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Court of Appeals Call Case Summaries

Irwin, Inbody, and Riedmann, Judges

Papillion - Tuesday, May 12, 2015 subject to call at 9:00 AM

A-14-0943, In re Interest of Erica Y. No case summary is available for this case at this time.
A-14-0760, Shemek v. Brown No case summary is available for this case at this time.

A-14-670, Bernard J. Kobza and Vickey L. Kobza (Appellants) v. Rhonda Y Bowers and Melvin L. Bowers, Jr.

Sarpy County, District Court Judge David K. Arterburn

Attorney for Appellant:  Paul F. Peters

Attorney for Appellee:  Brian J. Muench

Civil Action:  Request for permanent injunction

Action Taken by Trial Court:  The district court denied the Kobzas’ request for injunctive relief and denied the claims contained in the Bowerses’ counterclaim.

Assignments of Error on Appeal:  On appeal, the Kobzas assign that the district court erred in (1) finding that the evidence demonstrated that there does not appear to be a watercourse across the property, (2) applying the standard applicable to diffuse surface waters, (3) holding that a lower proprietor may take measures to defend its property against ground water discharges as long as that defense does not negligently or unnecessarily injure another, (4) finding that the Kobzas failed to meet their burden of proof for an injunction, (5) holding that the Bowerses had the right to construct a permanent damn on their property, (6) finding that the evidence demonstrated that the Bowerses allowed the Kozbzas to run a pipe underground across their property so as to allow the discharge of water, (7) speculating that the evidence demonstrated that the ponding issues correlate with the elimination of ground water from the Kobzas’ dewatering system and not from rainfall or snow melt alone, (8) speculating that Mr. Kobza lowered the elevation of the Kobzas’ property in the northwest corner, (9) according undue weight to its own observations of the property, (10) finding that the rule set forth in Nichol does not apply to ground water, (11) failing and refusing to grant the injunctive relief they requested, and (12) overruling their motion to amend their complaint.

On cross-appeal, the Bowerses assign that the district court erred in (1) failing to award them damages for the damage to their trees, (2) failing to enjoin the Kobzas from pumping or wasting ground water, and (3) failing to award them court costs as part of the judgment in their favor.

A-14-0593, Schwaller v. Schwaller No case summary is available for this case at this time.
Moore, Chief Judge, Pirtle, and Bishop, Judges

North Platte - Tuesday, May 12, 2015 subject to call at 1:00 PM

A-14-0777, State of Nebraska v. Stephen J. Schaetzle (Appellant)

District Court for Lincoln County, District Judge Richard Birch

Attorney for Appellant:  Michael L. Nozicka

Attorney for Appellee:  Austin N. Relph (Attorney General’s Office)

Criminal Action:  First degree sexual assault of a child

Action taken by the Trial Court:  The jury found Schaetzle guilty of the crime, a Class II felony. The trial court sentenced him to 14 to 22 years in prison.

Assignments of Error and Issues on Appeal:  Did the trial court err in overruling Schaetzle’s motion to suppress his confession? Did the trial court err in allowing the State to play the entire video recording of Schaetzle’s interview and thereby expose the jury to comments regarding an uncharged offense? Did the trial court err in overruling Schaetzle’s motion for mistrial? Did the trial court err in improperly instructed the jury? Did the trial court impose an excessive sentence? Was there sufficient evidence to support Schaetzle’s conviction? Was Schaetzle’s trial counsel was ineffective?

A-14-500, David DeLaet, Gerrod Toepfer, and Allen Peterson (Appellants) v. Blue Creek Irrigation District

Keith County, District Court Judge Derek Weimer

Attorney for Appellant:  Gregory J. Beal (Longhorn Law)

Attorney for Appellee:  Steven C. Smith (Smith, Snyder, Petitt, Hofmeister & Snyder

Civil Action:  Declaratory Judgment; Mandamus Relief; Mandatory Injunction

Action Taken by Trial Court:  The trial court granted summary judgment in favor of Blue Creek on its counterclaims for declaratory judgment and denied appellants’ motion for partial summary judgment in regard to declaratory judgment. The court also granted summary judgment to Blue Creek regarding appellants’ writ of mandamus and permanent injunction causes of action. It also found that all causes of action were barred by the statute of limitations.

Assignments of Error on Appeal: Did the trial court err in sustaining Blue Creek’s motion for summary judgment? Did the trial court err in finding appellants were not entitled to mandamus relief or injunctive relief? Did the trial court err in finding appellants’ causes of action were barred by the statute of limitations? 

A-14-0665, Jason L. Sellers (Appellant) v. Stephanie Sellers and State of Nebraska

District Court for Lincoln County, District Judge Richard Birch

Attorney for Appellant:  Monelle M. Nichols

Attorneys for Appellee (State): Claudine K. Thorne & Chawnta Durham (Lincoln County Attorney’s Office)

Civil Action:  Child support modification

Action taken by the Trial Court:  The trial court found a material change in circumstances justifying an increase in Jason’s child support obligation. The court modified Justin’s obligation retroactive to the start of the month after he was served.

Assignments of Error on Appeal:  Did the trial court err in calculating child support with respect to the amount used as a deduction for regular support for other children? Did the trial court err in finding insufficient evidence to rebut the strict application of the Nebraska Child Support Guidelines and/or failing to allow a deviation for Jason’s medical expenses? Did the trial court err in failing to recognize and apply the correct basic subsistence limitation in calculating child support? Did the trial court err in entering a child support order in contradiction of public policy and legislative intent that would require Jason to seek public assistance? Did the trial court err in ordering the payment of retroactive support? Did the trial court err in allowing evidence of the reason for Jason’s previous incarceration? Did the trial court err in ordering Jason to pay for 63-percent of the unreimbursed healthcare costs? Did the trial court err in denying Jason’s application to proceed in forma pauperis?

A-14-0790, Kyel Hopkins v. Robert Hopkins (Appellant)

Phelps County, District Judge Terri S. Harder

Attorney for Appellant:  Mindy L. Lester (Ross, Schroeder & George, LLC)

Attorney for Appellee: Nicholas D. Valle (Langvardt, Valle & James, P.C., L.L.O.)

Civil Action:  Modification of Child Custody

Action Taken by Trial Court: The district court maintained physical and legal custody of the children with Kyel, with alternating weekends, holiday and summer visitation with Robert.

Assignments of Error on Appeal:  Robert assigns that the district court erred in (1) finding no significant risk to the minor children, (2) finding no material change in circumstance, (3) failing to make a determination as to the best interests of the minor children, and (4) failing to award custody to Robert.

 

North Platte - Wednesday, May 13, 2015 subject to call at 9:00 AM

 

A-14-0592, Vikki S. Stamm (Appellant) v. Ryan Fisher; Bradley Fisher; Harvey G. Fisher; Barbara J. Fisher; Henry D. Fisher and/or Heirs; Charlotte A. Reicks and /or Heirs; and all persons having or claiming any interest in and to a tract of land located in the Southwest Quarter of the Southeast Quarter (SW1/4 SE1/4) of Section Seven (7), Township Ten (10), Range Seventeen (17) West of the Sixth Principal Meridian, Buffalo County, Nebraska

Buffalo County, District Court Judge Teresa K. Luther

Attorney for Appellant:  Michele J. Romero (Stamm Romero & Associates, P.C., L.L.O.)

Attorney for Appellees:  Larry W. Beucke (Parker, Grossart, Bahensky, Beucke & Bowman, L.L.P.)

Civil Action:  Real Estate

Action Taken by Trial Court:  The district court entered an order granting, in part, Appellees’ claim for adverse possession. The court provided a legal description to the parties and quieted title to Appellant in other portions of the property. The court ordered a fence to be constructed dividing the parties’ tracts of land, with the cost of construction to be shared equally by the parties. The court also awarded damages to Appellant for the reimbursement of the real estate taxes paid on the contested property. The tax recovery was limited based upon the statute of limitations, to the amount Appellant paid for the four years prior to the filing of the action. The district court denied Appellant’s motion for a new trial.

Assignments of Error on Appeal:  Was there sufficient evidence to sustain a judgment of adverse possession? Did the district court err in denying Appellant’s request to introduce hearsay statements under the residuary exception? Did the district court err in overruling Appellant’s motions for summary judgment, motion for injunction, and motion for a new trial? Did the court err in restricting Appellant’s recovery for damages to the last four years based on the statute of limitations?

Assignment of Error on Cross-Appeal: Did the district court err in modifying the legal description of Appellee’s property to exclude a 30-foot strip of land south of the boundary line? 

A-14-0559, Loomis v. Messersmith (Appellants)  

Hayes County, District Judge David W. Urbom

Attorney for Appellants:  James R. Korth and Trevor Perkins (Reynolds, Korth & Samuelson, P.C., L.L.O.)

Attorney for Appellees: Brock D. Wurl (Norman, Paloucek & Herman Law Offices)

Civil Action: Ejection/Fraud

Action Taken by Trial Court: The district court granted summary judgment in favor of the Loomises on their action to eject the Messersmiths from property sold by the Messersmiths to the Loomises, and on the Messersmiths’ counterclaims for fraudulent inducement and misrepresentation, breach of contract, and unjust enrichment.

Assignments of Error on Appeal: The Messersmiths assign that the district court erred in (1) granting summary judgment in favor of the Loomises because genuine issues of material fact existed regarding their counterclaims; (2) excluding certain evidence as hearsay offered by the Messersmiths to show an oral agreement between the parties existed to permit the Messersmiths to buy back their property; (3) concluding the Loomises did not acquire title to the real property through fraudulent inducement, misrepresentation, or abuse of relationship; (4) determining that an oral buy back agreement did not satisfy the statute of frauds; and (5) finding that the written real estate agreement executed between the parties precluded a finding that the parties entered into a contemporaneous oral buyback agreement.

 

A-14-0683, Gerald N. Helzer, Mamot Land and Cattle Co., Inc., Mamot Trucking, Inc., and Mamot Feedlots (Appellants) v. Jamie Mamot and Heritage Bank (Cross-Appellants)

District Court for Howard County, District Judge Karin L. Noakes

Attorneys for Appellants:  Barry D. Geweke & Robert D. Stowell (Stowell Kruml Law Firm)

Attorney for Appellees/Cross-Appellants:  Larry W. Beucke (Parker Grossart Law Firm)

Civil Action:  Declaratory judgment action with respect to life insurance proceeds

Action taken by the Trial Court:  The trial court declined to enter a declaratory judgment, finding adequate and legal grounds for defendant to accept and keep the insurance proceeds and that she was not unjustly enriched. The court ordered the return of the funds deposited with the court and dismissed the complaint.

Assignments of Error and Issues on Appeal:  Did the trial court err in determining a declaratory judgment was not an appropriate remedy in this case? Did the trial court err in determining Jamie was not unjustly enriched by her receipt of the life insurance benefits? Did the trial court err in failing to enter an order on the interpleader action?

Assignments of Error and Issues on Cross-Appeal:  Did the trial court err in determining a declaratory judgment was inappropriate? Should the trial court have determined the final amount owed by Mamot Entities under the stock purchase agreement and ordered the interpleader funds to be paid to Heritage Bank?