Tierney v. Four H Land Co. Ltd. P'ship, S–10–103.

• Citation: 281 Neb. 658,798 N.W.2d 586
• Decision Date: 03 June 2011
• Docket Number: No. S–10–103.,S–10–103.
• Parties: James TIERNEY and Jeffrey Tierney, appellants,v.FOUR H LAND COMPANY LIMITED PARTNERSHIP et al., appellees.
• Court: Supreme Court of Nebraska

281 Neb. 658
798 N.W.2d 586

James TIERNEY and Jeffrey Tierney, appellants,
v.
FOUR H LAND COMPANY LIMITED PARTNERSHIP et al., appellees.

No. S–10–103.

Supreme Court of Nebraska.

June 3, 2011.

[798 N.W.2d 588]

Syllabus by the Court

[281 Neb. 658] 1. Judges: Recusal. A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned.

2. Judges: Recusal. A trial 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 impartiality under an objective standard of reasonableness, even though no actual bias or prejudice is shown.

3. Judges: Recusal: Waiver. A party is said to have waived his or her right to obtain a judge's disqualification when the alleged basis for the disqualification has been known to the party for some time, but the objection is raised well after the judge has participated in the proceedings.

4. Judges: Recusal: Time. The issue of judicial disqualification is timely if submitted at the earliest practicable opportunity after the disqualifying facts are discovered.

5. Judges: Recusal: Appeal and Error. A traditional harmless error analysis is inappropriate for review of questions of judicial disqualification.

6. Judges: Recusal: Appeal and Error. The disqualification of a judge is not a disqualification to decide erroneously. It is a disqualification to decide at all.

7. Judges: Recusal: Appeal and Error. The three-factor special harmless error test in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988), should be used for determining when vacatur is the appropriate remedy for a trial judge's failure to recuse himself or herself when disqualified under the Nebraska Code of Judicial Conduct.

8. Judges. When a judge is biased, his or her personal integrity and ability to serve are thrown into question, placing a strain on the court that cannot easily be erased.

James J. Paloucek, of Norman, Paloucek & Herman Law Offices, Northe Platte, for appellants.Jay C. Elliott, of Elliott Law Office, P.C., L.L.O., Northe Platte, for appellees Four H Land Company Limited Partnership and Western Engineering Company, Inc.Susan C. Williams, Northe Platte, for appellees Frank Aloi and Aloi Living Trust.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.McCORMACK, J.[281 Neb. 659] NATURE OF CASE

James Tierney and Jeffrey Tierney brought this action against Four H Land

[798 N.W.2d 589]

Company Limited Partnership (Four H Land); Western Engineering Company, Inc. (Western Engineering); Frank Aloi, trustee of the Aloi Living Trust; and the Aloi Living Trust (collectively the defendants) to compel them to lower the elevation of a lakeside housing development adjoining the Tierneys' land. The district court granted summary judgment in favor of the defendants, and the Tierneys appealed. While their appeal was pending, the Tierneys discovered that the district court judge who issued the order harbored a personal prejudice against their attorney. We reverse, and remand with directions.

BACKGROUND Agreement and Permit

The Tierneys are owners of real estate that adjoins 60.8 acres of real property previously owned by Four H Land and currently owned by Aloi, trustee of the Aloi Living Trust, and the Aloi Living Trust. In 1997, the 60.8 acres consisted primarily of an alfalfa field on level ground with a line of cottonwood trees and a road alongside the adjoining edge of the Tierneys' property. The alfalfa field was somewhat lower than the road, [281 Neb. 660] and there were some depressed areas of wetlands. Four H Land and Western Engineering wished to open and operate a sand and gravel pit on the 60.8 acres. When the excavation was complete, they planned to create a lake and fill in the surrounding land for a housing development.

Four H Land and Western Engineering sought a conditional use permit from the Lincoln County Planning Commission (the Commission). The Tierneys objected that the sand and gravel pit would be a nuisance. The Commission granted the permit with the following conditions:

At the close of each phase of the sand and gravel pit operation the area shall be leveled to its original topography within one year of termination of each phase. The areas not covered by water shall then be covered with four inches (minimum) of topsoil and seeded with appropriate native grasses to prevent erosion of the soil.

The Tierneys appealed the Commission's decision. Eventually, the Tierneys reached an agreement with Four H Land and Western Engineering. The agreement provided more detailed mining operation restrictions and stated in relevant part:

As the operation in one phase is completed and the operation moves to the next phase, [Four H Land] and [Western Engineering] shall reclaim the land in the phase of prior operations by filling to at least its approximate original topography, covered with a minimum of four (4) inches of top soil and seeded with appropriate native grasses to prevent erosion and to visually restore the site, except the area to be used for a lake.

The terms and conditions of the August 11, 1998, agreement were “to be incorporated into and made a part of the Conditional Use Permit to be approved by the ... Commission” and “[a]ll of the other terms and conditions contained in the Conditional Use Permit shall apply, except to the extent they are contrary to or less restrictive than the terms agreed to in the settlement of this controversy ....” That same date, the conditional use permit was reissued by the Commission. The permit specifically attached and incorporated the August 11 agreement.

[281 Neb. 661] After completion of the gravel pit operation, the lake was created and the surrounding land was prepared for the housing development. The lots were raised to comply with flood plain requirements.

[798 N.W.2d 590]

The parties agree that the lots, which comprise most of the land, are higher in elevation than the previously existing alfalfa field.

The Tierneys brought this action against the defendants on April 9, 2009. They contend that the final elevation of the land violated the agreement because the agreement required a return to the preexisting elevation and the land was 6 to 8 feet higher. Their action was brought before the Honorable John P. Murphy of the Lincoln County District Court, and the Tierneys were represented by James J. Paloucek.

In December 2009, the Tierneys filed a motion for summary judgment and the defendants filed cross-motions for summary judgment. Several depositions were submitted in support of the motions disputing the intent of the permit and agreement. On January 8, 2010, the district court granted summary judgment in favor of the defendants. The court concluded that by virtue of the “at least” language in the permit, the defendants were required to return the land to the original elevation level or higher, and that there was no dispute the elevation was “at least” as high as it was before the gravel pit operation. The court concluded that there was thus no material issue of fact as to whether the defendants had complied with the permit and agreement. The Tierneys appealed.

Bias Against Tierneys' Attorney

While the Tierneys' appeal was pending, on July 13, 2010, Paloucek received a letter from Judge Murphy. In the letter, Judge Murphy wrote, “Because I hold you personally responsible for the Florom fiasco, I am recusing myself from any pending case or any future case involving your law firm.” Since that time, Judge Murphy has, in fact, recused himself from all cases involving the law offices of Norman, Paloucek & Herman.

The Tierneys were allowed to amend their assignments of error to allege that Judge Murphy erred in failing to recuse himself, sua sponte, from deciding the case, because such bias [281 Neb. 662] must have existed at the time of the summary judgment hearing. The Tierneys alleged that prior to receiving this letter, they did not know that Judge Murphy harbored prejudice against their attorney.

The source of the alleged bias stems from disciplinary proceedings against a former county court judge, Kent E. Florom. In 2008, Florom became involved in matters surrounding the criminal prosecution and revocation of the teaching certificate of the head coach of the girls' softball team on which Florom's daughter played. Florom tried to use his influence to convince the prosecutor not to press charges and later threatened Paloucek, who served on the school board, stating that Paloucek would make an “enemy” if Paloucek supported the action to remove the coach's teaching certificate.

The Nebraska Commission on Judicial Qualifications (JQC) filed a complaint charging Florom with violations of the Nebraska Code of Judicial Conduct. A hearing was held before a special master appointed by this court, and Paloucek testified at the hearing. The special master concluded there was clear and convincing evidence that Florom's conduct violated the Nebraska Code of Judicial Conduct. By November 5, 2009, the JQC issued the recommendation that Florom be removed from judicial office. On July 9, 2010, we independently reviewed the findings of the JQC and removed Florom from judicial office. ¹

[798 N.W.2d 591]

Court of Appeals Opinion

The Nebraska Court of Appeals, in a memorandum opinion, affirmed Judge Murphy's order granting the defendants' motions for summary judgment and denying the Tierneys' cross-motion for summary judgment.² The Court of Appeals held that the alleged 8– to 10–foot–high berm complied with the provisions in the conditional use permit requiring a berm at least 6 feet high and that this provision was not contrary to [281 Neb. 663] or less restrictive than the terms of the agreement. The Court of Appeals concluded that it did not need to reach the issue of Judge Murphy's failure to recuse himself because it had made an independent...