Sitz v. Buttercase (In re Davis)

1

IN RE ESTATE OF JAMES MARTIN DAVIS, DECEASED.

VICTORIA H. SITZ ET AL., APPELLEES, v. JOSEPH J. BUTTERCASE, APPELLANT, AND CORDELL C. STEWART, APPELLEE AND CROSS-APPELLANT.

No. A-23-214

Court of Appeals of Nebraska

March 12, 2024

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).

Appeal from the County Court for Douglas County: JEFFREY L MARCUZZO, Judge. Affirmed.

Joseph J. Buttercase, pro se.

Cordell C. Stewart, pro se.

Krista M. Eckhoff and Jesse D. Sitz, of Baird Holm, L.L.P., for appellees.

MOORE BISHOP, and ARTERBURN, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

ARTERBURN, JUDGE

INTRODUCTION

Joseph J. Buttercase and Cordell C. Stewart appeal from an order entered by the Douglas County Court regarding the administration of the estate of James M. Davis, who was a criminal defense attorney. Buttercase and Stewart assert that they were clients of Davis' and are entitled to monetary relief based on Davis' deficient performance while representing their individual legal interests. After the estate disallowed their claims, Buttercase and Stewart each filed a petition for allowance of claim in the county court. The county court held a trial for each petition and ultimately denied both petitions. We affirm the county court's decision because Buttercase and Stewart failed to file their claims within the 2-month period following publication of notice as established by the Nebraska Probate Code.

BACKGROUND

The procedural history of this probate case is somewhat complicated. This appeal is based upon attorney-client relationships established in prior criminal cases, as well as a prior malpractice suit brought against Davis by Buttercase. We review below only the necessary facts to establish a sufficient background.

In December 2012, Buttercase was indicted on federal child pornography charges and hired Davis to represent him in the matter. After approximately 13 months, Davis withdrew as Buttercase's counsel, citing disagreements over legal service fees and payments. Buttercase was thereafter represented by a federal public defender and eventually pled guilty to producing and transporting obscene materials for distribution. He was sentenced to 36 months' imprisonment. That sentence was ordered to run concurrently with the state sentence he was then serving.

After Davis withdrew as counsel, Buttercase filed a bar complaint against Davis. An evidentiary hearing was held, and the federal magistrate judge found that Davis had not committed an ethical violation and recommended that Buttercase's complaint be dismissed. The federal district court adopted this recommendation.

In February 2017, Buttercase sued Davis for breach of fiduciary duty, and in a later amended complaint, legal malpractice breach of contract, breach of fiduciary duties, misrepresentation, and infliction of emotional distress. After several motion-based hearings, the district court sustained a motion by Davis for summary judgment. The court determined that because Buttercase's suit was one of professional negligence, he was required to show that he was actually innocent of the underlying crime and failed to do so. Buttercase moved for reconsideration and filed other similar motions, all of which were overruled. Buttercase appealed the district court's order. In August 2021, while the appeal was pending, Davis passed away. On November 29, 2021, this Court issued a conditional order reviving the appeal in the names of the representatives and successors of Davis and the Davis law firm pursuant to Neb. Rev. Stat. § 25-1406 (Reissue 2016). In December 2022, the Nebraska Supreme Court published its opinion affirming the judgment of the district court.

On December 23, 2021, acting pro se, Buttercase filed two claims against Davis' estate. Buttercase attached this Court's November 2021 conditional order to each claim. In the description section of his first claim, Buttercase listed legal malpractice, breach of contract, breach of fiduciary duties, and misrepresentation. His first total claim amount was $167,045.80. In the description section of his second claim, Buttercase listed infliction of emotional distress, pre-judgment and post-judgment interest, and "costs and fees of suit incurred." His second total claim amount was $50,000.

On January 26, 2022, the estate sent a notice disallowing Buttercase's first claim of $167,045.80. On February 17, 2022, Buttercase filed a petition for allowance of both of his claims in the county court, which he later amended. On June 3, 2022, the estate sent a notice disallowing Buttercase's second claim of $50,000.

Beyond Stewart's assertions, the record is devoid of any evidence that Davis represented Stewart in a prior criminal case. However, nowhere in the record is there evidence that the estate contested this point in the lower court.

On February 24, 2022, acting pro se, Stewart filed a claim against Davis' estate. In the description section of his claim, Stewart lists breach of contract, professional negligence, pre-judgment and post-judgment interest, and "costs and fees of suit incurred." The total sum claimed by Stewart is $10,000. On March 4, 2022, the estate sent a notice disallowing Stewart's claim, and on April 22, 2022, Stewart filed a petition for allowance of his claim.

On June 22, 2022, a pretrial hearing was held on both petitions. Buttercase and Stewart were incarcerated at this time and appeared telephonically. The estate objected to both petitions, arguing that they were not timely filed within the 2-month window established by the Nebraska Probate Code. The county court agreed and denied both petitions, finding that they were filed out of time pursuant to Neb. Rev. Stat. § 30-2485 (Reissue 2016). The court, having taken judicial notice of the case file, noted that the notice to creditors had been filed on October 1, 2021. Buttercase's claim, filed December 23, 2021, and Stewart's claim, filed February 24, 2022, were thus not timely filed.

Throughout late June and early July 2022, Buttercase and Stewart filed several objections and motions. Buttercase filed an objection to the court's order, motioned for an allowance of his claim by default, motioned for reconsideration, and motioned the court to alter or amend its order. Stewart filed an objection to the court's order, motioned for reconsideration, and motioned the court to alter or amend its order.

On October 4, 2022, the county court held another hearing on this matter. Buttercase and Stewart were not present, telephonically or otherwise, for this hearing. Counsel for the estate was present. On its own motion and contrary to the position taken by the estate, the court vacated its June 2022 order denying both petitions. The court, without specifying why its prior orders were in error, stated that it "should have set [these matters] for hearing to allow people to offer any evidence" and that it was rescinding its prior order to do so. The court scheduled a trial for each claimant to be held on February 21, 2023.

On the day of their trials, Buttercase and Stewart again appeared telephonically. They each filed a motion for summary judgment immediately prior to the hearing. The court agreed to hear arguments for these motions in addition to evidence and arguments for their respective petitions. On Stewart's motion for summary judgment, Stewart asserted that he had paid Davis and his law firm for legal representation but that they failed to render representation. Stewart offered his own affidavit as evidence. The estate objected to his affidavit, arguing it contained hearsay and hearsay within hearsay. The court sustained the objection and did not receive Stewart's affidavit. Stewart provided no other evidence or support for his motion. In opposition to the motion, the estate argued that Stewart's claim was filed after the 2-month window had expired and that Stewart was not entitled to direct mailed notice because he did not have a direct legal interest in the estate. The estate also argued that even if Stewart had been entitled to direct notice, there was no evidence that his claim was valid. Stewart responded that he should have received direct mailed notice. Stewart also argued that Davis' law office told Stewart that it would provide legal representation for him upon Davis' passing. Stewart alleged that he paid for these services, but he never received representation or reimbursement.

The estate requested that the court take judicial notice of the publication and publication dates. No objection was made to the estate's request, and the court took judicial notice of the requested records found in the case file. After the issue was submitted, the court overruled Stewart's motion for summary judgment, finding that there was insufficient evidence and that the motion was not timely filed.

The court then turned to Stewart's petition for allowance of claim. The court asked Stewart if he wished to offer any evidence, to which Stewart replied, "No, sir. I just want to state on the record that I paid Mr. Davis a flat-fee rate, and they didn't provide the services that I paid him for." The estate reiterated its 2-month deadline argument and also argued that no evidence was presented to support Stewart's claim. The court denied Stewart's petition, finding that his claim was purely speculative, there was no evidence offered to substantiate his claim, and that the claim was not based on any previous judgment.

The court then turned to Buttercase's motion for summary judgment. Buttercase offered five affidavits in support of his motion, all of which were objected to on either hearsay grounds, res judicata grounds, or both. He did not present any...