Buttercase v. Davis

• Decision Date: 09 December 2022
• Docket Number: S-20-871.
• Citation: 313 Neb. 1,982 N.W.2d 240
• Parties: Joseph J. BUTTERCASE, appellant, v. James Martin DAVIS and Davis Law Office, appellees.
• Court: Nebraska Supreme Court

313 Neb. 1

982 N.W.2d 240

Joseph J. BUTTERCASE, appellant,

v.James Martin DAVIS and Davis Law Office, appellees.

No. S-20-871.

Supreme Court of Nebraska.

Filed December 9, 2022

Joseph J. Buttercase, pro se on brief, and Darik J. Von Loh, of Hernandez Frantz, Von Loh, Lincoln, for appellant.

Nicholas F. Miller, of Baird Holm, L.L.P., for appellees.

Cassel, Stacy, Funke, Papik, and Freudenberg, JJ., and Wheelock and Post, District Judges.

Funke, J.

INTRODUCTION

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.

BACKGROUND

FEDERAL PROCEEDINGS

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.

INITIAL PLEADINGS AND MOTIONS

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, misrepresentation, and infliction of emotional distress. The primary focus of the complaint dealt with the alleged legal malpractice, reiterating the allegations of the original complaint and making new allegations regarding Davis’ failure to investigate and seek dismissal of the charges, failure to disclose issues with the computer expert's qualifications and billing practices, and attempt to "coerce" Buttercase into pleading guilty to possessing child pornography. A separate section captioned "Breach of Contract" alleged that Davis failed to perform under the contract or refund the $15,000.

Thereafter, on March 14, 2019, Buttercase made a second motion for a default judgment. The district court heard arguments on this motion, but Davis did not appear nor was he represented by counsel. However, in July, Davis moved to strike several pleadings, including the third amended complaint, because they were not properly served on him, and he advised the court that he had not received proper notice of all proceedings to date.

Subsequently, on August 5, 2019, the district court denied Buttercase's second motion for a default judgment, but it amended the progression order to give him an additional 6 months to disclose his expert witnesses. The court also ordered Davis to answer the third amended complaint within 14 days.

Davis failed to answer within this time, and on September 13, 2019, Buttercase filed a third motion for a default judgment. Davis answered on September 16. Then, on October 2, Buttercase made a second objection and motion to strike Davis’ answer and moved to stay the case until his federal "criminal case" was resolved.

At the hearing on Buttercase's motions, Buttercase renewed his argument that Davis’ answer was late and clarified that his "criminal case" involved federal postconviction relief. Davis countered that, regardless of whether he was late in answering, there was an answer on file, and "all we have to do is stand by our earlier answer." The district court overruled Buttercase's motions.

CROSS-MOTIONS FOR SUMMARY JUDGMENT

Davis moved for summary judgment and later filed an amended motion. Buttercase, in turn, filed his own motion for partial summary judgment on his breach of contract claim, followed by an amended motion.

The hearing on the parties’ cross-motions for summary judgment began with Buttercase's objections to Davis’ exhibits 22 through 30, which included, respectively, Davis’ affidavit; the docket, indictment, petition to enter a guilty plea, plea agreement, and judgment in the federal criminal case; the findings, recommendations, and order of dismissal from the ethics investigation; and the sentencing order for Buttercase's Nebraska convictions. Buttercase argued that all were irrelevant because he was not a party to or represented by Davis in these proceedings or, alternatively, if relevant, should be excluded because they were unfairly prejudicial. He also argued that Davis’ affidavit; the plea petition, plea agreement, and judgment in the federal case; and the state sentencing order were inadmissible because they involved pleas, plea discussions, or convictions on appeal. In addition, he asserted that all evidence regarding the ethics investigation should be excluded because Davis committed fraud when seeking to withdraw.

Davis, in turn, objected to Buttercase's exhibit 14, the affidavit of the attorney Buttercase planned to call as an expert witness, because Buttercase did not disclose his expert by the deadline set in the progression order. Buttercase countered that the late disclosure was harmless because it did not prejudice Davis or disrupt the trial's efficiency, and the court could waive its own rules. He also argued that Davis "failed to follow the court's orders on numerous occasions."

As to the merits of his summary judgment motion, Davis argued that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law because Buttercase failed to timely disclose his expert, offered no evidence to support his claim of actual innocence, alleged no damages that ...