Titus v. Schense
| Docket Number | A-23-054 |
| Decision Date | 07 November 2023 |
| Parties | Shawn Titus, appellant, v. Donald L. Schense, appellee |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Douglas County: KATIE L. BENSON Judge.
Shawn Titus, pro se.
Ronald F. Krause and Michael R. Faz, of Cassem, Tierney, Adams Gotch & Douglas, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Shawn Titus appeals from the Douglas County District Court's order granting summary judgment in his legal malpractice action in favor of Donald L. Schense. For the reasons stated herein, we affirm.
In 2018, pursuant to a plea agreement, Titus pled no contest to attempted first degree sexual assault. The plea was an "Alford plea." The district court sentenced Titus to 15 to 20 years' imprisonment. Titus, represented by different appellate counsel, filed a direct appeal assigning as error that his trial counsel was ineffective and that the sentence imposed was excessive. Specifically, Titus alleged that trial counsel was ineffective by (a) failing to obtain or consult with an expert witness; (b) failing to develop and martial a proper defense strategy; (c) failing to request recusal of the trial judge and prosecutor because of the pendency of Titus' federal court lawsuit in which both were named as defendants; (d) failing to place the entire plea agreement on the record; (e) advising Titus to accept the plea offered; and (f) failing to advise Titus that acceptance of the plea negated his ability to appeal the denial of his plea in abatement. State v. Titus, No. A-18-1096, 2019 WL 3562180 (Neb.App. Aug. 6, 2019) (). This court determined that the record on appeal was insufficient to review each of Titus' claims of ineffective assistance of trial counsel. Id. We further determined that the sentence imposed was not excessive. Id.
In September 2019, Titus filed a pro se motion for postconviction relief. In that motion, Titus presented 13 claims for relief. Three of the claims matched claims of ineffective assistance of trial counsel preserved in his direct appeal (failing to obtain or consult with an expert witness, failing to request recusal of the trial judge and prosecutor because of the pendency of Titus' federal court lawsuit, and failing to advise Titus that acceptance of the plea negated his ability to appeal the denial of his plea in abatement). Nine of the claims were new allegations of ineffective assistance of appellate counsel. Titus' final claim was an allegation that the "[g]overnment breached the plea agreement" because the Thereafter, Titus requested leave to file an amended motion, but did not identify which of his claims he would amend or what changes the amendments would include. This request was denied. Titus also filed a motion for appointment of counsel, which was granted. The court appointed Schense to represent Titus during the postconviction proceedings.
The court granted an evidentiary hearing on Titus' allegation that there was an agreement by the State to stand silent at sentencing and on the three claims of ineffective assistance of trial counsel which had been preserved on direct appeal. Following the hearing, the district court denied Titus' motion for postconviction relief. Titus, acting pro se, appealed this decision to this court alleging that the district court erred by (1) committing various due process violations; (2) finding that the State had not agreed to stand silent at sentencing and that trial counsel did not provide ineffective assistance; and (3) refusing to grant leave to amend his original postconviction motion. Titus also assigned that his postconviction counsel was ineffective. State v. Titus, No. A-21-765, 2022 WL 2438283 (Neb.App. July 5, 2022) (). This court concluded that the district court did not abuse its discretion in denying Titus' request to file an amended motion for postconviction relief, that it did not err in overruling Titus' motion for postconviction relief, and that Titus' arguments related to the effectiveness of his postconviction counsel failed. Id.
In August 2022, Titus filed a civil complaint against Schense alleging legal malpractice related to Schense's representation of Titus during the postconviction proceedings. The complaint was subsequently amended to allege negligence due to Schense's "failure to raise meritorious claims, including, but not limited to, appellate counsel's failure to raise a challenge to the sufficiency of [the] evidence for the factual basis . . ." Titus also alleged that he was "actually innocent." The complaint requested damages of no less than $500,000; punitive damages of $250,000; lost wages of $35,000; and attorney fees and costs.
Titus later filed a motion for appointment of counsel to assist him in the proceedings and a motion to stay the proceedings "until his legal disability is removed," his disability being his incarceration. Specifically, he claimed that because of his incarceration, he earned about $45 per month, the cost of postage and envelopes had increased, he lacked email or internet access, his access to legal research and typewriters was limited, he could not conduct discovery or depositions, he lacked the funds for an expert witness, and that these combined limitations warranted a stay of the proceedings. The court denied both the motion for appointment of counsel and the motion for a stay of the proceedings.
In November 2022, Schense filed a motion for summary judgment. Titus responded by filing a motion for an extension of time to "to serve and submit his Annotated Statement of Disputed Facts, Exhibit Index in Opposition to [Schense's] Motion for Summary Judgment, and brief in opposition . . ." Shortly thereafter, Titus filed a competing motion for summary judgment but did not file a motion for hearing thereon.
A hearing on Schense's motion for summary judgment was held in December 2022. During this hearing, the court received into evidence Schense's affidavit, which averred that based on his education, training, experience, and his professional opinion, to a reasonable degree of professional certainty, he did not violate any duty owed to Titus, he fully complied with all duties owed under the standard of care of a licensed practicing attorney in the State of Nebraska while representing Titus, and no action or inaction on his part caused or contributed to cause any of the damages alleged by Titus.
The district court granted summary judgment in favor of Schense and dismissed Titus' amended complaint. The court indicated that Schense's affidavit set forth a prima facie case of lack of negligence, thus shifting the burden to Titus to produce evidence showing the existence of a material issue of fact preventing judgment as a matter of law. The court found that Titus failed to present any evidence from an expert that Schense had committed legal malpractice. Further, although Titus had not sought a hearing date on his motion for summary judgment, in order to dispose of the case as a whole, the court denied Titus' motion for summary judgment. Titus has timely appealed to this court.
Titus's assignments of error, consolidated and restated, are that the district court (1) erred in granting summary judgment in favor of Schense because the admission of Schense's affidavit was unfairly prejudicial; (2) erred in finding that expert testimony was necessary to refute Schense's allegations contained within his affidavit; (3) committed plain error in denying his request for extension of time; and (4) erred in failing to appoint counsel as an expert witness.
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. Buttercase v. Davis, 313 Neb. 1, 982 N.W.2d 240 (2022), modified on denial of rehearing 313 Neb. 587, 985 N.W.2d 588 (2023). An appellate court affirms a lower court's grant of summary judgment if the pleadings and admitted evidence show there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. Id.
Before reaching the merits of Titus' assigned errors, we first briefly summarize the standard for a convicted criminal's legal malpractice claim and the summary judgment procedure invoked by Schense in response to Titus' claim. In response to Titus' claim, Schense filed a motion for summary judgment claiming that, pursuant to the elements of Titus' claim, Schense was entitled to summary judgment as a matter of law.
In Buttercase v. Davis, the Nebraska Supreme Court stated:
Actual innocence is one of four factors we have recognized in considering legal malpractice claims. In Rodriguez v. Nielsen, [259 Neb. 264, 609 N.W.2d 368 (2000),] we held that 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. The Rodriguez court noted that the actual innocence factor serves the dual goals of ensuring that...
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