State v. Abdullah ( 2014 )

Nebraska Advance Sheets
STATE v. ABDULLAH 123
Cite as 289 Neb. 123in connection herewith. Upon due consideration, the court
approves the conditional admission and enters the orders as
indicated below.
CONCLUSION
Respondent is suspended from the practice of law for a
period of 2 years, effective immediately. Respondent shall
comply with Neb. Ct. R. § 3-316 (rev. 2014), and upon failure
to do so, he shall be subject to punishment for contempt of this
court. Respondent is also directed to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2012) and Neb. Ct. R. §§ 3-310(P) and 3-323(B) of the disci-
plinary rules within 60 days after the order imposing costs and
expenses, if any, is entered by the court.
Judgment of suspension.
Stephan, J., not participating.
State of Nebraska, appellee, v.
Ali J. Abdullah, appellant.
___ N.W.2d ___
Filed September 26, 2014. No. S-12-908.
1. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective
assistance of trial counsel may be determined on direct appeal is a question
of law.
2. Appeal and Error. Whether an assignment of error and accompanying argu-
ment is too vague to be sufficiently raised before the appellate court is a ques-
tion of law.
3. Effectiveness of Counsel: Records: Appeal and Error. The trial record
reviewed on appeal is devoted to issues of guilt or innocence and, as such, does
not usually address issues of counsel’s performance.
4. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial counsel
is different from his or her counsel on direct appeal, the defendant must raise on
direct appeal any issue of trial counsel’s ineffective performance which is known
to the defendant or is apparent from the record.
5. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective
assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing.
6. Appeal and Error. A generalized and vague assignment of error that does
not advise an appellate court of the issue submitted for decision will not
be considered.
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124 289 NEBRASKA REPORTS
7. Postconviction: Effectiveness of Counsel: Records: Appeal and Error. In
the case of an argument presented for the purpose of avoiding procedural bar
to a future postconviction action, appellate counsel must present the claim with
enough particularity for (1) an appellate court to make a determination of whether
the claim can be decided upon the trial record and (2) a district court later review-
ing a petition for postconviction relief to be able to recognize whether the claim
was brought before the appellate court.
8. Evidence: Appeal and Error. An appellate court does not resolve conflicts in the
evidence, pass on the credibility of the witnesses, or reweigh the evidence.
Petition for further review from the Court of Appeals,
Inbody, Chief Judge, and Irwin and Moore, Judges, on appeal
thereto from the District Court for Lancaster County, Steven D.
Burns, Judge. Judgment of Court of Appeals affirmed in part,
and in part reversed.
Dennis R. Keefe, Lancaster County Public Defender, John
C. Jorgensen, and, on brief, Elizabeth D. Elliott, for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
McCormack, J.
NATURE OF CASE
Ali J. Abdullah was convicted in a bench trial of first degree
assault. With counsel different from his trial counsel, Abdullah
appealed to the Nebraska Court of Appeals. Abdullah argued
that there was insufficient evidence to support the convic-
tion and that the sentence was excessive. Abdullah also raised
three points of ineffective assistance of trial counsel, expressly
to avoid waiver of those issues for a future postconviction
motion. In a memorandum opinion filed July 11, 2013, the
Court of Appeals found no merit to the claims of insuffi-
ciency of the evidence and excessive sentence. The Court of
Appeals also found Abdullah’s ineffective assistance of coun-
sel claims lacked “merit,” because Abdullah made insufficient
allegations of fact that would support findings of prejudice.
We granted further review, primarily to address the question of
Nebraska Advance Sheets
STATE v. ABDULLAH 125
Cite as 289 Neb. 123whether Abdullah sufficiently alleged his ineffective assistance
of counsel claims.
BACKGROUND
Abdullah’s first degree assault conviction arises from a
fight between Abdullah and Adrian Jacob, who had previ-
ously been in a relationship with Abdullah’s girlfriend. The
fight occurred in the parking lot of the girlfriend’s apart-
ment complex.
Jacob testified that when he attempted to shake hands with
Abdullah, Abdullah tried to punch him in the face. After some
wrestling, the girlfriend yelled for them to stop. Jacob testified
that he stopped fighting and dropped his hands. At that point,
Abdullah head butted him and broke his eye socket.
Abdullah testified that Jacob attacked him first by slapping
him in the face. Then, in the course of wrestling with Jacob
to defend himself, they found themselves underneath one of
the apartment’s balconies. According to Abdullah, Jacob acci-
dentally hit his own face against one of the balcony’s wooden
support beams.
At the sentencing hearing, Abdullah’s trial counsel asked the
court to “consider running [the assault sentence] consecutive to
the federal case . . . but we would ask the Court to consider the
totality of the circumstances and a sentence toward the lower
end of the statutory scheme.” Abdullah was serving a federal
sentence of 24 months for a parole violation arising from the
same assault. The trial court sentenced Abdullah to 6 to 10
years’ imprisonment, to be served consecutively to any other
sentence Abdullah was serving. Abdullah has a criminal his-
tory, including two prior convictions for assault.
Abdullah had private counsel at trial, but was represented
by the public defender on appeal. The public defender argued
on appeal that the trial court erred in convicting Abdullah
upon insufficient evidence and in imposing an excessive sen-
tence. The public defender also raised three issues of ineffec-
tive assistance of trial counsel and asked the Court of Appeals
to review the bill of exceptions and transcript to determine
whether there was a sufficient record to evaluate those claims
on direct appeal or whether an additional evidentiary hearing
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was necessary. The public defender indicated that he did not
believe the ineffective assistance of counsel issues could be
determined upon the trial record, but he raised those issues
so that they would not later be deemed waived for purposes
of a postconviction motion. The public defender generally
asserted as to all three alleged acts of ineffective assistance of
trial counsel that “there is a reasonable probability that but for
[Abdullah’s] counsel’s performance, the result of the proceed-
ings would have been different.”1
The Court of Appeals held that the weight and credibility
of the conflicting testimony was a matter for the trial court
and that, therefore, the evidence was sufficient to support
the conviction.
The Court of Appeals further held that the sentence was not
excessive. The Court of Appeals noted Abdullah’s “extensive
criminal record” and the fact that the sentence was at the lower
end of the statutory limits. The Court of Appeals concluded
that the trial court did not abuse its discretion.
As for the three claims of ineffective assistance of trial
counsel, the Court of Appeals held they were “without merit.”
The first ineffective assistance issue raised by the public
defender was that trial counsel “failed to adequately advise
and inform [Abdullah] prior to his decision between a bench
trial and a trial by jury.”2 The Court of Appeals reasoned that
Abdullah had failed to specifically state what advice he had
received from counsel or why, particularly, this advice was
insufficient. Furthermore, the Court of Appeals reasoned that
Abdullah had failed to allege any specific facts that would
show his trial counsel interfered with his freedom to decide
whether to waive his right to a jury trial. Finally, the Court of
Appeals said that Abdullah had failed to allege he would have
chosen to be tried by a jury or that the outcome of the trial
would have been different had he done so.
The second ineffective assistance issue raised by the pub-
lic defender was that trial counsel “failed to call at least two
1
Brief for appellant at 13.
2
Id.Nebraska Advance Sheets
STATE v. ABDULLAH 127
Cite as 289 Neb. 123witnesses that [Abdullah] informed would be beneficial to his
case.”3 The Court of Appeals reasoned that Abdullah failed
to disclose in his appellate brief the identity of the alleged
favorable witnesses or exactly what those witnesses’ testimony
would have been. Thus, Abdullah again failed to allege how
the failure to call those alleged witnesses prejudiced him. The
Court of Appeals stated, “Therefore, Abdullah has not provided
sufficient allegations to support this assertion for ineffective
assistance of counsel.”
The last ineffective assistance issue raised by the public
defender was that trial counsel had failed to ask the court to
impose Abdullah’s sentence concurrently with the correspond-
ing federal sentence. The Court of Appeals recognized that
counsel asked for consecutive sentences, but held that Abdullah
had failed to surpass the “high hurdle in this case because
of the deference normally given to a trial court’s decision to
impose consecutive sentences.” The Court of Appeals found
that the public defender’s argument in the appellate brief that
the trial court “likely failed to consider running [Abdullah’s]
sentence concurrently”4 was “not a sufficient showing.” The
Court of Appeals stated that Abdullah “has not shown that the
proceedings would have resulted differently but for his attor-
ney’s statement.”
We granted Abdullah’s petition for further review.
ASSIGNMENTS OF ERROR
Abdullah assigns that the trial court erred in (1) finding the
evidence sufficient to support his conviction and (2) imposing
an excessive sentence. Abdullah also assigns that trial counsel
was ineffective.
STANDARD OF REVIEW
[1] Whether a claim of ineffective assistance of trial counsel
may be determined on direct appeal is a question of law.5
3
Id.4
Id. at 13-14.
5
See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
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[2] Whether an assignment of error and accompanying
argument is too vague to be sufficiently raised before the
appellate court is a question of law.
ANALYSIS
Specificity of Ineffective Assistance
of Counsel Claims
[3-5] We granted further review in this case to clarify the
necessary specificity of allegations of ineffective assistance
of trial counsel on direct appeal for purposes of avoiding
waiver of such claims in a later postconviction motion. The
trial record reviewed on appeal is devoted to issues of guilt
or innocence and, as such, does not usually address issues of
counsel’s performance.6 Nevertheless, it is our longstanding
rule that when a defendant’s trial counsel is different from
his or her counsel on direct appeal, the defendant must raise
on direct appeal “any issue of trial counsel’s ineffective per­
formance which is known to the defendant or is apparent
from the record.”7 Otherwise, the ineffective assistance of
trial counsel issue will be procedurally barred.8 Once raised,
the appellate court will determine whether the record on
appeal is sufficient to review the merits of the ineffective per­
formance claims.9 An ineffective assistance of counsel claim
6
See id.7
Id. at 767, 848 N.W.2d at 576. See, also, State v. Ramirez, 284 Neb. 697,
823 N.W.2d 193 (2012); State v. Molina, 279 Neb. 405, 778 N.W.2d 713(2010); State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009).
8
See, e.g., State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013); State v.
Watt, 285 Neb. 647, 832 N.W.2d 459 (2013); State v. Lee, 282 Neb. 652,
807 N.W.2d 96 (2011); State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010);
State v. Gibilisco, 279 Neb. 308, 778 N.W.2d 106 (2010); State v. Duncan,
supra note 7; State v. Sepulveda, 278 Neb. 972, 775 N.W.2d 40 (2009).
9
See, State v. Morgan, supra note 8; State v. McGuire, 286 Neb. 494, 837
N.W.2d 767 (2013); State v. Watt, supra note 8; State v. McClain, 285 Neb.
537, 827 N.W.2d 814 (2013); State v. Ramirez, 285 Neb. 203, 825 N.W.2d
801 (2013); State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011); State
v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006).
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STATE v. ABDULLAH 129
Cite as 289 Neb. 123will not be addressed on direct appeal if it requires an eviden-
tiary hearing.10
This rule that appellate counsel who is different from trial
counsel must raise known or apparent ineffective assistance
of trial counsel claims derives in part from the principle of
judicial economy that claims not raised on direct appeal may
not be raised on collateral review unless the petitioner shows
cause and prejudice.11 We are cognizant that the U.S. Supreme
Court, on behalf of the federal appellate court system, as well
as a growing majority of state courts, has rejected the appli-
cation of this general rule of judicial economy to ineffective
assistance of counsel claims.12
The Court in Massaro v. United States13 explained that
the application of this rule in the context of ineffective
assistance of counsel claims puts appellate counsel in an
“awkward position vis-à-vis trial counsel,” whom appellate
counsel will need assistance from in order to become “famil-
iar with a lengthy record on a short deadline.” Further, the
Court reasoned that this rule creates “perverse incentives
. . . to bring claims of ineffective trial counsel, regardless
of merit.”14 Finally, the Court found little utility in forcing
“‘parties and the district judges [considering petitions for
postconviction relief] to search for needles in haystacks—to
seek out the rare claim that could have been raised on direct
appeal, and deem it waived.’”15 The Court concluded that the
rare benefit of a speedy resolution on direct appeal of certain
ineffective assistance of counsel claims is “outweighed by
10
State v. Watt, supra note 8.
11
See, e.g., Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L.
Ed. 2d 828 (1998); Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (D.C.
Cir. 1995); State v. Lee, 909 So. 2d 672 (La. App. 2005).
12
See Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690, 155 L. Ed.
2d 714 (2003).
13
Id., 538 U.S. at 506.
14
Id.15
Id., 538 U.S. at 507.
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the increased judicial burden the rule would impose in many
other cases.”16
But our court has repeatedly declined to adopt the rejec-
tion of the waiver rule in Massaro.17 We have explained
that our waiver rule derives not just from principles of judi-
cial economy, but also from the mandates of the Nebraska
Postconviction Act.18 Our refusal to adopt the Massaro stan-
dard is not “simply a policy determination made by this court,
but the consequence of well-established reasoning based in the
language of the Nebraska Postconviction Act.”19 In particular,
the Nebraska Postconviction Act requires that its remedy is
“cumulative and is not intended to be concurrent with any
other remedy existing in the courts of this state.”20
Moreover, we do not lay primary onus upon postconviction
courts to “search for needles in haystacks” of whether a viable
claim could have been made on direct appeal. A postconvic-
tion court need only determine whether the claim was known
or apparent at the time of direct appeal and, if so, whether it
was made. Our opinion on direct appeal will be the law of the
case on whether the claim could be determined upon the trial
record and, thus, whether there was some other remedy exist-
ing in the courts of this state.21 This approach is more efficient
insofar as the appellate court is already examining the trial
record before it. And in those instances when the claim can
be determined upon the trial record, our rule further supports
judicial economy by addressing the merits of the claim at the
first opportunity to do so.
[6] The Court of Appeals’ memorandum opinion rejecting
Abdullah’s ineffective assistance of counsel claims presents
16
Id., 538 U.S. at 507-08.
17
See, State v. Filholm, supra note 5; State v. Molina, 271 Neb. 488, 713
N.W.2d 412 (2006); State v. Marshall, 269 Neb. 56, 690 N.W.2d 593(2005).
18
See id.19
State v. Molina, supra note 17, 271 Neb. at 532, 713 N.W.2d at 449.
20
Neb. Rev. Stat. § 29-3003 (Reissue 2008).
21
See id.Nebraska Advance Sheets
STATE v. ABDULLAH 131
Cite as 289 Neb. 123an intersection of this waiver rule for raising known or appar-
ent ineffective assistance of trial counsel claims with another
waiver rule: An alleged error must be both specifically assigned
and specifically argued in the appellate brief in order to be
considered by an appellate court.22 A generalized and vague
assignment of error that does not advise an appellate court
of the issue submitted for decision will not be considered.23
Thus, we have said that “[g]eneral allegations that trial coun-
sel performed deficiently or that trial counsel was ineffective
are insufficient to . . . preserve the issue for later review.”24
Beyond the rejection of broad, conclusory statements, we have
had few opportunities to examine what allegations are suffi-
cient to preserve the issue for later review.
Abdullah’s appellate counsel clearly attempted in his brief
to avoid the procedural bar attending the failure to raise inef-
fective assistance of counsel claims on direct appeal, and he
made more than the conclusory and vague statement that trial
counsel performed deficiently or was ineffective. Yet, the Court
of Appeals determined that Abdullah’s attempt was not good
enough. According to the Court of Appeals, Abdullah’s assign-
ment of error and accompanying arguments lacked specific
factual allegations of prejudice. Thus, the Court of Appeals
rejected Abdullah’s claims on their “merits,” effectively pre-
venting Abdullah from raising those claims in a future postcon-
viction motion.
It was a misnomer for the Court of Appeals to character-
ize its determination as being on the “merits.” Nevertheless,
we would agree there is a difference between determining
that a claim is inappropriate for decision upon the trial record
22
See, e.g., Irwin v. West Gate Bank, 288 Neb. 353, 848 N.W.2d 605 (2014);
Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, 287 Neb. 779, 844
N.W.2d 755 (2014); In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d
65 (2014). See, also, State v. Karch, 263 Neb. 230, 639 N.W.2d 118(2002).
23
State v. Pereira, 284 Neb. 982, 824 N.W.2d 706 (2013); Trieweiler v.
Sears, 268 Neb. 952, 689 N.W.2d 807 (2004); Gilroy v. Ryberg, 266 Neb.
617, 667 N.W.2d 544 (2003).
24
State v. Filholm, supra note 5, 287 Neb. at 770, 848 N.W.2d at 578.
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132 289 NEBRASKA REPORTS
and determining that a claim was insufficiently stated to be
addressed. By definition, a claim insufficiently stated is no dif-
ferent than a claim not stated at all. Therefore, if insufficiently
stated, an assignment of error and accompanying argument
will not prevent the procedural bar accompanying the failure
to raise all known or apparent claims of ineffective assistance
of trial counsel.
But the level of specificity required in order for an assign-
ment of error and its accompanying argument to be “sufficient”
must logically depend upon the purposes of the appellate court’s
review. Thus, we recently held in State v. Filholm25 that it is an
inefficient use of time and resources to require appellate coun-
sel to specifically allege how the defendant was prejudiced by
trial counsel’s allegedly deficient conduct, because such allega-
tions are unnecessary in our determination of whether the trial
record supports the assigned error. We explained that it is the
appellant’s allegations of deficient conduct and not the appel-
lant’s allegations of prejudice that have historically guided our
review of whether the claims of ineffective assistance of coun-
sel can be determined upon the trial record.26 We could find no
instance where specific allegations of prejudice were part of
our assessment of whether the claim could be determined upon
the trial record. As noted by the Court in Massaro, such allega-
tions of prejudice are in the realm of facts that would need to
be developed in an evidentiary hearing.27 We held in Filholm
that appellate counsel need only make specific allegations of
deficient conduct.28
[7] We did not elaborate, however, on the level of specific-
ity of such allegations beyond the general principles concern-
ing vague and conclusory assignments of error and arguments.
Given that Abdullah’s arguments are stated more cursorily
than those presented in Filholm, we are more squarely pre-
sented with that question here. We hold that in the case of an
25
State v. Filholm, supra note 5.
26
Id.
27
Massaro v. United States, supra note 12.
28
State v. Filholm, supra note 5.
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STATE v. ABDULLAH 133
Cite as 289 Neb. 123argument presented for the purpose of avoiding procedural
bar to a future postconviction action, appellate counsel must
present the claim with enough particularity for (1) an appel-
late court to make a determination of whether the claim can
be decided upon the trial record and (2) a district court later
reviewing a petition for postconviction relief to be able to
recognize whether the claim was brought before the appel-
late court.
The argument that counsel was deficient for failing to call
“at least two witnesses that [Abdullah] informed would be ben-
eficial to his case”29 is the closest of the three claims to a con-
clusory and general allegation that trial counsel was ineffective.
A showing that the witnesses whom defendant advised counsel
would have been “beneficial” to the defendant’s case at trial
raises potential issues of deficient performance and prejudice.30
But the vague assertion referring to “at least two” witnesses
seems little more than a placeholder. Our case law is clear that
were this a motion for postconviction relief, Abdullah would
be required to specifically allege what the testimony of these
witnesses would have been if they had been called in order to
avoid dismissal without an evidentiary hearing.31 Without such
specific allegations, the postconviction court would effectively
be asked to “‘conduct a discovery hearing to determine if any-
where in this wide world there is some evidence favorable to
defendant’s position.’”32
In a direct appeal, we do not need specific factual allega-
tions as to who should have been called or what that person or
persons would have said to be able to conclude that any evi-
dence of such alleged ineffective assistance will not be found
in the trial record. Nevertheless, we are concerned with the
lack of any specificity as to who those uncalled witnesses were
29
Brief for appellant at 13.
30
See, State v. Hochstein, 216 Neb. 515, 344 N.W.2d 469 (1984); State v.
Pankey, 208 Neb. 377, 303 N.W.2d 305 (1981).
31
See, State v. Marks, 286 Neb. 166, 835 N.W.2d 656 (2013); State v.
McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010); State v. Davlin, 277 Neb.
972, 766 N.W.2d 370 (2009).
32
State v. McGhee, supra note 31, 280 Neb. at 564, 787 N.W.2d at 705.
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from the standpoint of a potential postconviction court’s ability
to identify if a particular failure to call a witness claim is the
same one that was raised on direct appeal.
Abdullah’s appellate counsel argues that it is impractical
in the time granted for a direct appeal to fully research the
alleged deficient conduct of trial counsel and to allege factual
details of such conduct with specificity. And we are sensi-
tive to some of the concerns expressed by the U.S. Supreme
Court in Massaro.33 But we can think of no good reason
why Abdullah would be unable to give appellate counsel the
names or descriptions of the uncalled witnesses he claims he
informed trial counsel of. Thus, we agree with the Court of
Appeals’ general conclusion that Abdullah failed to make suf-
ficiently specific allegations of deficient conduct relating to
the alleged failure to call witnesses.
We disagree with the Court of Appeals as to whether
Abdullah sufficiently alleged his remaining two ineffective
assistance of trial counsel claims. We find those claims would
require an evidentiary hearing and therefore cannot be decided
upon the trial record.
The claim that trial counsel failed to “adequately advise
and inform him”34 about his decision to waive a jury trial is
sufficiently specific both for purposes of our review and for
the purpose of a potential postconviction court’s analysis.
The failure of counsel to inform the defendant of the right to
a jury trial may form the basis for an ineffective assistance
of counsel claim, depending upon a showing of prejudice.35
And the record plainly does not contain evidence necessary
to the determination of this claim, including the extent and
content of any discussions between Abdullah and trial counsel
or Abdullah’s knowledge from other sources of his right to a
jury trial.
Likewise, Abdullah sufficiently argued his claim that trial
counsel was ineffective when it asked the court to sentence
33
See Massaro v. United States, supra note 12.
34
Brief for appellant at 13.
35
See, e.g., State v. McGurk, 3 Neb. App. 778, 532 N.W.2d 354 (1995).
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STATE v. ABDULLAH 135
Cite as 289 Neb. 123Abdullah consecutively rather than concurrently. The record
reflects that trial counsel asked the court to run Abdullah’s
assault sentence consecutive to his federal sentence. The
record, however, reveals nothing of the attorney’s reasons for
this request, his discussions with Abdullah on this matter, or
the extent to which this request influenced the judge’s sentenc-
ing determination. Abdullah does not claim that the request
to run the sentences consecutively was a structural error.
Therefore, this matter also cannot be determined upon the trial
record before us.
R emaining Claims
We affirm the Court of Appeals’ memorandum opinion and
adopt its analysis as to Abdullah’s sufficiency of the evidence
and excessive sentence claims.
[8] There was sufficient evidence to support the trial court’s
verdict of first degree assault. There was a factual dispute as to
the cause of the victim’s injuries and whether Abdullah acted
in self-defense. Such disputes in the evidence are for the finder
of fact. An appellate court does not resolve conflicts in the
evidence, pass on the credibility of the witnesses, or reweigh
the evidence.36
Nor was the sentence of 6 to 10 years’ imprisonment for an
offense that carries a sentencing range of 1 to 50 years’ impris-
onment excessive.37 The victim suffered serious injury, and
Abdullah has an extensive criminal history, including two prior
assault convictions.
CONCLUSION
We generally affirm the Court of Appeals’ memorandum
opinion insofar as it affirmed the judgment below. We agree
with the Court of Appeals’ determination that the evidence
supported Abdullah’s conviction and sentence. We agree with
its conclusion that Abdullah’s claim regarding trial coun-
sel’s failure to call “at least two” beneficial witnesses was
too vague for determination. We disagree with the Court of
36
See State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014).
37
See Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2012).
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136 289 NEBRASKA REPORTS
Appeals’ determination that Abdullah’s remaining ineffective
assistance of trial counsel claims were alleged with insuf-
ficient specificity and thus lacked “merit.” We find, instead,
that the merits of these arguments cannot be reviewed upon
the trial record. To that extent, the Court of Appeals’ decision
is reversed.
Affirmed in part, and in part reversed.
Heavican, C.J., not participating.
deNourie & Yost Homes, LLC, Nebraska limited
a
liability company, appellant, v.Joe Frost and
Amy Frost, husband and wife, and Security
State Bank, doing business as Dundee Bank,
a Nebraska corporation, appellees.
___ N.W.2d ___
Filed September 26, 2014. No. S-13-656.
1. Summary Judgment: Appeal and Error. An appellate court will affirm 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 infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. ____: ____. 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.
3. Equity: Estoppel. Although a party can raise estoppel claims in both legal and
equitable actions, estoppel doctrines have their roots in equity.
4. Equity: Appeal and Error. In reviewing judgments and orders disposing of
claims sounding in equity, an appellate court decides factual questions de novo on
the record and reaches independent conclusions on questions of fact and law. But
when credible evidence is in conflict on material issues of fact, an appellate court
considers and may give weight to the fact the trial court observed the witnesses
and accepted one version of the facts over another.
5. Contracts: Fraud. A party to a business transaction can be liable to another
party for failing to disclose a fact that he or she knows may justifiably induce the
other to act or refrain from acting in the transaction. But a nondisclosing party
can only be liable if it was under a duty to the other to exercise reasonable care
to disclose the fact at issue.
6. Fraud: Proof. A fraudulent misrepresentation claim requires a plaintiff to estab-
lish the following elements: (1) A representation was made; (2) the representation