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Supreme Court Call - Case Summaries

Wednesday, February 1, 2017

S-16-0114, State v. Joseph J. Buttercase (Appellant)

Gage County District Court, Hon. Paul Korslund

Attorneys: George R Love (Attorney General’s Office) --- Joseph J. Buttercase (Pro se Appellant)

Civil: Seized property

Proceedings Below: The district court denied Appellant’s motion for return of seized property.

Issues: The district court erred in dismissing the Appellant’s motion for return of seized property.

 

S-16-0511, John Zapata, an Individual and as Assignee (Appellant) v. Donald McHugh, an Individual, Donald McHugh d/b/a/ Lincoln Metal Recycling and McHuge Metal Brokerage LLC, a Limited Liability Company d/b/a Lincoln Metal Recycling, McHugh Metal Brokerage, LLC a Limited Liability Company

Lancaster County District Court, Hon. Steven D. Burns

Attorneys: John Zapata (Pro se Appellant) --- Appellees defaulted

Civil: Lease Agreement; assignment; dismissal

Proceedings Below: The district court dismissed Appellant’s complaint.

Issues: The district court erred in (1) dismissing Appellant’s complaint and abused his discretion, was biased and prejudiced toward Appellant, a pro se litigant, 2) dismissing Appellant’s complaint as an assignee and not ruling on Appellant’s filing as an individual party, 3) stating “the Plaintiff counters that Neb. Rev. Stat. §25-304 allows him to bring an action in his own name on any claim which has been assigned to him,” and 4) dismissing this case in haste to clear its calendar prior to his retirement from the bench on May 31, 2016.

 

 

S-16-0209 Medicine Creek, LLC (Cross-Appellant) v. Middle Republican NRD (Appellant)

Frontier County, Judge David W. Urbom

Attorneys: Jon S. Schroeder (Schroeder & Schroeder, P.C.) — Stephen D. Mossman (Mattson Ricketts Law Firm)

Civil: Request for a variance

Proceedings Below: The district court reversed Appellant’s denial of the variance and directed Appellant to grant the request for the variance.

Issues: Appellant assigns that the court erred in holding that the decision to deny the request for a variance was not supported by the evidence, did not conform to the law, and was arbitrary. On cross-appeal, Medicine Creek assigns that the district court erred in (1) not finding that the application of Appellant’s rules and regulations violated Medicine Creek’s equal protection rights and due process rights and were facially unconstitutional and (2) not issuing declaratory and injunctive relief concerning Appellant’s rules and regulations.

 

 

S-16-0605) and S-16-0633) In re Conservatorship of Marie J. Trobough, a protected person, Lorraine Bain, Personal Representative of the Estate of Marie J. Trobough (Appellant) v. Lynne Timmerman Fees, Special Conservator, and Gloria Clippinger, an interested party

Douglas County, Judge Darryl R. Lowe

Attorneys: Susan J. Spahn & Brian S. Koerwitz (Endacott Peetz & Timmer, PC LLO) (Appellant) --- Kirk E. Goettsch (Goettsch Law Firm) (Appellee Lynne Timmerman Fees) --- Robert J. Murray, Kyle Wallor & Daniel J. Hassing (Lamson, Dugan & Murray, LLP) (Appellee Gloria Clippinger)

Civil: Conservatorship; property; fees

Proceedings below: The county court denied Appellant’s motion for immediate transfer or property and granted Appellee Clippinger’s application for attorney fees in the amount of $53,825.83.  Appellant filed this appeal and Appellees filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The county court erred in 1) denying Appellant’s motion requesting the property held in the conservatorship be transferred to her and refusing to order the Special Conservator to immediately transfer the conservatorship estate property to Appellant, the Personal Representative of the Estate of Marie J. Trobough, 2) awarding Appellee Clippinger’s attorney fees and costs to Robert Murray and the Lamson, Dugan & Murray Law Firm because there is no basis in case law or statutes that supports the payment of her fees from the estate and there was no evidence that said fees were fair and reasonable, 3) awarding Appellee Clippinger’s attorney fees and costs to Robert Murray and Lamson, Dugan & Murray Law Firm because there was no evidence that the fees were reasonably necessary to obtain Clippinger’s discharge, 4) finding that Murry’s testimony established that the work was largely done to prepare for defenses of his client’s accounting, and 5) not allowing Appellant Bain to testify at the April 24, 2016, hearing in support of her motion to transfer the property from the conservatorship to her, as personal representative of the Estate of Marie J. Trobough.

 

 

S-15-0035 Amy Marshall (Appellee) v. Brian Marshall (Appellant)

Douglas County District Court, Judge Thomas A. Otepka

Attorneys: Donald A. Roberts & Justin A. Roberts (Lustgarten & Roberts, P.C.) (Appellee) --- Anthony W. Liakos (Govier & Milone, L.L.P.)(Appellant)

Civil: Dissolution

Proceedings below: Following a trial, the district court entered a decree of dissolution.  On appeal, the Court of Appeals reversed in part and remanded with directions.  Appellee filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues: The Court of Appeals erred in 1) determining that the entirety of the proceeds received as a result of the Appellee’s settlement with Merck should be included in the marital estate, 2) remanding this matter to the district court to recalculate the value of the parties marital estate and redistribute the assets and debts between the parties, 3) remanding this matter to the district court to recalculate Appellant’s child support obligation, and 4) reversing the district court’s determination of Appellee’s alimony award.

Issues on Cross-Appeal: The Court of Appeals erred in 1) remanding this matter to the district court to recalculate the value of the parties’ marital estate, 2) calculating Appellant’s income for purposes of determining child support, and 3) remanding this matter to the district court to determine the amount and duration of Appellant’s alimony obligation.

 

 

S-16-0554, The County of Franklin (Appellant) v. The Tax Equalization and Review Commission

Tax Equalization and Review Commission

Attorneys: Henry C. Schenker (Franklin County Attorney for Appellant) --- L. Jay Bartel (Attorney General’s Office)

Civil: assessment of grassland in Franklin County

Proceedings below: The Commission increased the assessed valuation of the grassland in Franklin County by 8 percent.

Issues: 1. The Commission erred by relying on statistics prepared by the Property Tax Administrator which included sales that should not have been considered as “comparable sales” for the purpose of determining current market value. 2. The Commission erred in adjusting the entire grassland values of property in Franklin County by 8% which does not conform to law, is not supported by competent evidence, and is arbitrary, capricious, and unreasonable. 3. The Commission’s actions violated Article VII of the Nebraska Constitution in that it failed to treat Franklin County valuations in a manner that was uniform and proportional with other counties. 4. The Commission erred in failing to grant Franklin County’s motion to reconsider.

 

 

S-16-0465, State v. Erick F. Vela

Madison County District Court, Honorable James G. Kube

Attorneys: Patrick P. Carney (Carney Law, P.C.)(Appellant) --- Douglas Peterson and James D. Smith (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The district court denied Appellant’s motion for postconviction relief without an evidentiary hearing.

Issues: The district court erred in denying postconviction relief without conducting an evidentiary hearing on Appellant's claim 1) that he received ineffective assistance of counsel due to his counsel deterring him from entering a guilty plea early in the case, 2) concerning the relationship of the prosecutor and presiding juror, 3) that he was denied the effective assistance of counsel due to counsel's failure to assign as error on direct appeal the district court's overruling Appellant's Batson challenge, 4) that he was denied effective assistance of counsel due to counsel's failure to allow the State's expert to conduct testing on Appellant to help determine mental retardation (intellectual disability), 5) that he received ineffective assistance of counsel when trial counsel failed to request that a definition of malice be included in the jury instructions for aggravator §29-2523(1)(a), 6) that he received ineffective assistance of counsel when trial counsel failed to offer evidence to negate a finding of malice for aggravator l(a), and 7) that he received ineffective assistance of counsel when trial counsel failed to raise the unconstitutionality of Nebraska's capital sentencing scheme and further failed to argue the same on direct appeal.

 

Thursday, February 2, 2017

S-15-1167, State v. Jaquez Clifton (Appellant)

Douglas County District Court, Judge Gregory M. Schatz

Attorneys: Nathan A. Liss (Attorney General’s Office) --- Thomas C. Riley, Mikki C. Jerabek & Cindy A. Tate (Public Defender’s Office)(Appellant)

Criminal: Murder; use of firearm to commit felony; motion to suppress

Proceedings below: Following a jury trial, Appellant was convicted of 1st degree murder and use of a firearm to commit a felony.

Issues: 1) The district court erred by not granting Appellant’s motion to suppress all of his statements made to law enforcement in violation of the constitutional safeguards afforded by Miranda, 2) Appellant’s Baston challenge was improperly denied as the state failed to provide racially neutral reasons that are supported by the record, constituting reversible error, and 3) the district court erred when it denied the motion for mistrial based upon the State’s Brady violation.

 

 

S-16-0609, Robert Kohout (Appellant) v. Bennett Construction and The Travelers Indemnity Company

Workers’ Compensation Court, Judge James R. Coe

Attorneys: Julie A. Jorgensen (Morrow Willnauer Klosterman Church) --- Terri M. Anderson and Michael W. Khalili (Hauptman, O’Brian, Wolf & Lathrop, P.C.) (Appellant)

Civil: Compensability of employee’s injury

Proceedings below: The trial court held that Appellee was not the employer of Appellant at the time he was injured and dismissed his petition following a trial.

Issues: The trial court erred holding Appellee was not Appellant’s employer for purposes of the Nebraska Worker’s Compensation Act.

 

S-16-0131, State v. Michael L. Ross (Appellant)

Douglas County, Judge Duane C. Dougherty

Attorneys: Gerald L. Soucie (Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The court denied an evidentiary hearing on the allegations in Appellant’s 1st amended motion and denied motions to take depositions. The motion was dismissed.

Issues: 1. The district court erred in denying an evidentiary hearing and dismissing the 1st amended motion for postconviction as to GROUND ONE that alleged Neb. Rev. Stat. 28-1212.04 (2010 Cum Supp.) is a facially unconstitutional criminal statute which creates small geographic areas of enforcement and other areas of immunity for the identical conduct in violation of Neb. Const. Art. III, § 18 and the decision in Galloway v. Wolfe, 117 Neb. 824, 223 N.W. I (1929) and its progeny. 2. The district court erred in denying an evidentiary hearing and dismissing the 1st amended motion for postconviction as to GROUND TWO that alleged Neb. Rev. Stat. 28-1212.04 (2010 Cum Supp.) is a facially unconstitutional criminal statute which creates geographic areas of enforcement verses other areas of immunity for the identical conduct without any rational basis for the distinction in violation of Neb. Const. Art. I, § 16 and Equal Protection Clauses of Neb. Const. Art. I, § 3 and the Fourteenth Amendment to the United States Constitution. 3. The district court erred in denying an evidentiary hearing and dismissing the 1st amended motion for postconviction as to GROUND THREE that alleged Neb. Rev. Stat. 28-1212.04 (2010 Cum Supp.) is facially unconstitutional because the geographic areas of enforcement and areas of immunity for the identical conduct invidiously discriminates against a protected class because African-Americans, such as Mr. Ross, (and other minorities) are disproportionately represented in the area of enforcement in violation of the Equal Protection Clauses of Neb. Const. Art.I, $ 3 and the Fourteenth Amendment to the United States Constitution, and the decision in Hunter v . Underwood, 471 U .S. 222,105 S.Ct 1916 (1985). 4.  The district court erred in denying an evidentiary hearing and dismissing the 1st amended motion for postconviction as to GROUND FOUR that alleged Neb. Rev. Stat. 28-1212.04 (2010 Cum Supp.) is unconstitutional as applied to Mr. Ross and other African-Americans because the geographic areas of enforcement and areas of immunity for the identical conduct invidiously discriminates against a protected class because African-Americans (and other minorities) are disproportionately charged in violation of the Equal Protection Clauses of Neb. Const. Art. I, § 3 and the Fourteenth Amendment to the United States Constitution and the decision in Hunter v. Underwood, supra. 5.  The district court erred in denying an evidentiary hearing and dismissing the 1st amended motion for postconviction as to GROUND SIX that alleged Mr. Ross did not receive effective assistance of counsel at trial and on direct appeal in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and the decision in Strickland v. Washington, 46 U.S. 668, 104 S.Ct. 2052 (1984) and its progeny for failing to move to quash the Amended Information because of the unconstitutionality of Neb. Rev. Stat. 28-1212.14 both facially and as applied, both at the trial and appellate level, as set forth in assignments of error above.

A-16-0676, Marilyn Waldron (Appellant) v. Lancaster County Deputy Sheriff J. Roark

Lancaster County, Judge Robert Otte

Attorneys: Vincent Powers (Appellant) --- David A. Derbin, Ryan Mick Swaroff (County Attorney’s Office)

Civil: 42 U.S.C. § 1983; qualified immunity

Proceedings below: The trial court determined that Appellee was entitled to qualified immunity.

Proceedings below: This case was previously before the Supreme Court. See Waldron v. Roark, 292 Neb. 889 (2016) (reversed and remanded for further proceedings). Upon remand, the court granted summary judgment in favor of Appellee finding Appellee was entitled to qualified immunity.

Issues: 1. The district court erred in granting a summary judgment in favor of Defendant Roark. 2. The district court erred in finding that sufficient exigent circumstances existed from Defendant Roark's perspective to warrant his entry without a proper announcement. 3. The district court erred in finding that Defendant Roark had probable cause to arrest Ms. Waldron. 4. The district court erred in finding that Ms. Waldron's right to be free of the excessive force used by Deputy Roark was not clearly established at the time of the arrest in this case. 5. The district court erred in finding that Deputy Roark was entitled to qualified immunity. 6. The district court erred in finding that there was no evidence to support a claim that a policy or custom of Lancaster County caused Ms. Waldron's damages. 7. The district court erred in finding that Defendant Roark was entitled to summary judgment against him on the claim against him in his official capacity.

S-15-1189, Jay M. Bergmeier v. Nanci B. Bergmeier

District Court of Douglas County, Judge Marlon A. Polk

Attorneys: Aaron F. Smeall (Smith, Slusky, Pohren, & Rogers LLP) (for Appellant Jay Bergmeier) --- Benjamin M. Belmont, Wm. Oliver Jenkins (Brodkey, Peebles, Belmont & Line LLP)

Civil: Dissolution

Proceedings Below: The court dissolved the marriage of the parties and divided the assets and liabilities of the marriage. Alimony was ordered to be paid to Appellee and Appellee was awarded attorney fees.  

Issues: The trial court erred in finding future compensation payments under Appellant’s captured insurance agent contract to be property of the marital estate and awarding Appellee a portion thereof.

 

 

A-16-0491, Michael P. Burns v. Kerry E. Burns (Appellant)

Adams County, Hon. James E. Doyle           

Civil: Jurisdiction in Contempt Proceeding

Attorneys: Robert M. Sullivan (Sullivan Shoemaker P.C., L.L.O.) — Matt Catlett (for Appellant)

Proceedings below: The district court overruled Kerry’s motion to vacate an order that held her in contempt of a prior order and sanctioning her therefor.

Issues: The district court erred in denying Kerry’s motion to vacate as the court’s previous orders are void.

 

A-16-0643, State v. Michael T. Jackson (Appellant)

Douglas County, Judge J. Michael Coffey

Attorneys: Jerry M. Hug (Alan Stoler PCLLO) (for Appellant) --- Stacy M. Foust (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The district court denied Jackson’s successive motion for postconviction relief without an evidentiary hearing.

Issues: The district court erred in (1) determining that Jackson was procedurally barred in his claims regarding Jury Instructions 6, 8, 15, and 16 given at trial; (2) determining that Jackson’s claim that appellate counsel had a conflict of interest was procedurally barred; (3) determining that Jackson was not entitled to an evidentiary hearing on the claim of evidence tampering and outrageous governmental conduct. 

Friday, February 3, 2017

S-16-0355, Johnnie W. Davis [appellant] v. State of Nebraska, Nebraska Department of Correctional Services, Nebraska Attorney General’s Office, Nebraska Board of Parole, Dave Heineman, Jon Bruning, Michael Kenney, Kyle Poppert, George Green, Sharon Lindgreen, Kathy Blut, Esther Casmer, Rex Richard, Miguel A. Gomez, Rosalyn Cotton, and James Pearson

Lancaster County, Honorable Lori A. Maret

Attorneys: Jeanelle R. Lust and Charles E. Wilbrand (Knudsen Berkheimer) for appellant; Douglas Peterson, Bijan Koohmaraie, and David Lopez (Attorney General’s Office) for appellees

Civil: Negligence and § 1983 action

Proceedings below: District court granted defendants/appellees’ motion to dismiss

Issues: Did the district court err in 1) dismissing the entire complaint with prejudice; 2) determining the Nebraska Parole Board and its members are immune from the claims; 3) determining non-parole board defendants cannot be held liable; 4) failing to weigh the role of the non parole board defendants; 5) determining the State has not waived soverign immunity for the claims asserted; 6) determining the negligence action triggers the discretionary function exemption of Neb. Rev. Stat. § 83-1,121; 7) determining the § 1983 claims were not plead with specificity; 8) determining the state defendants are granted qualified immunity against the § 1983 claims; 9) not allowing appellant to amend his complaint.

 

 

S-16-0548, County of Douglas (Appellant) v. Tax Equalization and Review Commission

Tax Equalization and Review Commission

Attorneys: Shakil A. Malik (County Attorney’s Office for Appellant) --- L. Jay Bartel (Attorney General’s Office for Appellee TERC) --- Scott P. Moore, Allison D. Balus (Baird Holm LLP) (for Amici Curiae Midwest Housing Equity Group, Inc., and Family Housing Advisory Services, Inc.)

Civil: Equalization and valuation of residential property under Neb. Rev. Stat. § 77-5023 et seq.

Proceedings below: TERC issued a show cause order regarding valuation of subclasses of residential classes of property in Douglas County. After a hearing, TERC ordered certain adjustments, thus decreasing Valuation Grouping 2 and increasing Valuation Grouping 3 and 4. Douglas County filed a Petition to Bypass the Court of Appeals, joined by TERC, which was granted by the Nebraska Supreme Court.

Issues: I. TERC's decision to decrease Valuation Grouping 2 failed to conform with the law, was unsupported by competent evidence, and was arbitrary, capricious, and unreasonable. II. TERC's decision to increase Valuation Grouping 3 and 4 failed to conform with the law, was unsupported by competent evidence, and was arbitrary, capricious, and unreasonable. III. TERC's decision to not reconsider its decision changing valuations in Douglas County was arbitrary, capricious, and unreasonable and also constituted an abuse of discretion.

S-16-0646) In re Interest of Becka P.
S-16-0647) In re Interest of Thomas P.
S-16-0648) In re Interest of Robert P.

Garden County Court Sitting as a Juvenile Court, Judge Randin Roland

Attorneys: Michael R. Snyder (Snyder & Hilliard, P.C., L.L.O.) (for parents Robert P. and Veronica M. - Appellants) --- Philip E. Pierce (County Attorney’s Office)

Civil: Educational surrogate; contempt; jurisdiction

Proceedings below: The trial court appointed an educational surrogate and gave the surrogate all educational rights over the children.  The Court of Appeals affirmed the trial court’s order of adjudication in A-16-0351) in a memorandum opinion issued on October 19, 2016.

Issues: The trial court 1) did not have jurisdiction to enter an order granting all of the children’s educational rights to an educational surrogate while an appeal of the adjudication was pending in the Nebraska Court of Appeals, 2) erred in ordering the parents to show cause why they should not be held in contempt, and granting all educational rights over the children to an educational surrogate while the case was pending on appeal to the Nebraska Court of Appeals, and 3) imposing an unconditional punishment of removal of educational rights in a civil contempt proceeding, without giving the parents an opportunity to purge their contempt by signing the testing authorization forms. 

 

 

S-16-0547, Lacy Donald v. Alex Donald (Appellant)

Lancaster County District Court, Judge Steven Burns

Attorneys: Tara L. Gardner & Joel Bacon (Keating, O’Gara, Nedved, & Peter, P.C., L.L.O.) --- Sean M. Reagan & A. Bree Robbins (Reagan, Melton & Delaney, L.L.P.) (Appellant)

Civil: Dissolution; custody

Proceedings below: Following a trial, the district court entered a decree of dissolution granting sole legal and physical custody to Appellee subject to Appellant’s parenting time, concluded that Appellee was entitled to child support, and ordered a $41,960.47 lump sum payment Appellant received from the VA be divided equally between the parties as part of the marital estate.

Issues: The district court erred in 1) not awarding the parties joint physical and legal custody of their minor children, taking into consideration the significant amount of parenting time awarded to Appellant, 2) not deviating further in the child support calculation, taking into consideration the amount of time awarded to Appellant and by doing an arbitrary deviation, and 3) including Appellant’s lump sum disability benefit payment from the Department of Veteran’s Affairs in the marital estate and then dividing said payments equally between the parties.

 

S-16-0146, Linda Clarke v. First National Bank of Omaha v. Gregg Graham (Appellant)

Douglas County, Hon. Shelly R. Stratman

Attorneys: Norman Denenberg (Appellant Graham) ---Susan J. Spahn (Endacott Peetz & Timmer) (First National Bank of Omaha) --- Edward W. Hasenjager; Howard A. Kaiman (Appellee Clarke)

Civil: breach of contract

Proceedings Below: Linda Clarke filed suit against First National Bank to recover the proceeds of a $120,000 Certificate of Deposit (CD), which funds she claimed the bank erroneously paid to Gregg Graham. The bank joined Graham as a third party defendant, alleging that it should be reimbursed by Graham if it is found liable to Clarke. The district court granted summary judgment in favor of Clarke against First National Bank, and in favor of First National Bank against Graham.

Issues: The district court erred in (1) finding that there was no evidence that the new account agreement removing Clarke as co-owner of the C.D. and adding Graham as a payable-on-death (P.O.D.) beneficiary was actually signed and returned to the bank by the owner of the account, Hilda Graham; (2) finding that the funds from the $120,000.00 CD were released to Graham in error; and (3) failing to apply Neb. Rev. Stat. U.C.C. § 3-309 regarding a lost or destroyed instrument.

 

 

S-16-0419) and 16-0425) State v. Jesus A. Chacon (Appellant)

Hall County, Judge John Icenogle

Attorneys: Sarah E. Marfisi (Attorney General’s Office) --- Matthew A. Works (Public Defender’s Office for Appellant)

Criminal: Plea: Possession of a controlled substance, Class IV felony (2 counts); DUI

Proceedings below: Pursuant to a plea agreement, Appellant entered no contest pleas and was found guilty. He was sentenced to 20 months to 5 years in prison for one count of possession, and 2 years with 12 months post-release supervision for the second count of possession. For the DUI, he was sentenced 6 months, a $500 fine, and 18 month license suspension. All sentences were ordered to be served concurrently.

Issues: The sentences imposed were excessive.

 

 

S-16-0464, State v. Tareik Q. Artis (Appellant)

Lancaster County, Judge Lori Maret

Attorneys: Robert Wm. Chapin, Jr. (Appellant) --- Sarah E. Marfisi (Attorney General’s Office)

Criminal: Plea: possession of a controlled substance; possession of a stolen firearm

Proceedings below: The court accepted Appellant’s plea to the charges. He was sentenced 2 to 2 years for possession of a controlled substance and 15 to 20 years for possession of a stolen firearm. The sentences were ordered to be served consecutively.

Issues: The court erred in (1) imposing excessive sentences; (2) not ordering the sentences to run concurrently.