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Court of Appeals Call Case Summaries

Irwin, Pirtle, and Bishop, Judges

Omaha - Tuesday, May 10, 2016 subject to call at 9:30 AM

A-15-0773, In re Interest of Darius A., a child under 18 years of age. State of Nebraska v. Stephanie H. (Appellant) and Gregory A. (Appellee and Cross-Appellant)

Lancaster County, Separate Juvenile Court Judge Reggie Ryder

Attorney for Appellant:  Lisa M. Gonzalez (Gonzalez Law Office, LLC)

Attorney for Appellee (State):  Ashley Bohnet (County Attorney’s Office)

Attorney for Appellee and Cross-Appellant:  Susan L. Kirchmann (Wertz & Associates)

Guardian ad Litem:  Heather Colton

Nebraska Department of Health and Human Services:  Michelle Hamel

Civil Action:  Adjudication under §43-247(3)(a)

Action Taken by Trial Court:  The court found the allegations in the amended petition were true and found the child was within § 43-247(3)(a).

Assignments of Error on Appeal:  Did the court err in adjudicating Darius A. as a child within the meaning of § 43-247(3)(a), finding by a preponderance of the evidence that Appellant neglected or refused to provide the necessary health care and to provide for Darius’ educational needs?

Assignment of Error on Cross-Appeal: Did the court err in adjudicating Darius as a child within the meaning of § 43-247 (3)(a), finding by a preponderance of the evidence that Cross-Appellant neglected or refused to provide for Darius’ educational needs?

A-15-845, Maradiaga v. Specialty Finishing and Travelers Indemnity Corporation

Nebraska Workers’ Compensation Court, Judge Daniel R. Fridrich

Attorney for Appellant: Terry M. Anderson (Hauptman, O’Brien, Wolf, & Lathrop, P.C.)

Attorneys for Appellees: Patrick B. Donahue and Dennis R. Riekenberg (Cassem, Tierney, Adams, Gotch & Douglas)

Civil Action: Workers’ Compensation

Action Taken by Trial Court: Compensation court dismissed appellant’s amended petition for workers’ compensation benefits after determining that appellant’s ankle fracture in her employer’s parking lot did not arise out of her employment.

Assignments of Error on Appeal: Appellant assigns that the compensation court erred in determining that her injury did not arise out of her employment.

A-15-0844, Majid v. US Foods, L.L.C. (Appellant)

Nebraska Workers’ Compensation Court, Judge John R. Hoffert

Attorney for Appellant:  Christopher A. Sievers (Prentiss Grant LLC)

Attorney for Appellee:  Gregory A. Greder

Civil Action:  Workers’ Compensation

Action Taken by Trial Court:  The compensation court granted Majid’s request that US Foods be required to pay for lumbar fusion surgery under a provision for future medical care contained in its earlier award of workers’ compensation benefits.

Assignments of Error on Appeal:  US Foods assigns as error (1) the compensation court’s finding that the requested surgery was causally linked to Majid’s work injury, (2) the compensation court’s finding that the surgery was reasonably necessary, and (3) the compensation court’s rejection of the court-appointed independent medical examiner’s opinion.

A-15-0767 In re Guardianship of Aimee E. Sadowski, an incapacitated and protected person.

Douglas County, Susan Bazis

Attorney for Appellants:  Brent M. Kuhn (Brent Kuhn Law)

Attorney for Appellee/Guardian Ad Litem:  John M. Walker, Sarah F. Macdissi, Catherine E. French (Lamson, Dugan & Murray, LLP)

Attorney for Appellee/Successor Guardian and Cross-Appellant:  Barbara J. Prince

Civil Action:  Guardianship

Action Taken by Trial Court:  The trial court granted summary judgment in favor of appellees (Sadowski’s guardian and guardian ad litem) finding that appellant (Sadowski’s mother) was not suited to be appointed co-guardian of Sadowski. The trial court also granted appellant’s motion for visitation by providing that such visitation would be determined by the guardian and Sadowski’s treatment team. This court subsequently sustained appellees’ motion for summary dismissal in part, finding that the order granting summary judgment was not a final appealable order, and thereby limiting the issue on appeal to the trial court’s visitation order.

Assignments of Error on Appeal:  Did the county court err in ordering that visitation between Sadowski and her mother would be determined by the guardian and Sadowski’s treatment team?

Assignment of Error on Cross-Appeal: Did the county court err in granting appellants’ motion for visitation and ordering the visits should resume within 30 days of the court’s order?

Moore, Chief Judge, Inbody, and Riedmann, Judges

North Platte - Tuesday, May 10, 2016 subject to call at 1:00 PM

A-15-0789, State of Nebraska v. Edward R. Burton (Appellant)

District Court of Buffalo County, District Judge John P. Icenogle

Attorney for Appellant:  John H. Marsh (Knapp, Fangmeyer, Aschwege, Besse & Marsh, P.C.)

Attorneys for Appellee:  Douglas J. Peterson and George R. Love (Attorney General’s Office)

Criminal Action:  Sexual Assault

Action taken by the Trial Court:  The jury found Burton guilty of First Degree Sexual Assault, a Class II Felony, in violation of Neb. Rev. Stat. § 28-319. During trial, the district court overruled objections made by Burton concerning the introduction of various photographs and certain witness testimony. The district court sentenced Burton to incarceration for a period not less than 7 years nor more than 15 years, with credit for 288 days served.

Assignments of Error and Issues on Appeal:  Did the district court err in overruling Burton’s hearsay objection to witness testimony regarding collected hair samples? Did the district court err in overruling Burton’s relevancy and Rule 404 objections to witness testimony regarding marijuana, hashish, drug paraphernalia, and a sawed-off shotgun? Did the district court err in overruling Burton’s foundation objection and admitting a photograph of hair strands? Did the district court error in overruling Burton’s Rule 403 objection and admitting a photograph depicting marijuana and drug paraphernalia? Did the district court impose an excessive sentence?

A-15-0277, Jeffrey Lake Development, Incorporated, a Nebraska non-profit corporation; and Midway Wildlife & Recreation Club, a Nebraska non-profit corporation, et al., (Appellant) v. Central Nebraska Public Power and Irrigation District, a Nebraska public corporation (Appellee and Cross-Appellant)

Lincoln County, District Court Judge Richard L. Birch

Attorney for Appellant:  Steen Windrum (Malcom, Nelsen & Windrum, LLC)

Attorney for Appellee and Cross-Appellant:  David J. A. Bargen (Rembolt Ludtke LLP)

Civil Action:  Contract interpretation

Action Taken by Trial Court:  The trial court determined that paragraph 13 prohibited construction of residential cabins and related structures, including subterranean structures such as footings and sewage systems, below the stated elevations. The trial court further found that these elevations do not apply to boat docks and related structures. Additionally, the trial court interpreted the injunction we prescribed in Jeffrey VI to prohibit Central from enforcing elevation restrictions for repair and replacement of the structures at issue in Jeffrey VI, so long as the repair or replacement is of the same type of item in the same location. The trial court also held that the specific language of the elevation restriction in the lease concerning Jeffrey Lake required only that building “generally” complied with the elevation requirement – that is, slight deviations from the required elevation are permitted under that lease only. The remainder of Jeffrey and Midway’s request for relief was denied.

Assignments of Error on Appeal:  


Jeffrey Lake Development, Inc., and Midway Wildlife & Recreation Club assign that the district court erred in (1) entering an order not sustained by sufficient evidence, (2) entering an order contrary to law, (3) failing to apply the terms and provisions of paragraphs 14, 15, and 16 of the leases between the parties the subject of this action, (4) finding that “Motivation in seeking to enforce legal rights under the leases is immaterial, and even if based on malice only applies to determining the credibility of the evidence,” (5) finding that the terms and conduct of the appellate opinion in Jeffrey VI, case number A-09-996 (2010) controls, either exclusively or primarily, going forward, the rights and liabilities of the parties in the application of the lease terms on the issues framed by the pleadings, that is, paragraphs 13, 14, 15, and 16, (6) finding “…the estoppel provisions of Jeffrey v. Central VI only applied to construction and Jeffrey Lake and Midway Lake upon which evidence was produced at the trial on April 14, 2009,” (7) finding that “…Central should be enjoined from denying, because of elevation or setback requirements, application for the repair or replacement of structures that are subject to the injunction in Jeffrey v. Central VI; provided that the repair or replacement must be of the same type of item in the same location,” (8) concluding that the Appellant argued that “…FERC is not interested in the enforcement of those lease provisions…,” (9) finding that “retaining walls” and “erosion control structures”, without other condition or without other qualification, categorically fit or are subsumed in the “…boat docks and related structures” category, (10) applying paragraph 20 of each lease in finding as an exception to the “related structures” to a residence, as having no prohibitory predicate for same in respect to any elevation requirement, (11) distinguishing between the Jeffrey lease and the Midway lease insofar as the application of the relevant terms simply by reason of the Midway lease failing to include the word “generally”, (12) finding the meaning and application of the word “generally” in the Jeffrey lease was and is circumscribed and restricted by the content of the opinion of the court of appeals in Jeffrey v. Central VI, (13) refusing to apply the course of dealing and course of conduct between the parties for the meaning and application of the word “generally,” (14) failing to quantify the term “generally” as same is found in and made part of paragraph 13 of the Jeffrey lease, (15) failing to find and conclude that residence cabins and related structures can be constructed on the lakes, with part or parts thereof below the elevations designated in each of the leases, on the basis of and subject to the content of paragraphs 14, 15, and 16 of such leases, irrespective of the application of paragraph 13 of such leases, (16) failing to find that the construction and installation of a “related structure” located below the designated elevation of each of the lakes, either in whole or in part, would be an allowed structure or improvement, at such location and such elevation, notwithstanding such part or portion of same being below the designated elevation in each lease, if, considering the totality of the structures and improvements constituting the “residence cabin and related structures”, all of such improvements and structures as a single unit are considered generally above the designated elevations, (17) failing to find that Central should be and is enjoined from denying improvement and structure applications which comply, explicitly and implicitly, with Permitting Procedures Attachment B, and (18) failing to award Appellants attorney fees.

On cross-appeal, Central assigns that the district court erred in (1) failing to find that Jeffrey and Midway failed to state a claim and that the district court lacked subject matter jurisdiction by operation of res judicata; (2) failing to find Jeffrey and Midway’s claims were barred by waiver; (3) applying Jeffrey VI’s injunction to extend to repair and replacement of the same type of items in the same locations; and (4) applying our definition of “generally” from Jeffrey VI in interpreting the elevation restriction at Jeffrey Lake.

A-15-0399, Jaclyn M. Wilson-Demel v. Ryan Demel (Appellant)  

Sheridan County District Court Judge Travis P. O’Gorman

Attorney for Appellant:  Larry L. Miller

Attorney for Appellee:  Leslie A. Shaver and Andrea D. Miller (Simmons Olsen Law Firm, P.C.)

Civil Action: Dissolution

Action Taken by Trial Court:  The trial court entered an order making determination regarding the division of the parties’ marital and nonmarital property and dissolving the marriage.

Assignments of Error on Appeal:  The appellant assigns that the district court abused its discretion in its tracing and determination of premarital property and by dividing the marital estate in an unfair and unreasonable manner.

A-15-0518 In re Estate of Joan Jane Barger, William M. Barger, Brendon Barger and Elizabeth Barger (Appellants) v. Steven Barger and Shane Barger

Red Willow County Court Judge Anne M. Paine

Attorney for Appellant:  Cody E. Siegfried (Goodwin Siegried, LLP)

Attorney for Appellee:  Patrick J. Nelson (Law Office of Patrick J. Nelson, LLC) and Allen L Fugate

Civil Action:  Probate

Action Taken by Trial Court:  The decedent’s last will and testament was admitted into probate by the county court. The motion for new trial was denied.

Assignments of Error on Appeal:  The appellant assigns that the trial court erred by finding that the decedent had testamentary capacity when she executed the March 2006 will and that the will was not the result of undue influence. 

A-15-0698, State obo Gaige R. v. James M. No case summary is available for this case at this time.

A-15-0426, Sandra L. Spady (Appellant) v. Jerry F. Spady (Appellee and Cross-Appellant)

 Adams County, District Court Judge Terri S. Harder

Attorney for Appellant:  Nathan T. Bruner (Bruner Frank, LLC)

Attorney for Appellee:  Virginia A. Albers and John S. Slowiaczek (Slowiaczek, Albers & Astley, PC, LLO)

Civil Action:  Dissolution of marriage

Action Taken by Trial Court:  The district court dissolved the parties’ marriage; classified, valued, and divided the parties’ assets; declined to award Sandra permanent alimony; and declined to find Jerry in contempt of court.

Assignments of Error on Appeal:  On appeal, Sandra assigns that the district court erred in (1) failing to include Jerry Spady Pontiac Cadillac, Inc. in the marital estate, (2) failing to include 2750 Osborne Drive East in the marital estate, (3) parceling out Bonnavilla Plaza Corporation and failing to include the totality of the corporation in the marital estate, (4) providing Jerry a tax credit for parceling out the corporation, (5) including Jerry’s loan to pay temporary attorney fees in the marital estate, (6) its valuation of a debt known as “account 293,” (7) failing to award Sandra permanent alimony, and (8) failing to find Jerry in contempt of court. On cross-appeal, Jerry assigns that the district court erred in (1) awarding an excessive amount of temporary alimony and (2) granting a $97,500 credit against the equalization payment owed by Sandra for expenses relating to the properties in Mexico.