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Court of Appeals Call Case Summaries

Moore, Chief Judge, Irwin and Pirtle, Judges

Lincoln - Wednesday, September 14, 2016 subject to call at 9:00 AM

A-15-0891, State of Nebraska v. Walker P. Thunder (Appellant)

Lancaster County, District Court Judge Andrew Jacobsen

Attorney for Appellant:  F. Matt Aerni (Berry Law Firm)

Attorney for Appellee:  Douglas J. Peterson and Nathan A. Liss (Attorney General’s Office)

Criminal Action:  Possession of a stolen firearm and possession of a firearm by a prohibited person

Action Taken by Trial Court:  The trial court overruled Thunder’s motion to suppress evidence. Following a bench trial, the court found Thunder guilty of both offenses and sentenced him to 2 to 4 years for possessing a stolen firearm and 3 to 5 years for being a felon in possession of a firearm, to be served concurrently.

Assignments of Error on Appeal:  Thunder argues that the district court erred in (1) finding that the renter of the vehicle’s consent to search extended to Thunder’s luggage, (2) holding that a gun case’s incriminating nature was immediately apparent such that it fell under the plain view exception to the warrant requirement, (3) finding Thunder consented to a search of his luggage by remaining silent when informed that the renter had given consent to search, (4) finding Thunder was not in custody prior to being read his Miranda rights in the patrol car, and (5) failing to suppress the statements Thunder made after he was taken into custody and before he was Mirandized in the patrol car.

A-15-0811, In re Trust of Haberman. George Haberman (Appellant) v. Rex S. Haberman II, Phillip Haberman, and Mary Lou Haberman

Adams County, County Court Judge Robert A. Ide

Attorney for Appellant:  David V. Drew (Drew Law Firm P.C., LLO)

Attorney for Appellee:  Daniel E. Klaus (Rembolt Ludtke LLP)

Civil Action:  Distribution of Trust Property

Action Taken by Trial Court:  The trial court determined that George Haberman was not entitled to a portion of the trust property, and that George was barred from recovery by the doctrine of unclean hands.

Assignments of Error on Appeal:  George Haberman argues the county court erred in (1) finding that an earlier agreement among the trust beneficiaries was not enforceable, (2) analyzing the agreement among the beneficiaries as a trust amendment and not a separate contract, (3) finding the agreement among the beneficiaries was void as against public policy, and (4) finding George was barred from relief by the doctrine of unclean hands.

A-15-1208, Kara A. O’Neill v. Scott A. O’Neill (Appellant)

Lancaster County, District Court Judge Susan Strong

Attorney for Appellant:  David P. Kyker

Attorney for Appellee:  Terrance A. Poppe, Andrew K. Joyce (Morrow, Poppe, Watermeier & Lonowski, P.C.)

Civil Action:  Dissolution of Marriage

Action Taken by Trial Court:  The district court divided the marital estate; awarded Kara O’Neill sole legal and physical custody of the parties’ minor child; awarded Scott O’Neill no parenting time with the child; and ordered Scott to pay child support, alimony, and attorney fees to Kara.

Assignments of Error on Appeal:  Scott argues that the district court erred in (1) classifying, valuing, and dividing the parties’ property; (2) denying Scott parenting time with his daughter; (3) computing Scott’s income for purposes of child support and alimony; (4) ordering Scott to pay Kara alimony; and (5) ordering Scott to pay Kara’s attorney fees.

A-15-0608, Jennifer VanLaningham v. Joel Harmon (Appellant)

District Court of Sarpy County, District Judge William Zastera

Attorney for Appellant:  Jason M. Bruno (Sherrets Bruno & Vogt LLC)

Attorney for Appellee:  Ryan D. Caldwell (Caldwell Law, LLC)

Civil Action:  Detrimental reliance, violation of Neb. Rev. Stat. § 76-2,120, fraudulent misrepresentation, negligent misrepresentation, and fraudulent concealment

Action taken by the Trial Court:  The county court found in favor of Jennifer on her claims of detrimental reliance, violation of Neb. Rev. Stat. § 76-2,120, negligent misrepresentation, and fraudulent concealment with regard to flooding damage to a residential property purchased from Joel. The county court awarded Jennifer $5,768.66 in damages to cover repair costs and $8,562.52 in attorney fees. The county court subsequently overruled Joel’s motion for a new trial and motion to alter or amend. Joel appealed to the district court, which affirmed the county court’s judgment.

Assignments of Error and Issues on Appeal:  Did the county court err in denying Joel’s motion for directed verdict? Did the county court err in failing to dismiss the case due to the alleged absence of a necessary party? Did the county court err in considering evidence that was not offered or admitted? Did the county court err in admitting Joel’s Supplemental Responses to Request for Production of Documents into evidence? Did the county court err in admitting various other exhibits into evidence? Did the county court err in entering judgment against Joel despite Jennifer’s alleged failure to present sufficient evidence of damages or proximate cause? Did the county court err in denying Joel’s motion for a new trial and motion to alter or amend?

A-13-0887, State of Nebraska v. Frederick McSwine (Appellant)

Lancaster County, District Court Judge Paul D. Merritt

Attorney for Appellant:  Mark E. Rappl

Attorney for Appellee:  Douglas J. Peterson, Kimberly A. Klein (Attorney General’s Office)

Criminal Action: Terroristic threats, kidnapping, first degree sexual assault, and use of a deadly weapon to commit a felony

Action Taken by Trial Court:  A jury convicted Appellant of all four offenses and the district court sentenced him to a total of 57 to 85 years’ imprisonment.

Assignments of Error on Appeal: In this appeal, Appellant asserts that the district court erred in (1) failing to admit evidence of a specific instance of the victim’s sexual behavior prior to the day of the assault and (2) overruling his motion for a mistrial which was based on an allegation of juror misconduct. Appellant also asserts that the totality of all the errors committed during the proceedings below prohibited him from receiving a fair trial and that he received ineffective assistance of trial counsel.

Inbody, Riedmann, and Bishop, Judges

Lincoln - Wednesday, September 14, 2016 subject to call at 1:00 PM

A-15-0897, State of Nebraska v. Jeffrey A. Huff (Appellant)

Lancaster County, District Court Judge Robert R. Otte

Attorney for Appellant:  Joseph D. Nigro, Robert G. Hays (Public Defender’s Office)

Attorney for Appellee:  Douglas J. Peterson, Kimberly A. Klein (Attorney General’s Office)

Criminal Action:  First degree sexual assault

Action Taken by Trial Court:  A jury found Huff guilty of the above offense, and the district court sentenced him to 12 to 20 years’ imprisonment.

Assignments of Error on Appeal:  On appeal, Huff assigns that the district court erred in (1) striking a juror for cause over his objection, (2) overruling his motion for mistrial, and (3) imposing an excessive sentence.

A-15-610, Mark A. Putnam (Appellant) v. Keri G. Sherbring, Dale J. Scherbring, and Janet Scherbring

Douglas County, District Judge Thomas J. Otepka

Attorney for Appellant: Herbert J. Friedman (Friedman Law Offices, P.C., L.L.O.) and Paul Galter (Butler, Galter & O’Brien)

Attorney for Appellee:  Mark C. Laughlin and Jacqueline M. DeLuca (Fraser Stryker P.C., L.L.O.)

Civil Action:  Personal Injury/Negligence

Action Taken by Trial Court:  Prior to trial, the district court granted the Scherbrings’ motion in limine to exclude from evidence all but a small fraction of Putnam’s medical bills (bills disclosed after the close of discovery), as well as testimony from one of Putnam’s expert witnesses that the medical bills were reasonable and necessary. At trial, Putnam presented evidence of the nature and extent of his injuries and medical treatment but, due to the court’s ruling on the motion in limine, presented no evidence of his medical bills. A jury returned a verdict in favor of the Scherbrings.

Assignment of Error on Appeal:  Putnam assigns, restated, that the district court erred in (1) excluding Putnam’s medical bills from evidence; (2) excluding Dr. Vinton’s expert opinion that Putnam’s medical bills were reasonable and necessary; (3) excluding another witnesses’ testimony; and (4) denying Putnam’s motion for a directed verdict.

A-15-0708, Nicole K. Thompson v. Justin D. Thompson (Appellant)

Lincoln County, District Court Judge Donald E. Rowlands

Attorney for Appellant:  James C. Bocott (Law Office of James C. Bocott, PC, LLO)

Attorney for Appellee:  Kim M. Seacrest (Seacrest Law Office)

Civil Action:  Dissolution of marriage

Action Taken by Trial Court:  The district court dissolved the parties’ marriage and established custody and parenting time with respect to the parties’ minor child.

Assignments of Error on Appeal:  On appeal, Justin assigns that the district court erred in (1) refusing to admit exhibit 22 into evidence, (2) concluding that the court ordered parenting plan was in the child’s best interests, and (3) finding that the standard visitation schedule was in the child’s best interests.

A-16-322, In re Interest of Brianna L.  

Antelope County, County Court Judge Donna F. Taylor

Attorney for Appellant:  Joseph E.W. Abler (Antelope County Attorney)

Attorney for Appellee:  Luke P. Henderson (Fitzgerald, Vetter, Temple & Bartell)

Juvenile Action:  Motion for Access to Minor Child’s Confidential Medical Records

Action Taken by Trial Court:  The county court, sitting in its capacity as a juvenile court, granted motion by minor child’s father for access to the minor child’s confidential medical records.

Assignments of Error on Appeal: There are jurisdictional and discovery issues presented.