. A district court exceeds that broad latitude if it rules in a way 11 no reasonable judicial officer would under the circumstances, if it ignores controlling facts or relies on unproven factual representation, or if it acts outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906 , 935, 296 P.3d 1106 (2013); State v. Ward, 292 Kan. 541 , Syl. ¶ 3, 256 P.3d 801 (2011). THE DISTRICT COURT'S DECISION After considering the evidence presented and the testimony of the witnesses at the May 29, 2019, termination hearing, the district court made the following ruling from the bench: "THE COURT: Okay. All right. First of all, I would find that this Court has jurisdiction over the child and the subject matter. Further find that venue is proper here in Leavenworth County. "I've sat here and listened to the testimony today. You know, this child is just a little bit over two years of age and has spent its entire life—well, it was in the hospital for about a month and then it went into custody and has been in custody since that time. The parents have not exercised their parenting since this child's . . . birth. . . . "The opportunities that the parents have had, they have not taken on. They had— beginning with the hospital, they had plenty of opportunity to spend time with the child . . . while the child was hospitalized, but the evidence shows that they failed to do that. Likewise, once the child was released from the hospital, they've had plenty of opportunities to visit the child and have not been able to have consistent visitation. "While I would agree that drug usage is very difficult to beat, particularly methamphetamine, these parents have failed to set aside the drugs for the good of their child. Many people go into drug treatment programs and they have relapses and have to go back. And, in this case, the father has been—maybe it's three, maybe it's five, whatever it is, over the two-year history of this case, he's had continuous drug usage, just been unable to beat it. And—and maybe he'll never beat it, I don't know. But there's been ample opportunity, if he's been in five treatment programs, he's certainly been given 12 plenty of opportunity to get through this drug addiction so that he can go be a father to this child. "Likewise, I would say that the mother's had a lot opportunity. I'm looking at The Guidance Center report, and I note that there are 26 of her group sessions she failed to even show up for. You know, if she was going once a week, that would be, in a year's time, that'd be every other week she's failing to show up. So whether it's because her car doesn't run or whether she doesn't have a ride or whether she was just high and didn't wanna go, I don't know. .... "THE COURT: I don't know why she wasn't there. But the op—my point is, the opportunities have been there for the parents to change their conduct, they've had ample opportunity, and they've failed to do so. Frankly, the testimony of the social workers indicates that KVC and DCF tried very hard . . . to accommodate these parents, and the parents have totally failed. When the parents will not submit to a saliva test 'cause they don't believe they can generate enough survi—saliva, that's indication to me that they don't wanna take the test. They don't have enough urine for a UA; not enough saliva for the mouth swabs. They simply are not wanting to take the test. "So as you go through the reintegration plan, this reintegration plan's been on file for over a year now. Really, none of the tasks have been completed. I guess, perhaps, they have a residence. . . . But, yet again, the social workers have been unable to go in and see if it's an acceptable . . . residence so . . . . "While there's been a little effort by the parents, there's not nearly enough. This young child needs stability, and so it's time for the child to get on with its life. So at this time I would find that the parents are unfit for the following reasons: failure to reason— failure of reasonable efforts made by appropriate public and private agencies to rehabilitate the family; lack of effort on the part of the parent to adjust the parents' circumstances, conduct or condition to meet the needs of the child. Also, there's a failure to carry out a reasonable plan, approved by the court, directed towards the reintegration of the child into the parental home; and, additionally, the parents have failed to maintain regular visitation, conduct—contact or communication with the child or the custodian of the child. "The parents of the child should be presumed to be unfit by reason of conduct or condition that renders the parents unable to fully care for the child due to the following reasons: The child has been in an out-of-home placement, under court order for a 13  cumulative total period of one year or longer and the parent has substantially neglected or willfully refused to carry out a reasonable plan, approved by the court, directed towards reintegration of the child into the parental home as set forth in K.S.A. 38-2271 subsection (a)(5). "And the child has been in an out-of-home placement, under court order for a cumulative total period of two years or longer; the parent has failed to carry out a reasonable plan, approved by the court, directed towards reintegration of the child into the parental home; and there is a substantial probability that the parents will not carry out such a plan in the near future under K.S.A. 38-2271(a)(6). "Pursuant to K.S.A. 60-414 subsection (a), the facts from which the presumption is derived do have probative value as to evidence of the existence of the presumed fact; therefore, the presumption should continue to exist and the burden of establishing the nonexistence of the presumed fact is upon the party against whom the presumption operates. In this case, the fa—parents have failed to rebut that presumption. "In light of the duration of the unfitness, the chronic nature of the parental shortcomings in spite of numerous state and private services, the unfitness of the parents is unlikely to change in the foreseeable future. Termination of parental rights, in this case, is in the best interest of this child. The parental rights of both the mother and father are hereby terminated at this time." Later that day, the court filed a journal entry memorializing its ruling. This journal entry stated as follows: "THE COURT FINDS: "1. The evidence is clear and convincing that the X mother . . . X father . . . of the child named above is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future. The finding is based on the following facts: Failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family {K.S.A. 38-2269(b) (7)}; 14  Lack of effort on the part of the parent to adjust the parent's circumstances, conduct or condition to meet the needs of the child {K.S.A. 38-2269(b) (8)}; Failure to carry out a reasonable plan approved by the court directed toward the integration of the child into the parental home {K.S.A. 38-2269(c) (3)}; Failure to maintain regular visitation, contact or communication with the child or with the custodian of the child; {K.S.A. 38-2269(c) (2)}; "2. X Considering the physical, mental or emotional health of the child, termination of parental rights is in the best interests of the child named above and the physical, mental or emotional needs of the child would best be served by termination of parental rights. The parental rights of [Mother and Father] should be terminated. .... "3. THE COURT FURTHER FINDS the parents should be presumed to be unfit for the following reasons: The child has been in an out-of-home placement, under court order for a cumulative total period of one year or longer and the parent has substantially neglected or willfully refused to carry out a reasonable plan, approved by the court, directed toward reintegration of the child into the parental home {K.S.A. § 38-2271(a)(5)} (A) the child has been in an out-of-home placement, under court order for a cumulative total period of two years or longer; (B) the parent has failed to carry out a reasonable plan, approved by the court, directed toward reintegration of the child into the parental home; and (C) there is a substantial probability that the parent will not carry out such plan in the near future; {K.S.A. § 38-2271(a)(6)} The Court finds that the presumption of unfitness is a presumption that arises under K.S.A. 60-414(a). The Court further finds that [Mother], natural mother and [Father], natural father, have not rebutted the presumption of unfitness by a preponderance of evidence. 15  "IT IS THEREFORE ORDERED: "X The parental rights to the child named above of the following persons are terminated: [Mother], natural mother [Father], natural father[.]" Conspicuously missing from the district court's ruling from the bench and its journal entry are the specific findings of fact, drawn from the evidence presented to the court, that formed the basis for each of the court's conclusions of law. Supreme Court Rule 165 (2020 Kan. S. Ct. R. 215) places a duty on the district court to provide adequate findings of fact and conclusions of law on the record to support its decision: "(a) Court Must State Findings of Fact and Conclusions of Law. In a contested matter submitted to the court without a jury—and when the court grants a motion for summary judgment—the court must state its findings of fact and conclusions of law in compliance with K.S.A. 60-252." In turn, K.S.A. 2019 Supp. 60-252 provides: "(a) Findings and conclusions. (1) In general. In an action tried on the facts without a jury or with an advisory jury or upon entering summary judgment, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of evidence, or may appear in an opinion or a memorandum of decision filed by the court. Judgment must be entered under K.S.A. 60-258, and amendments thereto." There is no question here that the journal entry filed by the district court did not comply with the above rule. And, although the transcript reflects that the court stated some findings on the record after the close of evidence, those findings were severely 16 limited in number and more accurately can be described as narrative rather than factual in nature. But Father and Mother did not raise this issue at the district court level. And a litigant must object to inadequate findings of fact and conclusions of law at the trial level so as to give the district court an opportunity to correct them. Without such an objection, an appellate court may presume the district court found all the facts necessary to support the judgment. In re Guardianship of B.H., 309 Kan. 1097 , 1107-08, 442 P.3d 457 (2019). The Supreme Court's rule—as set forth in its cases—directing us to presume the district court found all the facts necessary to support the judgment appears to conflict with Supreme Court Rule 165 placing a duty on the district court to provide adequate findings of fact and conclusions of law to support its decision. But the two rules can be reconciled, as reflected by the court's decision in Burch v. Dodge, 4 Kan. App. 2d 503 , Syl. ¶ 3, 608 P.2d 1032 (1980): "The requirements of K.S.A. 60-252 and Supreme Court Rule No. 165 ( 225 Kan. lxxii ) are in part for benefit of the appellate courts in facilitating appellate review; and when the record on review will not support a presumption that the trial court found all the facts necessary to support the judgment, the case will be remanded for additional findings and conclusions even though none of the parties objected either in the trial court or in this court." While it is unfortunate that the district court failed to state the specific findings of fact, drawn from the evidence presented to the court, that formed the basis for its legal conclusions as required by K.S.A. 2019 Supp. 60-252 and Supreme Court Rule 165, we have thoroughly reviewed the record and find it supports the presumption that the district court made the necessary findings to support its judgment. In re Interest of Lett, 7 Kan. App. 2d 329 , 332, 640 P.2d 1294 (1982); Burch, 4 Kan. App. 2d at 507 . Of course, the better practice dictates compliance with statutory and Supreme Court rules requiring the district court to "find the facts specially and state its conclusions of law separately" after 17 the close of evidence or in a journal entry. See K.S.A. 2019 Supp. 60-252; Supreme Court Rule 165. ANALYSIS 1. Unfitness K.S.A. 2019 Supp. 38-2269(b) contains a nonexclusive list of nine conditions that singularly or in combination would amount to unfitness. The statute also lists four other factors to be considered if a parent no longer has physical custody of a child. See K.S.A. 2019 Supp. 38-2269(c). In addition, the district court may rely on one or more of the statutory presumptions set out in K.S.A. 2019 Supp. 38-2271(a) to find a parent unfit. Any one of these factors may, but does not necessarily, establish grounds for termination of parental rights. See K.S.A. 2019 Supp. 38-2269(f). As noted above, the district court found Mother and Father unfit under six statutory factors. Father contends the district court erred in finding him unfit, disputing each of the statutory grounds relied on by the court. Mother does not specifically challenge the district court's finding of unfitness; instead, Mother focuses her arguments on the court's finding that her unfitness was unlikely to change in the foreseeable future. a. Father's unfitness (1) Failure of reasonable efforts to rehabilitate the family The language in K.S.A. 2019 Supp. 38-2269(b)(7) imposes an obligation upon the relevant social service agencies to expend reasonable efforts toward reintegrating the child with his or her parents. To that end, the social service agencies should attempt to help the parent accomplish case objectives designed to correct the parent's conduct or condition that caused removal of the child from the home. The purpose of the reasonable 18 efforts requirement is to provide a parent with the opportunity to succeed, but to do so the parent must exert some effort. In re M.S., 56 Kan. App. 2d 1247 , 1257, 447 P.3d 994 (2019). Agencies are "'not required to exhaust any and all resources to rehabilitate a parent,' and proof of 'a herculean effort to lead the parent through the responsibilities of the reintegration plan' is not required." In re S.C., No. 107,950, 2012 WL 5392188 , at *3 (Kan. App. 2012) (unpublished opinion); see In re M.S., 56 Kan. App. 2d at 1257 (holding that only reasonable efforts are required, not effective efforts). Here, the record is replete with examples of KVC's reintegration efforts and management of Father's case plan tasks, which included holding monthly meetings, texting reminders for meetings and court dates, rescheduling dates and changing locations for drug screens and visitation, offering gas cards and other assistance with transportation issues, reducing the frequency of Father's UA tests, and allowing Father to submit mouth swabs instead of urine samples. Despite these efforts, Father made little, if any, progress toward reintegration. He rarely participated in case plan meetings and was hardly in contact with the case managers. Due to Father's failure to submit to or provide negative UAs, Father only had four to six visits with A.P. in the two years that the case was pending. Father concedes that his ongoing struggle with drug addiction delayed the rehabilitation of his family. But Father argues that he was making a "sustained and serious effort" to remain sober and complete the case plan tasks necessary to regain custody of A.P. Father notes that he completed RADAC assessments and multiple rounds of inpatient treatment, in addition to providing a livable home for A.P. It is true that Father completed RADAC assessments and followed the inpatient treatment recommendations, but Father's inability to remain sober after each round of treatment necessitated his continued return. Father's many cycles of inpatient treatment are hardly proof of progress on the reintegration plan. He tested positive for 19 methamphetamine in January 2019, shortly after his most recent release from inpatient treatment and after being served with a motion to terminate his parental rights. Notably, Father could not attend the termination hearing because he was in treatment. And Father's claim that he had provided a livable home for A.P. is contrary to the record. The case managers testified that they were never able to schedule a walk-through of the parents' home in order to verify that the home was safe for A.P. Upon review of the evidentiary record, viewed in the light most favorable to the State, a reasonable fact-finder could find it highly probable that reasonable efforts by appropriate agencies had been unable to rehabilitate the family. We find sufficient evidence to support the district court's holding that Father was unfit under K.S.A. 2019 Supp. 38-2269(b)(7). (2) Lack of sufficient effort to adjust to meet the child's needs In finding unfitness, the court may consider the lack of effort on the part of the parent to adjust the parent's circumstances, conduct, or conditions to meet the needs of the child. K.S.A. 2019 Supp. 38-2269(b)(8). Father argues there is considerable evidence of his efforts to adjust his circumstances to be a successful parent and member of society. Father notes that he completed multiple drug treatment programs successfully, he passed most of the UA tests he could take, and he maintained at least semi-regular employment throughout the duration of the case. Father's argument is unpersuasive. As discussed, Father's completion of multiple rounds of inpatient drug treatment does not qualify as a successful effort to adjust his circumstances. This treatment did not stop Father from continuing to use drugs upon his release from each cycle of treatment, even after learning his parental rights could be terminated. And Father's claim that he passed most of the UA tests that he took is misleading and ignores the reality that he did not show up for 120 of the 152 UA tests 20 that he was supposed to take. Finally, no evidence supports Father's assertion that he maintained employment, semi-regular or otherwise, throughout the case. Mother testified that Father worked at a temporary agency "[o]ff and on," but Angandja testified that Father only provided two pay stubs in April 2017 and presented no other proof of his employment during the two years the case was ongoing. Upon review of the evidentiary record, viewed in the light most favorable to the State, a reasonable fact-finder could find it highly probable that Father had not made sufficient effort to adjust his circumstances to meet the needs of A.P. We find sufficient evidence to support the district court's holding that Father was unfit under K.S.A. 2019 Supp. 38-2269(b)(8). (3) Failure to maintain regular visitation, contact, or communication with the child or the child's custodians When a child is not in the physical custody of the parent, in finding unfitness, the court may also consider the failure to maintain regular visitation, contact, or communication with the child or with the custodian of the child. K.S.A. 2019 Supp. 38- 2269(c)(2). Father suggests that the weight of the evidence showed that he was in regular contact with Mother and A.P. Father agrees that his efforts may have been hampered by his drug addiction but claims that he did everything in his power to remain in A.P.'s life. If Father had complied with his case plan and stayed in contact with his case manager during the two years the case was pending, he would have been eligible for 101 visits with A.P. Father only visited A.P. four to six times. And at the time of the May 2019 termination hearing, Father had last visited A.P. in January 2019. There is no question that Father had minimal contact with A.P. throughout the case. Father also failed to maintain regular contact with A.P.'s case managers, who were considered her custodians. Shandy testified that she did not see Father often, and Angandja did not have 21 contact with Father for several months after she took over the case in June 2018. Angandja had last heard from Father in January 2019, four months before the termination hearing. Upon review of the evidentiary record, viewed in the light most favorable to the State, a reasonable fact-finder could find it highly probable that Father failed to maintain regular visitation, contact, or communication with A.P. or her custodians while she was not in his physical custody. We find sufficient evidence to support the district court's holding that Father was unfit under K.S.A. 2019 Supp. 38-2269(c)(2). (4) Failure to carry out a reasonable court-approved plan When a child is not in the physical custody of the parent, in finding unfitness, the court may also consider the failure to carry out a reasonable plan approved by the court directed toward integrating the child into the parental home. K.S.A. 2019 Supp. 38- 2269(c)(3). The district court adopted the parents' reintegration plan on May 11, 2017. In relevant part, the case plan tasks required Father to complete a parenting class, obtain employment and provide pay stubs to KVC, complete a RADAC assessment and follow recommendations, submit to random drug and alcohol tests and provide negative results, complete a mental health intake and seek out recommended services, participate in visits with A.P., and obtain appropriate housing. The target date for completion of the reintegration plan was November 2017. Father argues that the case plan was gradually progressing toward reintegration and that he and Mother were making "substantial progress" on case plan tasks, including completing RADAC assessments, submitting to drug screens, maintaining employment, and participating in visitation with A.P. Father acknowledges there were setbacks and 22 difficulties, but claims he repeatedly demonstrated his commitment to reintegration throughout the case. We are unpersuaded by Father's arguments. Although Father completed two RADAC assessments, he failed to follow through with the recommendation of the second assessment for at least 10 months. Father completed inpatient treatment multiple times throughout the case but continued to use drugs each time he was released. Father most recently completed inpatient treatment in January 2019 and tested positive for methamphetamine later that month and was back in treatment at the time of the termination hearing. Father missed 120 of the drug tests he was asked to take. Of the 32 tests Father did submit, he provided 5 positive tests and had 6 invalid tests. Father's case manager was concerned that he was not submitting his own urine. And when Father was given the option to submit a mouth swab instead, he refused to do so. Given Father's failure to participate in drug testing or submit negative results on a regular basis, he was unable to maintain any consistent visitation with A.P. As discussed, Father participated in only 4 to 6 of the 101 visits he would have been eligible for had he complied with the drug testing requirements. Father had not seen A.P. for four months before the termination hearing. And the only evidence that Father had maintained employment was two pay stubs from April 2017. Moreover, Father's argument that he was making substantial progress toward reintegration also ignores his failure to provide proof of appropriate housing or provide documentation that he had completed a parenting class or a mental health intake. Upon review of the evidentiary record, viewed in the light most favorable to the State, a reasonable fact-finder could find it highly probable that Father failed to carry out a reasonable, court-approved plan aimed at reintegrating the family while A.P. was not in his physical custody. We find sufficient evidence to support the district court's holding that Father was unfit under K.S.A. 2019 Supp. 38-2269(c)(3). 23  (5) Presumptions of unfitness Under K.S.A. 2019 Supp. 38-2271(a)(5) and (a)(6), a parent will be presumed unfit if the State establishes by clear and convincing evidence either that (1) the child has been in an out-of-home placement under court order for a cumulative total period of at least one year and "the parent has substantially neglected or willfully refused to carry out" a reasonable court approved parenting plan or (2) the child has been in an out-of- home placement under court order for a cumulative total period of at least two years and "the parent has failed to carry out" a reasonable court approved parenting plan and there exists a "substantial probability that the parent will not carry out such plan in the near future." K.S.A. 2019 Supp. 38-2271(a)(5) and (a)(6). If either presumption applies, "[t]he burden of proof is on the parent to rebut the presumption of unfitness by a preponderance of the evidence." K.S.A. 2019 Supp. 38-2271(b). Father concedes the length of time A.P. has been in an out-of-home placement but challenges the district court's determination that he substantially neglected or willfully refused to carry out the reintegration plan. Father also disputes the court's finding that there was a substantial probability he would not carry out the plan in the near future. Father admits he struggled to complete some tasks but claims he consistently tried to improve his situation by participating in visits with A.P., completing multiple rounds of inpatient drug treatment, submitting negative UA results, and maintaining some level of employment throughout the case. A district court may look to a parent's past conduct as an indicator of future behavior. See In re Price, 7 Kan. App. 2d 477 , 483, 644 P.2d 467 (1982); In re M.T.S., No. 112,776, 2015 WL 2343435 , at *8 (Kan. App. 2015) (unpublished opinion). Father's history, as detailed above, shows a pattern of almost complete noncompliance with his reintegration plan. The case managers reported that they had little contact with Father throughout the two-year duration of the case. Father completed inpatient treatment 24 multiple times throughout the case but continued to use drugs each time he was released, even after learning his parental rights could be terminated. Father missed 120 of the 152 drug tests he was asked to take. Of the 32 tests Father did submit, he provided 5 positive test results and had 6 invalid tests. Father visited A.P. four to six times in two years. At the time of the termination hearing in May 2019, Father had not had contact with A.P. or the case managers since January 2019. Father's only verified employment during the case occurred in April 2017. The evidence presented at the hearing established that Father failed to do most of the case plan tasks required by the reintegration plan and was not participating with the reintegration plan at the time of the termination hearing. Nothing in Father's history supports a finding that he would succeed in carrying out the reintegration plan in the near future. Notably, Father did not attend the termination hearing or present any evidence to rebut the presumptions of unfitness set forth in K.S.A. 2019 Supp. 38-2271(a)(5) and (a)(6). Upon review of the evidentiary record, viewed in the light most favorable to the State, a reasonable fact-finder could find it highly probable that while A.P. was outside his physical custody, Father substantially neglected or willfully refused to carry out the reintegration plan and that there was a substantial probability he would not carry out the plan in the near future. We find sufficient evidence to support the district court's holding that Father was presumptively unfit under K.S.A. 2019 Supp. 38-2271(a)(5) and (a)(6). b. Mother's unfitness unlikely to change in the foreseeable future Turning to Mother's arguments on appeal, she first challenges the district court's finding that her unfitness was unlikely to change in the foreseeable future. 25  We examine the "foreseeable future" from the perspective of a child. In re M.H., 50 Kan. App. 2d 1162 , 1170, 337 P.3d 711 (2014). Children and adults have different perceptions of time, and a child has the right to permanency within a time frame that is reasonable to them. 50 Kan. App. 2d at 1170; see In re G.A.Y., No. 109,605, 2013 WL 5507639 , at *1 (Kan. App. 2013) (unpublished opinion) ("'child time'" differs from "'adult time'" in care proceedings "in the sense that a year . . . reflects a much longer portion of a minor's life than an adult's"). At the time of the termination hearing, A.P. was 2 years old and the case had been pending her entire life. Claiming the district court never made a finding that reintegration was no longer viable prior to the termination hearing, Mother asserts that her engagement with the reintegration process was increasing. For support, Mother cites her testimony that (1) she and Father had a stable place to live, (2) she had obtained at least two different drug and alcohol evaluations and had recently started outpatient drug treatment, (3) she had maintained employment, (4) she had completed parenting classes, and (5) she had submitted numerous negative UA test results. Contrary to Mother's assertion, the district court did make a finding that reintegration was no longer viable prior to the termination hearing. The court held a permanency hearing on December 11, 2018. Mother appeared at the hearing in person and through counsel. At the close of the hearing, the court filed a journal entry and order finding that the parents' progress toward reintegration was not adequate, that reintegration was no longer a viable option, and that either adoption or permanent custodianship might be in the best interests of the child. The court then ordered the State to file a motion to terminate parental rights. As to Mother's argument that her engagement with the reintegration process was increasing, this ignores her actual level of participation with the tasks outlined in the reintegration plan. Mother reportedly completed parenting classes but did not provide 26 verification to her case manager that she had done so. Although Mother lived in the same home throughout the case, the case managers were never allowed inside to determine whether it was an appropriate residence for A.P. Mother did not provide documentation of any employment to KVC and only admitted that she worked at a temporary agency "[o]ff and on a couple of times." Mother completed two RADAC evaluations, but she never consistently followed through with any of the treatment recommendations and continued to use and test positive for methamphetamine. After not participating in any drug treatment since September 2018, Mother returned to treatment on May 13, 2019, two weeks before the termination hearing. While Mother submitted some negative UAs, she missed at least 73 of the 152 tests she was asked to take. Of the remaining tests Mother took, she tested positive 14 times and had 9 invalid tests. Mother did not submit any UAs from January 2019 until April 22, 2019, when she tested positive for methamphetamine at a court hearing. Mother's case manager tried to help Mother make progress on her case plan by reducing the frequency of her drug tests to once a week. Rather than progress, Mother cut off contact with her case manager and stopped showing up for the tests. A district court may look to a parent's past conduct as an indicator of future behavior. See In re Price, 7 Kan. App. 2d at 483 ; In re M.T.S., 2015 WL 2343435 , at *8. The evidence at the termination hearing established that Mother had a long history of drug abuse that she failed to address with any meaningful treatment. Although Mother maintained short periods of sobriety that allowed her to participate in some visitation with A.P., she could not refrain from drug use and her ability to visit A.P. was suspended as a result. At the time of the May 2019 termination hearing, Mother had not visited A.P. for over four months and had not contacted her case manager for three months. Mother was discharged from drug treatment and continued to use drugs throughout the duration of the case, even knowing that her parental rights were at risk. Despite acknowledging that her drug usage was keeping her from A.P., Mother refused to admit that she had a drug problem or agree that any additional treatment would be beneficial. 27  Mother's past performance over the two years preceding the termination hearing shows that she was unwilling to address or even acknowledge her drug problem—the primary cause of her unfitness. Upon review of the evidentiary record, viewed in the light most favorable to the State, a reasonable fact-finder could find it highly probable that Mother was not going to make the necessary changes to become a fit parent in the foreseeable future. 3. Best interests Finally, we consider the district court's finding that A.P.'s best interests would be served by terminating Mother's and Father's parental rights. The district court is in the best position to make findings on the best interests of the child, and we will not disturb its judgment unless we find the determination amounts to an abuse of judicial discretion. In re K.P., 44 Kan. App. 2d 316 , 322, 235 P.3d 1255 (2010). Mother argues that in making its best interest determination, the district court focused only on its findings that the parents were unfit and that A.P. had been doing well in DCF custody. Noting that a finding of unfitness does not necessarily mean that termination is in a child's best interests, Mother contends there was little to no evidence from which the court could base a finding that termination is in A.P.'s best interests. We are not persuaded by Mother's arguments. In reaching its decision, the district court noted that A.P. had spent her entire two years of life outside the parents' custody and she needed stability that Mother and Father were unwilling or unable to provide. The court found that despite numerous opportunities and accommodations provided by KVC and DCF, Mother and Father had failed to change their conduct or make any real effort to stop using drugs and to maintain consistent contact with A.P. Based on our review of the evidentiary record, a reasonable person could agree with the district court's conclusion, and we do not find that the district court's conclusion was based on any factual or legal 28 error. See Northern Natural Gas Co., 296 Kan. at 935. We find no abuse of discretion here. CONCLUSION Having reviewed the entire record, in the light most favorable to the State, we are convinced that a rational fact-finder would have found it highly probable that Father is unfit. We are also convinced that a rational fact-finder would have found it highly probable that Mother's unfitness is unlikely to change in the foreseeable future. Finally, we find the district court did not abuse its discretion in finding that the termination of Mother's and Father's parental rights is in A.P.'s best interests. For these reasons, we affirm. Affirmed. 29

2020-01-17 22:02:17.541615+00

Smith

*286OPINION. Smith: The sole question presented by these proceedings is the right of the petitioner to deduct from gross income in his income-tax returns for the years 1922 to 1925, inclusive, the net losses of the H. H. Wiggin Lumber Co., which the petitioner was required to make good and did make good to the H. H. Wiggin Lumber Co. under his agreements with that company. The petitioner claims the deductions as losses sustained by him under the provisions of section 214(a) of the Revenue Acts of 1921,1924, and 1926, which provide, in so far as material, as follows: (a) That in computing net income there shall he allowed as deductions: * * * * * * * (4) Losses sustained during the taxable year and not compensated for by insurance or otherwise, if incurred in trade or business; (5) Losses sustained during the taxable year and not compensated for by insurance or otherwise, if incurred in any transaction entered into for profit, though not connected with the trade or business; ⅜ * * The respondent has disallowed the deductions upon the ground that they represent additional investments of capital on the part of the petitioner in the corporation and are therefore not deductible losses. At the hearing of these proceedings the petitioner was asked what the reason was for entering into the agreement dated November 2, 1922. He replied: Well, the first was the fact that my stockholders could not or would not advance any more money to carry along the business during this depression and therefore feeling as they did about it, about dividends, I knowing what I supposed was much more than anybody else about the lumber business, having had experience in cost accounting and knew how lumber was bought and was manufactured, I had perfect faith in the business and felt that I would be able to pull it out with a profit each and every year. I therefore decided that it would be better for me, as I was very active in it to advance money to take care of it. Now, I might say there were two objects; the other object would be if I made money I would have a chance to pay tax, and if I didn’t, why I would not. I suppose that was the two motives I had. I hoped, however, to pay taxes rather than lose money as I did. In the first place, it is contended by the petitioner that the loss sustained by him during the taxable years was a loss “ incurred in trade or business.” He contends that a compensation agreement between a corporation and one who makes his living as a paid executive is entered into in the course of the latter’s trade or busi*287ness; and, if under its terms a loss is sustained the loss is incurred in trade or business. In support of this contention the petitioner cites Ernest E. Lloyd, 8 B. T. A. 1029. The facts in that case were that the president of a corporation, whose directors declined to authorize expenditures upon a certain project in the corporation’s behalf, agreed to advance the money himself, the same to be repaid to him if the project was successful. The project was not successful and he was held entitled to deduct as a loss over $5,000 which he had spent and for which he was not reimbursed. In our opinion we stated: * * * We are further of the opinion that the loss was “ incurred in trade or business ” in that the furtherance of the business of the eompany of which he was president was legally and logically his business. Petitioner also cites Herschel v. Jones, 1 B. T. A. 1226, and Monroe Washer, 12 B. T. A. 632. The facts in the Lloyd case were substantially different from those which obtained in the instant proceedings. The petitioner had reason to expect that the project for which he had advanced the money would be successful and that the corporation would reimburse him for the money advanced. The Jones and Washer cases are distinguishable upon their facts and the decisions therein are not controlling in the proceedings at bar. Quite clearly the business of the II. H. Wiggin Lumber Co. was not the business of the taxpayer. The losses in the first instance were sustained by the PI. IP. Wiggin Lumber Co. By the agreement of November 2, 1922, the petitioner seeks to have the losses of that company deducted from gross income in his individual tax return. If the losses are deductible they are deductible by virtue of the agreement of November 2, 1922, and succeeding agreements covering the years 1924 and 1925. We think that in no proper sense were the losses claimed as deductions by the petitioner losses incurred by him in a trade or business carried on by himself. Petitioner further makes the contention that the losses were incurred in a transaction or transactions entered into for profit. The facts are that the corporation was operating at a heavy loss. It had operated at a loss for 1921, and by November 2,1922, it was apparent that it would operate at a loss in 1922. The agreement which was entered into on November 2,1922, was apparently for the purpose of enabling the petitioner to deduct from his gross income the losses of the corporation. It is to be noted that the agreement covered a period of only two years. There is no reason to believe that the agreement was one from which the petitioner expected to realize a profit. It was rather to enable him to deduct from his own gross income the losses of the corporation. We are therefore of the opin*288ion that the losses sustained for the years 1922 and 1923 did not result from a transaction entered into for profit. We are likewise of the opinion that the extensions of that agreement to cover the years 1924 and 1925 were made merely to enable the petitioner to deduct from Ms gross income the losses of the corporation. We are led to this conclusion in part by the fact that as soon as the II. H. Wiggin Lumber Co. began to operate at a reasonable profit the agreements were not further extended. It is further to be borne in mind that the petitioner owned a large majority of the stock of the corporation and that he and his immediate family owned over 98 per cent of the stock of the corporation. The corporation was entirely dominated by the petitioner and the agreements were not arm’s-length transactions.- In M. I. Stewart & Co., 2 B. T. A. 737, we had before us the case of a stockholder who owned one-half of the stock of the taxpayer corporation and who, acting for himself and the owner of the remainder of the stock, acquired stock in another corporation and transferred it to the petitioner corporation, which credited the accounts of both stockholders with the par value of such stock. During the same year the petitioner corporation acquired directly additional shares of such stock and sold all of the stock to one of its stockholders for an amount much less than the cost thereof, who in turn delivered one-half of the stock to his co-stockholder. We held that this was not a bona -fide sale upon which the taxpayer was entitled to claim a deductible loss. We said: * ⅜ * In the case of corporations cales to stockholders in all cases are subject to special scrutiny and tlieir good faith must be unquestioned. The principle of corporate entity can not be used to cloak a transaction which is essentially a fraud upon the public revenue. We are of the opinion that the same principle controls the issue in the proceedings at bar. Reviewed by the Board. Judgment will be entered, for the respondent. Steknhagen and Matthews concur in the result only.