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Supreme Court Call - Case Summaries

Tuesday, March 31, 2015

S-14-0595 State v. McIntyre (Appellant)

Lancaster County District Court, Judge Stephanie Stacy

Attorneys: Nathan A. Liss (Attorney General’s Office) --- Dennis R. Keefe & Shawn Elliott (Public Defender’s Office) (Appellant)

Criminal: DUI with BAC of .15 or more, third offense

Proceedings below: Appellant was convicted following a jury trial and was sentenced to one year in jail and a 15 year license revocation.

Issues: The district court erred in 1) failing to exclude evidence of the highest BAC value obtained from a deficient breath sample, 2) failing to require the State to elect between the theory that Appellant had a BAC of .15 or more and the theory that he refused to submit to a formal breath test, 3) accepting the verdict and adjudicating on insufficient evidence, and 4) imposing an excessive sentence. 


S-14-0911 State v. Casterline (Appellant)

Webster County District Court, Judge Stephen Illingworth

Attorneys: George R. Love (Attorney General’s Office) --- James R. Mowbray & Jeffery A. Pickens (Commission on Public Advocacy) (Appellant)

Criminal: Plea; 2nd degree Murder

Proceedings below: Appellant pled guilty pursuant to a plea agreement and was sentenced to not less than life and not more than life imprisonment.

Issues: The district court erred in 1) imposing a sentence of "life-to-life" imprisonment for second degree murder, because the plain language of Neb. Rev. Stat. §29-2204 explicitly requires a sentencing court to impose a minimum limit of "any term of years" when a maximum limit of life imprisonment is imposed for second degree murder, and 2) imposing an effective sentence of life imprisonment without parole for second degree murder, in violation of Neb. Rev. Stat. §28-105, §28-304(2), and §29-2204.


S-14-0764 Donald V. Cain, Jr. (Appellant) v. Custer County Board of Equalization


Tax Equalization and Review Commission


Attorneys: Patrick M. Heng, Lindsay E. Pedersen (Waite McWha & Heng) (Appellant) --- Steven R. Bowers (Custer County Attorney)


Civil: Protest of classification of land and valuation


Proceedings below: TERC found the County had failed to provide proper notice as required by Neb. Rev. Stat. 77-1315 and this failure prevented Appellant from timely filing his protest by June 30, 2012 under 77-1502. TERC found Appellant complied with the time in which to file his appeal. TERC affirmed the decision of the County Board regarding the taxable value of the subject property.


Issues: TERC erred in (1) finding Appellant failed to meet his burden of proof that the value of the Subject Property as assessed was arbitrary, capricious, and unreasonable and its decision was in disregard of the facts before it; (2) finding it had jurisdiction over the case; (3) determining the notice required under 77-1315 and 77-1502 are not essential to the validity of the County’s decision; (4) failing to apply the proper statutory standard of review; (5) denying Appellant due process by applying an unconstitutional presumption in 77-5016(9).


S-13-777 In re Estate of Ellen M. Panec, Rebecca Griffin v. William J. Panec, Personal Representative

Jefferson County Court, Honorable Steven B. Timm

Attorneys: Vincent M. Powers (Vincent M. Powers & Associates --- Eric B. Brown (Atwood, Holsten, Brown & Deaver Law Firm, P.C., L.L.O.) (Appellant Rebecca Griffin)

Civil:  Distribution of settlement proceeds

Proceedings Below:  The county court accepted the allocation made by the personal representative of the avails of the settlement and distributed the accordingly, and approved payment of attorney fees and the medical expenses and liens.

Issues:  The county court erred in 1) holding it did not have jurisdiction to allocate the damages other than as provided by Neb. Rev. Stat. §30-810, 2) failing to allocate any portion of the settlement proceeds to the Estate’s Neb. Rev. Stat. §25-1401 personal injury survivor claim from Panec’s catastrophic injuries and damages prior to her death, effectively extinguishing the very clam that was the primary source of recovery of the settlement proceeds, and 3) analyzing that the $215,000 in medical bills were implicitly not relevant to any personal injury claim because they were paid by insurance or written off and that both parties would be responsible for the medical bills.

S-14-0380 Facilities Cost Management Group, LLC v. Otoe County School District 66-111 a/k/a Nebraska City Public Schools (Appellant)

Douglas County District Court, Judge J. Michael Coffey

Attorneys: Steven E. Achelpohl & John A. Svoboda (Gross & Welch, P.C., L.L.O --- Larry E. Welch, Jr., Damien J. Wright, & Larry E. Welch, Sr. (Welch Law Firm, P.C.) (Appellant)

Civil: Contract

Proceedings below: Following a jury trial, Appellee was awarded $1,972,993.00.

Issues: The District Court erred in 1) finding in its summary judgment order that the concept of fixing the Project Budget cost was not incorporated into the contract, 2) granting Appellee's partial motion for summary judgment holding that section 12.7 of the contract was not ambiguous, 3) granting Appellee's partial motion for summary judgment holding that the last sentence of section 11.2 of the contract was not ambiguous and determining the provision's meaning on the basis of the parties' course of dealing, 4) refusing to submit an instruction to the jury which instructed them that the last sentence of section 11.2 was, as a matter of law as determined by the Court, defined to mean the Square Foot Methodology due to the parties' course of dealing, 5) admitting over Appellant’s objection, Exhibit 99 which was not supported by adequate foundation, 6) not granting Appellant’s motion for directed verdict on the issue of damages, 7) allowing accountant Craig Clawson's opinion when not supported by adequate foundation, 8) failing to instruct the jury that Appellee had a duty to disclose all matters which it had knowledge which was important that its client should know, 9) instructing the jury, in Jury lnstruction 2, that the parties had entered into a contract when an essential element, the price for Appellee's services, was left for future negotiation and which created a factual question as to whether there was ever a "meeting of the minds," and 10) not granting Appellant’s motion for judgment notwithstanding the verdict or new trial and remittitur, based on the foregoing errors and/or Appellant’s entitlement to a $100,000 credit.


Wednesday, April 1, 2015

S-14-0529 David Fisher and Pamela Fischer, husband and wife, and David Fisher and Pamela Fisher, Trustees (Appellants) v. The Heirs and Devisees of T.D. Lovercheck, et al.

Banner County, Judge Derek C. Weimer

Attorneys: Philip M. Kelly & Jerald L. Ostdiek (Douglas, Kelly, Ostdiek and Ossian) (Appellants) — Leslie A. Shaver & John F. Simmons (Simmons Olsen Law Firm, P.C.) (U.S. Bank, Appellee)

Civil: Termination of severed mineral interest

Proceedings Below: Upon cross-motions for summary judgment, the court granted appellants’ motion for summary judgment in part, denied it in part, and granted U.S. Bank’s motion for summary judgment.

Issues: Appellants assign that the court erred in (1) finding that the amended complaint adding them in their capacities as trustees did not relate back to the original filing date of the complaint, (2) determining that U.S. Bank was entitled to retain its one-fourth mineral interest, and (3) entering summary judgment in favor of U.S. Bank.



S-14-0879 Jason C. Wissmann & Rebecca M. Wissman (Appellants) v. Monty Ray Sellers & Teresa Ann Sellers


Richardson County District Court, Judge Daniel E. Bryan Jr.


Attorneys: Jeanette Stull (Perry, Guthery, Haase & Gessford, P.C., L.L.O.) (Appellants) --- Steven J. Mercure & Jessica D. Meyer (Nestor & Mercure Attorney at Law)


Civil: Habeus corpus; adoption


Proceedings below: Following a bifurcated trial, the district court ordered that full custody, care and control of the minor child be placed with Appellees


Issues: The district court erred in 1) holding that the consents were conditioned upon the retention of parental rights and were therefore invalid and 2) excluding evidence of post-relinquishment visits by Appellees and the reason why those visits were discontinued.


S-14-0058 State v. Armagost (Appellant)

Merrick County District Court, Judge Michael Owens

Attorneys: Laura Nigro (Attorney General’s Office) --- Mitchell C. Stehlik (Lauritsen, Brownell, Brostrom, & Stehlik, P.C., L.L.O.) (Appellant)

Criminal: Flight to avoid arrest

Proceedings below: Appellant was convicted following a jury trial.

Issues: The district court erred in 1) failing to grant the Appellant's Motion for Directed Verdict at the close of the State's evidence and at the close of all evidence presented in the case, 2) failing to offer Appellant's proposed jury instruction containing the definition of "arrest," 3) offering Jury Instruction No. 3, which did not include the essential element for flight to avoid arrest, that of an attempt of an arrest, 4) returning a verdict of guilty where the evidence offered by the State was insufficient to overcome the State's burden to prove guilt beyond a reasonable doubt, 5) failing to grant the Appellant's Motion for a New Trial, and 6) failing to grant the Appellant's Motion for Judgment Notwithstanding the Verdict.


S-14-0377 Benjamin Carrel v. Serco, Inc. (Appellant)

Gage County District Court, Judge Paul W. Korslund


Attorneys: Thomas J. Culhane and Matthew B. Reilly, Erickson | Sederstrom, P.C., LLO (Appellant)--Dustin A. Garrison (Appellee)


Civil: Negligence, Assault and Battery


Proceedings Below: The district court overruled Serco, Inc.’s motion to vacate a default judgment.


Issues: Did the court err by (1) overruling the motion on “the mere basis of . . . neglect”; (2) failing to consider whether Serco, Inc. committed “gross laches”; and (3) determining that the motion to vacate was not prompt even though it was filed within 6 months of the default judgment?



S-14-0290 Lenard Arens (Appellant) v. NEBCO, Inc.

Lancaster County, Judge Jodi L. Nelson

Attorneys: Joy Shiffermiller (Appellant) --- Shannon Doering, Luke Vavricek (Appellee)

Civil: employment discrimination

Proceedings below: The jury returned a verdict in favor of NEBCO and the district court denied Arens’ motion for new trial.

Issues: (1) whether the trial court erred in granting NEBCO’s motion in limine; (2) whether the trial court erred in sustaining the jury’s verdict; (3) whether the trial court erred in overruling Arens’ motion for directed verdict; (4) whether the trial court erred in instructing the jury on the McDonnel Douglas burden shifting analysis and in presenting a mixed motive instruction to the jury; and (5) whether the trial court erred in overruling Arens’ motion for new trial.


S-14-0611, Dowd Grain Company, Inc. (Appellant) v. County of Sarpy

District Court for Sarpy County, Hon. David K. Arterburn

Attorneys: Duane J. Dowd and Terry J. Grennan (Cassem, Tierney, Adams, Gotch & Douglas); L. Kenneth Polikov, Sarpy County Attorney, and Michael A. Smith, Deputy County Attorney

Civil: Declaratory Judgment - Constitutional Challenge to County Ordinance

Proceedings below:    District court dismissed Dowd Grain Company’s complaint after it rejected Dowd Grain’s argument that a county zoning ordinance violated the Nebraska constitution’s prohibition of special legislation.

Issues: Whether Sarpy County’s “Overlay Ordinance Exemption” is special legislation in violation of Neb. Const. art. III, § 18.


Thursday, April 2, 2015

S-14-1049 In re Interest of Jahon S.

Douglas County Separate Juvenile Court, Honorable Christopher Kelly

Attorneys: Joseph L. Howard (Dornan, Lustgarten & Troia PC LLO) (Appellant - father) --- Donald W. Kleine & Amy Schuchman (County Attorney’s Office)

Civil:  Termination

Proceedings Below:  The trial court terminated Appellant’s parental rights to the minor child.

Issues:  The trial court erred in 1) holding that Appellant’s parental rights should be terminated pursuant to Neb. Rev. Stat. §43-292(2), and 2) holding that termination of Appellant’s parental rights was in the best interest of the minor child.

S-14-0903 John Jacobitz v. Aurora Cooperation (Appellant)


Nebraska Workers’ Compensation Court, Judge J. Michael Fitzgerald


Attorneys: Jacob M. Steinkemper (Steinkemper Law, PC, LLO) --- Patrick R. Guinan (Erickson Sederstrom, P.C.) (Appellant)


Civil: Compensability of worker’s injury


Proceedings below: Following a bifurcated trial, Appellant was ordered to pay benefits.


Issues: The trial court erred in 1) finding that Appellee was injured the scope and course of his employment, 2) assigning liability merely because Appellee subjectively believed his attendance was impliedly required and would be to his benefit, 3) assigning liability when it inconsistently concluded that Appellee’s subjective beliefs regarding his attendance, without more, were sufficient to meet his burden but then expressly finding that his attendance at the supper was not required, 4) using the incorrect legal standard in erroneously concluding that Appellant derived "a substantial benefit" from the supper and from Appellee’s attendance at the supper and by failing to consider whether any alleged benefit was “direct," 5) failing to apply the "event specific" test required by Gray v. State, 205 Neb. 853, 290 N.W.2d 651 (1980), 6) assigning liability because there is not sufficient evidence in the record to conclude that the

Appellant derived a substantial direct benefit from this particular supper on this night or Appellee’s attendance at this supper, 7) finding Appellee overcame the presumption that an employer does not derive a substantial direct benefit from a primarily social event, 8) entering an Award in favor of Appellee because there is not sufficient competent evidence to warrant making the Award, 9) making factual determinations that were clearly wrong, do not support a finding that the fall occurred within the scope and course of employment and do not support the order or Award, 10) finding that Appellant received a benefit because Appellee assisted in storing the smoker that was used at the supper, 11) admitting Exhibit 6 into evidence, and 12) failing to render a reasoned decision.


S-14-0582 Paul F. McGill v. Lion Place Condominium Association, an unincorporated association, and Michael L. Henery (Appellants)

Douglas County, Peter C. Bataillon

Attorneys:  Dean F. Suing and David A. Castello of Katskee, Henatsch, & Suing (Appellant Michael Henery) — Justin D. Eichmann, Bradford & Coenen, LLC (Appellee McGill)

Civil:  Derivative suit by shareholder – sale of condominium common property

Proceedings Below: Trial court granted summary judgment in favor of McGill and reversing the sale of the Limited Common Elements.

Issues: The district court erred in (1) finding the action tried and dismissed in Judge Randall’s court was not a bar to the action filed in Judge Bataillon’s court by reason of res judicata; (2) finding the was a basis in the laws of the State for McGill to bring a shareholder derivative suit regarding the sale by the Association to Henery when it is unincorporated; (3) finding the doctrine of collateral estoppel did not apply to this sale; (4) finding the complaint filed by McGill was not on behalf of McGill but was on behalf of the Association; (5) its analysis of the transfer of the Limited Common Elements which were the subject of the underlying transaction.

S-14-523, Selma B. Hauxwell v. H.W. Ferdinand Henning, John A. Henning, Ryan R. Hanzlick, Victoria Hanzlick, Midwest Investments Irrevocable Trust, and all persons having or claiming any interest in a fractional part of section five (5), township three (3) north, range twenty-two (22), west of the 6th P.M., Furnas County, Nebraska [appellants]


Furnas County, Honorable David W. Urbom

Attorneys: Robert S. Lannin and senior-certified law student Wesley Bottorf (Shively Law Offices) for appellants; Roger L. Benjamin for appellee


Civil: Action to quiet title; counterclaim to enforce a tax deed


Proceedings below: District court quieted title via adverse possession in favor of Hauxwell and did not address the validity of the tax deeds


Issues: Did the district court err in 1) finding in favor of Hauxwell on the adverse possession claim, 2) finding Hauxwell had standing to challenge the tax deeds, 3) not addressing the title claims arising from the tax deeds, 4) dismissing the counterclaim, 5) not granting appellants equitable claims to quiet title, ejection, and for injunctive relief, 6) failing to address the claims raised by the tax deeds, or 7) failing to find appellants had a superior right to the real estate pursuant to the tax deeds.



S-14-600, Jordan Klug v. Nebraska Department of Motor Vehicles

Lancaster County, Honorable Andrew Jacobsen

Attorneys: Timothy S. Noerrlinger for Appellant Jordan Klug; Milissa Johnson-Wiles (Attorney General) for Appellee Nebraska Department of Motor Vehicles.

Civil:  Revocation of Commercial Driver’s License

Proceedings Below:  The district court affirmed an order of the Director of the Department of Motor Vehicles (DMV) revoking Klug’s commercial driver’s license (CDL) for a lifetime period.  

Issues:  Whether a Kansas Administrative License Revocation and a South Dakota criminal conviction are offenses included in Neb. Rev. Stat. § 60-4,168 (1) (a) and therefore required revocation of Klug’s CDL.