Buttercase v. Davis , 313 Neb. 1 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BUTTERCASE V. DAVIS
Cite as 313 Neb. 1Joseph J. Buttercase, appellant, v.
James Martin Davis and Davis
Law Office, appellees.
___ N.W.2d ___
Filed December 9, 2022. No. S-20-871.
1. Summary Judgment: Appeal and Error. 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.
2. ____: ____. An appellate court affirms a lower court’s grant of sum-
mary judgment if the pleadings and admitted evidence show that there
is no genuine issue as to any material facts and that the moving party is
entitled to judgment as a matter of law.
3. Summary Judgment: Final Orders: Appeal and Error. Although
the denial of a motion for summary judgment, standing alone, is not a
final, appealable order, when adverse parties have each moved for sum-
mary judgment and the trial court has sustained one of the motions, the
reviewing court obtains jurisdiction over all motions and may determine
the controversy which is the subject of those motions or make an order
specifying the facts which appear without substantial controversy and
direct such further proceedings as it deems just.
4. Default Judgments: Pleadings: Appeal and Error. Whether default
judgment should be entered because of a party’s failure to timely
respond to a petition rests within the discretion of the trial court, and
an abuse of discretion must affirmatively appear to justify a reversal on
such a ground.
5. Judgments: Appeal and Error. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
6. Appeal and Error. The grant or denial of a stay of proceedings is
reviewed for an abuse of discretion.
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313 Nebraska Reports
BUTTERCASE V. DAVIS
Cite as 313 Neb. 17. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
8. Judges: Recusal: Appeal and Error. A motion requesting a judge to
recuse himself or herself on the ground of bias or prejudice is addressed
to the discretion of the judge, and an order overruling such a motion will
be affirmed on appeal unless the record establishes bias or prejudice as a
matter of law.
9. Criminal Law: Malpractice: Attorney and Client: Negligence:
Proof: Proximate Cause: Damages. 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.
10. Evidence: Proof. Failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.
11. Negligence: Actions. Merely because a cause of action is couched in
terms of a cause of action other than negligence does not make it so.
12. Constitutional Law: Actions. A litigant has no constitutional right
to have civil proceedings stayed pending the outcome of a criminal
investigation.
13. Actions: Proof. The burden of establishing that a proceeding should be
stayed rests on the party seeking the stay.
14. Evidence. Relevancy requires only that the probative value be some-
thing more than nothing.
15. ____. Most, if not all, evidence offered by a party is calculated to be
prejudicial to the opposing party.
16. Evidence: Words and Phrases. Unfair prejudice means an undue tend­
ency to suggest a decision based on an improper basis.
17. Judges: Recusal: Presumptions. A defendant seeking to disqualify a
judge on the basis of bias or prejudice bears the heavy burden of over-
coming the presumption of judicial impartiality.
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
Joseph J. Buttercase, pro se on brief, and Darik J. Von Loh,
of Hernandez Frantz, Von Loh, for appellant.
Nicholas F. Miller, of Baird Holm, L.L.P., for appellees.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BUTTERCASE V. DAVIS
Cite as 313 Neb. 1Cassel, Stacy, Funke, Papik, and Freudenberg, JJ., and
Wheelock and Post, District Judges.
Funke, J.
INTRODUCTION
Joseph J. Buttercase was indicted on federal child pornog-
raphy charges. James Martin Davis, attorney at law, and the
Davis Law Office (collectively Davis) represented him in
the matter for approximately 13 months before withdrawing.
Buttercase subsequently pled guilty to an obscenity charge
and then sued Davis for legal malpractice, breach of contract,
breach of fiduciary duties, misrepresentation, and infliction
of emotional distress. Construing all these claims as legal
malpractice because they arose from Davis’ conduct as an
attorney, the district court for Lancaster County, Nebraska,
granted Davis summary judgment because Buttercase failed to
offer any evidence that he was actually innocent of the charges
for which Davis was representing him. The district court also
denied Buttercase partial summary judgment on his breach of
contract claim and issued several prejudgment interlocutory
rulings against him. Buttercase appeals. The appeal is without
merit. We affirm.
BACKGROUND
Federal Proceedings
In December 2012, Buttercase was indicted for producing,
manufacturing, transporting, and possessing child pornogra-
phy in violation of 18 U.S.C. §§ 2251(a) and 2252A(a)(1) and
(a)(5)(B) (2018). Because Buttercase was incarcerated, his par-
ents met with Davis and arranged for Davis to represent him.
The parties’ agreement was verbal, and they later disagreed
about whether the $15,000 payment to Davis after this meeting
was a flat fee to cover all federal proceedings, including “all
motions, hearings, trial, and not more than two appeals,” or a
nonrefundable retainer with additional fees for trial.
Davis entered an appearance indicating his representation of
Buttercase concerning the federal charges. He then moved to
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BUTTERCASE V. DAVIS
Cite as 313 Neb. 1suppress the evidence against Buttercase and, when this failed,
arranged for him to plead guilty to one count of possessing
child pornography, with a sentence of 30 months’ imprison-
ment. However, Buttercase refused to pay the full fee for a
computer expert retained to testify at the suppression hearing
and he rejected the proposed plea deal.
Matters came to a head when Davis asked Buttercase to
sign a written agreement regarding the per diem fees for trial.
Buttercase refused. He sent Davis a letter asserting that “trying
to get more money (renegotiate) so close to trial seems like
extortion” and that he expected Davis to perform all services
allegedly required under the agreement or refund the $15,000.
As a result, Davis sought and received the federal court’s per-
mission to withdraw as counsel for Buttercase.
Buttercase filed a bar complaint against Davis, and the mat-
ter was referred to the federal court for investigation.
Nearly a year later, Buttercase, now represented by a fed-
eral public defender, pled guilty to producing and transporting
obscene materials for distribution, a violation of 18 U.S.C.
§ 1465 (2018), and was sentenced to 36 months’ imprison-
ment, to run concurrently with the state sentence he was then
serving. Buttercase’s ex-wife and alleged victim testified at the
sentencing hearing that she and Buttercase “married when I
was a minor” and that she was a “consenting adult” in videos
or images of her.
The federal court held an evidentiary hearing on the ethics
complaint, at which Buttercase, Davis, and others testified. A
magistrate judge subsequently found that “Davis did not com-
mit an ethical violation” and “did not misrepresent the facts in
his motion to withdraw” and recommended that the bar com-
plaint be dismissed. This recommendation was adopted by the
federal district court.
Initial Pleadings and Motions
On February 22, 2017, Buttercase sued Davis for breach
of fiduciary duty. The complaint alleged that Davis “reneged”
on the agreed-upon fees for the computer expert and for
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Cite as 313 Neb. 1representation at trial and withdrew without performing under
the contract or refunding the money. It also alleged that Davis
committed fraud and disclosed sensitive or privileged informa-
tion about Buttercase’s criminal case in the motion to with-
draw and failed to return case files to him after withdrawing.
Buttercase then filed an amended complaint on March 1,
2017, which Davis moved to dismiss. Buttercase, in turn,
sought leave to amend. Davis did not object, the motion to
amend was granted, and the hearing on the motion to dismiss
was canceled. Buttercase filed a second amended complaint on
June 5. Both amended complaints were generally identical to
the original complaint, differing only as to the statutory basis
for the court’s jurisdiction and in their descriptions of the fed-
eral court’s ethics investigation.
Thereafter, on July 31, 2017, Buttercase moved for a default
judgment because Davis failed to plead in response to the
second amended complaint. Davis answered on August 10.
However, Buttercase objected and moved to strike the answer
on the grounds that failure to answer within 30 days after serv­
ice should be treated as an admission of all allegations.
At the hearing on the motions, Buttercase relied on his
pleadings, while Davis argued that the court had set no dead-
line for responding to the second amended complaint. The court
overruled the motion for a default judgment because “[t]here is
an Answer on file and we will proceed on that basis.” It also
overruled the motion to strike.
Over 1 year later, on January 14, 2019, Buttercase filed a
third amended complaint, alleging legal malpractice, breach
of contract, breach of fiduciary duties, misrepresentation, and
infliction of emotional distress. The primary focus of the com-
plaint dealt with the alleged legal malpractice, reiterating the
allegations of the original complaint and making new allega-
tions regarding Davis’ failure to investigate and seek dismissal
of the charges, failure to disclose issues with the computer
expert’s qualifications and billing practices, and attempt to
“coerce” Buttercase into pleading guilty to possessing child
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BUTTERCASE V. DAVIS
Cite as 313 Neb. 1pornography. A separate section captioned “Breach of Contract”
alleged that Davis failed to perform under the contract or
refund the $15,000.
Thereafter, on March 14, 2019, Buttercase made a second
motion for a default judgment. The district court heard argu-
ments on this motion, but Davis did not appear nor was he
represented by counsel. However, in July, Davis moved to
strike several pleadings, including the third amended com-
plaint, because they were not properly served on him, and he
advised the court that he had not received proper notice of all
proceedings to date.
Subsequently, on August 5, 2019, the district court denied
Buttercase’s second motion for a default judgment, but it
amended the progression order to give him an additional 6
months to disclose his expert witnesses. The court also ordered
Davis to answer the third amended complaint within 14 days.
Davis failed to answer within this time, and on September
13, 2019, Buttercase filed a third motion for a default judg-
ment. Davis answered on September 16. Then, on October 2,
Buttercase made a second objection and motion to strike Davis’
answer and moved to stay the case until his federal “criminal
case” was resolved.
At the hearing on Buttercase’s motions, Buttercase renewed
his argument that Davis’ answer was late and clarified that
his “criminal case” involved federal postconviction relief.
Davis countered that, regardless of whether he was late in
answering, there was an answer on file, and “all we have to
do is stand by our earlier answer.” The district court overruled
Buttercase’s motions.
Cross-Motions for
Summary Judgment
Davis moved for summary judgment and later filed an
amended motion. Buttercase, in turn, filed his own motion for
partial summary judgment on his breach of contract claim,
followed by an amended motion.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BUTTERCASE V. DAVIS
Cite as 313 Neb. 1The hearing on the parties’ cross-motions for summary
judgment began with Buttercase’s objections to Davis’ exhib-
its 22 through 30, which included, respectively, Davis’ affi-
davit; the docket, indictment, petition to enter a guilty plea,
plea agreement, and judgment in the federal criminal case; the
findings, recommendations, and order of dismissal from the
ethics investigation; and the sentencing order for Buttercase’s
Nebraska convictions. Buttercase argued that all were irrel-
evant because he was not a party to or represented by Davis
in these proceedings or, alternatively, if relevant, should be
excluded because they were unfairly prejudicial. He also
argued that Davis’ affidavit; the plea petition, plea agreement,
and judgment in the federal case; and the state sentencing
order were inadmissible because they involved pleas, plea
discussions, or convictions on appeal. In addition, he asserted
that all evidence regarding the ethics investigation should
be excluded because Davis committed fraud when seeking
to withdraw.
Davis, in turn, objected to Buttercase’s exhibit 14, the affi-
davit of the attorney Buttercase planned to call as an expert
witness, because Buttercase did not disclose his expert by the
deadline set in the progression order. Buttercase countered that
the late disclosure was harmless because it did not prejudice
Davis or disrupt the trial’s efficiency, and the court could
waive its own rules. He also argued that Davis “failed to follow
the court’s orders on numerous occasions.”
As to the merits of his summary judgment motion, Davis
argued that there was no genuine issue of material fact and
that he was entitled to judgment as a matter of law because
Buttercase failed to timely disclose his expert, offered no
evidence to support his claim of actual innocence, alleged
no damages that he could prove Davis proximately caused,
and did not file an evidence index and annotated statement of
disputed facts. Buttercase responded that Davis also failed to
timely disclose his experts. In addition, he argued that exhibit
20, the transcript of his sentencing hearing, was evidence of
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BUTTERCASE V. DAVIS
Cite as 313 Neb. 1his actual innocence because it included his ex-wife’s testi-
mony about her age.
Buttercase, for his part, argued that he was entitled to partial
summary judgment on his breach of contract claim because
he “made a prima facie case with his production” of exhibits.
These exhibits included affidavits from him and his parents, a
receipt for $15,000, correspondence about the per diem fees,
Davis’ motion to withdraw, and the judgment in the federal
criminal case.
Subsequently, the district court overruled the objections
to exhibits 22 through 30, sustained the objection to exhibit
14, and disposed of the cross-motions for summary judgment
in Davis’ favor. The court found that although Buttercase
denominated his claims as breach of contract, among other
things, all claims involved professional negligence because
they arose from Davis’ conduct as an attorney. It further found
that these claims failed because a plaintiff alleging profes-
sional negligence on the part of a criminal defense attorney
must show he or she is actually innocent of the “underlying
crime,” and Buttercase failed to produce any evidence of this.
Specifically, the court found that “[n]othing in the record”
suggests Buttercase is actually innocent of the pornography
charges and that he voluntarily pled guilty to the obscenity
charge, “which arose out of the same incident underlying” the
pornography charges. The court also issued a summary order
that same day overruling all pending motions as moot.
Subsequent Motions and Hearing
Buttercase subsequently moved for an order “resetting all
progression deadlines” to “resolve” his failure to timely dis-
close his expert. He also moved to alter or amend the sum-
mary judgment order because it did not provide any findings
of fact or conclusions of law as to why his motion for partial
summary judgment was denied and his breach of contract
claim dismissed. He later amended this motion to argue that
he need not show actual innocence to prevail on his breach
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BUTTERCASE V. DAVIS
Cite as 313 Neb. 1of contract claim. In addition, he moved for reconsidera-
tion, arguing that Davis’ affidavit should have been excluded
because Davis failed to timely disclose himself as an expert.
Buttercase also argued that his guilty plea to the obscenity
charge was not voluntary because, when he pled guilty, he
was unaware that his ex-wife would say she was an adult
when the videos and images of her were produced.
The court heard arguments on these motions, as well as an
oral motion for recusal that Buttercase made at the hearing.
Buttercase argued that the court was biased toward him and
favored “fellow attorney defendants,” as shown by its repeat-
edly excusing Davis’ failures to follow orders, while excluding
exhibit 14 because Buttercase failed to meet a deadline. The
court overruled all these motions that same day.
Buttercase appealed. While the appeal was pending, Davis
passed away. The Nebraska Court of Appeals revived the mat-
ter against his heirs.
ASSIGNMENTS OF ERROR
Buttercase assigns, restated and reordered, that the dis-
trict court erred by (1) sustaining Davis’ amended motion for
summary judgment, (2) overruling his own amended motion
for partial summary judgment, (3) denying his motions for a
default judgment and to strike Davis’ answers, (4) denying his
motion to stay the case, (5) overruling the objections to exhib-
its 22 through 30 and sustaining the objection to exhibit 14,
and (6) denying his motion for recusal.
STANDARD OF REVIEW
[1,2] 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. 1 An appellate court affirms a lower court’s grant
of summary judgment if the pleadings and admitted evidence
1
Ag Valley Co-op v. Servinsky Engr., 311 Neb. 665, 974 N.W.2d 324 (2022).
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BUTTERCASE V. DAVIS
Cite as 313 Neb. 1show there is no genuine issue as to any material facts and
that the moving party is entitled to judgment as a matter
of law. 2
[3] Although the denial of a motion for summary judgment,
standing alone, is not a final, appealable order, when adverse
parties have each moved for summary judgment and the trial
court has sustained one of the motions, the reviewing court
obtains jurisdiction over all motions and may determine the
controversy which is the subject of those motions or make an
order specifying the facts which appear without substantial con-
troversy and direct such further proceedings as it deems just. 3
[4,5] Whether default judgment should be entered because
of a party’s failure to timely respond to a petition rests within
the discretion of the trial court, and an abuse of discretion must
affirmatively appear to justify a reversal on such a ground. 4
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. 5
[6] The grant or denial of a stay of proceedings is reviewed
for an abuse of discretion. 6
[7] A trial court has the discretion to determine the relevancy
and admissibility of evidence, and such determinations will not
be disturbed on appeal unless they constitute an abuse of that
discretion. 7
[8] A motion requesting a judge to recuse himself or herself
on the ground of bias or prejudice is addressed to the discre-
tion of the judge, and an order overruling such a motion will be
2
Id.3
SFI Ltd. Partnership 8 v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014).
4
Mason State Bank v. Sekutera, 236 Neb. 361, 461 N.W.2d 517 (1990).
5
State v. McGovern, 311 Neb. 705, 974 N.W.2d 595 (2022).
6
Hawkins v. Delgado, 308 Neb. 301, 953 N.W.2d 765 (2021).
7
Noah’s Ark Processors v. UniFirst Corp., 310 Neb. 896, 970 N.W.2d 72(2022).
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BUTTERCASE V. DAVIS
Cite as 313 Neb. 1affirmed on appeal unless the record establishes bias or preju-
dice as a matter of law. 8
ANALYSIS
Davis’ Amended Motion for
Summary Judgment
Buttercase argues that the district court erred in granting
summary judgment in Davis’ favor because there were “genu-
ine triable issues of material facts” as to his actual innocence
and other matters. 9 He also argues that the district court erred
in finding that he voluntarily pled guilty to the obscenity
charge.
[9] Actual innocence is one of four factors we have recog-
nized in considering legal malpractice claims. In Rodriguez
v. Nielsen, 10 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 convicted crimi-
nals are not given “an opportunity to profit either directly or
indirectly” from their criminal conduct and “encouraging the
representation of criminal defendants, especially indigents.” 11
Here, the district court found that no reasonable finder
of fact could infer from the evidence that Buttercase could
prove actual innocence. 12 In doing so, the court relied on
8
See In re Interest of Michael N., 302 Neb. 652, 925 N.W.2d 51 (2019).
9
Brief for appellant at 21.
10
Rodriguez v. Nielsen, 259 Neb. 264, 609 N.W.2d 368 (2000).
11
Id. at 271, 272, 609 N.W.2d at 374.
12
Cf. Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999) (defendant
entitled to summary judgment if summary judgment evidence establishes,
as matter of law, that at least one element of plaintiff’s cause of action
cannot be established).
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BUTTERCASE V. DAVIS
Cite as 313 Neb. 1Buttercase’s conviction in the federal criminal case, among
other things. We agree, at least as to the obscenity charge.
Actual innocence means factual and not legal innocence;
in other words, the State has convicted the wrong person. 13
Whether Buttercase produced evidence of his actual inno-
cence of child pornography with his ex-wife’s statement at
his sentencing hearing is perhaps arguable. However, we need
not decide this issue because the situation as to the obscenity
charge is clear. Here, there was no evidence suggesting that the
federal government convicted the wrong person of this charge.
To the contrary, the only evidence that Buttercase produced as
to the obscenity charge was the judgment showing that he pled
guilty to it.
This evidence is not negated by his ex-wife’s age or by the
argument, first made in his motion for reconsideration and
renewed on appeal, that his plea was not voluntary. The age
of the subject of a video or image is not an element of the
federal crime of obscenity, unlike with child pornography. 14
As such, evidence of his ex-wife’s age is not evidence of
actual innocence of obscenity. Buttercase’s argument that his
guilty plea to the obscenity charge was not voluntary because,
when he pled guilty, he was unaware that his ex-wife would
say she was an adult when the videos and images of her were
produced fails for similar reasons. Insofar as her age is not
an element of obscenity, he cannot reasonably have based his
plea to the obscenity charge on what he believed she would
say about her age. Moreover, as Davis noted on appeal,
Buttercase himself knew his ex-wife’s age; he was not reli-
ant on an attorney’s investigation or her statements for this
information.
His related argument, that he would not have pled guilty
but for Davis’ failure “to investigate and discover material
13
See Marie v. State, 302 Neb. 217, 922 N.W.2d 733 (2019).
14
Compare 18 U.S.C. §§ 2251(a) and 2252A(a)(1) and (a)(5) (referring to
minors or children) with 18 U.S.C. § 1465 (no such references).
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Cite as 313 Neb. 1exculpatory evidence,” fails because it was not raised before
the trial court. 15 When an argument or theory is raised for the
first time on appeal, it will be disregarded inasmuch as a lower
court cannot commit error in resolving an issue that was never
presented and submitted to it for disposition. 16
The same is true for Buttercase’s arguments that he is actu-
ally innocent of obscenity because the videos and images are
not obscene under the U.S. Supreme Court’s holding in Miller
v. California 17 and that the federal obscenity statute cannot be
constitutionally applied to him because, although he pled guilty
to producing and transporting obscene materials for distribu-
tion, he only possessed and viewed images of his private inti-
mate relations with his wife within his home. Neither argument
was raised before the trial court, and as such, neither will be
considered here.
[10] Finally, as to Buttercase’s argument that his production
of exhibits 9 through 21 shows the existence of genuine issues
of material fact, there is no merit. These exhibits included the
third amended complaint; the affidavits of Buttercase, his par-
ents, and a family friend; a receipt for $15,000; Buttercase’s
letter refusing to pay the per diem fees for trial; an invoice
for the computer expert’s services; a transcript of the hearing
on Davis’ motion to withdraw; the judgment in the federal
criminal case; a transcript of the sentencing hearing from the
federal criminal case; and a letter from Buttercase to Davis
requesting a refund. Insofar as these exhibits pertain to Davis’
employment, neglect of duty, and damages, they are imma-
terial because Buttercase failed to produce any evidence of
actual innocence of obscenity. Failure of proof concerning an
essential element of the nonmoving party’s case necessarily
renders all other facts immaterial. 18
15
Brief for appellant at 17.
16
See Eletech, Inc. v. Conveyance Consulting Group, 308 Neb. 733, 956
N.W.2d 692 (2021).
17
Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).
18
See Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 597 (2019).
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BUTTERCASE V. DAVIS
Cite as 313 Neb. 1Buttercase’s Amended Motion for
Partial Summary Judgment
Buttercase argues that the district court erred in treating all
claims in his third amended complaint as professional negli-
gence; he argues that only his breach of contract claim should
have been treated as such. He also argues that actual inno-
cence is not required for a claim of professional negligence
and that Davis failed to produce any admissible evidence in
opposition to Buttercase’s amended motion for summary judg-
ment. These arguments are without merit.
[11] In a series of decisions over the past 50 years, this
court has consistently held that plaintiffs cannot separate
a cause of action arising primarily out of a professional’s
alleged negligence and label it something else in the hope of
creating a different theory of recovery. 19 Buttercase argues
that these decisions apply only to plaintiffs who attempt
to label professional negligence something else in order to
avoid the 2-year statute of limitations in Neb. Rev. Stat.
§ 25-222 (Reissue 2016) and, as such, have no bearing on him
because his complaint was timely filed. However, in Gravel
v. Schmidt, 20 we found that the same reasoning used in cases
involving statute of limitations concerns was applicable to a
case where no statute of limitations concerns were noted, but
where an alleged attorney-client relationship was asserted.
Merely because a cause of action is couched in terms of a
cause of action other than negligence does not make it so. 21
This is particularly true in this case where the same facts and
19
See, Gravel v. Schmidt, 247 Neb. 404, 527 N.W.2d 199 (1995); Schendt
v. Dewey, 246 Neb. 573, 520 N.W.2d 541 (1994); Maloley v. Shearson
Lehman Hutton, Inc., 246 Neb. 701, 523 N.W.2d 27 (1994), disapproved
on other grounds, Jorgensen v. State Nat. Bank & Trust, 255 Neb. 241,
583 N.W.2d 331 (1998); Olsen v. Richards, 232 Neb. 298, 440 N.W.2d 463(1989); Jones v. Malloy, 226 Neb. 559, 412 N.W.2d 837 (1987); Stacey v.
Pantano, 177 Neb. 694, 131 N.W.2d 163 (1964).
20
Gravel v. Schmidt, supra note 19.
21
Nuss v. Alexander, 269 Neb. 101, 691 N.W.2d 94 (2005).
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Cite as 313 Neb. 1circumstances are implicated in both the breach of contract
and the malpractice claims.
Buttercase’s argument that professional negligence, as
alleged in his breach of contract claim, is distinct from legal
malpractice and does not require a showing of actual innocence
is similarly unavailing. He cites, in support of this argument,
our holding in Rodriguez that “a convicted criminal who files a
legal malpractice claim against his or her defense counsel must
allege and prove that he or she is innocent of the underlying
crime.” 22 However, he ignores other language in Rodriguez
which clearly shows that legal malpractice and professional
negligence are synonymous as to attorneys. 23 His alternative
argument, that he proved he is actually innocent of both the
child pornography and the obscenity charges, was properly
rejected by the district court, as previously noted.
Buttercase’s argument regarding Davis’ alleged failure to
produce any “admissible contradictory evidence” in response
to his exhibits 31 through 41 likewise fails. 24 These exhib-
its included the third amended complaint; the affidavits of
Buttercase, his parents, and a family friend; a motion to
intervene by Buttercase’s father; Davis’ letter to Buttercase
regarding the per diem fees for trial and Buttercase’s response;
Davis’ motion to withdraw; and a transcript of the hearing on
this motion.
Buttercase is correct that once a movant for summary judg-
ment makes a prima facie case, the burden to produce evidence
showing the existence of a material issue of fact that prevents
22
Rodriguez v. Nielsen, supra note 10, 259 Neb. at 273, 609 N.W.2d at 374.
23
See, e.g., id. at 273, 609 N.W.2d at 375 (“[W]e do not agree with those
jurisdictions that require convicted criminals to obtain exoneration through
postconviction relief or reversal on appeal before pursuing an action
for criminal legal malpractice; the statute of limitations for professional
negligence . . . and our decision in Seevers v. Potter, 248 Neb. 621, 537
N.W.2d 505 (1995), prevent us from adopting such a rule”).
24
Brief for appellant at 18.
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Cite as 313 Neb. 1judgment as a matter of law shifts to the opposing party. 25
However, in this case, the district court properly concluded
that Buttercase failed to make a prima facie showing on his
breach of contract claim because all his claims are for profes-
sional negligence. Absent a prima facie showing by the movant
that he or she is entitled to summary judgment, the opposing
party is not required to reveal evidence that he or she expects
to produce at trial to prove the allegations contained in his or
her petition. 26 Thus, whether Davis produced any “admissible
contradictory evidence” is immaterial.
Motions for Default
Judgment and Motions
to Strike Answer
Buttercase argues that the district court abused its discre-
tion and erred in denying his motions for a default judgment
because, on three occasions, Davis filed his answer more than
30 days after service of the summons. As such, Buttercase
maintains that he is entitled to a default judgment under
Osborn v. Osborn 27 and Turbines Ltd. v. Transupport, Inc. 28
We find no abuse of discretion here given our precedents
and the record on appeal. Osborn and Turbines Ltd. are inap-
posite. Osborn did not involve a default judgment, 29 while
Turbines Ltd. reversed a grant of a default judgment, even
though the defendant “clearly ignored the district court’s
orders and failed to appear for trial,” because the complaint
failed to state a cause of action for recission of the parties’
contract. 30
25
See Boyle v. Welsh, supra note 12.
26
Id.27
Osborn v. Osborn, 4 Neb. App. 802, 550 N.W.2d 58 (1996).
28
Turbines Ltd. v. Transupport, Inc., 285 Neb. 129, 825 N.W.2d 767 (2013).
29
Osborn v. Osborn, supra note 27.
30
Turbines Ltd. v. Transupport, Inc., supra note 28, 285 Neb. at 145, 825
N.W.2d at 779.
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Cite as 313 Neb. 1Our other decisions make clear that, even if the defendant
fails to plead or answer after a court-ordered deadline, the
plaintiff is not necessarily entitled to a default judgment. For
example, in Mason State Bank v. Sekutera, 31 we upheld the
denial of a default judgment even though the promisor failed to
plead or answer within 20 days after the bank filed its amended
complaint, as ordered by the district court. The promisor had
not answered 2 months later, and the bank moved for a default
judgment. 32 The promisor answered several weeks after the
bank’s motion, at which time the district court overruled the
motion as moot because there was an answer. 33 The bank
appealed, and we affirmed because “[t]he record contain[ed] no
evidence of . . . an abuse of discretion.” 34
Similarly, in Anest v. Chester B. Brown Co., 35 we upheld
the denial of a default judgment even though the company
failed to plead within 45 days, as ordered by the district court.
The company had not answered approximately 7 months later,
and the plaintiff in Anest moved for a default judgment. The
district court overruled this motion, giving the company leave
to answer instanter. 36 The plaintiff appealed, and we affirmed
because no abuse of discretion was shown. 37 In fact, we
expressly noted that a party in default may be permitted to
answer at any time before judgment is issued. 38
In this case, as in Sekutera and Anest, there is no evidence
that the district court abused its discretion in denying a default
judgment. Buttercase is correct that Davis filed an answer
31
Mason State Bank v. Sekutera, supra note 4.
32
Id.33
Id.34
Id. at 365, 461 N.W.2d at 520.
35
Anest v. Chester B. Brown Co., 169 Neb. 330, 99 N.W.2d 615 (1959).
36
Id.37
Id.38
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Cite as 313 Neb. 1more than 30 days after service of an amended complaint on
three occasions. However, as Sekutera and Anest show, delay
in itself does not prove an abuse of discretion. Something
more is needed, and such evidence is lacking here insofar as
the record shows that the district court was aware of answers
on file each time it overruled Buttercase’s motions for a
default judgment. The record also shows that Davis filed a
motion to dismiss in response to the original complaint, that
Buttercase’s first two amended complaints were essentially
the same as his original complaint, and that Davis moved to
strike the third amended complaint because it was not properly
served on him.
Buttercase also argued before the trial court that his objec-
tions and motions to strike Davis’ answers should have been
granted under Neb. Rev. Stat. § 25-913 (Reissue 2016).
However, he did not renew this argument, or make any other
argument regarding his objections and motions to strike, on
appeal despite assigning that the district court erred in overrul-
ing them. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically
argued in the brief of the party asserting the error. 39 As such,
we will not address this error because it was not argued in
Buttercase’s briefs.
Stay of Proceedings
Buttercase argues that the district court abused its discre-
tion and erred in declining to stay the proceedings pending his
“appeals and postconviction relief proceedings in the federal
courts.” 40 Relying on prior decisions in which we recognized
that courts may stay civil suits until related criminal matters
are resolved to avoid infringing criminal defendants’ rights, he
asserts that he was prejudiced, and his due process rights were
abridged, by defending this case before the evidentiary hear-
ing in his postconviction relief proceedings.
39
Humphrey v. Smith, 311 Neb. 632, 974 N.W.2d 293 (2022).
40
Brief for appellant at 15.
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Cite as 313 Neb. 1[12,13] Courts inherently possess the power to stay proceed-
ings when required by the interests of justice. 41 In determining
whether to exercise this power, courts balance the competing
needs of the parties, taking into account, among other things,
the court’s interests, the probability the proceeding will work a
constitutional violation on the movant, the presence or absence
of hardship or inequity, and the burden of proof. 42 Stays are
often used to regulate the court’s own proceedings or to accom-
modate the needs of parallel proceedings. 43 However, a litigant
has no constitutional right to have civil proceedings stayed
pending the outcome of a criminal investigation. 44 The burden
of establishing that a proceeding should be stayed rests on the
party seeking the stay. 45
We find no abuse of discretion here. Buttercase quotes
Seevers v. Potter 46 for the proposition that a criminal defendant
who has not obtained postconviction relief, but wants to sue
his or her attorney for malpractice, must file suit within the
period prescribed by § 25-222 to preserve the claim, but then
“‘can and should seek’” to stay the civil suit until the criminal
case is resolved. 47 However, the language quoted comes not
from this court, but from the Michigan Supreme Court, whose
reasoning we adopted in Seevers when holding that the statute
of limitations for a legal malpractice claim is not tolled until
a criminal defendant obtains postconviction relief. 48 Neither
41
Kelley v. Benchmark Homes, Inc., 250 Neb. 367, 550 N.W.2d 640 (1996),
disapproved on other grounds, Webb v. American Employers Group, 268
Neb. 473, 684 N.W.2d 33 (2004).
42
See id.43
Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018).
44
See, e.g., Schuessler v. Benchmark Mktg. & Consulting, 243 Neb. 425, 500
N.W.2d 529 (1993).
45
Id.46
Seevers v. Potter, 248 Neb. 621, 537 N.W.2d 505 (1995).
47
Brief for appellant at 16.
48
Seevers v. Potter, supra note 46.
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Cite as 313 Neb. 1Seevers nor the Michigan Supreme Court opinion quoted
therein addressed whether the denial of a stay constituted an
abuse of discretion.
Instead, it is the other opinion cited by Buttercase, Schuessler
v. Benchmark Mktg. & Consulting, 49 that illustrates the burden
the proponent of a stay must meet. In Schuessler, a company
moved to stay a wrongful discharge suit by one of its employ-
ees pending the outcome of an investigation into alleged mail
and wire fraud by the company. The district court denied this
motion, and we affirmed. 50 The company’s attorney had sub-
mitted an affidavit asserting that, because of the “‘similarity
of the evidence and issues involved in the two matters,’” the
company and its personnel could not present the necessary
testimony and evidence in the civil case without subjecting
themselves to possible incrimination in the criminal case. 51
However, we found that the “mere affidavit . . . , without more,
simply does not provide enough evidence of inability to defend
to convince us that the district court abused its discretion.” 52
We further noted that a “stay of a civil action, especially a stay
of indefinite duration, is an extraordinary remedy” and would
“obviously damage [the employee].” 53
The U.S. Supreme Court took a similar approach in United
States v. Kordel, 54 finding that officers of a company charged
with both civil and criminal offenses by the federal govern-
ment failed to show that denial of a stay constituted an abuse
of discretion. The officers asserted that proceeding to trial in
the civil case would violate their Fifth Amendment privilege
against compulsory self-incrimination, but “they never even
49
Schuessler v. Benchmark Mktg. & Consulting, supra note 44.
50
Id.51
Id. at 432, 500 N.W.2d at 536.
52
Id. at 433, 500 N.W.2d at 536.
53
Id. at 432, 500 N.W.2d at 536.
54
United States v. Kordel, 397 U.S. 1, 90 S. Ct. 763, 25 L. Ed. 2d 1 (1970).
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Cite as 313 Neb. 1asserted, let alone demonstrated, that there was no authorized
person who could answer the interrogatories [in the civil case]
without the possibility of compulsory self-incrimination.” 55
The officers also alleged unfairness and a violation of due
process, but the court found nothing in the record to support
these claims. 56
The situation here is like that in Schuessler and Kordel in
that Buttercase makes vague claims about violations of due
process and being harmed by the “disclosure of sensitive
privileged information.” However, he offers no specifics, much
less evidence, about how proceeding to trial on his civil claim
would impede his ability to defend himself in his postconvic-
tion relief proceedings on the obscenity charge.
Admission of Evidence
Buttercase argues that the district court erred in overruling
his objections to exhibits 22 through 30 on relevance, unfair
prejudice, and other grounds. He also argues that the district
court erred in excluding exhibit 14 upon Davis’ objection that
Buttercase failed to disclose his expert by the deadline set in
the court’s progression order.
[14-16] Under Neb. Evid. R. 401, evidence is relevant
if it has any tendency to make the existence of any fact of
consequence to the determination of the action more prob-
able or less probable than it would be without the evidence. 57
Relevancy requires only that the probative value be something
more than nothing. 58 Under Neb. Evid. R. 403, relevant evi-
dence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. 59 Most, if not
55
Id., 397 U.S. at 9.
56
United States v. Kordel, supra note 54.
57
Lindsay Internat. Sales & Serv. v. Wegener, 301 Neb. 1, 917 N.W.2d 133(2018).
58
See id.59
State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).
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Cite as 313 Neb. 1all, evidence offered by a party is calculated to be prejudi-
cial to the opposing party. 60 Unfair prejudice means an undue
tendency to suggest a decision based on an improper basis. 61
Balancing the probative value of evidence against the danger
of unfair prejudice is within the discretion of the trial court,
whose decision we will not reverse unless there is an abuse
of discretion. 62
We find no abuse of discretion here. As an initial matter, we
note that the judgment in Buttercase’s federal criminal case,
showing he pled guilty to obscenity, was offered by Buttercase
as exhibit 19, as well as by Davis as exhibit 27. Exhibit 19 was
admitted without objection. As such, Buttercase’s objection
to exhibit 27 is moot because he himself introduced the same
document into evidence, and we exclude exhibit 27 from the
discussion below.
There is no merit to Buttercase’s argument that exhibits 22
through 26 and 28 and 29 are not relevant because Davis did
not represent him when he pled guilty to obscenity, and he was
not a party to the ethics investigation and could not appeal its
findings. The docket for the federal criminal case, as well as
the indictment, petition to enter a guilty plea, and plea agree-
ment in the federal criminal case and the statements about
it in Davis’ affidavit, were relevant to the issue of whether
Buttercase is actually innocent of the underlying charges.
Similarly, the findings, recommendations, and order from the
federal court’s ethics investigation were relevant to the issue of
whether Davis caused damages to Buttercase when seeking to
withdraw as counsel.
The relevance of exhibit 30, the sentencing order for
Buttercase’s state convictions, is less clear. However, we need
not speculate further about what fact it could make more or
60
Id.61
Id.62
See id.- 23 -
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Cite as 313 Neb. 1less probable. To constitute reversible error in a civil case, the
admission or exclusion of evidence must unfairly prejudice
a substantial right of a litigant complaining about the evi-
dence admitted or excluded, 63 and Buttercase cannot show the
admission of exhibit 30 prejudiced a substantial right because
the district court did not rely upon it in ruling upon Davis’
motion for summary judgment. In fact, neither exhibit 30 nor
Buttercase’s Nebraska crimes are mentioned in the district
court’s order.
Similarly, we find no abuse of discretion by the district court
when balancing the probative value of exhibits 22 through 26,
28, and 29 against any unfair prejudice that they might create.
Buttercase has not offered any rationale for why these exhibits
should have been excluded under Neb. R. Evid. 403. However,
any argument he might make would be undercut by the fact
that he himself offered evidence of his indictment on child
pornography charges and his guilty plea to and sentence for
obscenity. He also offered evidence showing the outcome of
the federal court’s ethics investigation.
We also reject the suggestion that the admission of Davis’
affidavit, Buttercase’s petition to plead guilty to the federal
obscenity charge, and the plea agreement regarding the obscen-
ity charge constitutes reversible error because these exhibits
are inadmissible under Neb. R. Evid. 410 or Neb. R. Evid.
609(5). Even assuming any exhibits related to Buttercase’s
plea to the federal charges, including the sections of Davis’
affidavit mentioning the plea, were erroneously admitted into
evidence, this would not be grounds for overturning the dis-
trict court’s decision because Buttercase himself introduced
evidence showing his guilty plea and sentence for obscenity.
The erroneous admission of evidence in a summary judg-
ment hearing is not reversible error if other relevant evidence,
63
Brown v. Jacobsen Land & Cattle Co., 297 Neb. 541, 900 N.W.2d 765(2017).
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Cite as 313 Neb. 1admitted without objection or properly admitted over objec-
tion, sustains the trial court’s necessary factual findings, as it
did here. 64
Buttercase’s remaining arguments as to why exhibits 22
through 26 and 28 through 30 should have been excluded
are similarly unavailing. Although Buttercase asserts that
Davis’ affidavit and the findings, recommendations, and order
from the ethics investigation include “fraud and perjury,” 65
the record shows that the federal court found “Davis did not
misrepresent the facts in his motion to withdraw.” Likewise,
the argument that Davis’ affidavit should have been excluded
because he did not timely disclose himself as an expert
fails because Buttercase did not raise it when he objected
to exhibit 22 at the hearing on the cross-motions for sum-
mary judgment, despite raising it at that same hearing when
arguing that exhibit 14 should be admitted. An objection to
the admission of evidence is generally not timely unless it
is made at the earliest opportunity after the ground for the
objection becomes apparent. 66 A party who fails to make
a timely objection to evidence waives the right on appeal
to assert prejudicial error concerning the evidence received
without objection. 67
As to Buttercase’s proposed exhibit 14, Buttercase is correct
that the district court’s progression order addresses the disclo-
sure of “experts who may be called to testify at trial,” and the
offering of an affidavit in support of a motion for summary
judgment can be distinguished from calling a witness at trial. 68
64
Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (2015),
disapproved on other grounds, Weyh v. Gottsch, 303 Neb. 280, 929
N.W.2d 40 (2019).
65
Brief for appellant at 29.
66
In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).
67
State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
68
Cf. Carrizales v. Creighton St. Joseph, 312 Neb. 296, 979 N.W.2d 81(2022).
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Cite as 313 Neb. 1However, even assuming that the district court erred in exclud-
ing this exhibit, it is not reversible error. As we previously
noted when discussing exhibit 30, to constitute reversible error
in a civil case, the admission or exclusion of evidence must
unfairly prejudice a substantial right of a litigant complaining
about the evidence admitted or excluded. 69 This is not the case
here. Exhibit 14 does not purport to address Buttercase’s actual
innocence, which is why his opposition to Davis’ motion for
summary judgment failed. Similarly, as to Buttercase’s own
motion for partial summary judgment on his breach of contract
claim, we found that the claim cannot be maintained as an
independent claim, separate and apart from a claim of profes-
sional negligence.
Motion to Recuse
Buttercase argues that the district court erred in failing
to recuse itself. He first moved for recusal during the hear-
ing on his motion for reconsideration, arguing that the
court repeatedly “allowed” Davis “to ignore its orders,” but
excluded exhibit 14 because Buttercase failed to timely dis-
close his expert. 70 He renews this argument on appeal, as well
as points to newly discovered evidence of alleged ex parte
communications.
[17] Judges should recuse themselves when a litigant shows
that a reasonable person, who knew the circumstances of the
case, would question the judge’s impartiality under an objec-
tive standard of reasonableness, even though no actual bias
or prejudice was shown. 71 A defendant seeking to disqualify a
judge on the basis of bias or prejudice bears the heavy burden
of overcoming the presumption of judicial impartiality. 72 An
69
Brown v. Jacobsen Land & Cattle Co., supra note 63.
70
Brief for appellant at 33.
71
State v. Brunsen, 311 Neb. 368, 972 N.W.2d 405 (2022).
72
State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022).
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Cite as 313 Neb. 1ex parte communication occurs when a judge communicates
with any person concerning a pending or impending proceed-
ing without notice to an adverse party. 73 Judges who initiate,
invite, or receive ex parte communications concerning pending
or impending proceedings must recuse themselves from the
proceedings when a litigant requests recusal. 74
We find that Buttercase failed to meet the burden of showing
that recusal was warranted here. He points to several rulings
from the court that he asserts favored Davis and disfavored
him. However, we have already found that the district court did
not abuse its discretion in these rulings. Moreover, even assum-
ing that Buttercase did not waive disqualification on this basis
by failing to raise it before the motions for summary judgment
were decided, 75 one of the cases he himself cites, Liteky v.
United States, 76 found that “opinions formed by the judge on
the basis of facts introduced or events occurring in the court of
the current proceedings” generally do not constitute a basis for
a bias or partiality motion. The other case he cites as setting
a “new standard” requiring recusal when the “‘probability of
actual bias . . . is too high,’” 77 Caperton v. A. T. Massey Coal
Co., 78 is similarly inapposite because it involved the appear-
ance of bias created by campaign contributions to a judge,
something not at issue here.
His evidence of an alleged ex parte communication similarly
fails. He asserts that there must have been such communication
73
State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
74
See id.75
See In re Interest of J.K., 300 Neb. 510, 915 N.W.2d 91 (2018).
76
Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed.
2d 474 (1994). Cf. In re Interest of J.K., supra note 75, 300 Neb. at 518,
915 N.W.2d at 98 (“[j]udicial rulings alone almost never constitute a valid
basis” for bias motion).
77
Brief for appellant at 34.
78
Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252, 173 L.
Ed. 2d 1208 (2009).
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Cite as 313 Neb. 1because Davis filed his amended motion for summary judg-
ment and related materials at 11:08 a.m. on May 8, 2020, and
the court issued a progression order regarding summary judg-
ment at 1:13 p.m. on May 8. He wonders, “How did [Davis]
know to submit pleadings to the district court pursuant to
a progression order that was not even filed yet without ex
parte communications?” 79 However, the progression order in
question concerned the original motions for summary judg-
ment. It makes no mention of an amended motion or sets any
deadline for the filing of one. As such, Davis’ May 8 filing
was not made “pursuant” to the court’s order. Rather, the
timing of Davis’ filing and the court’s progression order was
purely coincidental. 80
CONCLUSION
Buttercase’s claims that the district court erred in dispos-
ing of the parties’ competing motions for summary judgment
and its prejudgment interlocutory rulings are without merit.
Accordingly, the judgment of the district court is affirmed.
Affirmed.
Heavican, C.J., and Miller-Lerman, J., not participating.
79
Brief for appellant at 33.
80
See, e.g., State v. Thompson, 301 Neb. 472, 476, 919 N.W.2d 122, 126
(2018) (defendant failed to meet burden to show ex parte communication
where court’s statement that charges against defendant “‘“may, from what
the prosecutor tells me, change [if victim dies]”’” was based on court’s
assumptions, not private conversation between state and prosecutor).