Buttercase v. Davis
| Decision Date | 09 December 2022 |
| Docket Number | S-20-871 |
| Parties | Joseph J. Buttercase, appellant, v. James Martin Davis and Davis Law Office, appellees. |
| Court | Nebraska Supreme Court |
1. Summary Judgment: Appeal and Error. 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. __ __. 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 and that the moving party is entitled to judgment as a matter of law.
3. Summary Judgment: Final Orders: Appeal and Error. Although the denial of a motion for summary judgment, standing alone, is not a final, appealable order when adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over all motions and may determine the controversy which is the subject of those motions or make an order specifying the facts which appear without substantial controversy and direct such further proceedings as it deems just.
4. Default Judgments: Pleadings: Appeal and Error. Whether default judgment should be entered because of a party's failure to timely respond to a petition rests within the discretion of the trial court, and an abuse of discretion must affirmatively appear to justify a reversal on such a ground.
5. Judgments: Appeal and Error. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
6. Appeal and Error. The grant or denial of a stay of proceedings is reviewed for an abuse of discretion.
7. Trial: Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.
8. 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.
9. Criminal Law: Malpractice: Attorney and Client Negligence: Proof: Proximate Cause: Damages. A convicted criminal who files a legal malpractice claim must plead and prove the following: (1) the attorney's employment, (2) the attorney's neglect of a reasonable duty, (3) that such negligence resulted in and was the proximate cause of loss (damages) to the client, and (4) innocence of the underlying crime with which the plaintiff was charged.
10. Evidence: Proof. Failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.
11. Negligence: Actions. Merely because a cause of action is couched in terms of a cause of action other than negligence does not make it so.
12. Constitutional Law: Actions. A litigant has no constitutional right to have civil proceedings stayed pending the outcome of a criminal investigation.
13. Actions: Proof. The burden of establishing that a proceeding should be stayed rests on the party seeking the stay.
14 Evidence. Relevancy requires only that the probative value be something more than nothing.
15. __. Most, if not all, evidence offered by a party is calculated to be prejudicial to the opposing party.
16. Evidence: Words and Phrases. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.
17. Judges: Recusal: Presumptions. A defendant seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.
Appeal from the District Court for Lancaster County: Darla S. Ideus, Judge. Affirmed.
Joseph J. Buttercase, pro se on brief, and Darik J. Von Loh, of Hernandez Frantz, Von Loh, for appellant.
Nicholas F. Miller, of Baird Holm, L.L.P., for appellees.
Joseph J. Buttercase was indicted on federal child pornography charges. James Martin Davis, attorney at law, and the Davis Law Office (collectively Davis) represented him in the matter for approximately 13 months before withdrawing. Buttercase subsequently pled guilty to an obscenity charge and then sued Davis for legal malpractice, breach of contract, breach of fiduciary duties, misrepresentation, and infliction of emotional distress. Construing all these claims as legal malpractice because they arose from Davis' conduct as an attorney, the district court for Lancaster County, Nebraska, granted Davis summary judgment because Buttercase failed to offer any evidence that he was actually innocent of the charges for which Davis was representing him. The district court also denied Buttercase partial summary judgment on his breach of contract claim and issued several prejudgment interlocutory rulings against him. Buttercase appeals. The appeal is without merit. We affirm.
In December 2012, Buttercase was indicted for producing manufacturing, transporting, and possessing child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252A(a)(1) and (a)(5)(B) (2018). Because Buttercase was incarcerated, his parents met with Davis and arranged for Davis to represent him. The parties' agreement was verbal, and they later disagreed about whether the $15,000 payment to Davis after this meeting was a flat fee to cover all federal proceedings, including "all motions, hearings, trial, and not more than two appeals," or a nonrefundable retainer with additional fees for trial.
Davis entered an appearance indicating his representation of Buttercase concerning the federal charges. He then moved to suppress the evidence against Buttercase and, when this failed, arranged for him to plead guilty to one count of possessing child pornography, with a sentence of 30 months' imprisonment. However, Buttercase refused to pay the full fee for a computer expert retained to testify at the suppression hearing and he rejected the proposed plea deal.
Matters came to a head when Davis asked Buttercase to sign a written agreement regarding the per diem fees for trial. Buttercase refused. He sent Davis a letter asserting that "trying to get more money (renegotiate) so close to trial seems like extortion" and that he expected Davis to perform all services allegedly required under the agreement or refund the $15,000. As a result, Davis sought and received the federal court's permission to withdraw as counsel for Buttercase.
Buttercase filed a bar complaint against Davis, and the matter was referred to the federal court for investigation.
Nearly a year later, Buttercase, now represented by a federal public defender, pled guilty to producing and transporting obscene materials for distribution, a violation of 18 U.S.C. § 1465 (2018), and was sentenced to 36 months' imprisonment, to run concurrently with the state sentence he was then serving. Buttercase's ex-wife and alleged victim testified at the sentencing hearing that she and Buttercase "married when I was a minor" and that she was a "consenting adult" in videos or images of her.
The federal court held an evidentiary hearing on the ethics complaint, at which Buttercase, Davis, and others testified. A magistrate judge subsequently found that "Davis did not commit an ethical violation" and "did not misrepresent the facts in his motion to withdraw" and recommended that the bar complaint be dismissed. This recommendation was adopted by the federal district court.
On February 22, 2017, Buttercase sued Davis for breach of fiduciary duty. The complaint alleged that Davis "reneged" on the agreed-upon fees for the computer expert and for representation at trial and withdrew without performing under the contract or refunding the money. It also alleged that Davis committed fraud and disclosed sensitive or privileged information about Buttercase's criminal case in the motion to withdraw and failed to return case files to him after withdrawing.
Buttercase then filed an amended complaint on March 1, 2017, which Davis moved to dismiss. Buttercase, in turn, sought leave to amend. Davis did not object, the motion to amend was granted, and the hearing on the motion to dismiss was canceled. Buttercase filed a second amended complaint on June 5. Both amended complaints were generally identical to the original complaint, differing only as to the statutory basis for the court's jurisdiction and in their descriptions of the federal court's ethics investigation.
Thereafter, on July 31, 2017, Buttercase moved for a default judgment because Davis failed to plead in response to the second amended complaint. Davis answered on August 10. However, Buttercase objected and moved to strike the answer on the grounds that failure to answer within 30 days after service should be treated as an admission of all allegations.
At the hearing on the motions, Buttercase relied on his pleadings, while Davis argued that the court had set no deadline for responding to the second amended complaint. The court overruled the motion for a default judgment because "[t]here is an Answer on file and we will proceed on that basis." It also overruled the motion to strike.
Over 1 year later, on January 14, 2019, Buttercase filed a third amended complaint, alleging legal malpractice, breach of contract, breach of fiduciary duties,...
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