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05/25/2015 (All day)

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Supreme Court Call - Case Summaries

Tuesday, May 26, 2015

S-14-0906 In Re Appropriation A-7603, Water Division 2-A, Broken Bar Nine Living Trust (Appellant) v. Nebraska Department of Natural Resources

 

Nebraska Department of Natural Resources, Acting Director James Schneider

 

Attorneys: Jovan W. Lausterer (Bromm, Lindahl, Freeman-Caddy & Lausterer) --- Doug Peterson, Justin Lavene & Emily Rose (Attorney General’s Office)

 

Civil: Order of cancellation of water appropriation

 

Proceedings below: The Nebraska Department of Natural Resources entered an order of cancellation upholding an earlier preliminary determination of non-irrigation.

 

Issues: The DNR erred in 1) the cancellation of Appropriation A-7603 as such cancellation was inconsistent with the Nebraska Constitution, statutes, and case law, 2) finding that the Appellant did not qualify for a stay due to a showing of insufficient cause under Neb. Rev. Stat. § 46-299.04(4), and 3) failing to consider the fiduciary responsibilities of a trustee under the Uniform Trust Code as a sufficient cause under Neb. Rev. Stat. § 46-299.04(4).

 

S-14-0083 State v. Matthew G. Hinrichsen (Appellant)

Antelope County District Court, Judge James G. Kube

Attorneys: Nathan A. Liss (Attorney General’s Office) --- James R. Mowbray & Todd W. Lancaster (Nebraska Commission on Public Advocacy)

Criminal: Murder, 1st degree; possession of firearm; use of firearm

Proceedings below: Appellant was found guilty following a jury trial.

Issues: The district court erred in instructing the jury 1) concerning elements of first degree murder without instructing that the State had to prove the killings were not the result of a sudden quarrel brought about by sufficient provocation, 2) as to the definition of “sudden quarrel,” 3) improperly on the definition of “premeditation,” and 4) without giving the requested “intoxication” instruction.  The district court erred by allowing photographic evidence of the victims while they were alive.

S-14-0796   Marcus M. Williams (Appellee) v. City of Omaha (Appellant)

Douglas County, Judge W. Mark Ashford

Attorneys:  Thomas O. Mumgaard, Deputy City Attorney (Appellant) — John J. Ekeh of Ekeh Law Office and Edward F. Fogarty of Fogarty & Lund (Appellee)

Civil:  action for damages pursuant to Neb. Rev. Stat. § 13-911 (vehicular pursuit by law enforcement officer statute)

Proceedings Below: The district court determined that the City of Omaha was strictly liable under § 13-911 and awarded damages to Marcus M. Williams in the amount of $172,138.56.

Issues: Whether the district court erred in determining that a pursuit was in progress when the collision occurred; Whether the district court erred in determining that the pursuit was a proximate cause of the collision. 

S-14-0895, Rent-A-Roofer, Inc. (Appellant) v. Farm Bureau Property & Casualty Ins. Co. (Appellee/Cross-Appellant)

Attorneys:  Cynthia Lamm (Appellant) – Gary Nedved (Keating, O’Gara, Nedved & Peter)

Civil: Breach of Contract

Proceedings Below:  Summary judgment for the defendant

Issues:  1. The District Court erred in finding that no issue of material fact remained and Defendant was entitled summary judgment because that there was no factual dispute regarding whether Defendant was prejudiced by Plaintiffs failure to give notice until after Plaintiff's settlement. 2. The District Court erred in granting summary judgment because the Court failed to address the issue as to whether Defendant was obligated to pay the costs of Plaintiffs defense in the case brought by NRC under the Defendant's duty to defend under the relevant policy.

Cross-Appeal: 1. The District Court erred in failing to grant summary judgment to Farm

Bureau on Farm Bureau's claim that it did not have to prove prejudice to avoid coverage under the voluntary payments provision of the insurance policy.

Wednesday, May 27, 2015

S-14-0590 State v. Nathan A. Modlin (Cross-Appellant/Appellee)

Hall County District Court, Judge Teresa K. Luther

Attorneys: Nathan A. Liss (Attorney General’s Office) --- David W. Jorgensen (Nye, Hervert, Jorgensen & Watson, P.C.) (Appellant)

Criminal: DUI; motion to suppress

Proceedings below: Appellant was convicted in county court. The district court affirmed on appeal.  The Court of Appeals affirmed on appeal.  Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: 1) The Court of Appeals erred in determining that Appellant consented to the withdrawal of his blood for purposes of determining alcohol content.  2) The Court of Appeals erred in determining that the withdrawal of the Appellant's blood for purposes of alcohol testing, without first obtaining a search warrant violated his rights secured by the Fourth Amendment to the United States Constitution because it was an illegal search and seizure.  3) The Trial Court erred in determining that Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552, 185 L. Ed. 2d 696 (2013) was not applicable in the instant case.  4) The Trial Court erred in affirming the decision by the Trial Court to receive Appellant's alcohol content test result over objection, on the basis that the seizure of his blood was a violation of a right secured by the Fourth Amendment to the United States Constitution.  5) The Trial Court erred in determining that the Appellant was required to subject himself to greater penalties in order to preserve his rights secured by the Fourth Amendment to the United States Constitution.

S-13-0562 State v. John R. Oldson (Appellant)

Howard County District Court, Judge Karin L. Noakes

Attorneys: James D. Smith (Attorney General’s Office) --- James R. Mowbray & Sarah P. Newell (Nebraska Commission on Public Advocacy)

Criminal: 2nd degree murder

Proceedings below: Appellant was convicted following a jury trial and sentenced to not less than, nor more than life imprisonment.

Issues on Review: l. The Court erred by admitting excerpts from Appellant's journals which were inadmissible under Neb. Rev. Stat. § 27-404.  2. The Court erred by admitting excerpts from Appellant's journals which were inadmissible under Neb. Rev. Stat. § 27-403.  3. The Court abused its discretion when allowing Appellant's journal excerpts to go back with the jury during deliberations.  4. The Court erred by not admitting the Backus diary at trial. 5. The Court erred by failing to suppress evidence as requested by the defense in violation of the 4th and l4th Amendments to the United States Constitution and their Nebraska counterparts.  6. The Court erred by failing to dismiss the case as a violation of Appellant's right to a speedy trial under the Due Process clause of 5th Amendment and 14th Amendments and their Nebraska counterparts.  7. The Court violated Appellant's right to confrontation under the 6th Amendment and its Nebraska counterpart by forcing Appellant to choose between effectively cross-examining witnesses and opening the door to highly prejudicial other bad acts evidence.  8. The State's tampering with witnesses violated Appellant's right to a fair trial, to present a defense, and to due process of law under the 5th, 6th, and 14th Amendments to the United States Constitution and their Nebraska counterparts.  9. There was insufficient evidence to support the conviction, which violated his right to be presumed innocent, to due process of law, and to a fair trial.  10. The Court erred by overruling the Motion for New Trial. 11. Appellant's conviction should be reversed on the grounds of cumulative error, thus violating his right to confrontation, to a speedy trial under the 5th Amendment, to be free from unreasonable searches and seizures, to be presumed innocent, to present a defense, to due process of law, and to a fair trial.  12. The Court erred by giving Appellant a life sentence when the jury found him guilty of a lesser offense.

S-14-1076 In re Interest of Jassenia H.

Separate Juvenile Court for Lancaster County, Judge Toni G. Thorson

Attorneys: Joy Shiffermiller (Shiffermiller Law Office, P.C., L.L.O.)(Appellant GAL) --- Lisa F. Lozano (for Appellee, Monique M.)

Civil: ICWA

Proceedings below: The trial court determined that ICWA applies in this case.  The GAL appealed the finding.

Issues: The trial court erred in determining ICWA applied to the proceedings given the mother determined to give up custody within four hours of the birth.

S-14-0915, Tedd Bish Farm, Inc. (Appellant) v. Southwest Fencing Services, L.L.C.

Hamilton County, Judge Rachel A. Daugherty

Attorneys:  Scott Pauley (Conway, Pauley & Johnson) (Appellant) – Matthew Reilly (Erickson, Sederstrom)

Civil:  Negligence Action

Proceedings Below:  The district court affirmed the county court’s order of partial summary judgment on the issue of mitigation of damages for the alleged crop damage (after a final judgment on general damages).

Issues:  1. The district court erred as a matter of law by affirming the trial court's order granting summary judgment for the Appellee on the issue of mitigation of damages and not remanding it for determination by fact finder. 2. The district court erred in not remanding case to the trial court to determine loss of use damages.

S-14-980, David Ivey [appellant] v. William R. Gibson and TyLynne Bauer

 

District court of Madison County, Honorable Mark A. Johnson

Attorneys: Ryan J. Stover (Stratton, DeLay, Doele, Carlson, & Buettner) for appellant; David A. Lopez (Attorney General’s Office) for appellee.

Criminal: Action for writ of habeas corpus

Proceedings below: District court denied writ for habeas corpus

Issues: Ivey asserts on appeal that the trial court erred in denying his petition for writ of habeas corpus.

In a cross-appeal the State asserts the district court erred as a matter of law by not dismissing Ivey's

habeas petition as an improper collateral attack on his confinement.

Thursday, May 28, 2015

S-14-0752 State v. Dallas L. Huston (Appellant)

 

Lancaster County District Court, Judge John A. Colborn

Attorneys: Stacy M. Foust (Attorney General’s Office) --- Dallas L. Huston (Pro se Appellant)

Civil: Postconviction

Proceedings below: The district court denied Appellant postconviction relief without an evidentiary hearing.

Issues: The district court erred in denying Appellant an evidentiary hearing on claims of ineffective assistance of counsel.

A-14-0960 State (Appellant) v. Breanna N. Kleckner

 

Sarpy County, Judge William B. Zastera

Attorneys: Karen S. Nelson (Schirber & Wagner LLP) (Appellee) --- Philip K. Kleine (County Attorney’s Office) (Appellant)

Criminal: Error Proceedings; domestic assault under Neb. Rev. Stat. § 28-323(1) (a), (b), and (c)

Proceedings below: Appellee filed a Motion to Quash and/or Motion to Demurrer alleging the state should be required to elect which subsection of Neb. Rev. Stat. § 28-323(1) the State was proceeding under. The trial court overruled the Motion to Quash and/or Motion to Demurrer. The jury found Appellee guilty of one count of domestic abuse under Neb. Rev. Stat. § 28-323(1) (a). She was acquitted under (1) (b) and the county court dismissed (1)(c) at the close of the State’s case. The district court reversed her conviction under (1) (a) of the statute.

Issues: I. The District Court misapplied the applicable law and standard found in current case law by incorrectly interpreting Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) to find that the separate subsections found under Neb. Rev. Stat. § 28-323(l), despite containing separate elements, were the same offense. II. The District Court misapplied Double Jeopardy analysis under applicable law and under the standard found in current case law by finding that two charges under the same statute were, for purposes of prosecution, the same as two charges for the same act. III. The District Court erred in finding that the State was required to elect which subsection of Neb. Rev. Stat. § 28-323(1) the State was to proceed under because there were separate and distinct acts committed by Defendant and the State produced evidence to justify a charge for each of those separate and distinct acts. IV. The District Court was without authority to reverse the jury verdict of guilty and arbitrarily acquit Defendant of all charges. When the case was presented at trial to the jury, although the jury did not find that there was sufficient evidence to show beyond a reasonable doubt that there had been a threat of bodily harm made pursuant to Neb. Rev. Stat. § 28-323(1) (b), the jury did find that there was sufficient evidence to show beyond a reasonable doubt that bodily harm was caused by Defendant to her intimate partner pursuant to Neb. Rev. Stat. § 28-323(1)(a).

S-14-0931) State v. Michael Joseph Sims (Appellant)

S-14-1073) State v. Michael Joseph Sims (Appellant)

Douglas County District Court, Judge Gary B. Randall

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

Civil: Postconviction

Proceedings below: The district court denied Appellant’s motion to appeal in forma pauperis.

Issues: The district court erred in finding 1) State v. Castaneda did not warrant relief for Appellant, and 2) denying Appellant’s in forma pauperis status.

S-14-0818 Janice K. Litherland (Appellant) v. Gary M. Jurgens and Velda Lee Lenners

 

Gage County, Judge Daniel E. Bryan

 

Attorneys: Lyle J. Koenig, Koenig Law Firm & J.L. Spray & Patricia L. Vannoy, Mattson Ricketts Law Firm

 

Civil: Probate

 

Proceedings below: The district court granted the appellees’ motion to dismiss and dismissed Appellant’s complaint.

Issue: Whether the district court erred in dismissing Appellant’s claims for intentional interference with an expected inheritance and conspiracy.

A-13-0906 Gerald Ficke v. Gilbert Wolken (Appellant)

 

Gage County, Judge Paul Korslund

Attorneys: Bradley A. Sipp (Appellee) --- Lyle J. Koenig (Appellant)

Civil: Contract; specific performance

Proceedings below: The court found the oral contract was not unconscionable and did not violate public policy. Thus, the court ordered specific performance of the oral contract. The Court of Appeals affirmed. See Ficke v. Wolken, 22 Neb. App. 587 (2014). Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: 1. The Court of Appeals erred as a matter of law in finding on its de novo review that the Plaintiff proved by clear, satisfactory, and unequivocal evidence that his performance of the alleged oral contract was referable solely to the alleged oral contract and not to some other and different contract or relation. 2. The Court of Appeals erred as a matter of law in applying a subjective rather than an objective test for part performance in holding that the Plaintiff can prove by his own testimony that the acts he performed were solely referable to the oral contract for the conveyance of land.

Friday, May 29, 2015

S-14-0676, Mark Pettit (appellee) v. Nebraska Department of Correctional Services (appellant)

Lancaster County, Hon. Steven D. Burns.

Attorneys:  Robert B. Creager (Anderson, Creager & Wittstruck) (appellee); Jon Bruning and James D. Smith (Attorney General’s office) (appellant).

Civil:  documents request under § 83-178

Proceedings below:     Mark Pettit, appellee, brought this case in the district court for Lancaster County seeking to obtain documents in the physical possession of the Nebraska Department of Correctional Services (DCS), appellant. The district court determined that there was good cause to allow Pettit access to the documents and ordered DCS to allow Pettit access to them. DCS appeals.

Issue:    DCS assigns that the district court erred when it ordered DCS to permit Pettit to inspect, examine, and reproduce the documents made by John Joubert.

S-15-0002 Kimberly L. Hynes v. Good Samaritan Hospital, A Nebraska Non-Profit Corporation (Appellant)

 

Workers’ Compensation Court, Judge Michael K. High

Attorneys: John C. Fowles (Fowles Law Office PCLLO) ---Thomas D. Wulff (Wulff & Freeman LLC) (Appellant)

Civil: Determination of benefits for injured worker

Proceedings below: This case was previously before the Supreme Court. See Hynes v. Good Samaritan Hospital, 285 Neb. 985 (2013) (judgement vacated and cause remanded for a new trial). Upon remand, the trial court found as a result of the incident of April 16, 2008, Plaintiff suffered an injury resulting in depression and post-traumatic stress syndrome which was made worse by the later two incidents of June 2, 2008, and late June or early July 2008. The court awarded certain medical and hospital expenses and awarded temporary total disability from July 20, 2008 to May 19, 2011. Thereafter, the court determined Plaintiff was permanently and totally disabled.

Issues: 1. The trial court erred in finding that the second and third incidents claimed by the plaintiff occurred or that she suffered a physical injury as a result. 2. The trial court erred in tying the three alleged incidents together and finding that the plaintiff s psychiatric issues flowed from some combination of them. 3. The trial court erred in overruling Defendant's Objections to the medical reports of Plaintiff s expert witness Paula Malin, M.D.

A-14-0833 Gary Labenz and Sandra Labenz (Appellants) v. Linda Labenz et al.

 

Platte County, Judge Robert R. Steinke

Attorneys: George H. Moyer, Jr. (Moyer & Moyer) (Appellants) --- Mark M. Sipple (Sipple Hansen Emerson Schumacher & Klutman)

Civil: Equity action to partition real estate; motion to confirm sale; motion for distribution

Proceedings below: The trial court accepted the parties’ joint stipulation that agreed to sell the real estate at public auction. The court found Appellees were entitled to partial summary judgment on the issue of attorney fees. The court awarded Appellants’ attorney $5,224 in fees, limited to the legal work performed pursuant to the stipulation. Appellants filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: l. The trial court erred by concluding that an attorney's fee could not be awarded to plaintiffs’ attorney in equity. 2. The trial court erred by concluding that no attorney's fee could be awarded to plaintiffs’ attorney for the conduct of the litigation because the statutory predicate to section 25-21,108 R.R.S. had not been fulfilled. 3. The trial court erred by limiting the award of attorney's fees to those services described in paragraph 5 of the parties' stipulation. 4. The trial court erred by awarding$5,224.00 to plaintiff s as an attorney fee where the record clearly showed that plaintiff s attorney had earned more than three times that amount calculated on an hourly basis.

A-13-0429 James A. Adams and Rebecca Z. Adams, husband and wife (Appellants) v. Manchester Park, L.L.C. and Southfork Homes, Inc.

 

Douglas County, Judge J. Michael Coffey

Attorneys: James A. Adams (Law Offices of James A. Adams PCLLO) (Appellant) --- (David J. Stubstad, Patrick S. Cooper (Fraser Stryker PCLLO) (for Southfork Homes, Inc.) --- Larry E. Welch, Sr. (Welch Law Firm P.C.) (for Manchester Park, L.L.C.) --- Edward H. Tricker, Jerry L. Pigsley, Erin L. Ebeler (Woods & Aitken LLP) (for Amicus Curiae Nebraska Building Chapter of AGC and AGC Nebraska Chapter)

Civil: Statute of Limitations

Proceedings below: The trial court dismissed Appellants’ Complaint pursuant to Appellees’ Motion for Summary Judgment. The Court of Appeals affirmed in part, and in part reversed and remanded for further proceedings. See Adams v. Manchester Park L.L.C., 22 Neb. App. 525 (2014). Appellee filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: 1. The Court of Appeals erred in changing Nebraska law, and disregarding established Nebraska law regarding the statute of limitations for defective construction claims, in holding that the statute of limitations would not expire until five years after substantial completion of the house. 2. The Court of Appeals erred in holding that the statute of limitations for alleged defective construction of a new home began to run more than one year after construction of the house was substantially completed (upon expiration of a one-year limited warranty), rather than at the time of substantial completion.