State v. Hessler ( 2014 )

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670 288 NEBRASKA REPORTS
and Neomi did not file an answer until March 29, 2013, with
an amended answer filed April 5. While Correa sees this action
as deceitful, on these facts we cannot agree. There is no evi-
dence that the estate, Neomi, or State Farm acted to prevent
Correa from correcting the defect in service by reopening the
estate and having a special administrator appointed.
Correa’s fourth and final assignment of error is without
merit.
CONCLUSION
Because the special administrator was not served within 6
months of the commencement of the action, the district court
lacked jurisdiction over Correa’s claims. Likewise, this court
lacks jurisdiction over Correa’s appeal. The appeal is there-
fore dismissed.
Appeal dismissed.
McCormack, J., not participating.
State of Nebraska, appellee, v.
Jeffrey A. Hessler, appellant.
___ N.W.2d ___
Filed July 25, 2014. No. S-13-850.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion
for postconviction relief must be granted when the motion contains factual alle-
gations which, if proved, constitute an infringement of the movant’s rights under
the Nebraska or federal Constitution. However, if the motion alleges only conclu-
sions of fact or law, or the records and files in the case affirmatively show that
the movant is entitled to no relief, no evidentiary hearing is required.
3. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a
postconviction proceeding is procedurally barred is a question of law. When
reviewing a question of law, an appellate court reaches a conclusion independent
of the lower court’s ruling.
4. Appeal and Error. An appellate court does not consider errors which are argued
but not assigned.
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5. Postconviction. A defendant is entitled to bring a second proceeding for post-
conviction relief only if the grounds relied upon did not exist at the time the first
motion was filed.
6. ____. The need for finality in the criminal process requires that a defendant bring
all claims for relief at the first opportunity.
7. Postconviction: Effectiveness of Counsel: Appeal and Error. If a defendant
brings a motion for postconviction relief based on ineffective assistance of trial
or direct appeal counsel which could not have been raised earlier, this is a basis
for relief that did not exist at the time of the prior proceeding.
8. Postconviction: Appeal and Error. If a defendant brings a successive motion
for postconviction relief based on newly discovered evidence that was not
available at the time the prior motion was filed, this is a basis for relief that
did not exist at the time of the prior proceeding because it was not available to
the defendant.
9. ____: ____. A motion for postconviction relief cannot be used to secure review of
issues which were or could have been litigated on direct appeal.
10. Postconviction: Effectiveness of Counsel. Postconviction relief cannot be
obtained on the basis of ineffective assistance of postconviction counsel.
11. Postconviction: Constitutional Law: Effectiveness of Counsel. There is no
constitutional guarantee of effective assistance of counsel in a postconvic-
tion action and therefore no claim for ineffective assistance of postconvic-
tion counsel.
12. Postconviction: Constitutional Law: Effectiveness of Counsel: Habeas
Corpus: States. Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309, 182 L. Ed.
2d 272 (2012), did not recognize a constitutional right to effective assistance of
postconviction counsel. Based upon principles of equity, it expanded only the
types of cause permitting a federal habeas court to excuse a procedural default
in a federal habeas proceeding. Nothing in Martinez prevents state courts from
enforcing procedural defaults in accordance with state law.
13. Judgments: Constitutional Law: Legislature: Appeal and Error. The com-
mon-law writ of error coram nobis exists in this state under Neb. Rev. Stat.
§ 49-101 (Reissue 2010), which adopts English common law to the extent that it
is not inconsistent with the Constitution of the United States, the organic law of
this state, or any law passed by our Legislature.
14. Judgments: Evidence: Appeal and Error. The purpose of the writ of error
coram nobis is to bring before the court rendering judgment matters of fact
which, if known at the time the judgment was rendered, would have prevented
its rendition. It enables the court to recall some adjudication that was made while
some fact existed which would have prevented rendition of the judgment but
which, through no fault of the party, was not presented.
15. Convictions: Proof: Appeal and Error. The burden of proof in a proceeding to
obtain a writ of error coram nobis is upon the applicant claiming the error, and
the alleged error of fact must be such as would have prevented a conviction. It is
not enough to show that it might have caused a different result.
16. Judgments: Appeal and Error. The writ of error coram nobis is not available to
correct errors of law.
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Appeal from the District Court for Scotts Bluff County:
Randall L. Lippstreu, Judge. Affirmed.
Alan G. Stoler and Jerry M. Hug, of Alan G. Stoler, P.C.,
L.L.O., for appellant.
Jon Bruning, Attorney General, James D. Smith, and, on
brief, J. Kirk Brown for appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ., and Inbody, Chief Judge.
Cassel, J.
I. INTRODUCTION
Jeffrey A. Hessler appeals the order of the district court
denying his second action for postconviction relief and a writ
of error coram nobis. All of his claims—relating to men-
tal competency, errors or misconduct at trial, and ineffective
assist­nce of counsel—were or could have been litigated on
a
direct appeal or in his first postconviction action. Thus, they
were procedurally barred. And his reference to two recent deci-
sions of the U.S. Supreme Court provides no basis to deviate
from our procedural rules. Finally, he failed to raise any basis
warranting coram nobis relief. We affirm.
II. BACKGROUND
Hessler was convicted of first degree murder, kidnapping,
first degree sexual assault on a child, and use of firearm to
commit a felony for the sexual assault and killing of 15-year-
old Heather Guerrero. He was sentenced to death on the mur-
der conviction and various terms of imprisonment on the other
convictions. The circumstances which led to Hessler’s convic-
tions and sentences may be found in State v. Hessler.1
We affirmed Hessler’s convictions and sentences on direct
appeal.2 We summarized the assignments of error raised in his
appellate brief, in pertinent part, as follows:
1
State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007).
2
Id.
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[T]he district court erred in . . . (3) failing to excuse
for cause potential jurors who had formed opinions
regarding Hessler’s guilt; (4) overruling his motion to
change venue; [and] (7) granting his request to waive
counsel and appear pro se at sentencing and failing to
make a determination regarding his competency to waive
counsel.3
After we affirmed his convictions and sentences, Hessler
filed his first action for postconviction relief. In his first post-
conviction motion, Hessler asserted claims related to ineffec-
tive assistance of trial and appellate counsel, errors at trial,
and prosecutorial misconduct. He claimed that his trial coun-
sel was ineffective for failing to take various actions regarding
his mental competency, juror bias, and venue. And he alleged
that his appellate counsel was ineffective for failing to raise
and argue those issues. Finally, he asserted that the trial court
erred by failing to order a competency evaluation and that the
State committed prosecutorial misconduct by failing to sug-
gest such an evaluation.
The district court ordered an evidentiary hearing on the sole
issue of whether Hessler’s trial counsel was ineffective for
failing to raise the issue of competency after Hessler’s convic-
tions but prior to the determination of any mitigating factors
and sentencing. Before the mitigation portion of the sentencing
phase began, Hessler moved the court to proceed pro se. He
had been represented by counsel up until that point. The court
ultimately rejected Hessler’s ineffective assistance claim, find-
ing that the record affirmatively showed that he was compe-
tent. It therefore denied postconviction relief. We affirmed the
denial of postconviction relief on appeal.4
Hessler then filed the present, second motion for postconvic-
tion relief. As noted above, the claims asserted in the present
motion related to mental competency, errors or misconduct at
trial, and ineffective assistance of counsel. The district court
summarized Hessler’s 17 claims as follows:
3
Id. at 488, 741 N.W.2d at 416.
4
State v. Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011).
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1. Custodial statement made on February 11, 2003,
and February 12, 2003[,] violated Hessler’s constitutional
rights. A mental disease prevented Hessler from know-
ingly and intelligently waiving his constitutional right to
remain silent.
2. Hessler was denied a fair and impartial jury due to
pretrial publicity and the trial court’s denial of his motion
to change venue.
3. Hessler’s waiver of counsel violated his constitu-
tional rights. Mental illness rendered Hessler incompetent
to waive counsel.
4. Hessler’s waiver of his right to be present in court
was invalid. Hessler’s mental illness rendered him incom-
petent to waive his presence during court proceedings.
5. Comments by the Court and prosecutor violated
Hessler’s right to a fair trial.
6. Trial counsel was ineffective during the guilt —
innocence stage of Hessler’s trial including, but not
limited to, not aggressively pursuing suppression of
Hessler’s statements, not effectively pursuing a change
of venue, not adequately investigating Hessler’s compe-
tency, etc.
7. Trial counsel failed to adequately investigate and
litigate Hessler’s lack of mental capacity to waive his
Fourth Amendment rights.
8. The trial court’s “mental anguish” jury instruction
was unconstitutional. Trial and appellate counsel were
ineffective by not pursuing that issue.
9. Trial counsel was ineffective for failing to object to
the State’s use of testimonial hearsay evidence, specifi-
cally DNA reports and lab analysis.
10. Hessler was incompetent to stand trial due to debil-
itating mental disease or defect.
11. Trial counsel was ineffective because Hessler was
innocent due to an incapacity to act with deliberate and
premeditated malice.
12. Trial counsel was generally ineffective at the aggra-
vation hearing.
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13. Hessler was denied a fair trial due to juror bias
and misconduct.
14. Appellate counsel and post conviction counsel were
generally ineffective.
15. The prosecutor generally committed prosecutorial
misconduct at all stages of the proceedings.
16. Witness [Mark] Bohaty was allowed to present
“pseudo-scientific” evidence regarding firearms.
17. Cumulative error.
The district court found that Hessler’s second postconvic-
tion motion failed to raise any ground for relief not previously
available to him. It noted that the issues of mental compe-
tency and ineffective assistance of trial and appellate counsel
were litigated on direct appeal or in his first postconviction
action. And his various assertions of errors or misconduct at
trial were previously litigated or were known and could have
been raised in the prior proceedings. Finally, it observed that
no constitutional basis existed for his claim of ineffective
assistance of postconviction counsel. It therefore denied post-
conviction and coram nobis relief and dismissed the motion.
Hessler timely appeals.
III. ASSIGNMENTS OF ERROR
We consolidate and restate Hessler’s numerous assignments
of error. Hessler assigns that the district court erred in failing
to grant an evidentiary hearing on each of his 17 claims.
IV. STANDARD OF REVIEW
[1,2] A defendant requesting postconviction relief must
establish the basis for such relief, and the findings of the
district court will not be disturbed unless they are clearly
erroneous.5 An evidentiary hearing on a motion for postconvic-
tion relief must be granted when the motion contains factual
allegations which, if proved, constitute an infringement of the
movant’s rights under the Nebraska or federal Constitution.6
However, if the motion alleges only conclusions of fact or
5
State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011).
6
Id.
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law, or the records and files in the case affirmatively show
that the movant is entitled to no relief, no evidentiary hearing
is required.7
[3] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law.8 When reviewing a
question of law, an appellate court reaches a conclusion inde-
pendent of the lower court’s ruling.9
V. ANALYSIS
[4] We first dispose of a preliminary issue. Hessler assigned
as error the district court’s denial of an evidentiary hearing
on the claims raised in his second motion for postconviction
relief. In his brief, he assigned 17 errors and argued the merits
of each of his 17 claims. But he omitted claims 8 and 10 from
his assignments of error by duplicating other claims. We rec-
ognize our precedent that an appellate court does not consider
errors which are argued but not assigned.10 But we do not treat
claims 8 and 10 as being waived. The sentences imposed in
this case are grave, and the duplications of the other claims
make it clear that he intended to assign error to the district
court’s disposition of each of his claims but committed a typo-
graphical error.
1. Denial of Postconviction R elief
[5,6] This is Hessler’s second motion for postconviction
relief. A defendant is entitled to bring a second proceeding for
postconviction relief only if the grounds relied upon did not
exist at the time the first motion was filed.11 The need for final-
ity in the criminal process requires that a defendant bring all
claims for relief at the first opportunity.12
[7,8] We have recognized two circumstances which pro-
vide a new ground for relief constituting an exception to
7
Id.
8
State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).
9
Id.
10
See, e.g., State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009).
11
State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999).
12
Id.
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the procedural bar in postconviction proceedings. First, if a
defendant brings a motion for postconviction relief based on
ineffective assistance of trial or direct appeal counsel which
could not have been raised earlier, this is a basis for relief that
did not exist at the time of the prior proceeding.13 Second, if a
defendant brings a successive motion for postconviction relief
based on newly discovered evidence that was not available at
the time the prior motion was filed, this is a basis for relief
that did not exist at the time of the prior proceeding because it
was not available to the defendant.14
None of the 17 claims asserted by Hessler raised a new
ground for relief constituting an exception to the procedural
bar. Thus, the district court correctly denied Hessler’s motion.
For the sake of brevity, we organize our analysis in accordance
with the common themes shared among the 17 claims: men-
tal competency, errors or misconduct at trial, and ineffective
assist­ nce of counsel.
a
(a) Mental Competency
Claims 1, 3, 4, and 10 pertain to Hessler’s mental compe-
tency during the proceedings against him. Hessler asserted that
due to mental illness, he was incompetent to stand trial and
unable to waive his right to remain silent, his right to counsel,
and his right to be present.
[9] But Hessler challenged his competency to waive the
right to counsel on direct appeal.15 He alleged that the trial
court erred in granting his request to waive counsel and
appear pro se at sentencing and in failing to make a determi-
nation regarding his competency to do so.16 We rejected this
claim because the trial court had no reason to doubt Hessler’s
competency to waive counsel.17 Having already litigated this
claim, Hessler was procedurally barred from raising it in the
present motion. A motion for postconviction relief cannot be
13
Id.
14
Id.
15
See Hessler, supra note 1.
16
See id.
17
See id.
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used to secure review of issues which were or could have been
litigated on direct appeal.18
Hessler’s three remaining claims regarding his mental com-
petency were similarly barred. These claims were known and
could have been litigated on direct appeal. Consequently, we
find no error in the district court’s denial of an evidentiary
hearing on claims 1, 3, 4, and 10.
(b) Errors or Misconduct at Trial
Claims 2, 5, 13, 15, 16, and 17 relate to errors or miscon-
duct at trial. Briefly, Hessler asserted that his convictions and
sentences must be overturned because of a biased jury, com-
ments made by the trial judge and prosecution that diminished
the jury’s role in sentencing, juror misconduct, prosecuto-
rial misconduct, improperly admitted evidence, and cumula-
tive error.
Hessler asserted that his jury was biased on direct appeal.19
He alleged that the trial court erred in failing to excuse poten-
tial jurors who had formed opinions of his guilt and in overrul-
ing his motion to change venue because he could not receive
a fair trial in Scotts Bluff County, Nebraska.20 As this claim
was previously asserted and rejected, Hessler was barred from
asserting it again.
Hessler’s remaining claims of errors or misconduct at trial
were similarly barred. These claims were known to Hessler and
could have been raised on direct appeal. But he did not do so.
We therefore find no error in the district court’s denial of an
evidentiary hearing on claims 2, 5, 13, 15, 16, and 17.
(c) Ineffective Assistance of Counsel
Claims 6 through 9, 11, 12, and 14 pertain to ineffective
assistance of counsel. Hessler asserted that his trial counsel was
ineffective for failing to take various actions regarding compe-
tency, juror bias and misconduct, venue, cross-­xamination
e
of witnesses, jury instructions, evidence, and prosecutorial
18
State v. Suggs, 259 Neb. 733, 613 N.W.2d 8 (2000).
19
See Hessler, supra note 1.
20
Id.
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misconduct. He further alleged that his counsel on direct
appeal and in his first postconviction action were ineffective
for failing to raise and argue all meritorious issues.
As noted above, a new basis for relief may exist if a
defend­ nt brings a motion for postconviction relief based on
a
ineffective assistance of trial or direct appeal counsel which
could not have been raised earlier.21 But Hessler was able
to assert ineffective assistance of trial and appellate counsel
in his first postconviction action and did so.22 He was not
entitled to do so again. Consequently, his present claims of
ineffective assistance of trial and appellate counsel were pro-
cedurally barred.
[10,11] But Hessler also claimed that he received ineffec-
tive assistance of counsel in his first postconviction action. He
argued that the ineffectiveness of his first postconviction coun-
sel constituted a new basis for relief and rendered any claims
not raised in the prior proceedings unavailable to him until
the present action. This argument has no merit. Postconviction
relief cannot be obtained on the basis of ineffective assistance
of postconviction counsel.23 There is no constitutional guaran-
tee of effective assistance of counsel in a postconviction action
and therefore no claim for ineffective assistance of postconvic-
tion counsel.24
In his brief, Hessler cites Martinez v. Ryan25 as a basis
for deviating from our procedural rules and granting an
evidentiary hearing on his 17 claims. In Martinez, the U.S.
Supreme Court held that a state procedural default does not
bar a federal habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the initial-review col-
lateral proceeding, there was no counsel or counsel in that
proceeding was ineffective. This holding was initially limited
21
See Ryan, supra note 11.
22
See Hessler, supra note 4.
23
See State v. Becerra, 263 Neb. 753, 642 N.W.2d 143 (2002).
24
State v. Deckard, 272 Neb. 410, 722 N.W.2d 55 (2006).
25
Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309, 182 L. Ed. 2d 272
(2012).
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to state procedural systems in which ineffective assistance of
trial counsel claims were required to be litigated in the initial-
review collateral proceeding.26 But the Court later expanded
its holding to include state systems in which ineffective
assistance of trial counsel claims were highly unlikely to be
given a meaningful opportunity for review on direct appeal.27
We assume, without deciding, that Nebraska’s postconvic-
tion review procedures fall within the purview of the Court’s
expanded holding.
[12] Martinez did not recognize a constitutional right to
effective assistance of postconviction counsel. Based upon
principles of equity, it expanded only the types of cause per-
mitting a federal habeas court to excuse a procedural default
in a federal habeas proceeding.28 Nothing in Martinez prevents
state courts from enforcing procedural defaults in accordance
with state law.
Other state courts have reached similar conclusions regarding
the effect of Martinez.29 The Supreme Court of Pennsylvania
made several observations worthy of note.30 First, it described
the Martinez holding as creating a “federal safety valve to
allow for a third level of review—exclusively federal—if the
subject claim involved a trial default, and initial collateral
26
See id.
27
See Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911, 185 L. Ed. 2d 1044
(2013).
28
See Martinez, supra note 25.
29
See, Gore v. State, 91 So. 3d 769 (Fla. 2012) (Martinez directed toward
federal habeas proceedings); People v. Miller, 2013 IL App (1st) 111147,
988 N.E.2d 1051, 370 Ill. Dec. 695 (2013) (Martinez applies to federal
courts considering habeas petitions and expressly not constitutionally
based decision); Yarberry v. State, 372 S.W.3d 568 (Mo. App. 2012)
(holding in Martinez limited to determination that procedural default will
not bar federal habeas court from hearing ineffective assistance of trial
counsel claims); Com. v. Holmes, 79 A.3d 562 (Pa. 2013) (procedural
default will not bar federal habeas court from hearing substantial claim
of ineffective assistance at trial); Kelly v. State, 404 S.C. 365, 745 S.E.2d
377 (2013) (Martinez limited to federal habeas corpus review and not
applicable to state postconviction relief actions).
30
See Holmes, supra note 29.
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review counsel did not recognize it.”31 Second, it recognized
that the new federal habeas consequence jeopardizes both a
state procedural default rule and the state’s power and right
to pass upon constitutional claims in the first instance. Third,
it acknowledged that federal courts sitting in habeas corpus
review of final Pennsylvania convictions may review claims
of trial counsel ineffectiveness not raised by postconviction
counsel on the merits, in the first instance, as an “‘equita-
ble’” matter.32
However, the Pennsylvania court declined to modify its
framework for collateral review of criminal convictions. It rec-
ognized that the question of “whether to take measures to oth-
erwise account for the concerns of Martinez” is one of policy.33
It elected to await either the action of its state legislature or a
case where the issue was properly joined.
Similarly, we conclude that such matters of policy should
be addressed in the first instance to the Legislature. Our
Legislature has enacted postconviction relief limited to a single
proceeding. Neb. Rev. Stat. § 29-3001 (Cum. Supp. 2012)
permits a prisoner to file a verified motion asking the sentenc-
ing court to vacate or set aside the sentence and stating the
grounds entitling him or her to relief. It expressly authorizes
a court to reject a second or successive motion for similar
relief.34 Whether Nebraska should provide a second round of
collateral review as of right to capture claims of ineffective
assistance of trial counsel which have been defaulted in the ini-
tial postconviction proceeding is a matter for the Legislature.
It should make that decision in light of the consequences
that follow from Martinez as accurately summarized by the
Pennsylvania court. But until that time, this court continues
to enforce our procedural rules in accordance with our well-
settled ­ostconviction jurisprudence. Accordingly, we reject
p
Hessler’s argument regarding Martinez and affirm the district
31
Id. at 583.
32
See id. at 584.
33
Id.
34
See § 29-3001(3).
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court’s denial of an evidentiary hearing on claims 6 through 9,
11, 12, and 14.
2. Denial of Coram Nobis R elief
[13-15] Hessler also sought relief under the common-law
writ of error coram nobis. The common-law writ of error
coram nobis exists in this state under Neb. Rev. Stat. § 49-101
(Reissue 2010), which adopts English common law to the
extent that it is not inconsistent with the Constitution of the
United States, the organic law of this state, or any law passed
by our Legislature.35 The purpose of the writ of error coram
nobis is to bring before the court rendering judgment matters
of fact which, if known at the time the judgment was rendered,
would have prevented its rendition.36 It enables the court
to recall some adjudication that was made while some fact
existed which would have prevented rendition of the judgment
but which, through no fault of the party, was not presented.37
The burden of proof in a proceeding to obtain a writ of error
coram nobis is upon the applicant claiming the error, and the
alleged error of fact must be such as would have prevented a
conviction.38 It is not enough to show that it might have caused
a different result.39
But Hessler’s second motion for postconviction relief failed
to allege any fact not presented in the prior proceedings
which would have prevented his convictions. As previously
noted, the claims raised in the present motion shared three
common themes: mental competency, errors or misconduct at
trial, and ineffective assistance of counsel. As to his mental
competency, Hessler alleged that the trial court was not pre-
sented with information regarding his various mental illnesses
and the medications he was taking at the time of trial. But in
his first postconviction action, this information was adduced
at an evidentiary hearing, and we concluded that the record
35
State v. Diaz, 283 Neb. 414, 808 N.W.2d 891 (2012).
36
Id.
37
Id.
38
Id.
39
Id.
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affirmatively showed that Hessler had met the legal standard
of competency.40
[16] As to his claims of errors or misconduct at trial and
ineffective assistance of counsel, such claims were inappropri-
ate for coram nobis relief. The writ of error coram nobis is
not available to correct errors of law.41 We find no error in the
district court’s denial of a writ of error coram nobis.
VI. CONCLUSION
Except for Hessler’s argument citing to Martinez, the claims
raised in Hessler’s second motion for postconviction relief
either were litigated in the prior proceedings or were known
and could have been litigated. As such, they were proce-
durally barred. And Hessler’s claim of ineffective assistance
of postconviction counsel, relying upon Martinez, was with-
out constitutional support. He similarly failed to raise any
basis warranting coram nobis relief. We affirm the denial of
Hessler’s second motion for postconviction relief and writ of
error coram nobis.
Affirmed.
Heavican, C.J., not participating.
40
See Hessler, supra note 4.
41
Diaz, supra note 35.
Mark Stauffer and Cindi Stauffer, husband and wife,
appellees, v. Betty Jean Benson, appellant.
___ N.W.2d ___
Filed July 25, 2014. No. S-13-928.
1. Breach of Contract: Damages. A suit for damages arising from breach of a
contract presents an action at law.
2. Trial: Witnesses. In a bench trial of an action at law, the trial court is the sole
judge of the witnesses’ credibility and the weight to be given their testimony.
3. Judgments: Appeal and Error. The trial court’s factual findings in a bench
trial of an action at law have the effect of a jury verdict and will not be set aside
unless clearly erroneous.
4. Appeal and Error. An appellate court independently reviews questions of law
decided by a lower court.