Perez v. Stern

E stEban PErEz , a minor child, brought by his natural
mothEr and nExt friEnd, rEyna guido, Et al .,
aPPEllants , v. sandra stErn, aPPEllEE.
777 N.W.2d 545
Filed January 15, 2010. 	No. S-07-904.
1. Summary Judgment. Summary judgment is proper where the facts are uncontro-
verted and the moving party is entitled to judgment as a matter of law.
2. 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, giving that party the benefit of all reasonable
inferences deducible from the evidence.
3. Negligence. Whether a legal duty exists for actionable negligence is a question of
law dependent on the facts in a particular case.
4. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
5. Attorney and Client: Parties. A lawyer owes a duty to his or her client to use
reasonable care and skill in the discharge of his or her duties, but ordinarily this
duty does not extend to third parties, absent facts establishing a duty to them.
6. Attorney and Client: Parties: Negligence: Liability. Evaluation of an attorney’s
duty of care to a third party is founded upon balancing the following factors: (1)
the extent to which the transaction was intended to affect the third party, (2) the
foreseeability of harm, (3) the degree of certainty that the third party suffered
injury, (4) the closeness of the connection between the attorney’s conduct and
the injury suffered, (5) the policy of preventing future harm, and (6) whether
recognition of liability under the circumstances would impose an undue burden
on the profession.
7. Attorney and Client: Parties: Intent. The starting point for analyzing an attor-
ney’s duty to a third party is determining whether the third party was a direct and
intended beneficiary of the attorney’s services.
8. Attorney and Client: Parties: Negligence: Intent. An attorney’s agreement with
a client determines the scope of the attorney’s duty to a third-party beneficiary;
the duty to use due care as to the interests of the intended beneficiary must arise
out of the attorney’s agreement with the client.
9. Attorney and Client: Informed Consent. An attorney may limit the scope of his
or her representation by obtaining the informed consent of his or her client.
10. Attorney and Client. A person who is adverse to an attorney’s client cannot be
a beneficiary of the attorney’s retention.
11. Attorney and Client: Parties: Conflict of Interest. A duty from an attorney to
a third party will not be imposed if that duty would potentially conflict with the
duty the attorney owes his or her client.
12. Attorney and Client: Conflict of Interest. An attorney is ethically obliged to
inform his or her client when conflicts of interest are apparent.
pErEz v. STErN 	187
Cite as 279 Neb. 187
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

Appeal from the District Court for Douglas County: Patricia
a. lambErty, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Steven H. Howard, of Dowd, Howard & Corrigan, L.L.C.,
for appellants.
robert M. Slovek and Kathryn E. Jones, of Kutak rock,
L.L.p., for appellee.
hEavican, c.J., Wright, connolly, gErrard, stEPhan, and
mccormack, JJ.
gErrard, J.
NATurE oF CASE
Appellant reyna Guido filed legal malpractice claims against
appellee, Sandra Stern, on behalf of herself, her two children,
and the estate of Domingo Martinez. Guido had hired Stern to
prosecute a wrongful death claim against persons alleged to be
responsible for Martinez’ death. Stern filed the complaint, but
it was not served within 6 months of filing, so the case was
dismissed. Almost 3 years later, Guido filed these legal mal-
practice claims. The district court granted Stern’s motion for
summary judgment, finding that the malpractice claims were
barred by the statute of limitations.
The issue in this case is whether Stern owed an independent
duty to the children, as Martinez’ statutory beneficiaries, to
exercise reasonable care in prosecuting the underlying wrong-
ful death claim, permitting the children to bring individual
malpractice claims for which the statute of limitations had been
tolled because of their minority. For the reasons that follow, we
conclude that Stern owed a duty to the children and reverse the
court’s judgment against their claims.
FACTS
Guido is the mother of two minor children. Martinez, the
children’s father, died after he was run over by a car on July 8,
2001. Martinez was the victim of a hit-and-run accident.
Guido, as personal representative of Martinez’ estate, retained
Stern to file a wrongful death lawsuit. on July 8, 2003, Stern
188 	279 NEbrASKA rEporTS

filed a wrongful death complaint in the district court. but Stern
admits that she never perfected service of the complaint, and
because the complaint was not served within 6 months of fil-
ing, the case was dismissed by operation of law.1 The district
court formalized the dismissal on May 7, 2004.
Stern never contacted Guido, and eventually Guido hired a
new attorney. Guido’s new attorney sent Stern a letter dated
December 5, 2005, requesting Guido’s client file. After several
more letters, the client file was finally delivered on February 6,
2006. on February 6, 2007, Guido filed these legal malpractice
claims against Stern on behalf of herself, the children, and the
estate. Guido alleged that the wrongful death claim expired
as a result of Stern’s failure to timely perfect service of the
complaint. Stern moved for summary judgment on the ground
that the malpractice claims were barred by the 2-year statute of
limitations for professional negligence.2 before the court ruled
on the motion, Guido voluntarily dismissed her individual
claim, but maintained claims as personal representative of the
estate and next friend of the children.
The district court found that the malpractice claims accrued
on May 7, 2004, when the wrongful death claim was dis-
missed. The court found that the estate’s claim against Stern
was time barred. In response to Guido’s argument that the
children’s minority tolled the statute of limitations with respect
to them, the court found that because the children could not
have brought the underlying wrongful death claim in their
own names,3 the statute of limitations for the legal malpractice
claims was not tolled by reason of the children’s minority. The
court granted summary judgment in favor of Stern and dis-
missed the complaint.
ASSIGNMENTS oF Error
Guido assigns, consolidated and restated, that the district
court erred in granting Stern’s motion for summary judgment
1 See, Neb. rev. Stat. § 25-217 (reissue 2008); Vopalka v. Abraham, 260
Neb. 737, 619 N.W.2d 594 (2000).
2 See Neb. rev. Stat. § 25-222 (reissue 2008).
3 See Neb. rev. Stat. § 30-810 (reissue 2008).
pErEz v. STErN 	189
Cite as 279 Neb. 187

on her affirmative defense of the statute of limitations and,
specifically, determining that the children had no independent
standing to sue Stern and that Stern owed no independent duty
to the minor children to protect their rights and interests.
We note that neither Guido’s assignments of error nor the
argument in her appellate brief challenges the district court’s
dismissal of Guido’s claims as an individual and as personal
representative of Martinez’ estate. Therefore, those aspects of
the court’s judgment will be affirmed.
STANDArD oF rEVIEW
[1,2] Summary judgment is proper where the facts are
uncontroverted and the moving party is entitled to judgment as
a matter of law.4 In reviewing a summary judgment, an appel-
late court views the evidence in the light most favorable to
the party against whom the judgment was granted, giving that
party the benefit of all reasonable inferences deducible from
the evidence.5
[3,4] Whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular case.6
When reviewing questions of law, an appellate court has an
obligation to resolve the questions independently of the conclu-
sion reached by the trial court.7
ANALYSIS
The issue in this case is whether Stern owed an indepen-
dent duty to the children, as Martinez’ next of kin, to timely
prosecute the underlying wrongful death claim. Guido argues
that Stern committed legal malpractice when Stern breached
her duty to timely prosecute the wrongful death claim against
the underlying tort-feasors, and that because Stern owed an
independent duty to the children, the statute of limitations is
4 In re Estate of Ronan, 277 Neb. 516, 763 N.W.2d 704 (2009).
5 Harvey v. Nebraska Life & Health Ins. Guar. Assn., 277 Neb. 757, 765
N.W.2d 206 (2009).
6 Swanson v. Ptak, 268 Neb. 265, 682 N.W.2d 225 (2004).
7 Id.
190 	279 NEbrASKA rEporTS

tolled on their legal malpractice claims. Stern, on the other
hand, argues that because the children never had their own
claims for relief in the underlying wrongful death action,
they lack standing to bring professional negligence claims
against Stern.
We agree with Guido that if the children have malpractice
claims against Stern, the statute of limitations on those claims
has been tolled by the children’s minority.8 In order to have
claims for professional negligence against Stern, the children
must prove (1) Stern’s employment, (2) Stern’s neglect of a
reasonable duty to the children, and (3) that such negligence
was the proximate cause of damages to the children.9 In this
appeal, Stern’s employment to prosecute the wrongful death
claim is undisputed, and damages are not yet at issue—the
dispositive question is whether Stern owed the children a
legal duty.
[5] In Nebraska, a lawyer owes a duty to his or her client
to use reasonable care and skill in the discharge of his or her
duties, but ordinarily this duty does not extend to third parties,
absent facts establishing a duty to them.10 Guido argues first
that the children had an attorney-client relationship with Stern.
Guido’s contention that Stern was the attorney for the children
is, however, contrary to the well-established principle that
when an attorney is employed to render services for an estate,
he or she acts as attorney for the personal representative.11
Although the minor children would have benefited from a suc-
cessful wrongful death claim, there are no facts in this record
to establish an attorney-client relationship between Stern and
the minor children.
8 See, Neb. rev. Stat. § 25-213 (reissue 2008); Carruth v. State, 271 Neb.
433, 712 N.W.2d 575 (2006); Sacchi v. Blodig, 215 Neb. 817, 341 N.W.2d
326 (1983).
9 See Borley Storage & Transfer Co. v. Whitted, 265 Neb. 533, 657 N.W.2d
911 (2003).
10 Swanson, supra note 6.
11 Id.; In re Estate of Wagner, 222 Neb. 699, 386 N.W.2d 448 (1986).
pErEz v. STErN 	191
Cite as 279 Neb. 187

but that does not end our analysis. Contrary to Stern’s sug-
gestion, we have never said that privity is an absolute require-
ment of a legal malpractice claim. Instead, we have said that a
lawyer’s duty to use reasonable care and skill in the discharge
of his or her duties ordinarily does not extend to third parties,
absent facts establishing a duty to them.12 on the facts of this
case, we conclude, as have other courts to have addressed this
issue in the context of a wrongful death action,13 that the facts
establish an independent legal duty from Stern to Martinez’
statutory beneficiaries.
[6,7] Although we have often said that an attorney’s duty
may extend to a third party if there are facts establishing a
duty,14 we have not articulated specific standards to guide the
determination of whether such a duty exists. The substan-
tial majority of courts to have considered that question have
adopted a common set of cohesive principles for evaluating an
attorney’s duty of care to a third party, founded upon balancing
the following factors: (1) the extent to which the transaction
was intended to affect the third party, (2) the foreseeability
of harm, (3) the degree of certainty that the third party suf-
fered injury, (4) the closeness of the connection between the
attorney’s conduct and the injury suffered, (5) the policy of
preventing future harm, and (6) whether recognition of liability
under the circumstances would impose an undue burden on the
12 Swanson, supra note 6.
13 See, e.g., DeLuna v. Burciaga, 223 Ill. 2d 49, 857 N.E.2d 229, 306 Ill.
Dec. 136 (2006); Oxendine v. Overturf, 973 p.2d 417 (utah 1999); Leyba
v. Whitley, 120 N.M. 768, 907 p.2d 172 (1995); Brinkman v. Doughty, 140
ohio App. 3d 494, 748 N.E.2d 116 (2000); Jenkins v. Wheeler, 69 N.C.
App. 140, 316 S.E.2d 354 (1984); Baer v. Broder, 86 A.D.2d 881, 447
N.Y.S.2d 538 (1982).
14 See, e.g., Swanson, supra note 6; Bauermeister v. McReynolds, 253 Neb.
554, 571 N.W.2d 79 (1997); Gravel v. Schmidt, 247 Neb. 404, 527 N.W.2d
199 (1995); Earth Science Labs. v. Adkins & Wondra, P.C., 246 Neb. 798,
523 N.W.2d 254 (1994); Landrigan v. Nelson, 227 Neb. 835, 420 N.W.2d
313 (1988); Lilyhorn v. Dier, 214 Neb. 728, 335 N.W.2d 554 (1983); St.
Mary’s Church v. Tomek, 212 Neb. 728, 325 N.W.2d 164 (1982); Ames
Bank v. Hahn, 205 Neb. 353, 287 N.W.2d 687 (1980).
192 	279 NEbrASKA rEporTS

profession.15 And courts have repeatedly emphasized that the
starting point for analyzing an attorney’s duty to a third party is
determining whether the third party was a direct and intended
beneficiary of the attorney’s services.16
We agree. under Nebraska law, an attorney’s professional
misconduct gives rise to a tort action for professional neg-
ligence;17 the factors discussed above are effectively a fact-
specific iteration of the basic risk-utility principles that we have
generally relied upon in determining the scope of a tort duty.18
And when an attorney is retained specifically to advance the
interests of third parties, absent countervailing circumstances,
it makes no sense to conclude that the attorney owes no duty to
those parties to advance their interests competently. We decline
to exalt form over substance when the purpose of the attorney’s
retention was clear to both the attorney and the client.
15 See Lucas v. Hamm, 56 Cal. 2d 583, 364 p.2d 685, 15 Cal. rptr. 821
(1961). See, also, McIntosh Cty. Bank v. Dorsey & Whitney, 745 N.W.2d
538 (Minn. 2008); Calvert v. Scharf, 217 W. Va. 684, 619 S.E.2d 197
(2005); Watkins Trust v. Lacosta, 321 Mont. 432, 92 p.3d 620 (2004);
Harrigfeld v. Hancock, 140 Idaho 134, 90 p.3d 884 (2004); In re Estate of
Drwenski, 83 p.3d 457 (Wyo. 2004); Paradigm Ins. Co. v. Langerman Law
Offices, 200 Ariz. 146, 24 p.3d 593 (2001); Blair v. Ing, 95 Haw. 247, 21
p.3d 452 (2001); Leyba, supra note 13; Donahue v. Shughart, Thompson
& Kilroy, P.C., 900 S.W.2d 624 (Mo. 1995) (en banc); Trask v. Butler, 123
Wash. 2d 835, 872 p.2d 1080 (1994); Pizel v. Zuspann, 247 Kan. 54, 795
p.2d 42 (1990); Jenkins, supra note 13.
16 See, McIntosh Cty. Bank, supra note 15; Calvert, supra note 15; Friske
v. Hogan, 698 N.W.2d 526 (S.D. 2005); In re Estate of Drwenski, supra
note 15; Leak-Gilbert v. Fahle, 55 p.3d 1054 (okla. 2002); MacMillan
v. Scheffy, 147 N.H. 362, 787 A.2d 867 (2001); Blair, supra note 15;
Oxendine, supra note 13; Leyba, supra note 13; Donahue, supra note 15;
Trask, supra note 15; Flaherty v. Weinberg, 303 Md. 116, 492 A.2d 618
(1985); Needham v. Hamilton, 459 A.2d 1060 (D.C. 1983); Pelham v.
Griesheimer, 92 Ill. 2d 13, 440 N.E.2d 96, 64 Ill. Dec. 544 (1982); Norton
v. Hines, 49 Cal. App. 3d 917, 123 Cal. rptr. 237 (1975). See, generally, 1
ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 7:8 (2009).
17 See Swanson, supra note 6.
18 See, e.g., Hughes v. Omaha Pub. Power Dist., 274 Neb. 13, 735 N.W.2d
793 (2007).
pErEz v. STErN 	193
Cite as 279 Neb. 187

[8,9] Those balancing factors also support a number of
important, specific limitations on liability in attorney mal-
practice cases. First, the attorney’s agreement with the client
determines the scope of the attorney’s duty to a third-party
beneficiary; the duty to use due care as to the interests of the
intended beneficiary must arise out of the attorney’s agreement
with the client.19 An attorney may limit the scope of his or her
representation by obtaining the informed consent of his or her
client.20 For example, it has been held that the attorneys for the
decedent’s heirs in a wrongful death action owed no duty to
the decedent’s mother, where the personal representative spe-
cifically told the attorneys and the mother that he did not want
them to represent her.21
[10] Second, a person who is adverse to the attorney’s cli-
ent cannot be a beneficiary of the attorney’s retention; almost
universally, courts have not found a duty to a client’s adver-
sary in litigation.22 For instance, the attorney hired by a child
seeking placement outside his mother’s home owed no duty
to the mother to advise her of the consequences of juvenile
court proceedings.23
Third, an attorney’s knowledge that the representation could
injure or benefit an identified person will not, without more,
create a duty to that person.24 Foreseeability cannot be the sole
basis for finding a duty, although a court should not find a duty
where foreseeability is absent.25 For example, it was held that
an attorney for a husband in a divorce action was not liable to
19 See, Harrigfeld, supra note 15; Leyba, supra note 13; Pizel, supra note
15.
20 See Neb. Ct. r. of prof. Cond. § 3-501.2(b) (rev. 2008).
21 See Oxendine, supra note 13.
22 See, Donahue, supra note 15; Lamare v. Basbanes, 418 Mass. 274, 636
N.E.2d 218 (1994); Bowman v. John Doe, 104 Wash. 2d 181, 704 p.2d 140
(1985).
23 See Bowman, supra note 22.
24 Burger v. Pond, 224 Cal. App. 3d 597, 273 Cal. rptr. 709 (1990).
25 See, Leak-Gilbert, supra note 16; Paradigm Ins. Co., supra note 15;
Norton, supra note 16.
194 	279 NEbrASKA rEporTS

the client’s second wife for emotional distress suffered when
the divorce was set aside due to the attorney’s negligence,
because the second wife was an incidental but not an intended
beneficiary of the divorce.26
[11,12] Finally, a duty to a third party will not be imposed
if that duty would potentially conflict with the duty the attor-
ney owes his or her client, most often because the third party’s
interests conflict with the client’s.27 In fact, an attorney is ethi-
cally obliged to inform his or her client when such conflicts of
interest are apparent.28 For example, it has been held that an
attorney representing an heir in a wrongful death action owes
no duty to other heirs when the different heirs may have con-
flicting interests in the recovery.29 It has also been held that an
attorney for the personal representative of an estate owed no
duty to the beneficiaries of the estate where there was a risk
that the beneficiaries’ interests could conflict.30 And it was held
that an attorney for a spouse in a divorce action did not owe a
separate duty to the couple’s children, because the children’s
interests could compromise the attorney’s representation of the
client’s interests.31
Such concerns are not implicated here. We acknowledge that
the general rule limiting an attorney’s duty to his or her client
serves several important interests, as it preserves an attorney’s
loyalty to and advocacy for the client, limits the scope of an
attorney’s duty, and protects attorney-client confidentiality.32
And imposing a duty on attorneys toward beneficiaries of
26 See Burger, supra note 24.
27 See, Oxendine, supra note 13; Lamare, supra note 22.
28 See Neb. Ct. r. of prof. Cond. §§ 3-501.4 and 3-501.7.
29 See, Oxendine, supra note 13; Rhone v. Bolden, 270 Ga. App. 712, 608
S.E.2d 22 (2004).
30 See Trask, supra note 15.
31 See Rhode v. Adams, 288 Mont. 278, 957 p.2d 1124 (1998).
32 See, e.g., In re Estate of Drwenski, supra note 15; Chem-Age Industries,
Inc. v. Glover, 652 N.W.2d 756 (S.D. 2002).
pErEz v. STErN 	195
Cite as 279 Neb. 187

whom they are unaware could risk dampening their zealous
advocacy on behalf of clients.33
but if a third party is a direct beneficiary of an attorney’s
retention, such that the end and aim of the attorney’s repre-
sentation is to affect the third party, then the interests favoring
privity are not threatened by recognizing an attorney’s duty to
a third party whose interests he or she was actually hired to
represent.34 When an attorney’s duty to a third party is limited
to transactions intended to directly benefit the third party, it
properly serves to prevent nonclients who receive only inciden-
tal or downstream benefits from holding the attorney liable.35
And it is entirely in keeping with the fiduciary and ethical
duties attorneys owe their clients to require an attorney, who
has been informed of the client’s intent to benefit a third party,
to exercise reasonable care and skill in that regard.
We conclude that the well-settled principles set forth above
provide appropriate guidance for us to determine whether
the facts of any given case establish a duty to a third party,
and to evaluate the scope of that duty. These principles per-
mit injured parties to pursue claims where the basis for an
attorney’s duty was clear, while preserving client authority and
the interests and responsibilities associated with the attorney-
client relationship. And although we have not expressly stated
these principles before today, our cases have been consistent
with them.
For instance, we have held that an attorney who prepared a
decedent’s will owed no duty to any particular alleged benefi-
ciary of the will.36 Similarly, we have held that an attorney act-
ing as the personal representative of an estate owed no duty to
nonbeneficiaries of the estate to secure a gratuitous agreement
from the beneficiaries to share their inheritance.37 We have also
33 See, McIntosh Cty. Bank, supra note 15; Noble v. Bruce, 349 Md. 730, 709
A.2d 1264 (1998).
34 See McIntosh Cty. Bank, supra note 15.
35 See, id.; Blair, supra note 15; Donahue, supra note 15.
36 See, Lilyhorn, supra note 14; St. Mary’s Church, supra note 14.
37 See Swanson, supra note 6.
196 	279 NEbrASKA rEporTS

held that the attorney for a joint venture owed no duty to three
individual partners that was separate from the duty owed to the
joint venture as a whole.38 And we have held that an attorney
owed no duty to the guarantors of leases which the attorney’s
clients defaulted on,39 and that an attorney for a debtor owed no
duty to a creditor based on allegedly defective collateral for the
debt.40 In none of those instances was it alleged that the “end
and aim” of the attorney’s retention was to benefit the third
party alleging a duty. And in each of those instances, imputing
a duty to the third party could have created conflicting loyalties
to adverse or different parties.
The same cannot be said here. Courts to have considered the
question have generally concluded that policy considerations
weigh in favor of recognizing an attorney’s duty to a decedent’s
next of kin in a wrongful death action.41 We agree. In this case,
it is clear that the children were direct and intended beneficiar-
ies of the transaction. Stern was certainly aware of Guido’s
intent to benefit the children.
In fact, under Nebraska’s wrongful death statute, there could
be no other purpose to Stern’s representation. A wrongful
death claim is brought in the name of the decedent’s personal
representative “for the exclusive benefit” of the decedent’s next
of kin.42 The personal representative’s sole task is to distribute
any recovery in accordance with the statute, to the discrete
and identifiable class of beneficiaries that the Legislature has
specifically designated. under § 30-810, the only possible
purpose of an attorney-client agreement to pursue claims for
wrongful death is to benefit those persons specifically desig-
nated as statutory beneficiaries.43 The very nature of a wrongful
38 See Bauermeister, supra note 14.
39 See Landrigan, supra note 14.
40 See Ames Bank, supra note 14.
41 See, DeLuna, supra note 13; Oxendine, supra note 13; Leyba, supra note
13; Brinkman, supra note 13; Jenkins, supra note 13; Baer, supra note
13.
42 § 30-810.
43 See, Oxendine, supra note 13; Leyba, supra note 13.
pErEz v. STErN 	197
Cite as 279 Neb. 187

death action is such that a term is implied, in every agreement
between an attorney and a personal representative, that the
agreement is formed with the intent to benefit the statutory
beneficiaries of the action.44
Furthermore, concerns weighing against a finding of duty
are not present in this case. Stern’s potential duty to the chil-
dren would not go beyond the duty owed to and specified by
Guido.45 Nor is there any evidence that a legal duty to the chil-
dren would have interfered with Stern’s duty to Guido, because
there is nothing in the record in this case to suggest that the
interests of Guido and the children were not aligned. At no
time has Stern reported or alleged a conflict of interest. Finally,
policy considerations favor a finding of tort duty. Stern was not
helping her client, Guido, when she failed to perfect service.
An ultimate finding of liability would not discourage vigorous
representation; in fact, potential liability under circumstances
such as these would encourage zealous advocacy of wrongful
death claims.
In this case, we conclude that Stern owed a duty to the chil-
dren, as direct and intended beneficiaries of her services, to
competently represent their interests. To hold otherwise would
deny legal recourse to the children for whose benefit Stern
was hired in the first place. For those reasons, we find merit to
Guido’s assignment of error and conclude that the district court
erred in entering judgment against the minor children.
CoNCLuSIoN
As explained above, the facts of this case establish that
Stern owed a legal duty to Martinez’ minor children to exer-
cise reasonable care in representing their interests. Therefore,
they have standing to sue Stern for neglecting that duty, and
their claims against Stern were tolled by their minority. The
district court erred in concluding that their claims were time
barred. We affirm the court’s dismissal of Guido’s individual
claim and its determination that the estate’s claim against Stern
44 See id.
45 See Leyba, supra note 13.
198 	279 NEbrASKA rEporTS

was time barred. but with respect to the children, this cause is
reversed and remanded for further proceedings to fully adju-
dicate Guido’s claims on behalf of the children in light of any
asserted defenses.
affirmEd in Part, and in Part rEvErsEd and
rEmandEd for furthEr ProcEEdings.
millEr-lErman, J., not participating.
STATE v. SCHroEDEr 	199
Cite as 279 Neb. 199
statE of nEbraska , aPPEllEE, v.
Patrick W. schroEdEr , aPPEllant.
777 N.W.2d 793
Filed January 15, 2010. 	Nos. S-07-972, S-07-973.
1. Venue: Appeal and Error. A motion for change of venue is addressed to the
discretion of the trial judge, whose ruling will not be disturbed absent an abuse
of discretion.
2. Criminal Law: Trial. A motion for a separate trial is addressed to the sound
discretion of the trial court, and its ruling on such motion will not be disturbed in
the absence of a showing of an abuse of discretion.
3. Judgments: Words and Phrases. 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.
4. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights:
Appeal and Error. In reviewing a motion to suppress a confession based on
the claimed involuntariness of the statement, including claims that it was pro-
cured in violation of the safeguards established by the u.S. Supreme Court in
Miranda v. Arizona, 384 u.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
an appellate court applies a two-part standard of review. With regard to his-
torical facts, an appellate court reviews the trial court’s findings for clear error.
Whether those facts suffice to meet the constitutional standards, however, is
a question of law which an appellate court reviews independently of the trial
court’s determination.
5. Venue: Juror Qualifications: Presumptions. A court will not presume uncon-
stitutional partiality because of media coverage unless the record shows a bar-
rage of inflammatory publicity immediately prior to trial, amounting to a huge
wave of public passion or resulting in a trial atmosphere utterly corrupted by
press coverage.
6. Venue: Juror Qualifications. under most circumstances, voir dire examination
provides the best opportunity to determine whether a court should change venue.
7. Trial: Joinder. There is no constitutional right to a separate trial.
8. ____: ____. Whether offenses are properly joined involves a two-stage analysis
in which it is determined first whether the offenses are related and properly