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Court of Appeals Call Case Summaries

Irwin, Pirtle, and Riedmann, Judges

Lincoln - Wednesday, February 10, 2016 subject to call at 9:00 AM

A-15-0336, Weston D. Derby (Appellee and Cross-Appellant) v. Stephanie R. Martinez (Appellant)

Douglas County, District Court Judge Timothy P. Burns

Attorney for Appellant:  Jeff T. Courtney (Jeff T. Courtney, P.C., L.L.O.)

Attorney for Appellee:  Carol Pinard Cronin

Civil Action:  Custody; Removal from Jurisdiction

Action Taken by Trial Court:  The trial court awarded custody of the parties’ minor child to appellant and denied appellant’s request to remove the child from Nebraska, finding that she did not have a legitimate reason to relocate to Texas.

Assignment of Error on Appeal: Did the trial court err in finding that appellant did not have a legitimate reason to relocate to Texas?

Assignment of Error on Cross-Appeal: Did the trial court err in considering the harassment protection order to deny appellee’s request for custody?

A-15-0505, State of Nebraska v. Ryan M. Laflin (Appellant)

Gage County, District Court Judge Paul Korslund

Attorney for Appellant:  Lee Timan, Kyle Manley (Clark & Timan, P.C.)

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

Criminal Action:  First offense driving during revocation.

Action Taken by Trial Court:  Following a bench trial, the county court found Laflin guilty of during revocation and sentenced him to 60 days’ incarceration with credit for 9 days served. Laflin appealed to the district court and his conviction was affirmed.

Assignments of Error on Appeal:  Appellant contends that (1) the trial court erred in bringing the insufficiency of the evidence proving venue to the State’s attention and allowing the State to withdraw its rest in order to present additional evidence, (2) there was insufficient evidence of venue, and (3) the trial court erred in failing to suppress evidence and the arresting sergeant’s testimony as the result of an unlawful seizure.

A-15-0215, Richard Qualsett, Attorney in Fact for Shareholders of Oasis Publishing, Inc. (Appellants) v. David Abrahams

Lancaster County, District Court Judge Stephanie Stacey

Attorney for Appellant:  Robert B. Creager (Anderson, Creager & Wittstruck, P.C., L.L.O.)

Attorney for Appellee:  Thomas E. Zimmerman (Jeffrey, Hahn, Hemmerling & Zimmerman, P.C., L.L.O.)

Civil Action:  Summary judgment and recoupment

Action Taken by Trial Court:  The trial court entered summary judgment in favor of Abrahams based upon the statute of limitations. Following a trial on Abrahams’s counterclaim, the trial court found that the affirmative defense of recoupment did not apply and entered judgment for Abrahams.

Assignments of Error on Appeal:  Qualsett assigns that the district court erred in (1) granting Abrahams’s motion for summary judgment, (2) failing to grant Qualsett a set off for equitable recoupment against Abrahams’s counterclaim, and (3) entering judgment in favor of Abrahams on his counterclaim.

A-15-0707, In re Interest of Kylie P., a child under 18 years of age. State of Nebraska v. Kylie P. (Appellant)

Sarpy County, Separate Juvenile Court Judge Lawrence Gendler

Attorney for Appellant:  Patrick J. Boylan (Public Defender’s Office)

Attorney for Appellee:  Carolyn A. Rothery (County Attorney’s Office)

Juvenile Action:  Disposition – Placement at YRTC    

Action Taken by Trial Court:  The juvenile court committed Appellant to the Office of Juvenile Services for placement at the YRTC in Geneva.

Assignments of Error on Appeal:   Did the juvenile court err by not following the statutory procedure for making a commit to  YRTC? Did the juvenile court err by finding Appellant had exhausted all levels of probation supervision and options for community based services before being committed to YRTC?

A-14-905, SBC (Appellant and Cross-Appellee) v. William A. Cutler III, Personal Representative of the Estate of William A. Cutler Jr. (Appellee and Cross-Appellant)

Douglas County, District Court Judge Shelly Stratman

Attorney for Appellant:  Jason M. Bruno, Thomas D. Prickett (Sherrets Bruno & Vogt LLC)

Attorney for Appellee:  David S. Houghton, Keith A Harvat (Houghton Vandenack Williams Whitted Weaver Parsonage, LLC)

Civil Action:  Action to Pierce the Corporate Veil of an Entity

Action Taken by Trial Court:  The district court found there was insufficient evidence to warrant piercing the corporate veil of Related Investments, Inc. and ordered appellant to pay appellee attorney fees in the amount of $139,799.

Assignments of Error on Appeal:  On appeal, appellant asserts that the district court erred in (1) failing to pierce the corporate veil of Related Investments, Inc.; (2) making certain evidentiary decisions; (3) awarding appellee attorney fees; and (4) denying its motion to alter or amend the judgment. On cross-appeal, appellee asserts that the district court erred in failing to specifically rule on appellee’s asserted defense of unclean hands.

Moore, Chief Judge, Inbody, and Bishop, Judges

Lincoln - Wednesday, February 10, 2016 subject to call at 1:00 PM

A-15-472, State v. Turner

Hall County, District Judge William T. Wright

Attorney for Appellant:  Charles R. Maser

Attorney for Appellee: Douglas Peterson and George Love (Attorney General’s Office)

Criminal Action: Motion to Suppress; Possession of a Controlled Substance

Action Taken by Trial Court: The district court denied appellant’s motion to suppress. Following a bench trial, the court convicted appellant of possession of a controlled substance, possession of drug paraphernalia, and possession of marijuana.

Assignments of Error on Appeal: Appellant assigns (1) there was insufficient evidence to sustain his convictions, (2) the court erred in failing to suppress evidence seized during a search of his apartment, and (3) “[a]ny other improper evidentiary rulings that took place during the Trial.”

A-14-0922, In re Trust of Bresel

County Court for Douglas County, County Judge Sheryl L. Lohaus

Attorney for Appellant (Candee Mack):  David J. Lanphier (Broom Clarkson Law Firm)

Attorneys for Appellee (Marti Jo Fry):  Edward D. Hotz & Emily L. Jung (Pansing Hogan Law Firm)

Attorney for Appellee/Cross-Appellant (Amanda Mack Gurock):  James Polack (Polack Law Firm)

Civil Action:  Removal and accounting/reimbursement action brought by cotrustee of a trust against another cotrustee

Action taken by the Trial Court:  The trial court removed Mack as cotrustee and ordered her to account for all unauthorized distributions of trust property, to reimburse funds to the trust, and to pay attorney fees to Fry. The court also dismissed Mack’s counterclaim for an accounting and removal of Fry as cotrustee and dismissed Gurock’s claim against Fry seeking a determination of whether Fry’s petition violated a provision of the trust. Mack appealed, and Gurock cross-appealed.

Assignments of Error on Appeal:  Did the trial court err in determining that Bresel was incompetent and subject to undue influence beginning in 2007 and that Mack was acting as successor cotrustee from that time? Did the trial court err in considering and admitting medical testimony regarding the mental capacity of Bresel? Did the trial court err in finding Mack liable for and assessing damages against her of $31,000 for payments earmarked for caring for Bresel? Did the trial court err in determining the liability of Mack and assessing damages against her for $126,199.22 for transactions? Did the trial court err in admitting into evidence summaries of “suspicious transactions?” Did the trial court err in assessing damages against Mack for $120,000 for allegedly removing cash from safe deposit boxes and err in admitting into evidence summaries and a correlation analysis? Did the trial court err in removing Mack as cotrustee and admitting her conviction for criminal mischief? Did the trial court err in dismissing Mack’s counterclaim for removal of Fry? Did the trial court err in finding Mack liable and assessing damages against her for $258,805.92 for Fry’s attorney fees and in denying Mack’s claim for attorney fees?

Assignments of Error on Cross-Appeal:  Did the trial court err in determining that the Trust terminates upon Bresel’s death? Did the trial court err in determining that Gurock’s use of the Trust Residence terminates on Bresel’s death? Did the trial court err in reforming the Trust? Did the trial court err in interpreting the Trust? Did the trial court err in determining that Fry did not violate the Trust’s “no contest clause?” Did the trial court err in denying Gurock’s request for attorney fees?

A-15-478, State v. Bond

Hall County, District Judge William T. Wright

Attorney for Appellant:  Vicky Kenney (Hall County Public Defender’s Office)

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

Criminal Action: Motion to Suppress; Possession of a Controlled Substance

Action Taken by Trial Court: The district court denied appellant’s motion to suppress. Following a bench trial, the court convicted appellant of possession of a controlled substance, and sentenced her to 4 years’ probation.

Assignments of Error on Appeal: Appellant assigns that (1) there was insufficient evidence to sustain her conviction, (2) the court erred in failing to suppress evidence seized during a search of her apartment, and (3) the court erred in prohibiting appellant from having contact with her long term boyfriend during the pendency of her probation.

A-15-564, State v. Rolenc  (Appellant)

Lancaster County, District Court Judge Robert R. Otte

Attorney for Appellant:  Douglas J. Peterson, George R. Love (Attorney General’s Office)

Attorney for Appellee:  Joe Nigro, Kristi Egger Brown (Lancaster County Public Defender’s Office)

Criminal Action:  Motion to Suppress; Possession of a Controlled Substance

Action Taken by Trial Court:  The district court denied appellant’s motion to suppress. Following a stipulated bench trial, appellant was convicted of possession of a controlled substance and sentenced to 12-24 months’ imprisonment.

Assignments of Error on Appeal:  The appellant contends that district court erred in overruling his motion to suppress and that the sentence imposed is excessive.

A-15-51, Shriner v. Friedman Law Offices, PC LLO

Lancaster County, District Judge William B. Zastera

Attorney for Appellant: James Sherrets and Jared Olson (Sherrets Bruno & Vogt LLC)

Attorney for Appellees: Shawn Renner and Susan Sapp (Cline Williams Wright Johnson & Oldfather, LLO)

Civil Action: Legal Malpractice

Action Taken by Trial Court: The district court granted appellees’ motion for summary judgment and denied appellant’s cross-motion for summary judgment on appellant’s action for legal malpractice.

Assignments of Error on Appeal: Appellant assigns that the district court erred in (1) granting appellees’ motion for summary judgment, (2) denying appellant’s cross-motion for summary judgment, (3) relying on a mediator’s privileged testimony regarding mediation communications, (4) finding that appellant voluntarily settled her underlying personal injury claim, and (5) not finding that appellees breached the applicable standard of care.

A-15-0625, State v. O'Connor No case summary is available for this case at this time.
A-15-0647, State v. Gutierrez No case summary is available for this case at this time.