State ex rel. Counsel for Dis. v. Sellers ( 2014 )

Nebraska Advance Sheets
776 287 NEBRASKA REPORTS
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. John A. Sellers, respondent.
___ N.W.2d ___
Filed March 28, 2014. Nos. S-13-060, S-13-497.
Original actions. Judgment of disbarment.
Kent L. Frobish, Assistant Counsel for Discipline, for
relator.
No appearance for respondent.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
P er Curiam.
INTRODUCTION
These cases are before the court on the voluntary sur-
renders of license filed by John A. Sellers, respondent, in
cases Nos. S-13-060 and S-13-497, which we consolidate for
purposes of opinion and disposition. On January 21, 2014,
respond­ nt filed a voluntary surrender in case No. S-13-060
e
and on February 10, respondent filed a voluntary surrender
in case No. S-13-497. In case No. S-13-060, an application
for temporary suspension containing one count was filed
against respondent, and on March 27, 2013, respondent was
temporarily suspended by order of this court. In case No.
S-13-497, formal charges containing four counts were filed
against respondent, with the first count containing the same
allegations as those set forth in the application for temporary
suspension filed in case No. S-13-060. We accept both of
respondent’s voluntary surrenders of his license and enter an
order of disbarment.
STATEMENT OF FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on September 19, 2000. On January 23, 2013, the
Committee on Inquiry of the Fifth Disciplinary District filed
an application for temporary suspension against respondent
Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. SELLERS 777
Cite as 287 Neb. 776
in case No. S-13-060. The application for temporary suspen-
sion contained one count, generally alleging neglect, failure to
communicate, and misappropriation of funds. On January 31,
we ordered respondent to show cause why he should not be
temporarily suspended. Respondent did not file a response to
the show cause order. Respondent was temporarily suspended
by this court on March 27.
After respondent was temporarily suspended, the Counsel
for Discipline of the Nebraska Supreme Court, relator, filed
formal charges containing four counts against respondent on
June 7, 2013, in case No. S-13-497. Count I of the formal
charges contained the same allegations as alleged in the appli-
cation for temporary suspension filed in case No. S-13-060.
Counts II, III, and IV of the formal charges in case No.
S-13-497 generally alleged that respondent neglected clients’
cases, failed to communicate with clients, and misappropri-
ated client funds. Respondent did not respond to the for-
mal charges.
On January 21, 2014, respondent filed a voluntary sur-
render of his license in case No. S-13-060. In the January
21 voluntary surrender, respondent stated that he knowingly
does not challenge or contest the truth of the allegations set
forth in the application for temporary suspension. Respondent
further stated that he freely and voluntarily waived his right
to notice, appearance, or hearing prior to the entry of an
order of disbarment and consented to the entry of an order
of disbarment.
On January 23, 2014, we filed an order directing relator to
file a response to respondent’s January 21 voluntary surrender
in case No. S-13-060, including the impact of such surrender
on case No. S-13-497 if this court accepted the voluntary sur-
render filed in case No. S-13-060. Relator filed its response
on January 31, stating, inter alia, that a voluntary surren-
der form pertaining to case No. S-13-497 had been tendered
to respondent.
On February 10, 2014, respondent filed a voluntary surren-
der in case No. S-13-497. Respondent stated in the February
10 voluntary surrender that he knowingly does not challenge
or contest the truth of the allegations set forth in the formal
Nebraska Advance Sheets
778 287 NEBRASKA REPORTS
charges. Respondent further stated that he freely and volun-
tarily waived his right to notice, appearance, or hearing prior to
the entry of an order of disbarment and consented to the entry
of an order of disbarment.
ANALYSIS
Neb. Ct. R. § 3-315 of the disciplinary rules provides in
pertinent part:
(A) Once a Grievance, a Complaint, or a Formal
Charge has been filed, suggested, or indicated against a
member, the member may voluntarily surrender his or
her license.
(1) The voluntary surrender of license shall state in
writing that the member knowingly admits or knowingly
does not challenge or contest the truth of the suggested
or indicated Grievance, Complaint, or Formal Charge
and waives all proceedings against him or her in connec-
tion therewith.
Pursuant to § 3-315 of the disciplinary rules, we find that by
respondent’s voluntary surrenders filed in cases Nos. S-13-060
and S-13-497, he has voluntarily surrendered his license to
practice law and knowingly does not challenge or contest the
truth of the allegations made against him in the application
for temporary suspension and the formal charges. Further,
respond­ nt has waived all proceedings against him in connec-
e
tion therewith. We further find that respondent has consented to
the entry of an order of disbarment.
CONCLUSION
Upon due consideration of the court files in these matters,
we find that respondent has stated that he freely, knowingly,
and voluntarily admits that he does not contest the allega-
tions being made against him in the application for temporary
suspension filed in case No. S-13-060 and the formal charges
filed in case No. S-13-497. We accept respondent’s voluntary
surrender of his license to practice law filed January 21, 2014,
in case No. S-13-060, and respondent’s voluntary surrender
of his license to practice law filed February 10 in case No.
S-13-497. We find that respondent should be disbarred and
Nebraska Advance Sheets
RODEHORST BROS. v. CITY OF NORFOLK BD. OF ADJUSTMENT 779
Cite as 287 Neb. 779
hereby order him disbarred from the practice of law in the
State of Nebraska, effective immediately. Respondent shall
forthwith comply with all terms of Neb. Ct. R. § 3-316 of
the disciplinary rules, and upon failure to do so, he shall be
subject to punishment for contempt of this court. Accordingly,
respond­ nt is directed to pay costs and expenses in accordance
e
with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and
Neb. Ct. R. §§ 3-310(P) (rev. 2014) and 3-323 of the disci-
plinary rules within 60 days after orders imposing costs and
expenses, if any, are entered by the court.
Judgment of disbarment.
Rodehorst Brothers, appellant, v. City of Norfolk
Board of Adjustment, appellee.
___ N.W.2d ___
Filed March 28, 2014. No. S-13-253.
1. Zoning: Courts: Appeal and Error. In appeals involving a decision of a board
of adjustment, an appellate court reviews the decision of the district court, and
irrespective of whether the district court took additional evidence, the appellate
court is to decide if, in reviewing a decision of a board of adjustment, the district
court abused its discretion or made an error of law. Where competent evidence
supports the district court’s factual findings, the appellate court will not substitute
its factual findings for those of the district court.
2. Abandonment: Intent: Words and Phrases. Generally, the right to continue a
nonconforming use may be lost through abandonment. Abandonment requires
not only a cessation of the nonconforming use, but also an intent by the user to
abandon the nonconforming use.
3. Ordinances: Zoning. Zoning laws should be given a fair and reasonable con-
struction in light of the manifest intention of the legislative body, the objects
sought to be attained, the natural import of the words used in common and
accepted usage, the setting in which they are employed, and the general structure
of the law as a whole.
4. ____: ____. Where the provisions of a zoning ordinance are expressed in com-
mon words of everyday use, without enlargement, restriction, or definition,
they are to be interpreted and enforced according to their generally accepted
meaning.
5. ____: ____. Nonconforming uses are disfavored because they reduce the effec-
tiveness of zoning ordinances, depress property values, and contribute to the
growth of urban blight.
6. Zoning: Ordinances: Intent: Time. Where a zoning law provides for the ter-
mination of a legal, nonconforming use after it has been “discontinued” for a