Timothy L. Ashford, PC LLO v. Roses
| Decision Date | 27 January 2023 |
| Docket Number | S-21-807,S-21-808 |
| Parties | Timothy L. Ashford, PC LLO, and Timothy L. Ashford, appellants. v. Roses Roses, appellee. Timothy L. Ashford, PC LLO, and Timothy L. Ashford, appellants, v. Andrea Tate, appellee. |
| Court | Nebraska Supreme Court |
1. Judges: Recusal. A recusal motion is initially addressed to the discretion of the judge to whom the motion is directed.
2. ___ ___. 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 impartiality under an objective standard of reasonableness even though no actual bias or prejudice was shown.
3. 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.
4. ___ ___. 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.
5. Limitations of Actions. If the facts in a case are undisputed, the issue as to when the statute of limitations begins to run is a question of law.
6. Judgments: Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.
7. Pretrial Procedure: Appeal and Error. Generally, the control of discovery is a matter for judicial discretion, and decisions regarding discovery will be upheld on appeal in the absence of an abuse of discretion.
8. Judgments: Words and Phrases. 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.
9. Motions to Dismiss: Appeal and Error. A district court's grant of a motion to dismiss is reviewed de novo.
10. Judicial Notice: Appeal and Error. Judicial notice may be taken at any stage of a proceeding, including on appeal.
11. Trial: Evidence: Records: Appeal and Error. Generally, it is not the function of an appellate court to review evidence that was not presented to the trial court. A bill of exceptions is the only vehicle for bringing evidence before an appellate court; evidence which is not made a part of the bill of exceptions may not be considered.
12. Judges: Recusal. The Nebraska Revised Code of Judicial Conduct states that a judge shall recuse himself or herself from any proceeding in which the judge's impartiality might reasonably be questioned, including when the judge has a personal bias or prejudice concerning a party or a party's lawyer.
13. ___: ___. To demonstrate that a trial judge should have recused himself or herself, the moving party must show 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.
14. Judges: Recusal: Presumptions. One seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.
15. Limitations of Actions: Dismissal and Nonsuit. Neb. Rev. Stat. § 25-217 (Cum. Supp. 2022) is self-executing, so that an action is dismissed by operation of law, without any action by either the defendant or the court, as to any defendant who is named in the civil action and not served with process within the time set forth in the statute.
16. Limitations of Actions: Dismissal and Nonsuit: Jurisdiction. After dismissal of a civil action by operation of law under Neb. Rev. Stat. § 25-217 (Cum. Supp. 2022), there is no longer an action pending and the district court has no jurisdiction to make any further orders except to formalize the dismissal.
17. Limitations of Actions: Libel and Slander. The limitations period in Neb. Rev. Stat. § 25-208 (Reissue 2016) commences upon the publication of the defamatory matter which forms the basis of the action.
18. Actions: Libel and Slander. Generally, under the single publication rule, any communication that is made at approximately one time-such as a television broadcast or a single edition of a book, newspaper, or periodical-is construed as a single publication of the statements it contains, and gives rise to only one cause of action which accrues as of the moment of the initial publication, no matter how many copies are later distributed.
19. Libel and Slander: Legislature. By enacting Neb. Rev. Stat. § 20-209 (Reissue 2022), the Legislature codified the single publication rule in Nebraska.
20. Actions: Libel and Slander: Time: Damages. Under Nebraska's single publication rule, there is just one cause of action for tort damages founded upon a single publication, and that cause of action accrues at the moment of the initial publication.
21. Statutes: Appeal and Error. Statutory language must 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.
22. Statutes: Legislature: Intent. When 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.
23. Statutes: Intent. A court must look at the statutory objective to be accomplished, the problem to be remedied, or the purpose to be served, and then place on the statute a reasonable construction which best achieves the purpose of the statute, rather than a construction defeating the statutory purpose.
24. Statutes: Words and Phrases. Generally, words grouped in a list within a statute should be given related meaning.
25. Libel and Slander. Nebraska's single publication rule, as codified in Neb. Rev. Stat. § 20-209 (Reissue 2022), applies to internet postings and publications.
26. Records: Appeal and Error. It is incumbent on the appellant to present a record supporting the errors assigned; absent such a record, an appellate court will affirm the lower court's decision regarding those errors.
27. Appeal and Error. To be considered by an appellate court, the party asserting an alleged error must both specifically assign and specifically argue it in the party's initial brief.
28. ___. Where an appellant's brief contains conclusory assertions unsupported by a coherent analytical argument, the appellant fails to satisfy the requirement that the party asserting the alleged error must both specifically assign and specifically argue it in the party's initial brief.
29. Pleadings: Appeal and Error. An appellate court reviews de novo a lower court's dismissal of a complaint for failure to state a claim.
30. Disciplinary Proceedings. Under Neb. Ct. R. § 3-322, reports of alleged attorney misconduct and grievances submitted to the Nebraska Supreme Court's Counsel for Discipline are absolutely privileged and no lawsuit predicated thereon may be instituted.
Appeals from the District Court for Douglas County: W. Russell Bowie III, Judge. Affirmed.
William R. Harris for appellants.
Michael J. Decker for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
An attorney filed two separate lawsuits alleging that he and his law firm were defamed by a negative review posted on the law firm's Google business page. The district court granted summary judgment in favor of the defendants and dismissed both lawsuits. On appeal, the attorney assigns multiple errors, including that the district court erred in relying on the single publication rule to determine when the defamation claim accrued. We moved these appeals to our docket primarily to address that issue.
We conclude the district court properly applied the single publication rule, and we find no merit to the remaining assignments of error. We therefore affirm the judgments of the district court.
Timothy L. Ashford is an attorney in Omaha, Nebraska, and his law practice is Timothy L. Ashford PC LLO (collectively Ashford). Ashford was hired by Antonio Tate to represent him regarding a personal injury claim arising from a 2016 automobile collision. Antonio and his minor children were injured in another collision in 2017, and Ashford was retained to represent them on those personal injury claims too. Both Antonio and his wife, Andrea Tate, communicated with Ashford regarding the representation.
In November 2018, Ashford emailed Antonio and Andrea to inform them he was ending his representation. At that point, none of the claims arising from the collisions had been resolved. Ashford provided Antonio and Andrea with notice of attorney liens totaling approximately $5,900.
In response to Ashford's email, Andrea sent Ashford a letter dated December 13, 2018. Several of Ashford's claims are based on Andrea's letter, so we describe it in some detail.
The letter stated that Antonio and Andrea were surprised by Ashford's decision to terminate his representation; they tried to contact him for an explanation and to obtain their case files, but received no response. The letter continued:
Antonio and I understand that you should be compensated for any billable hours spent on Antonio's case(s), and we are in complete agreement to do exactly that. However, we also know that we have a right to request an accounting (summary) of your billable hours spent, per...
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