State ex rel. Counsel for Dis. v. Murphy

Of course, this rule merely creates a presumption. And a
claimant can rebut the presumption by showing the claimant is
making the claim as of right.35 But here, Feloney adduced evi-
dence showing that he only cleared Baye’s driveway of snow.
Even if we assume that this act would have put Baye on notice
of Feloney’s hostile claim, Feloney’s clearing of the driveway
did not span the full 10-year prescriptive period. Feloney’s
use was presumed permissive until he clearly put Baye on
notice that he was claiming under right.36 Ten years have not
passed since that time. The district court properly granted sum-
mary judgment.
CONCLUSION
We conclude that Feloney’s use of Baye’s driveway is pre-
sumptively permissive. And Feloney did not present any evi-
dence that would create a question of fact as to that question.
Accordingly, we affirm.
A ffirmed.
miller-lermAn, J., not participating.
35 See Kimco Addition v. Lower Platte South N.R.D., 232 Neb. 289, 440
N.W.2d 456 (1989).
36 See, e.g., Connot, supra note 34.
StAte of nebrASkA ex rel . C ounSel for diSCipline
of the nebrASkA Supreme C ourt, relAtor , v.
miChAel JAmeS murphy, reSpondent.
814 N.W.2d 107
Filed June 1, 2012. 	No. S-12-278.
Original action. Judgment of public reprimand.
heAviCAn, C.J., Wright, C onnolly, StephAn, mCC ormACk ,
miller-lermAn, and CASSel , JJ.
per C uriAm.
INTRODUCTION
The 	Counsel 	for 	Discipline 	of 	the 	Nebraska 	Supreme
Court, relator, has filed a motion for reciprocal discipline
982 	283 NEBRASkA REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

against Michael James Murphy, respondent. We grant the
motion for reciprocal discipline and enter a judgment of pub-
lic reprimand.
FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on September 22, 1980. Respondent was also
admitted to the practice of law in the State of Iowa. On April
3, 2008, respondent received a public reprimand from the
Supreme Court of Iowa. Respondent never reported the public
reprimand by the Supreme Court of Iowa to the Counsel for
Discipline as required by Neb. Ct. R. § 3-321 of the discipli-
nary rules.
On April 5, 2012, the Counsel for Discipline filed a motion
for reciprocal discipline pursuant to § 3-321. On April 11, we
entered an order directing the parties to show cause as to why
this court should or should not enter an order imposing the
identical discipline, or greater or lesser discipline, as the court
deemed appropriate. On April 26, respondent responded by
filing a “Resistance to Application for Order to Show Cause,”
offering an explanation regarding the 2008 public reprimand
from the Supreme Court of Iowa and requesting a private repri-
mand. On May 14, relator filed a statement in response to this
court’s order recommending that respondent receive a public
reprimand, stating that this discipline is the same sanction
imposed by the Supreme Court of Iowa and would fully protect
the public. Relator also states that respondent has indicated that
he wishes to resign from the Nebraska bar upon resolution of
this matter.
ANALYSIS
The basic issues in a disciplinary proceeding against an
attorney are whether discipline should be imposed and, if so,
the type of discipline appropriate under the circumstances.
State ex rel. Counsel for Dis. v. Seyler, ante p. 401, 809 N.W.2d
766 (2012). In a reciprocal discipline proceeding, a judicial
determination of attorney misconduct in one jurisdiction is
generally conclusive proof of guilt and is not subject to reliti-
gation in the second jurisdiction. State ex rel. Counsel for Dis.
v. Loftus, 278 Neb. 1015, 775 N.W.2d 426 (2009) (citing State
STATE Ex REL. COUNSEL FOR DIS. v. MURphY 	983
Cite as 283 Neb. 982

ex rel. Counsel for Dis. v. Boose, 277 Neb. 1, 759 N.W.2d 110
(2009)). Neb. Ct. R. § 3-304 of the disciplinary rules provides
that the following may be considered as discipline for attor-
ney misconduct:
(A) Misconduct shall be grounds for:
(1) Disbarment by the Court; or
(2) Suspension by the Court; or
(3) probation by the Court in lieu of or subsequent
to suspension, on such terms as the Court may desig-
nate; or
(4) Censure and reprimand by the Court; or
(5) Temporary suspension by the Court; or
(6) private reprimand by the Committee on Inquiry or
Disciplinary Review Board.
(B) The Court may, in its discretion, impose one or
more of the disciplinary sanctions set forth above.
Section 3-321 of the disciplinary rules provides in part:
(A) Upon being disciplined in another jurisdiction, a
member shall promptly inform the Counsel for Discipline
of the discipline imposed. Upon receipt by the Court of
appropriate notice that a member has been disciplined in
another jurisdiction, the Court may enter an order impos-
ing the identical discipline, or greater or lesser discipline
as the Court deems appropriate, or, in its discretion, sus-
pend the member pending the imposition of final disci-
pline in such other jurisdiction.
In imposing attorney discipline, we evaluate each case in
light of its particular facts and circumstances. State ex rel.
Counsel for Dis. v. Walocha, ante p. 474, 811 N.W.2d 174
(2012). Respondent has requested for us to enter a judgment
of private reprimand; however, pursuant to § 3-304, we cannot
enter a judgment of private reprimand. Accordingly, we grant
the motion for reciprocal discipline and enter a judgment of
public reprimand.
CONCLUSION
The motion for reciprocal discipline is granted. It is the
judgment of this court that respondent should be and is pub-
licly reprimanded. Respondent is directed to pay costs and
984 	283 NEBRASkA REpORTS

expenses in accordance with Neb. Rev. Stat. §§ 7-114 and 7-115
(Reissue 2007) and Neb. Ct. R. §§ 3-310(p) and 3-323(B) of
the disciplinary rules within 60 days after an order imposing
costs and expenses, if any, is entered by this court.
Judgment of publiC reprimAnd.
STATE Ex REL. COUNSEL FOR DIS. v. MURphY 	985
Cite as 283 Neb. 982