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Supreme Court Call - Case Summaries

Tuesday, February 28, 2017

S-16-212, Paul Gillpatrick and Niccole Wetherell v. Diane Sabatka-Rine, Denise Skrobecki, and Michael L. Kenney (Appellants)

District Court of Lancaster County, Hon. Robert R. Otte

Attorneys: Amy Miller (ACLU), Michael D. Gooch — David A. Lopez (Attorney General’s Office)

Civil: Inmates’ right to marry

Proceedings Below: Paul Gillpatrick and Niccole Wetherell, both of whom are incarcerated with the Nebraska Department of Corrections, challenged the denial of their request for the Department to facilitate their marriage ceremony via videoconference under the declaratory judgment provision of the Administrative Procedure Act (Neb. Rev. Stat. § 84-911), and under 42 U.S.C. § 1983, alleging that the denial violated their rights under the Fourteenth Amendment. The district court granted the inmates’ motion for summary judgment and ordered that the State must facilitate the marriage ceremony via videoconference.  

Issues: The Appellants assign the district court erred: (1) to the extent it ordered any relief under Neb. Rev. Stat. § 84-911 because appellees failed to name the Department of Corrections as a defendant and failed to challenge the validity of a rule or regulation; (2) to the extent it determined the appellees’ rights or obligations under any statute because appellees failed to bring any claim under Neb. Rev. Stat. § 25-21,150; (3) in violating the State’s sovereign immunity to the extent its order compels any affirmative act by the State; (4) to the extent it granted appellees injunctive relief against government officers because appellees’ 42 U.S.C. § 1983 claims were against such officers in their individual capacities only; (5) to the extent it concluded the Fourteenth Amendment commands States to affirmatively facilitate videoconference wedding ceremonies between inmates; (6) in denying appellants’ motion for summary judgment; and (7) in sustaining appellees’ motion for summary judgment.

S-16-0383, Matthew Landrum et al. (Appellants) v. City of Omaha Planning Board et al.(Cross Appellants) and Daryl Liese et al.

Douglas County, Judge J. Michael Coffey

Attorneys: Rex J. Moats (Moats Law Firm) — Alan M. Thelen (City Attorney’s Office) and Russell S. Daub

Civil: Zoning - special use permit, conditional use permit, amendment to overlay district

Proceedings Below: The district court found that the City of Omaha Planning Board (Board) and the Omaha City Council (City Council) acted within their jurisdiction and that their determinations as to a special use permit, conditional use permit, and the MCC overlay district were supported by sufficient relevant evidence and should be affirmed.

Issues: Appellants assign that the court erred in (1) finding the City Council had jurisdiction and sufficient evidence to approve the special use permit and the MCC Overlay, (2) finding that the Board acted within its jurisdiction and had sufficient evidence to approve the conditional use permit, and (3) affirming the determinations of the City Council and Board when the record showed they did not act with due process of law.

            On cross-appeal, the City assigns that the court erred in failing to rule that (1) the petition in error was untimely as to the conditional use permit, (2) Appellants lacked standing as to the rezoning challenge, and (3) the petition in error was an improper remedy as to the rezoning.

S-16-0379, Bryan R. Heckman v. Regina M. Marchio (Appellant)  

Dodge County District Court, Judge Geoffrey C. Hall

Attorneys: Julie Fowler & Brenden M. Kelly (Fowler & Kelly Law, LLP) --- Jeremy Jorgenson (Appellant)

Civil: Attorney disqualification; conflict of interest

Proceedings Below: The district court Appellant’s attorney and his firm from representing Appellant against Appellee due to a previous attorney-client relationship and conflict of interest.

Issues: The District Court for Dodge County violated Appellant's Sixth Amendment rights and clearly erred in issuing Orders disqualifying Appellant's privately retained and paid civil Counsel in: l) finding that an attorney-client relationship existed between Appellee and Appellant's Counsel David J. Reed; 2) finding that Appellee met his burden of proof in establishing the existence of an attorney-client relationship between Appellee and Appellant's Counsel David J. Reed; 3) finding that Appellee had sought or received legal advice from Appellant's Counsel David J. Reed; 4) finding that the meeting between Appellee and  Appellant's Counsel David J. Reed concerned a matter that was substantially related or substantially similar to the matters at issue in this the instant litigation; 5) finding that Appellant's Counsel David J. Reed came to possess any confidential or attorney-client privileged information at that certain meeting with Appellee when Appellant was present at such meeting; 6) entering the March 2, 2016 Order which fails to appropriately apply Nebraska law and jurisprudence regarding attorney disqualification; and 7) entering the April 8, 2016 Order which fails to appropriately apply Nebraska law and jurisprudence regarding attorney disqualification.

S-16-0325, McGill Restoration, Inc. v. Lion Place Condominium Association, et al. (Appellant)

Douglas County, Judge Peter C. Bataillon

Attorneys: Benjamin E. Maxell (Katskee, Suing & Maxell, PC, LLO) — Jodie Haferbier McGill (McGill Law, P.C., L.L.O.)

Civil: Breach of contract

Proceedings Below: Following a bench trial, the district court entered judgment in favor of McGill and awarded prejudgment interest. It later determined that Lion Place’s expert did not possess a legitimate basis to serve as an expert and because Lion Place proceeded to trial without a legitimate expert witness, the proceedings were frivolous. The court ordered Lion Place to pay attorney fees of $5,920.

Issues: Lion Place failed to assign any error. It argued that the court erred in (1) failing to disqualify McGill’s legal counsel from representing McGill at trial, (2) finding that admissions made by McGill’s representative were inadmissible at trial as negotiations in furtherance of settlement, (3) determining that Lion Place waived its right to a jury trial, (4) finding that a binding oral contract existed, (5) finding that McGill performed it obligations under the contract, (6) finding Michael Henery did not qualify as an expert, and (7) awarding attorney fees

S-16-0280, State v. Ramone D. Jefferson (Appellant)

District Court of Douglas County, Hon. Gary B. Randall

Attorneys: Ramone D. Jefferson (pro se) — Kimberly A. Klein (Attorney General’s Office)

Civil: Postconviction Action

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

Issues: Jefferson assigns that the district court erred in failing to grant an evidentiary hearing on his motion for postconviction relief.

S-16-0526, David Oldfield (Appellant) v. Nebraska Machinery Company  

Lancaster County, Hon. Andrew Jacobsen

Employment Law: Wrongful Termination

Attorneys: Robert F. Bartle (Bartle & Greier) – Margaret C. Hersisher, David A. Yudelson (Koley Jessen)

Proceedings below: District court granted summary judgment in favor of Nebraska Machinery Company, finding insufficient evidence to sustain Oldfield’s claims of wrongful termination, age discrimination, and retaliation.

Issues: Did the district court err in granting summary judgment to defendant on the basis that there was insufficient evidence to raise an inference that Oldfield was fired under the pretext of age discrimination and retaliation?

Wednesday, March 1, 2017

S-15-1107, State of Nebraska v. James McWilliams (Appellant)

Lancaster County District Court, Hon. John A. Colborn

Attorneys:  DeAnn C. Stover for the Appellant; Douglas J. Peterson (Attorney General) and Melissa R. Vincent (Assistant Attorney General) for the Appellee.

Criminal:  First-degree sexual assault, aggravated offense

Proceedings below:    A jury convicted James of first-degree sexual assault, aggravated offense. The court denied James’ motion for a new trial and sentenced him to 20-35 years, for the class II felony, with credit for 329 days served.

Issues: (1) Whether the State committed prosecutorial misconduct;

            (2) whether a witness for the State committed misconduct;

            (3) whether James was afforded effective assistance of counsel;

            (4) whether the trial court erred in not granting James a new trial; and

            (5) whether the sentence was excessive. 

S-16-377, William White (Cross-Appellant) v. State (Appellee) and Scott Busboom, individually (Appellant)

Johnson County, Judge Daniel E. Bryan, Jr.

Attorneys: James D. Smith, Ryan C. Gilbride, Jessica M. Forch, and David A. Lopez (Attorney General’s Office) for Appellant Busboom and Appellee — Abby K. Osborn and Joy Shiffermiller (Shiffermiller Law Firm) for Cross-Appellant

Civil: § 1983 Action - Qualified Immunity

Proceedings Below: The district court sustained in part and denied in part cross motions for summary judgment and awarded monetary damages and attorney fees and costs against Busboom individually

Issues: Busboom assigns that the district court erred by (1) not concluding that White’s due process claim was waived; (2) granting summary judgment to White against Busboom individually; and (3) denying qualified immunity to Busboom.

White cross-appeals and assigns that the court erred by reducing the award of attorney fees.

S-16-0426, State v. Arturo Barrera-Garrido (appellant)

District Court for Douglas County, Hon. W. Mark Ashford.

Attorneys:  Douglas J. Peterson (Attorney General) and Sarah E. Marfisi (Assistant Attorney General); Daniel S. Reeker (Kendall Law Office, PC LLO) (appellant)

Criminal:  postconviction relief        

Proceedings below:  The district court for Douglas County denied Arturo Barrera-Garrido’s motion for postconviction relief without conducting an evidentiary hearing.                                                                             

Issue:   Barrera-Garrido assigns that the district court erred when it (1) denied his motion for postconviction relief and (2) did not hold an evidentiary hearing on his motion for postconviction relief.

S-16-0381, Jeffrey L. Strohmyer, M.D. v. Papillion Family Medicine, P.C., Robert G. Naegele, M.D., and Edward M. Mantler, M.D.

District Court of Sarpy County, Judge William B. Zastera

Attorneys: Russel S. Daub; W. Eric Wood (Downing, Alexander & Wood); Larry R. Forman (Hillman, Forman, Childers & McCormack)

Civil/Criminal: Civil: Dissolution of Professional Corporation

Proceedings Below: This is an appeal from the order of the district court determining the value of Appellant’s stock in the Appellee professional corporation PFM, the amount of remaining compensation due to the Appellant, and the value of the Appellee’s counterclaim for breach of fiduciary duty.

Issues: Valuation of Business Property and Amount of Compensation; Breach of Fiduciary Duty

S-16-629, State v. Paul J. Jedlicka (Appellant)

Sarpy County District Court, Judge David K. Arterburn

Attorneys: Ann Addison-Wageman (Wageman Whitworth Law Firm) for Appellant — Kimberly A. Klein (Attorney General’s Office) for Appellee

Criminal: First degree sexual assault of a child under 12 years of age

Proceedings Below: Jury found Jedlicka guilty of first degree sexual assault of a child and the district court sentenced Jedlicka to not less than 15 years nor more than 25 years imprisonment.

Issues: Whether (1) the district court erred by (a) allowing hearsay to be admitted under the exception at Neb. Rev. Stat. § 27-803(3) and (b) overruling Jedlicka’s motion to dismiss at the close of the State’s case; and (2) trial counsel was ineffective by failing (a) to obtain expert witnesses; (b) to object on the admissibility of evidence at trial; and (c) to develop and marshal a proper defense strategy.

S-16-0664, Streck, Inc. v. The Ryan Family, LLC and Stacy Ryan (Appellant/Intervenor)

Sarpy County District Court, Judge William B. Zastera

Attorneys: Paul D. Heimann, Bonnie M. Boryca, and Karen M. Keeler (Erickson & Sederstrom, P.C.) for Appellant/Intervenor — Victoria H. Buter and Thomas H. Dahlk (Kutak Rock LLP) and Ronald E. Reagan (Reagan, Melton & Delaney, LLP) for Appellee, Streck, Inc. — John D. Stalnaker and Aimee K. Cizek (Stalnaker, Becker & Buresh, P.C.) and Lawrence E. Welch, Jr., (Welch Law Firm, P.C.) for Appellee, The Ryan Family, L.L.C.

Civil:    Denial of Intervention

Proceedings Below: District court denied motion for order permitting intervention, dismiss complaint in intervention, and denied Intervenor’s motion for continuance of motion for summary judgment.

Issues: Whether the district court erred in: (1) disallowing the “Complaint in Intervention;” (2) denying the motion for an order permitting the “Complaint in Intervention;” denying the request in that motion to allow and order that Appellant/Intervenor be provided access to discovery conducted in the matter; and denying the request in same motion to permit Appellant/Intervenor to conduct discovery and fully participate in the proceedings; and (3) failing to continue the hearing on Streck, Inc.’s motion for summary judgment or to re-open the summary judgment record to allow Appellant/Intervenor an opportunity to conduct necessary discovery and to participate in the summary judgment proceedings.

Thursday, March 2, 2017

S-16-0480, LaTanya Thomas, Special Administrator of the Estate of Tyler Thomas, LaTanya Thomas and Kevin Semans (Appellants) v. Board of Trustees of the Nebraska State Colleges and Joshua Keadle

Nemaha County, Judge Daniel E. Bryan, Jr.

Attorneys: Ronald F. Krause, Patrick B. Donahue (Cassem Tierney Adams Gotch & Douglas) (Board of Trustees) --- Vincent M. Powers (Vincent M. Powers & Associates) (for Appellants)

Civil: Wrongful death

Proceedings below: The trial court granted the Board of Trustee’s motion for summary judgment, dismissing all claims against the College finding there was insufficient evidence upon which a fact finder could find the harm to Tyler was foreseeable, and the evidence did not support a finding of a duty for a college to protect students from violent acts performed by another student off campus.

Issues: 1. The District Court erred in granting the College's Motion for Summary Judgment; 2. The District Court erred in failing to find that one or more genuine issues of material fact were in dispute; 3. The District Court erred in holding that plaintiff presented no evidence that any of the violent acts perpetrated by Keadle against Tyler occurred on the Peru State College Campus; 4. The District Court erred in holding that the college could not be liable for harm to Tyler that occurred off campus; 5. The District Court erred in finding that the Appellant had not produced evidence sufficient to raise a genuine issue of material fact on the element of foreseeability, particularly in light of the fact that the appellee's director of security recommended that Keadle be removed from the school; 6. The District Court erred in failing to give the non-moving party the benefit of all reasonable inferences and therefore found erroneously that the College's response to the facts of which it had actual knowledge did not rise to the level of negligence; 7. The district court erred in finding as a matter of fact that the kidnapping, rape and murder of Tyler Thomas by Joshua Keadle "was not foreseeable by the Board or any of its employees (Peru State College)."

S-16-0052, Victoria L. Bodnar v. Gerald A. Bodnar (appellant)

Douglas County District Court, Judge Shelly R. Stratman

Attorneys: Kyle C. Allen -- Brent M. Kuhn (Appellant)

Civil: Marital dissolution.

Proceedings below: The court dissolved the marriage. In the decree, the court awarded alimony to Victoria, awarded her the full amount of her retirement benefits because they were not subject to a QDRO, and ordered her to make equalization payments to Gerald.

Issues: Whether the court erred in (1) ordering Gerald to pay Victoria $1,000 per month in alimony for 6 years, (2) failing to give Gerald his share of Victoria’s retirement benefits, and (3) dividing the marital estate in an inequitable manner.

S-16-0346, State v. Joshua E. Belk (appellant)

Platte County, Honorable Robert E. Steinke

Attorneys: William J. Neiman for appellant--- Siobhan E. Duffy (Attorney General’s Office)

Civil: Action for postconviction relief

Proceedings below: District court dismissed motion after conducting an evidentiary hearing

Issues: Did the district court err in failing to find Belk received ineffective assistance of counsel because counsel recommended he take a plea agreement and failed to perform and share discovery with Belk?

A-16-0515, Ginger Cove Common Area Company v. Scott Wiekhorst and Delores Wiekhorst (appellant)

District court for Douglas County, Honorable James T. Gleason

Civil: Appeal of order refusing to vacate discovery sanctions; appeal filed after final judgment

Proceedings below: District court entered judgment in favor of Ginger Cove. Scott Wiekhorst then appealed an order refusing to vacate discovery sanctions imposed on him—including the dismissal of his counterclaims.

Issues: Did the district court err in denying Scott’s motion to vacate the discovery sanctions imposed on him?

Friday, March 3, 2017

S-16-0754, State v. Akeem R. Jones (Appellant)

Douglas County, Judge Leigh Ann Retelsdorf

Attorneys: Siobhan E. Duffy (Attorney General’s Office) --- Jerry M. Hug (Alan G. Stoler PCLLO) (for Appellant)

Criminal: First degree murder

Proceedings below: A jury found Appellant guilty. He was sentenced to a term of life imprisonment.

Issues: There was insufficient evidence to convict Jones of first degree murder.

S-15-0800, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court v. William E. Gast

Original Proceeding

Attorneys: Kent L. Frobish (Assistant Counsel for Discipline) --- no brief filed on behalf of Respondent Gast

Civil: Attorney Discipline Matter

Proceedings below: After a disciplinary hearing before a referee, the referee filed a Report and Recommendation. The Report and Recommendation found that Gast violated certain provisions of the Nebraska Rules of Professional Conduct and recommended a 30 day license suspension and probation for 2 years upon reinstatement. The Relator, Counsel for Discipline, filed exceptions to the Referee’s Report and Recommendation.

Issues: 1. Relator contends that there was clear and convincing evidence that respondent violated

§ 3-508.2(a), by sending Exhibit 2 to Judge Bataillon and others in which respondent alleged that

Judge Bataillon and Mr. Craig had engaged in a years' long cover up of a personal relationship between them. 2. Relator takes exception to the Referee's ruling that respondent had withdrawn his admission that he violated § 3-503.5(a)(1) by sending Exhibit 3. Relator also takes exception to the Referee's ruling that by writing and sending Exhibit 3, respondent did not seek to influence Judge Bataillon by means prohibited by law in violation of § 3-503.5(a)(1). 3. Relator takes exception to the Referee's recommended sanction of a 30-day suspension of respondent's license followed by a 2-year term of probation. Relator asserts that a suspension of respondent's license for 90 days is the appropriate sanction. Relator agrees that upon reinstatement respondent should be placed on probation for 2 years as recommended by the Referee.

S-16-654, In the Matter of the Estate of Dorothy Pluhacek a/k/a Mary Pluhacek a/k/a Sr. M. Dorothy de N.D., deceased

County Court for Douglas County, Honorable Thomas K. Harmon

Attorneys: Shane J. Placek for Margaret Hickey, the Provincial Superioress of the Omaha province of the Notre Dame Sisters (the office appointed as executor of the will at issue). No responsive brief filed.

Civil: Action to probate a partially hand-written will

Proceedings below: Probate court found the purported will was a holographic will, made at a time when Nebraska did not recognize holographic wills, and denied probate. It determined the decedent died intestate.

Issues: Did the probate court err in determining the will was a holographic will and err in denying probate of the will?

S-16-260, Midland Properties, LLC and Jerry Morgan (appellants) v. Wells Fargo, N.A. and HBI, LLC, and H&S Partnership, LLP (appellees)

District Court for Douglas County, Hon. Timothy P. Burns.

Attorneys:      Douglas W. Ruge for appellants; Jennifer L. Andrews and Alison M. Gutierrez (Kutak Rock, LLP) for appellee Wells Fargo; Thomas J. Young and Lilly Richardson-Severn (General Counsel for H&S Partnership) for appellees HBI, LLC and H&S Partnership, LLP)

Civil:  foreclosure; tortious interference with business relationship; quiet title

Proceedings below:  Midland Properties, LLC and Jerry Morgan (the appellants) filed an action against Wells Fargo, N.A., HBI, LLC, and H&S Partnership, LLP, seeking declaratory relief and alleging tortious interference with business relationships, wrongful foreclosure, and quiet title. The district court for Douglas County granted Wells Fargo’s motion for summary judgment.                           

Issue:   The district court erred when it (1) determined there was insufficient evidence for purposes of summary judgment regarding whether there was a wrongful foreclosure, quiet title issue, or tortious interference with business relationship; (2) determined that Morgan’s testimony lacked sufficient foundation; and (3) denied the appellants’ motion to add Service Link as a defendant.

S-16-0358, ACI Worldwide Corp. (Appellant) v. BHM, Inc., Jack T. Baldwin, Lynne J. Baldwin, Michael E. Meeks, and John and Jane Does

Douglas County, Judge J. Russell Derr

Attorneys: Gregory C. Scaglione, Patrice D. Ott, John V. Matson (Koley Jessen PCLLO) and Eric J. Magnusun, Ryan W. Marth, Christopher P. Sullivan (all admitted pro hac vice) (Robins Kaplan LLP) (for Appellant) --- Michael F. Coyle, Timothy J. Thalken, Robert W. Futhey (Fraser Stryker PCLLO) (Appellees)

Civil: Misappropriation of trade secrets; breach of non-disclosure agreement; tortious interference with a business relationship.

Proceedings below: The bifurcated trial on ACI’s claims from BHMI’s counter claims resulted in a defense verdict. The case then proceeded on BHMI’s counterclaims on which the jury returned verdicts in favor of BHMI for $43,806,362.70. BHMI was granted $2,732,962.50 in fees and $7,657.93 in costs. Both parties petitioned to bypass the Court of Appeals and such petitions were sustained by the Nebraska Supreme Court.

Issues: 1.  The court erred in denying ACI's motions to dismiss BHMI's counterclaims and refusing to vacate the 2015 verdicts and associated judgment because:

a. the Noerr-Pennington doctrine precludes BHMI's antitrust and tortious

interference claims, and BHMI presented insufficient evidence to support those

claims;

b. BHMI presented insufficient evidence to support its breach of contract claim;

c. BHMI presented no cognizable evidence of damages to support any claim.

2. The court erred in denying ACI's motions to vacate the dismissal of ACI's claims and the associated 2014 verdict and judgment and to grant new discovery and trial on the basis of denied discovery. 3. Alternatively to assignment no. l, the court erred in refusing to vacate the 2015 verdict and associated judgment and in refusing to grant new discovery and trial on the basis of denied discovery and the exclusion of evidence in the 2015 trial. 4. The court abused its discretion in granting BHMI's application for attorneys' fees and costs.