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Court of Appeals Call Case Summaries

Pirtle, Bishop and Arterburn, Judges

Lincoln - Tuesday, April 11, 2017 subject to call at 9:00 AM

A-16-0397, Ellen Robertson and Timothy Robertson (Appellants) v. U Save Foods, Inc.

Sarpy County, District Judge David Arterburn

Attorneys for Appellant: Greg Garland (Greg Garland Law), Tara DeCamp (DeCamp Law, P.C., L.L.O.), and Kathy Pate Knickrehm

Attorneys for Appellee: Robert W. Futhey and David P. Kennison (Fraser Stryker, P.C., L.L.O.)

Civil Action:  Personal Injury

Action Taken by Trial Court:  The district court granted U Save Food Inc.’s motion for summary judgment and dismissed the action after finding that the Robertsons failed to establish that a wooden pallet used to display watermelons was unreasonably dangerous, and that because the pallet constituted an open and obvious condition, Mrs. Robertson’s failure to exercise reasonable care when encountering the open and obvious pallet also warranted summary judgment in favor of U Save Foods.

Assignments of Error on Appeal:  The Robertsons assign that that the district court erred when it sustained the U Save Food’s motion for summary judgment.

A-16-0947, In re Interest of Austin G., a child under 18 years of age. State of Nebraska v. Kayla S. (Appellant)

Wayne County, County Court Judge Ross A. Stoffer

Attorney for Appellant:  Kyle C. Dahl

Attorney for Appellee:  Eric W. Knutson (County Attorney’s Office)

Attorney for Guardian Ad Litem:  Mark D. Albin

Juvenile Action:  Termination of Parental Rights

Action Taken by Trial Court:  The juvenile court found clear and convincing evidence existed to support termination of appellant’s parental rights to her minor child, who was under the guardianship of his paternal grandmother, pursuant to Neb. Rev. Stat. § 43-292(1), (2), and (3) and that termination was in the child’s best interests.

Assignments of Error on Appeal: Did the juvenile court err in finding there was clear and convincing evidence to establish that terminating appellant’s parental rights was in the child’s best interests?  Did the juvenile court err in finding there was clear and convincing evidence of three statutory grounds for termination?

A-16-0113, Mohammed Nadeem (Appellant) v. State of Nebraska

Lancaster County, District Court Judge Robert R. Otte

Attorney for Appellant:  Jeffry D. Patterson

Attorney for Appellee:  Douglas J. Peterson, Ryan S. Post (Attorney General’s Office)

Civil Action:  Request for Compensation pursuant to the Nebraska Claims for Wrongful Conviction and Imprisonment Act

Action Taken by Trial Court:  The trial court dismissed Appellant’s complaint after finding that it failed to state a claim for which relief could be granted.

Assignments of Error on Appeal:  On appeal, Appellant challenges the trial court’s decision to dismiss his complaint for failure to state a claim. 

A-16-0099, Gary Fairhead v. Express Homes, Inc. (Appellant)

Douglas County, District Judge Horatio Wheelock

Attorney for Appellant: Matthew S. McKeever (Copple, Rockey, McKeever & Schlecht, P.C., L.L.O.)

Attorney for Appellee: Eva M. Jessen (Sodoro, Daly, Shomaker & Selde, P.C., L.L.O)

Civil Action:  Arbitration Agreement - Forum Selection Clause

Action Taken by Trial Court:  The district court determined that the arbitration clause in the parties’ agreement was enforceable but that the forum selection clause was unconscionable and accordingly ordered that arbitration take place in Nebraska and not West Virginia.

Assignments of Error on Appeal:  Express Homes asserts that the district court erred in: (1) partially denying their motion to compel arbitration by ordering that the arbitration take place in Nebraska instead of West Virginia; (2) finding that the choice of venue clause in the agreement between the parties was unconscionable because its finding was not based on any evidence offered or received at the time of hearing; (3) not making any finding or addressing precedent as to whether an arbitration agreement is invalid as unconscionable; (4) partially denying the motion to compel arbitration and requiring the venue for arbitration to be in the state of Nebraska without any evidence offered or received on the issue of unconscionability; and (5) finding that the arbitration agreement’s choice of venue clause was unconscionable but not addressing the factors for the validity of an arbitration agreement in Neb. Rev Stat. 525-2602.01 and other provisions of Nebraska law and precedent.

Moore, Chief Judge, Inbody and Riedmann, Judges

Chadron State College - Tuesday, April 11, 2017 subject to call at 9:30 AM

A-16-0683, State of Nebraska v. Josiah L. Scherbarth (Appellant)

District Court of Sheridan County, District Judge Travis P. O’Gorman

Attorney for Appellant: Bell Island (Island & Huff, PC, LLO)

Attorneys for Appellee: Douglas J. Peterson and Austin N. Relph (Attorney General’s Office)

Criminal Action: Willful Reckless Driving

Action taken by the Trial Court: The district court affirmed Scherbarth’s conviction by jury verdict before the county court for willful reckless driving.

Assignments of Error and Issues on Appeal: Did the county court err in failing to instruct the jury on the lesser included offense of reckless driving, and did the district court err in determining this amounted to harmless error? Did the county court err in determining there was no prosecutorial misconduct through commenting on Scherbarth’s failure to present evidence and implying defense counsel was dishonest? Did the district court err in determining there was sufficient evidence to support a conviction?

A-16-813 & A-16-814, In re Interest of Jayden J. and Stevie J., Children under 18 years of age. State of Nebraska v. Crystal J. (Appellant)

Scotts Bluff, County Court Judge James Worden

Attorney for Appellant:  Amanda M. Vogl (Douglas, Kelly, Ostdiek, Ossian, Broderick and Vogl)

Attorney for Appellee:  Danielle Larson (County Attorney)

Juvenile Action:  Termination of Parental Rights

Action Taken by Trial Court:  The juvenile court found clear and convincing evidence existed to support termination of appellant’s parental rights to her minor children pursuant to Neb. Rev. Stat. § 43-292(2), (4), (6) and (7) and that termination was in the children’s best interests.

Assignments of Error on Appeal:  Did the juvenile court err in finding there was clear and convincing evidence to terminate appellant’s parental rights under § 43-292(2), (4), (6), and (7)? Did the juvenile court err in finding there was clear and convincing evidence to establish that terminating appellant’s parental rights was in the children’s best interests?  

A-16-0949, Emil Assad, Individually and as Special Administrator of the Estate of Kathy Assad, Deceased (Appellant) v. Sidney Regional Medical Center, a Cheyenne County Hospital, and Dr. Tracy Pay, P.A.

Cheyenne County, District Court Judge Derek C. Weimer

Attorney for Appellant:  Emil Assad, Pro Se

Attorney for Appellees:  Mark A. Christensen, Travis W. Tettenborn (Cline Williams Wright Johnson & Oldfather, L.L.P.)

Civil Action:  medical malpractice

Action Taken by Trial Court:  The district court entered summary judgment in favor of the defendants.

Assignments of Error on Appeal:  On appeal, Assad assigns that the district court erred in (1) denying his motion for recusal, (2) granting the defendants’ motion for summary judgment, and (3) denying his motion for continuance.

A-16-0459, Panhandle Collections, Inc. (Appellant) v. Douglas Jacobson

District Court of Dawes County, District Judge Travis P. O’Gorman

Attorney for Appellant: Katy A. Anderson (Chaloupka, Holyoke, Snyder, Chaloupka & Longoria, PC, LLO)

Attorney for Appellee: Jon Worthman (Worthman Law Office, PC, LLO)

Civil Action: Breach of contract / Debt collection

Action taken by the Trial Court: The district court dismissed Panhandle Collections’ complaint, finding that it failed to carry its burden to prove the existence of a validly enforceable oral contract. Chadron Community Hospital previously assigned Jacobson’s alleged contractual debts for medial expenses to Panhandle Collections.

Assignments of Error and Issues on Appeal: Did the district court err in finding no contract existed between Chardon Community and Jacobson, and dismissing the complaint? Did the district court err in denying Panhandle Collections’ motion for new trial or to alter or amend judgment?

North Platte - Wednesday, April 12, 2017 subject to call at 9:00 AM

A-15-0249, Glenda Aschoff, individually and as personal representative of the Estate of William Aschoff, deceased, Joel Aschoff (Appellants), and Commercial Construction, Inc. v. State of Nebraska, Werner Construction, Inc., Werner Construction, Co., and Werner Construction, LLC

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

Attorneys for Appellants (Glenda, Joel, and William’s Estate):  Andrew J. Wilson & Lawrence Joseph Roland (Gross Welch Law Firm)

Attorney for Appellee (State):  Douglas L. Kluender (Attorney General’s Office)

Attorneys for Appellee (Werner):  Krista Marie Carlson & Stephen L. Ahl (Wolfe Snowden Law Firm)

Civil Action:  Wrongful death, negligence, emotional distress

Action taken by the Trial Court:  William was employed by and working for CCI on the Kearney East Bypass Project, which was run and operated by the State through the Nebraska Department of Roads. The general contractor, Werner, subcontracted CCI to perform grading work, including filling a large body of water on the project jobsite. As part of his job, William was operating a bulldozer to push fill material into the water when the fill material collapsed and the bulldozer and William fell into the water. As a result, William died of asphyxiation by drowning. The Appellants filed suit against Werner and the State. Subsequently, both defendants sought summary judgment and the Appellants sought partial summary judgment with respect to their claims against Werner. The trial court denied the Appellants’ motion and granted summary judgment in favor of Werner and the State.

Assignments of Error on Appeal, Reordered and Restated:  Did the trial court err in relying on evidence that was neither offered nor admitted as evidence? Did the trial court err in granting summary judgment in favor of Werner and the State? Did the trial court err in denying the Appellants’ motion for partial summary judgment?

A-16-0844, First State Bank, a Nebraska Banking Corporation, et al. (Appellants and Cross-Appellees) v. John Probandt, et al. (Appellees) and John Raynor (Appellee and Cross-Appellant)

Dawson County, District Court Judge James E. Doyle, IV

Attorney for Appellants:  Diana J. Vogt, James D. Sherrets (Sherrets Bruno & Vogt, LLC)

Attorney for Appellee and Cross Appellant John Raynor:  Patrick M. Heng (Waite McWha & Heng)

Civil Action:  breach of promissory note

Action Taken by Trial Court:  The district court entered judgment in favor of the plaintiffs against John Raynor for breach of a promissory note.

Assignments of Error on Appeal:  On appeal, the appellants assign that the district court erred in denying their motion for default judgment against John Probandt.

On cross-appeal, John Raynor assigns that the district court erred in (1) failing to give full force and effect to the bankruptcy order, (2) depriving Raynor of Nebraska law, specifically, UCC § 3-419(e), (3) failing to find that Raynor was an “accommodation party” within the meaning of UCC § 3-419(a), (4) failing to find that Walker was an “accommodated party” within the meaning of UCC § 3-419(a), (5) failing to treat Walker as a substantive owner of the FSB note, (6) treating Skyline as the real party in interest within the meaning of § 25-301, (7) failing to find the sole basis of recovery – Raynor’s expressed intent to assist Mark Herz – did not support Skyline’s judgment, (8) failing to apply the “Mandolfo Rule”, (9) denying Raynor his contribution claim against Walker, (10) entering a judgment that contravenes the prohibition against punitive, vindictive, or exemplary damages, (11) allowing two foreign limited liability corporations to prosecute this action without certificates of authority, (12) failing to find that three mistakes of fact were mutual and had such a material effect on the agreed exchange of performances as to upset the very basis for the contract that the promissory note is void as to Raynor, (13) failing to find that Raynor’s obligation was discharged pursuant to UCC § 3-605, and (14) allowing Walker and the foreign LLCs to proceed on the FSB note after taking the position in the original pleadings that the FSB note was unenforceable.

A-16-0451,  Estate of Wisner (Appellant) v. Vandelay Investment, L.L.C.   

 Lincoln County, District Court Judge Richard A. Birch

Attorney for Appellant:  David Pederson (Pederson & Troshynski)

Attorney for Appellee:  Robert S. Lannin (Shively & Lanin, P.C., L.L.O.)

Equity Action:  Quiet Title

Action Taken by Trial Court:  The district court entered judgment quieting title in favor of the appellee.

Assignments of Error on Appeal:   The  appellant contends that the district court erred in (1) finding the appellee had complied with the requirements of Nebraska statutes relating to Treasurer’s tax deeds specifically regarding the issues of proper notice and publication under § 77-1934; (2) finding that the personal representative did not meet its burden of proving that the decedent was suffering from a mental disorder within the meaning of § 77-1827; and (3) failing to use its equitable authority to remedy the situation.

A-15-1239, Lewys Carlini (Appellant) v. Gray Television Group, Inc.

Lincoln County, District Court Judge Richard A. Birch

Attorney for Appellant:  Abby Osborn, Joy Shiffermiller (Shiffermiller Law Office, P.C., L.L.O.)

Attorney for Appellee:  Shawn D. Renner, Susan K. Sapp (Wright Johnson & Oldfather, L.L.P.)

Civil Action:  Breach of contract

Action Taken by Trial Court:  The trial court denied Carlini’s motion for summary judgment and granted Gray’s cross-motion for summary judgment. The trial court awarded damages to Gray.

Assignments of Error on Appeal:  On appeal, Carlini assigns that the trial court erred in (1) determining there was no genuine issue of material fact and that the Appellee was entitled to judgment as a matter of law; (2) not viewing the facts in light of the non-moving party; (3) finding that the Appellant breached the terms of the contract; (4) failing to find that the Appellee breached the contract prior to an alleged breach by the Appellant; (5) finding that the Appellee was entitled to a damages award for the alleged breach by the Appellant; and (6) overruling the Appellant’s motion for summary judgment.

A-16-0805, Mary Dueland v. Doug Dueland (Appellant)

Frontier County, District Court Judge David Urbom

Attorney for Appellant:  Nathaniel J. Mustion, Lisa M. Shifflet (Mousel, Brooks, Schneider & Mustion, P.C., L.L.O.)

Attorney for Appellee:  R. Bradley Dawson (Lindemeier, Gillett & Dawson)

Civil Action:  Dissolution of marriage

Action Taken by Trial Court:  The district court divided the marital assets, valuing the 401(k) plan as of the date of filing rather than the date of trial. The court awarded all marital debt to Doug and found that Mary did not dissipate marital assets. The court also ordered Doug to pay Mary attorney fees.

Assignments of Error on Appeal:  On appeal, Doug asserts that the district court abused its discretion in (1) the division of marital property, specifically, in valuing the 401(k) plan as of the date of filing, in awarding all of the marital debt to Doug, and in not considering the dissipation of marital assets by Mary; and (2) awarding Mary attorney fees.