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Court of Appeals Call - Extended Case Summaries

Irwin, Inbody and Riedmann, Judges

Concordia University - Wednesday, September 16, 2015 subject to call at 9:30 AM

A-14-0916, Intervision Systems Technologies, Inc. v. Intercall, Inc. (Appellant)

Douglas County, District Court Judge Peter C. Bataillon

Attorney for Appellant:  Patrick R. Guinan (Erickson | Sederstrom, P.C. LLO)

Attorney for Appellee:  Luke T. Deaver (Person, DeWald & Deaver, P.C., L.L.O.)

Civil Action:  Breach of contract

Action Taken by Trial Court:  The district court entered judgment for Intervision Systems Technologies in the amount of $73,852.76 in damages plus prejudgment interest at the rate of 2.142 percent.

Assignments of Error on Appeal:  Intervision Systems assigns that the district court erred in finding that a notice clause in the contract was unenforceable as a statute of limitations clause, and in receiving evidence of a court file from a prior case. InterCall on its counterclaim assigns that the district court applied an erroneous interest rate to damages.

Facts:  Intervision Systems entered into a service contract with InterCall.  Under this contract, Intervision Systems committed to spend at least $8,000 per year on InterCall’s telephone conferencing services. In return, InterCall agreed to charge Intervision Systems a lower rate per minute, and to not change that rate during the existence of the contract. 

The parties agree that InterCall incorrectly entered Intervision Systems’ account into its computer system, and on January 1, 2011, began to charge Intervision Systems $0.25 per minute even though it had agreed to charge only $0.05 per minute under the contract. InterCall again added erroneous fees and rate increases to Intervision Systems’ account in January 2012 and May 2012. These rate increases caused InterCall to bill Intervision Systems approximately $76,870.30 more than it should have under the contract rates over the course of 2011 and 2012.

However, Intervision Systems did not dispute the rate increases until March 2013. At that time, InterCall admitted its error and corrected the charges from January and February 2013, but refused to return the overpayments from 2011 and 2012 because of a “look back” clause in the service contract that required Intervision Systems to notify InterCall of any billing disputes within 30 days of the date of the invoice. The contract stated that Intervision Systems agreed to any charges it did not dispute within 30 days.

The district court ruled that the “look back” clause in the service contract was unenforceable in Nebraska because this clause is a “statute of limitations” clause.  (A “statute of limitations” is a law that states the amount of time that a party has to bring a certain type of lawsuit.) In this case, Intervision Systems brought this lawsuit because InterCall breached its contract by charging a higher rate per minute than it agreed to charge.  Under the breach of contract statute of limitations, a party would have 5 years to file a claim. The district court held that the contract requiring notice of a claim within 30 days effectively overrides the 5-year time window that Nebraska law allows to bring a breach of contract claim and, therefore, should not be enforced because of Nebraska case law disapproving contract clauses that modify the statute of limitations. 

InterCall argues on appeal that the “look back” clause is not a statute of limitations clause because it does not change the amount of time that Intervision Systems could bring its lawsuit. Instead, it argues that the “look back” provision is better understood as a remedies or discovery clause. InterCall argues that this contract provision was bargained for and understood by both parties and that the court should not invalidate it because of Nebraska public policy against courts allowing parties to escape the terms to which they agreed in a contract by invalidating a clause. InterCall also argues that even if the clause is interpreted as a “statute of limitations” clause, it should still be upheld as a valid part of the contract.

Although the district court entered judgment for Intervision Systems, Intervision Systems cross-appeals the interest rate that the district court applied to its damages. Intervision Systems argues that the district court was correct in its interpretation of the notice clause, but that the district court erred in awarding the lower interest rate for unliquidated damages and instead should have applied the higher interest rate for liquidated damages.

 

A-14-0963, Jeremiah J. Mowery v. Melissa A. Lovrien (Appellant)

Sarpy County, District Court Judge William B. Zastera

Attorney for Appellant:  Terrance A. Poppe, Benjamin D. Kramer (Morrow, Poppe, Watermeier & Lonowski, P.C.)

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

Civil Action:  Custody Order and Parenting Plan

Action Taken by Trial Court:  The district court awarded custody of the parties’ minor child and child support to Appellee (the father). The court also established a parenting plan which provided Appellant (the mother) with specified visitation time with the child.

Assignments of Error on Appeal:  On appeal, Appellant asserts that the district court erred in awarding Appellee custody of the minor child and in creating a restrictive parenting plan that is not in the child’s best interests.

Facts: Jeremiah (Appellee) and Melissa (Appellant) are the parents of a daughter, who was born in March 2011. Jeremiah and Melissa lived together until they broke up in March 2011. After the break up, Jeremiah continued to live in Papillion, Nebraska, and had visitation with his daughter every weekend. Melissa moved to Lincoln, Nebraska with her daughter and her three other children. At some point in time, Melissa became involved in a relationship with a known member of a street gang, while he was incarcerated. After his release from prison, the man moved in with Melissa and all four of her children. Melissa then had two more children. In November 2013, Melissa’s boyfriend was incarcerated again after assaulting a man. Jeremiah then became concerned with Melissa’s ability to provide a safe and stable environment for his daughter.

In December 2013, Jeremiah filed a complaint to establish custody and a motion for an ex parte order for emergency custody of his daughter. The district court granted the ex parte motion the day it was filed. After a trial, the district court awarded custody and child support to Jeremiah subject to Melissa’s parenting time every other weekend and two weeks in the summer. Melissa appeals from this order.

On appeal, Melissa argues that she has been her daughter’s primary caregiver since birth and they have a very close bond. She argues that awarding her custody would cause the least disruption in the child’s life. She argues that her daughter should live with her to allow the child to develop close bonds with her half-siblings. She argues that in the custody of Jeremiah, the child will be cared for by his girlfriend and live with people she is not related to. She also argues that her boyfriend moved out of her home two months prior to Jeremiah filing his complaint and that she has no intention of resuming a relationship with him. She contends that the parenting plan is too restrictive for her and not in the best interests of the child because it will disrupt the relationship between them and between the child and her half-siblings.

To the contrary, Jeremiah argues that the district court’s decision demonstrates that it found him to be more credible than Melissa. He argues that her testimony that she did not know that her boyfriend was a member of a gang was incredulous and called all of her testimony into question. He believes that Melissa chooses to associate with and allow gang members to be around her children and

disregards any risk to his daughter who is living in that environment. He argues that it is in the best interests of the child to be placed in his custody. Jeremiah asserts that the parenting plan is liberal, reasonable and in the best interests of the child.

A-14-0747, Chrissie E. Wiech v. Craig A. Wiech (Appellant)

Sarpy County, District Court Judge William Zastera

Attorney for Appellant:  Aimee S. Melton, A. Bree Robbins (Reagan, Melton & Delaney, L.L.P.)

Attorney for Appellee:  Michael N. Schirber (Schirber & Wagner, L.L.P.)

Civil Action:  Dissolution of marriage

Action Taken by Trial Court:  The district court dissolved the parties’ marriage and divided the marital property.

Assignments of Error on Appeal:  Craig assigns that the district court erred in its division of the marital property in several respects.

Facts:  Craig and Chrissie were married in May 2008, and Chrissie filed for divorce in October 2013. The main issue at trial was determining the proper classification, valuation, and division of the parties’ property. After trial, the district court entered an order dissolving the parties’ marriage. Chrissie was awarded her vehicle, a 2009 Mazda, and Craig was awarded his vehicle, a 2010 Harley Davidson. Chrissie was awarded the marital residence, subject to its mortgage, and most of the parties’ personal property contained in the residence. Each party was assigned various credit card debts. Chrissie received a lump sum from Craig’s pension, which represented a portion of Craig’s pension as well as part of his accumulated sick, vacation, and compensatory time.

On appeal, Craig assigns numerous errors with respect to the classification, valuation, and division of the various assets owned by him and Chrissie. First, he claims that the district court erred in the date it chose to value his pension. He claims the chosen date has no rational relationship to the date of separation or dissolution.

Craig next asserts that the district court erred in awarding Chrissie a portion of the value of his accrued sick, vacation, and compensatory time. He argues that these benefits should not be considered a marital asset because there was no evidence presented to establish that he has an enforceable right to payment for his leave, and there is no competent way to ascertain the value of these benefits. In the alternative, he argues that even if the unused leave time is considered a marital asset, the district court improperly valued and divided this asset.

Craig also contends that the district court erred in failing to assign a value to the marital residence by calculating the difference between the value of the home and the mortgage balance.

Craig’s next argument is that the parties’ 2013 tax liability should have been treated as a marital debt and divided equitably between him and Chrissie.

Finally, Craig asserts that Chrissie’s portion of the marital estate should be offset by the premarital debt she brought into the marriage which was reduced during the marriage using marital funds. Chrissie filed for bankruptcy prior to the marriage and was ordered to pay $1,200 per month towards this obligation for 60 months. Therefore, during the marriage, she made approximately $56,400 in payments towards this premarital debt. Chrissie acknowledges doing so, but she argues that she made the payments using “her income” because she earned a higher income than Craig during the marriage.

A-14-0032, In re Interest of Madysen S.

Lincoln County, County Court Judge Michael E. Piccolo

Attorney for Appellant: Todd M. Jeffers (Brouillette, Dugan & Troshynski, P.C., LLC)

Attorney for Appellee: Angela M. Franz (Waite, McWha, & Heng)

Civil Action:  Termination & adoption

Action Taken by Trial Court:  The trial court found that, pursuant to the adoption statutes, the appellant abandoned his minor children and his consent was not required for their adoption by their stepfather.

Assignments of Error on Appeal:  The appellant assigns that the trial court erred by finding that he had abandoned his minor children and that his consent was no longer necessary for the adoption of the children.

Facts: In 2000, the appellant, Jeremy S. and his wife, Nicole K., were married. From that marriage, three children were born. In 2007, Jeremy and Nicole’s marriage was dissolved and Nicole was awarded sole care and custody of all three children while Jeremy was awarded no parenting time and ordered to pay $50 per month in child support.

In 2009, Jeremy was convicted in Missouri with three counts of child molestation of his oldest daughter and was sentenced to a total of 16 years’ imprisonment. Jeremy remains incarcerated at this time.

Nicole has since remarried and wished for her new husband to adopt the children. Jeremy refused Nicole’s request to voluntarily relinquish his parental rights to all three children and she filed a motion to terminate his parental rights and a motion for adoption by a step-parent.

A trial was held by the county court, which proceeded with the case under the Nebraska adoption statues. The court found that Jeremy was unable to parent the children due to his incarceration and had abandoned them for purposes of adoption. The court concluded that, since Jeremy had abandoned the children, his consent was not required for adoption. 

Moore, Chief Judge, Pirtle and Bishop, Judges

Concordia University - Wednesday, September 16, 2015 subject to call at 1:30 PM

A-14-0949 Danny McBurnett (Appellant) v. Nebraskaland Tire, Inc. (Appellee/Cross-Appellant)

District Court for Scotts Bluff County, Honorable Leo Dobrovolny

Attorneys:  Sterling T. Huff (Island and Huff) for Appellant — Dan H. Ketcham & Michael L. Moran (Engles, Ketcham, Olson & Keith) for Appellee/Cross-Appellant.

McBurnett, a middle-aged man, has been blind in one eye since he was 17 years old. He worked for Nebraskaland Tire (NLT) as an outdoor tire salesman. Part of his job involved delivering tires to customers, and to do so he drove a company pickup truck or a company pickup truck with a large trailer attached to it. NLT knew of McBurnett’s monocular vision at the time he was hired. After he was hired, however, NLT required him to obtain a “medical card” from the Department of Transportation in order to drive the company pickup truck with the trailer attached. McBurnett was unable to obtain the card because of his vision. McBurnett brought an employment discrimination action against NLT under the Nebraska Fair Employment Practices Act alleging that NLT demoted him to a tire repair position after he was unable to obtain a medical card and refused to make a reasonable accommodation for him.

NLT moved for summary judgment, asserting various defenses. The district court found the action was timely filed and that McBurnett had preserved his issues in the preliminary administrative proceedings, but found he failed as a matter of law to present a prima facie case. In essence, it held that because McBurnett’s monocular vision did not substantially limit him in a major life activity, it was not a disability and therefore did not merit the protection of the Nebraska Fair Employment Practices Act. The district court granted summary judgment in favor of NLT.

On appeal, McBurnett assigns that the district court erred in 1) not properly reviewing the evidence; 2) determining McBurnett failed to show his monocular vision substantially limits his ability to see, work, or engage in any other major life activity when compared to most people in the general population; 3) granting summary judgment in favor of NLT; 4) not finding there were genuine issues of material fact that prevented summary judgment, and 5) not viewing the evidence in the light most favorable to appellant and not giving appellant the benefit of all reasonable inferences deducible from the evidence.

NLT cross-appealed and assigns that the district court erred in finding 1) that McBurnett timely filed his suit arising out of an alleged demotion, 2) that McBurnett timely filed his suit arising out of an alleged failure to accommodate, and 3) that the accommodation issue was contained in the Nebraska Equal Opportunities Commission charge.

A-14-1094, State of Nebraska v. Glenn A. Woodard (Appellant)

District Court for Sarpy County, District Judge William B. Zastera

Attorneys for Appellant:  Michael J. Wilson & Jessica P. Douglas (Schaefer Shapiro Law Firm)

Attorney for Appellee:  George R. Love (Attorney General’s Office)

Criminal Action:  Witness tampering

Background:  In a separate county court case, the State charged Woodard with three counts of third degree domestic assault and one count of theft by unlawful taking, $200 or less. The county court complaint arose from Woodard’s arrest in October 2013 for allegedly assaulting his domestic partner and taking her property. In January 2014, the State charged Woodard in the district court with one count of witness tampering. The State alleged that Woodard tampered with a witness by asking the alleged assault victim to write out a statement concerning the domestic assault and state that what she told the police previously was not true. The State also alleged that Woodard told the victim not to go to court and to avoid a subpoena or not show up if subpoenaed in connection with the assault case.

At trial in the witness tampering case, witnesses testified about the phone system used by inmates in the county jail, the software platform used to provide the automated features of the phone system, and the method by which law enforcement officers are able to search for calls made by inmates. To identify the inmate making a given call, the software platform requires inmates to enter a “PIN.” Also, before connecting a call, and at regular intervals throughout the call, the phone system compares the original “voice print” associated with the inmate’s PIN to the voice of the inmate on the phone. The phone system stores the audio recordings and all other associated data on off-site computer servers.

Officers searched the phone system for calls made from the jail using Woodard’s PIN and for all calls from the jail to the alleged assault victim’s number (as inmates often trade PINs). Officers located an audio recording of a phone call made to the assault victim’s number from an inmate PIN other than Woodard’s in late October 2013. The administrator for the jail phone system downloaded and saved to CD a copy of the audio files of this phone call as well as the files for other calls made from the jail that were made using Woodard’s PIN. The CD and associated data printouts were admitted into evidence as exhibit 1 over Woodard’s objections. Also, over Woodard’s objection, the court allowed an officer investigating charges against Woodard to identify the voices of Woodard, the alleged assault victim, and another individual heard on the CD. The officer testified that he recognized both Woodard’s and the assault victim’s voices in the late October 2013 call, that Woodard told the victim not to show up for court if subpoenaed and how to recant her previous statement to the police, and that Woodard told the victim she would not get in trouble for changing her story or not showing up for court.

Action taken by the Trial Court:  Over Woodard’s objections, the trial court admitted into evidence exhibit 1 containing audio recordings of Woodard’s purported telephone conversations with and concerning the alleged victim in the domestic assault case. The court overruled Woodard’s motion for directed verdict and found Woodard guilty of witness tampering. The court sentenced Woodard to 1 to 3 years’ imprisonment and granted him credit for 349 days served. Woodard subsequently perfected his appeal to this court.

Assignments of Error on Appeal:  Did the trial court err in admitting exhibit 1 into evidence? Did the trial court err in overruling Woodard’s motion for directed verdict? Did the trial court err in finding the evidence sufficient to convict Woodard of witness tampering?

A-14-0736 In re Guardianship of Celeste T.

Douglas County, Honorable Joseph Caniglia

Attorneys: Diane B. Metz (for Kathie Joy, Guardian)--Jay A. Ferguson (for Darrell T., biological father)--Nathaniel V. Romana (Milton Abrahams Legal Clinic for Appellant Melissa U., biological mother)

Celeste (born in 2002) is the biological daughter of Melissa. Since shortly after her birth, Celeste has resided with her maternal grandmother Kathie. Melissa was a teenager when she gave birth to Celeste, and she and the child resided with Kathie for several years.

In 2005, Melissa agreed to allow Kathie to become Celeste’s guardian. In 2009, Melissa moved out of Kathie’s house and in with her boyfriend, Anthony. They have a child together. After moving out, Melissa had visitation with Celeste every other weekend, and every Wednesday. At some point, visitation increased to one full week at Melissa’s house and one full week at Kathie’s house. During the pendency of this case, the court formalized this arrangement.

In 2011, Melissa filed a petition to terminate the guardianship. At the trial on the matter, Melissa presented evidence to show that she is now in a stable relationship, has sufficient housing, employment, and a desire to parent Celeste full-time. Kathie, the guardian, presented evidence to show that Melissa has never provided Celeste with financial support, has lived with different men, and has moved back and forth between Kathie’s home and her boyfriends’. She also presented evidence to show that Melissa does not pay rent, is not on the lease at her residence, does not own a vehicle, and does not have health insurance for Celeste. In addition, Celeste disclosed that Anthony’s father inappropriately touched her while babysitting her and her younger half-brother and that Melissa did not believe her and allows Anthony’s father to be present in the home with Celeste there. Celeste’s father lives in Oregon and is in favor of keeping the guardianship in place as he believes Kathie allows him contact with Celeste, while Melissa does not.

The county court found that Melissa was unfit to parent her child, overcoming the parental preference principle, and denied Melissa’s request to terminate Kathie’s guardianship over Celeste.

On appeal, Melissa assigns that the county court erred in (1) finding sufficient evidence to overcome the parental preference principle and not terminating the guardianship; (2) only applying a “best interests” analysis; and (3) shifting the burden of proof to the mother to prove she was a fit parent.

A-14-0995, Arthur and Linda Lamprecht (Appellants) v. Brent Schluntz and Gerald Schluntz

Furnas County, District Judge David W. Urbom

Attorney for Appellants: Tony Brock

Attorney for Appellees: James B. Luers, Krista M. Carlson (Wolfe, Snowden, Hurd, Luers & Ahl, LLP)

Civil Action: Res Ipsa Loquitur as applied to a wheat field fire

***Black’s law dictionary defines “res ispa loquitur” as follows: “[Latin ‘the thing speaks for itself’] Torts. The doctrine providing that, in some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence so as to establish a prima facie case.”

Factual Background:  Brent Schluntz and Gerald Schluntz are brothers who conduct farming operations together in Furnas County, Nebraska. In June 2012, the brothers and an employee were harvesting wheat. The employee was operating a tractor with an attached grain cart to catch wheat from a combine. The tractor was owned by the Schluntzes. Brent noticed a fire under the tractor and signaled the employee to take the tractor out of the field and onto the road, which the employee did immediately. The fire spread through the wheat field and onto property owned by Arthur and Linda Lamprecht. The fire destroyed machinery, land, crops, and structures owned by the Lamprechts. 

            The Lamprechts sought compensation from the Schluntzes for the property damage they sustained from the fire. The Lamprechts relied solely on the doctrine of res ipsa loquitor to allege that the Schluntzes’ negligent maintenance of the tractor caused the fire. The Schluntzes moved for summary judgment.

Action Taken by Trial Court: The district court granted summary judgment in favor of the Schluntzes and dismissed the Lamprechts’ complaint.

Assignments of Error on Appeal: The Lamprechts assign as error, summarized and restated, that the district court erred (1) in granting summary judgment based on its conclusion that res ipsa loquitur did not apply, (2) in making certain findings of fact, and (3) in excluding Arthur Lamprecht’s affidavit.