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Titus v. Schense

Court: Nebraska Court of Appeals
Date filed: 2023-11-07
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                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         TITUS V. SCHENSE


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                     SHAWN TITUS, APPELLANT,
                                                  V.

                                  DONALD L. SCHENSE, APPELLEE.


                             Filed November 7, 2023.      No. A-23-054.


       Appeal from the District Court for Douglas County: KATIE L. BENSON, Judge. Affirmed.
       Shawn Titus, pro se.
       Ronald F. Krause and Michael R. Faz, of Cassem, Tierney, Adams, Gotch & Douglas, for
appellee.


       RIEDMANN, BISHOP, and WELCH, Judges.
       WELCH, Judge.
                                        I. INTRODUCTION
        Shawn Titus appeals from the Douglas County District Court’s order granting summary
judgment in his legal malpractice action in favor of Donald L. Schense. For the reasons stated
herein, we affirm.
                                   II. STATEMENT OF FACTS
                                          1. BACKGROUND
        In 2018, pursuant to a plea agreement, Titus pled no contest to attempted first degree sexual
assault. The plea was an “Alford plea.” The district court sentenced Titus to 15 to 20 years’
imprisonment. Titus, represented by different appellate counsel, filed a direct appeal assigning as
error that his trial counsel was ineffective and that the sentence imposed was excessive.
Specifically, Titus alleged that trial counsel was ineffective by (a) failing to obtain or consult with


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an expert witness; (b) failing to develop and martial a proper defense strategy; (c) failing to request
recusal of the trial judge and prosecutor because of the pendency of Titus’ federal court lawsuit in
which both were named as defendants; (d) failing to place the entire plea agreement on the record;
(e) advising Titus to accept the plea offered; and (f) failing to advise Titus that acceptance of the
plea negated his ability to appeal the denial of his plea in abatement. State v. Titus, No. A-18-1096,
2019 WL 3562180 (Neb. App. Aug. 6, 2019) (selected for posting to court website). This court
determined that the record on appeal was insufficient to review each of Titus’ claims of ineffective
assistance of trial counsel. Id. We further determined that the sentence imposed was not excessive.
Id.
         In September 2019, Titus filed a pro se motion for postconviction relief. In that motion,
Titus presented 13 claims for relief. Three of the claims matched claims of ineffective assistance
of trial counsel preserved in his direct appeal (failing to obtain or consult with an expert witness,
failing to request recusal of the trial judge and prosecutor because of the pendency of Titus’ federal
court lawsuit, and failing to advise Titus that acceptance of the plea negated his ability to appeal
the denial of his plea in abatement). Nine of the claims were new allegations of ineffective
assistance of appellate counsel. Titus’ final claim was an allegation that the “[g]overnment
breached the plea agreement” because the “State was supposed to stand silent at sentencing, but
argued at length for a sentence of imprisonment.” Thereafter, Titus requested leave to file an
amended motion, but did not identify which of his claims he would amend or what changes the
amendments would include. This request was denied. Titus also filed a motion for appointment of
counsel, which was granted. The court appointed Schense to represent Titus during the
postconviction proceedings.
         The court granted an evidentiary hearing on Titus’ allegation that there was an agreement
by the State to stand silent at sentencing and on the three claims of ineffective assistance of trial
counsel which had been preserved on direct appeal. Following the hearing, the district court denied
Titus’ motion for postconviction relief. Titus, acting pro se, appealed this decision to this court
alleging that the district court erred by (1) committing various due process violations; (2) finding
that the State had not agreed to stand silent at sentencing and that trial counsel did not provide
ineffective assistance; and (3) refusing to grant leave to amend his original postconviction motion.
Titus also assigned that his postconviction counsel was ineffective. State v. Titus, No. A-21-765,
2022 WL 2438283 (Neb. App. July 5, 2022) (petition for further review denied Sept. 22, 2022).
This court concluded that the district court did not abuse its discretion in denying Titus’ request to
file an amended motion for postconviction relief, that it did not err in overruling Titus’ motion for
postconviction relief, and that Titus’ arguments related to the effectiveness of his postconviction
counsel failed. Id.
                                     2. CURRENT PROCEEDINGS
        In August 2022, Titus filed a civil complaint against Schense alleging legal malpractice
related to Schense’s representation of Titus during the postconviction proceedings. The complaint
was subsequently amended to allege negligence due to Schense’s “failure to raise meritorious
claims, including, but not limited to, appellate counsel’s failure to raise a challenge to the
sufficiency of [the] evidence for the factual basis . . .” Titus also alleged that he was “actually



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innocent.” The complaint requested damages of no less than $500,000; punitive damages of
$250,000; lost wages of $35,000; and attorney fees and costs.
        Titus later filed a motion for appointment of counsel to assist him in the proceedings and a
motion to stay the proceedings “until his legal disability is removed,” his disability being his
incarceration. Specifically, he claimed that because of his incarceration, he earned about $45 per
month, the cost of postage and envelopes had increased, he lacked email or internet access, his
access to legal research and typewriters was limited, he could not conduct discovery or depositions,
he lacked the funds for an expert witness, and that these combined limitations warranted a stay of
the proceedings. The court denied both the motion for appointment of counsel and the motion for
a stay of the proceedings.
        In November 2022, Schense filed a motion for summary judgment. Titus responded by
filing a motion for an extension of time to “to serve and submit his Annotated Statement of
Disputed Facts, Exhibit Index in Opposition to [Schense’s] Motion for Summary Judgment, and
brief in opposition . . .” Shortly thereafter, Titus filed a competing motion for summary judgment
but did not file a motion for hearing thereon.
        A hearing on Schense’s motion for summary judgment was held in December 2022. During
this hearing, the court received into evidence Schense’s affidavit, which averred that based on his
education, training, experience, and his professional opinion, to a reasonable degree of
professional certainty, he did not violate any duty owed to Titus, he fully complied with all duties
owed under the standard of care of a licensed practicing attorney in the State of Nebraska while
representing Titus, and no action or inaction on his part caused or contributed to cause any of the
damages alleged by Titus.
        The district court granted summary judgment in favor of Schense and dismissed Titus’
amended complaint. The court indicated that Schense’s affidavit set forth a prima facie case of
lack of negligence, thus shifting the burden to Titus to produce evidence showing the existence of
a material issue of fact preventing judgment as a matter of law. The court found that Titus failed
to present any evidence from an expert that Schense had committed legal malpractice. Further,
although Titus had not sought a hearing date on his motion for summary judgment, in order to
dispose of the case as a whole, the court denied Titus’ motion for summary judgment. Titus has
timely appealed to this court.
                                 III. ASSIGNMENTS OF ERROR
        Titus’s assignments of error, consolidated and restated, are that the district court (1) erred
in granting summary judgment in favor of Schense because the admission of Schense’s affidavit
was unfairly prejudicial; (2) erred in finding that expert testimony was necessary to refute
Schense’s allegations contained within his affidavit; (3) committed plain error in denying his
request for extension of time; and (4) erred in failing to appoint counsel as an expert witness.
                                  IV. STANDARD OF REVIEW
        In reviewing a summary judgment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment was granted and gives that party the benefit of
all reasonable inferences deducible from the evidence. Buttercase v. Davis, 313 Neb. 1, 982
N.W.2d 240 (2022), modified on denial of rehearing 313 Neb. 587, 985 N.W.2d 588 (2023). An


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appellate court affirms a lower court’s grant of summary judgment if the pleadings and admitted
evidence show there is no genuine issue as to any material facts and that the moving party is
entitled to judgment as a matter of law. Id.
                                           V. ANALYSIS
        Before reaching the merits of Titus’ assigned errors, we first briefly summarize the
standard for a convicted criminal’s legal malpractice claim and the summary judgment procedure
invoked by Schense in response to Titus’ claim. In response to Titus’ claim, Schense filed a motion
for summary judgment claiming that, pursuant to the elements of Titus’ claim, Schense was
entitled to summary judgment as a matter of law.
        In Buttercase v. Davis, the Nebraska Supreme Court stated:
                 Actual innocence is one of four factors we have recognized in considering legal
        malpractice claims. In Rodriguez v. Nielsen, [259 Neb. 264, 609 N.W.2d 368 (2000),] we
        held that a convicted criminal who files a legal malpractice claim must plead and prove the
        following: (1) the attorney’s employment, (2) the attorney’s neglect of a reasonable duty,
        (3) that such negligence resulted in and was the proximate cause of loss (damages) to the
        client, and (4) innocence of the underlying crime with which the plaintiff was charged. The
        Rodriguez court noted that the actual innocence factor serves the dual goals of ensuring
        that convicted criminals are not given “an opportunity to profit either directly or indirectly”
        from their criminal conduct and “encouraging the representation of criminal defendants,
        especially indigents.”

313 Neb. at 11, 982 N.W.2d at 251.
      In Clark v. Scheels All Sports, 314 Neb. 49, 59-60, 989 N.W.2d 39, 47-48 (2023), the
Nebraska Supreme Court stated:
              The statutory procedure governing summary judgment motions is set out in
      § 25-1332. Section 25-1332 identifies the type of evidence that may be received on a
      motion for summary judgment and the legal standard to be applied when deciding such
      motions. Regarding the former, the statute provides, “The evidence that may be received
      on a motion for summary judgment includes depositions, answers to interrogatories,
      admissions, stipulations, and affidavits.” Regarding the latter, the statute provides that
      summary judgment “shall be rendered forthwith if the pleadings and the evidence admitted
      at the hearing show that there is no genuine dispute as to any material fact and that the
      moving party is entitled to a judgment as a matter of law.
              Consistent with these statutory provisions, our cases have long held that summary
      judgment is proper only when the pleadings, depositions, admissions, stipulations, and
      affidavits in the record disclose that there is no genuine issue as to any material fact or as
      to the ultimate inferences that may be drawn from those facts and that the moving party is
      entitled to judgment as a matter of law. Likewise, our cases have long held that the party
      moving for summary judgment must make a prima facie case by producing enough
      evidence to show the movant would be entitled to judgment if the evidence were
      uncontroverted at trial. If the moving party makes a prima facie case, the burden shifts to
      the nonmovant to produce evidence showing the existence of a material issue of fact that


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       prevents judgment as a matter of law. But in the absence of 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 which he or she expects to produce at trial.


                              1. ADMISSION OF SCHENSE’S AFFIDAVIT
       Titus first contends that it was an error for the district court to admit Schense’s affidavit
because it was self-serving, conclusory, and did not cite to specific facts.
       In Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999), the Nebraska Supreme Court
addressed a strikingly similar contention which we cite at length due to the dispositive nature of
the court’s analysis and conclusions governing the subject matter. In analyzing the sufficiency of
a conclusory opinion in an affidavit offered by an attorney defendant in a summary judgment
proceeding, the Nebraska Supreme Court held:
               A movant for summary judgment makes a prima facie case by producing enough
       evidence to demonstrate that the movant is entitled to a judgment if the evidence were
       uncontroverted at trial. O’Connor v. Kaufman, 250 Neb. 419, 550 N.W.2d 902 (1996). [The
       attorney defendant’s] motion for summary judgment was premised on his affidavit,
       wherein [the attorney defendant] stated that his representation of [the plaintiff] met the
       applicable standard of conduct. Such evidence, if admitted at trial, would be uncontroverted
       only if [the plaintiff] failed to produce any evidence, whether by expert or otherwise,
       indicating that [the attorney defendant] neglected a reasonable duty, i.e., breached the
       standard of conduct. [The plaintiff’s] failure to present such evidence would entitle [the
       attorney defendant] to judgment as a matter of law, since [the plaintiff] would have failed
       to meet her burden of proof. See, e.g., Baker v. Fabian, Thielen & Thielen, 254 Neb. 697,
       578 N.W.2d 446 (1998). See, also, Hall v. Stephenson, 919 S.W.2d 454 (Tex. App. 1996)
       (stating that defendant is 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).
               We note that [the attorney defendant’s] affidavit did not contain a specific recitation
       of the underlying facts upon which he based his expert opinion. . . .
               However, this court has long held that “an affidavit of a defendant physician in a
       malpractice case, which affidavit states that the defendant did not breach the appropriate
       standard of conduct, presents a prima facie case of lack of negligence for the purposes of
       summary judgment.” . . . Thus, this court’s precedent would indicate that [the attorney
       defendant’s] affidavit was sufficient to establish a prima facie case, despite its lack of
       underlying facts.
               An analysis of the underlying law demonstrates the basis for this court’s holding in
       [Hanzlik v. Paustian, 216 Neb. 575, 344 N.W.2d 649 (1984)]. Neb. Rev. Stat. § 25-1334
       (Reissue 1995), which prescribes the form of affidavits offered in support of summary
       judgment, states, “Supporting and opposing affidavits shall be made on personal
       knowledge, shall set forth such facts as would be admissible in evidence, and shall show
       affirmatively that the affiant is competent to testify to the matters stated therein.” There is
       no question that [the attorney defendant’s] affidavit was made on personal knowledge (he


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       handled [the plaintiff’s] case) and that he was competent to testify to the matters stated
       therein (he is an expert as to legal matters). The only question is whether [the attorney
       defendant’s] opinion in his affidavit would be admissible in evidence had the case gone to
       trial.
               Because [the attorney defendant’s] affidavit presented competent evidence
       sufficient to support a finding that his conduct was in compliance with the standard of
       conduct, he would be entitled to judgment as a matter of law if that evidence were
       uncontroverted. Therefore, we conclude that [the attorney defendant’s] affidavit
       established a prima facie case for purposes of summary judgment.

Boyle v. Welsh, 256 Neb. at 125, 589 N.W.2d at 124-25.
       We reach a similar conclusion here. Because Schense’s affidavit presented competent
evidence sufficient to support a finding that his conduct complied with the applicable standard of
conduct, he would be entitled to judgment as a matter of law if the evidence was uncontroverted.
We find that, despite the self-serving and conclusory nature of Schense’s affidavit, it was
uncontroverted and established a prima facie case for purposes of summary judgment. This
assignment of error fails.
                               2. NECESSITY OF EXPERT TESTIMONY
        Titus next contends that expert testimony was not necessary to rebut Schense’s affidavit
because (a) his claim presented an issue of law, not fact, and (b) the common knowledge exception
applies. We will address those arguments independently.
                                      (a) Issue of Law or Fact
        Titus first argues that, in connection with his legal malpractice claim, he asserted that
Schense failed to raise meritorious claims for relief during his postconviction proceedings,
including his innocence; that his plea was legally and factually invalid for a variety of reasons; and
that the factual basis was insufficient to establish the elements of a crime. He argues that these
allegations present questions of law for the court thereby negating his obligation to present expert
testimony to rebut Schense’s opinion that he conformed to the standard of care.
        The general rule regarding an attorney’s duty to his or her client is that the attorney, by
accepting employment to give legal advice or to render other legal services, impliedly agrees to
use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess
and exercise in the performance of the tasks which they undertake. Wolski v. Wandel, 275 Neb.
266, 746 N.W.2d 143 (2008). Although this general standard is established by law, the question
of what an attorney’s specific conduct should be in a particular case and whether an attorney’s
conduct fell below that specific standard is a question of fact. Id. Expert testimony is generally
required to establish an attorney’s standard of conduct in a particular circumstance and that the
attorney’s conduct was not in conformity therewith. Id. This is so because a jury cannot rationally
apply a general statement of the standard of care unless it is made aware of what a reasonable
attorney would have done in similar circumstances. Id. An exception to this general rule is that
where the evidence and circumstances are such that recognition of the alleged negligence may be
presumed to be within the comprehension of laypersons, no expert testimony is required. Id.


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       The Nebraska Supreme Court stated in Kozal v. Snyder, 312 Neb. 208, 214, 978 N.W.2d
174, 180 (2022):
               In Guinn v. Murray, [286 Neb. 584, 837 N.W.2d 805 (2013),] this court previously
       clarified what issues in a legal malpractice action are questions of law for the court and
       what issues are questions of fact for the fact finder. To the extent there is an issue as to
       what the law was and whether the attorney correctly advised on such law is a question of
       law for the court. If the court decides that an attorney’s conduct or advice did not comport
       with the substance of the law at the time it was given, then whether the attorney’s specific
       conduct in that particular case fell below what the attorney’s specific conduct should have
       been is a question of fact. Said differently, it is a question of fact whether the attorney’s
       conduct, under the particular circumstances of the case, was such that the attorney
       exercised the same skill, diligence, and knowledge as that commonly possessed by
       attorneys acting in similar circumstances.

        Here, this malpractice claim is grounded in Schense’s conduct. That is, whether Schense’s
conduct in representing Titus in his postconviction proceedings comported with the skill,
diligence, and knowledge as commonly possessed by attorneys acting in similar circumstances.
Thus, as to Titus’ specific allegations that Schense departed from that standard of care by failing
to raise certain defenses, the claim presents a question of fact for the fact finder and not a question
of law for the court. Having failed to rebut Schense’s affidavit in which he opined that he did not
depart from the standard of care, Titus cannot claim error under a theory that there was no factual
claim to be resolved. This assignment of error fails.
                                (b) Common Knowledge Exception
        Titus next argues that he was not obligated to rebut Schense’s opinion because the factual
issues raised in his pleading fall under the common knowledge exception to expert testimony.
        As a general matter, in a malpractice action, expert testimony is required to identify the
applicable standard of care. Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 898
(2008). An attorney malpractice action provides no exception to that general rule as expert
testimony is generally required to show whether an attorney’s performance conformed to the
standard of conduct. Rice v. Poppe, 293 Neb. 467, 881 N.W.2d 162 (2016). That said, the Nebraska
Supreme Court has recognized a narrow exception to that general rule known as the common
knowledge exception. As the Nebraska Supreme Court noted in Thone:
                We have long recognized that a party can make a prima facie case of professional
        negligence even without expert testimony in cases where “the evidence and the
        circumstances are such that the recognition of the alleged negligence may be presumed to
        be within the comprehension of laymen.” [Halligan v. Cotton, 193 Neb. 331, 336, 227
        N.W.2d 10, 13 (1975).] This common-knowledge exception is limited to cases of extreme
        and obvious misconduct. Examples include failure to remove a surgical instrument from a
        patient’s body following a procedure or amputating an incorrect limb.

275 Neb. at 243-44, 745 N.W.2d at 904.



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        The question here is whether Titus’ allegations of Schense’s conduct in connection with
his representation of Titus during his postconviction proceedings falls within that narrow area of
extreme and obvious misconduct in representation that obviated the need for expert testimony to
rebut Schense’s claim that he comported with the standard of care. We hold that it does not.
        A layperson could not be expected to know, without the assistance of expert testimony,
whether counsel was negligent during postconviction proceedings for failing to raise additional
claims governing the sufficiency of the factual basis that supported Titus’ plea or his claims of
actual innocence in connection with a conviction to which he pled. As it relates to the complexity
of these matters, it was incumbent upon Titus to obtain expert testimony to support his theory that
Schense departed from the standard of care in order defeat Schense’s motion for summary
judgment. See Wolski v. Wandel, 275 Neb. 266, 746 N.W.2d 143 (2008) (layperson could not be
expected to know, without assistance of expert testimony, whether attorney was negligent in
counseling client to settle litigation). Because Titus presented no expert testimony to contradict
Schense’s affidavit, there was no genuine issue of material fact as to the allegations of professional
negligence. This assignment of error fails.
                             3. DENIAL OF STAY OR EXTENSION OF TIME
         Titus next assigns that the district court abused its discretion or committed plain error when
it denied his stay of the proceedings and/or denied his request for an extension of time.
         Courts inherently possess the power to stay proceedings when required by the interests of
justice. Buttercase v. Davis, 313 Neb. 1, 982 N.W.2d 240 (2022), modified on denial of rehearing
313 Neb. 587, 985 N.W.2d 588 (2023). 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. Id. Stays are often used to
regulate the court’s own proceedings or to accommodate the needs of parallel proceedings. Id. The
burden of establishing that a proceeding should be stayed rests on the party seeking the stay. Id.
         Here, Titus filed a motion to stay the proceedings as a result of his legal “disability,” which
included his lack of sufficient funds to continue pursuing his complaint and the lack of resources
available to him while incarcerated to meaningfully participate in the action. In denying his motion
to stay the proceedings, the district court noted that Titus
         chose to file this action despite being incarcerated and knowing his parole eligibility date
         is not until August 17, 2025, and projected release date not until October 31, 2027.
         (Nebraska Department of Correctional Services Incarcerations Records website). The
         Court further notes that [Titus’] motion fails to cite any legal authority establishing he is
         entitled to such a stay of proceedings.

         In Buttercase, the Nebraska Supreme Court, in analyzing whether the lower court abused
its discretion in failing to order a continuance, noted that a “‘stay of a civil action, especially a stay
of indefinite duration, is an extraordinary remedy.’” 313 Neb. at 20, 982 N.W.2d at 257, quoting
Schuessler v. Benchmark Mktg. & Consulting, 243 Neb. 425, 500 N.W.2d 529 (1993). Although
we recognize the practical difficulties presented by Titus pursuing this civil action against his
former attorney while incarcerated, when applying the factors that justify a stay in civil


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proceedings, we cannot say that the district court’s refusal to grant an indefinite stay constituted
an abuse of discretion. This assignment of error fails.
                            4. FAILURE TO APPOINT COUNSEL AS EXPERT
        Titus’ final assignment of error is that the district court abused its discretion in denying his
request to appoint counsel as an expert witness.
        In civil cases, there is no constitutional or statutory right to appointed counsel. Payne v.
Nebraska Dept. of Corr. Servs., 24 Neb. App. 1, 879 N.W.2d 705 (2016). Nebraska law allows for
appointment of counsel only when a person’s physical liberty may be in jeopardy. Id.
        Here, Titus filed a motion for appointment of counsel alleging that the statute of limitations
would run on his claim before he was released from prison and that he could not afford the costs
of copying and mailing motions, conducting meaningful discovery, or hiring an attorney or an
expert. Additionally, Titus asserted that due to his limited phone access as a prisoner, he was
unable to consult with attorneys or experts and he could not complete research or obtain files for
discovery purposes. The district court denied Titus’ motion for appointment of counsel stating
“[a]fter review, the Court finds [Titus] has failed to set forth any law requiring such appointment.”
We agree. Because there is no statutory or constitutional right to an attorney in civil matters and
Titus failed to present any authority which requires the court to appoint an attorney to serve as his
expert witness in connection with a legal malpractice claim, this assignment of error fails.
                                         VI. CONCLUSION
      For the reasons stated herein, we affirm the district court’s order granting summary
judgment in favor of Schense.
                                                                                  AFFIRMED.




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