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Supreme Court Call - Case Summaries

Tuesday, August 30, 2016

S-15-0404 State v. Cody Olbricht (Appellant)

Scotts Bluff County District Court, Judge Randall Lippstreu

Attorneys: Leonard G. Tabor (Appellant) --- George R. Love (Attorney General’s Office)

Criminal: Child abuse

Proceedings below:  Following a bench trial, Appellant was convicted and sentenced to 18 to 30 years. The Court of Appeals reversed and vacated. See State v. Olbricht, 23 Neb. App. 607 (2016). Appellee filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Nebraska Court of Appeals erred in concluding the evidence was insufficient to support the conviction.

 

 

S-15-0976 Kristina J. Hartley v. Metropolitan Utilities District of Omaha (Appellant)

Douglas County District Court, Judge Marlon A. Polk

Attorneys: Mark Mendenhall (Appellant) --- Abby Osborn & Joy Shiffermiller (Shiffermiller Law Office, P.C., L.L.O.)

Civil: Nebraska Fair Employment Practice Act

Proceedings below: Following a trial in Hartley I, the jury returned a verdict in favor of Appellant.  The Nebraska Court of Appeals remanded the jury verdict back to the district court.  Following a re-trial, the jury found in favor of Appellee.  The district court denied Appellant’s motion for new trial and issued an order on Appellee’s application for attorney fees.  Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: 1) The District Court abused its discretion by not allowing testimony from Damian Blackwell and Craig Johnson, 2) the District Court erred by overruling Appellant's Motion for Directed Verdict, 3) the District Court erred by overruling Appellant's Motion for a New Trial, 4) the jury's verdict of August 28, 2015, is against the weight of the law, and 5) the District Court abused its discretion by ordering attorney fees that were unreasonable and unnecessary.

 

S-15-0658 In re Interest of Alec S.

Douglas County Separate Juvenile Court, Judge Christopher Kelly

Attorneys: Matthew R. Kahler (Finley & Kahler Law Firm, P.C., L.L.O.) (Appellant) --- Anthony Hernandez & Jocelyn Brasher, Senior Certified Law Clerk (County Attorney’s Office)

Civil: Termination

Proceedings below:  Following a bench trial, Appellant was convicted and sentenced to 18 to 30 years. The Court of Appeals reversed and remanded. Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Nebraska Court of Appeals erred in determining that the State failed to adduce clear and convincing evidence that termination of Brenda G.’s parental rights was in Alec’s best interest.

 

 

S-15-0530 State v. Richard Pester (Appellant)

Scotts Bluff County District Court, Judge Randall L. Lippstreu

Attorneys: Bell Island (Island & Huff) (Appellant) --- Nathan A. Liss (Attorney General’s Office)

Criminal: DUI, 2nd offense; Refusal to submit to a chemical test

Proceedings below: Following a jury trial in county court, Appellant was found guilty and sentenced to a term of probation and the revocation of his license for one year.  The district court affirmed.  Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues on Review: The county court erred in 1) determining the criminal charge of refusal to submit to a chemical test was constitutional, 2) overruling Appellant’s motion to suppress where the contact was for trespassing and there was no probable cause to believe he was operating or in actual physical control pf a motor vehicle while under the influence on public or private property open to public access, and 3) failing to direct a verdict/find insufficient evidence for the conviction where Appellant was in actual physical control on property which was not open to public access.

S-15-0846 Dawn Amory (Appellant) v. City of Lincoln

District Court of Lancaster County, Hon. Andrew Jacobsen

Civil: Sovereign Immunity & Negligence

Attorneys: Cameron E. Guenzel (Johnson, Flodman, Guenzel, & Widger)—Jocelyn Walsh Golden (City Attorney’s Office)

Proceedings below: The district court granted the City of Lincoln’s motion for summary judgment, finding that 1) Amory did not present sufficient evidence to establish that the sidewalk deviation constituted an unreasonably dangerous condition, 2) that sovereign immunity barred Amory’s claims.

Issues: Whether the district court erred 1) in excluding the affidavit of Amory’s expert witness; 2) in finding that Amory did not present sufficient evidence to establish that the sidewalk deviation constituted an unreasonably dangerous condition; 3) in finding that Neb. Rev. Stat. § 13-910(1) barred Amory’s claim; and 4) in finding that § 13-910(2) barred Amory’s claim.

 

S-15-1040 State v. Chancey Cornwell (Appellant)

Lancaster County, Judge John Colborn

Attorneys: David J. Tarrell (Appellant) --- Nathan A. Liss (Attorney General’s Office)

Criminal: DUI - refusal to submit to a chemical test, two prior convictions

Proceedings below: The district court denied Appellant’s motion to quash.  Following a jury trial, Appellant was found guilty and sentenced 2 to 5 and 15 years of license revocation.

Issues on Review: The district court committed plain error in holding that Appellant did not carry his burden of showing that Nebraska's implied consent statute, Neb. Rev. Stat. §6o-6,197 violates his Fourth Amendment right to be free from unreasonable searches when it plainly criminalized his decision to withdraw his consent to a warrantless search seeking evidence for purposes of a criminal prosecution that was purportedly conducted under the consent exception to the warrant requirement.

Wednesday, August 31, 2016

S-15-0956 Randy Strode and Helen Strode (Appellants) v. City of Ashland, Nebraska and Saunders County, Nebraska

Saunders County District Court, Hon. Mary C. Gilbride

Attorneys: Terry K. Barber, for appellants. Mark A. Fahleson and Sheila A. Bentzen (Rembolt Ludtke), for appellee City of Ashland. Duke Drouillard, for appellee Saunders County.

Civil: Inverse condemnation

Proceedings Below: Court dismissed or entered summary judgment against the plaintiffs’ claims.

Issues: 1. The Trial Court Erred In Granting The City's Motion To Dismiss In Favor Of The City, And As To A portion Of The Claims Of Randy Strode, And In Particular, In Determining Those

Claims Were Precluded By Earlier Litigation. II. The District Court Erred In Granting Appellee City Of Ashland Summary Judgment, And In Ruling that No Issues Of Fact Were Raised. III. The District Court Erred In Granting Appellee Saunders County Summary Judgment, and In Ruling That No Issues Of Fact Were Raised. IV. The Trial Court Erred In Determining That The Regulatory Takings Claims Were Barred By The Statute Of Limitations. V. The Trial Court Erred In Determining That The Appellees' Regulation Of The Bridge Structure Alleged By The Appellants, Was Not A Regulatory Taking.

S-15-1032 State v. Dominick L. Dubray (Appellant)

Box Butte County, Judge Travis P. O’Gorman

Attorneys: Self Represented Appellant --- Stacy M. Foust (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The court sustained the State’s motion to dismiss and denied Appellant postconviction relief without an evidentiary hearing.

Issues: 1. The District Court erred when it dismissed Dubray's Petition for Post-Conviction Relief after finding that the records and files in the case affirmatively show that that he was not entitled to relief despite Dubray's claims of actual innocence. 2. The District Court erred when it concluded that Dubray had not alleged sufficient facts to show that trial counsel was ineffective, that he was prejudiced by that ineffective assistance and by not granting an evidentiary hearing on the issue. 3. The District Court erred when it concluded that Dubray had not alleged sufficient facts to show that appellate counsel was ineffective, that he was prejudiced by that ineffective assistance and by not granting an evidentiary hearing on the issue. 4. The District Court erred when it did not grant an evidentiary hearing and it dismissed Dubray's Petition for Post-Conviction Relief after finding that the records and files in the case affirmatively show that he was not entitled to relief despite Dubray's contention that the Trial Judge committed reversible error. 5. The District Court erred when it did not grant an evidentiary hearing and it dismissed Dubray's Petition for Post-Conviction Relief after finding that the records and files in the case affirmatively show that he was not entitled to relief despite Dubray's contention that he was the victim of prosecutorial misconduct. 6. The District Court's Findings and Conclusions that Dubray Failed to Establish a Basis for Post-Conviction Relief were Clearly Erroneous.

S-15-0778 Jill Birkett and Travis Birkett, Individually and as Parent and Next Friend of B.B., a minor child (Appellants) v. State of Nebraska and the Nebraska Department of Health and Human Services

Gage County, Judge Paul W. Korslund

Attorneys: Jeffrey A. Wagner, Ryan P. Watson (Schirber & Wagner LLP) (Appellants) --- David A. Lopez, Bijan Koohmaraie (Attorney General’s Office)

Civil: Nebraska State Tort Claims Act; exceptions to sovereign immunity

Proceedings below: Following a trial to the court, the court found the State Tort Claims Act specifically excepts from its waiver of governmental immunity claims that are based on misrepresentation and deceit and entered judgment in the State’s favor. The complaint was dismissed with prejudice. Appellants filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: I. The Trial Court Erred When It Found The Birkett’s Claim Was Barred Under The Misrepresentation Exception To Neb. Rev. Stat. § 81-8219 Because Appellees Failed To Properly Present Their Affirmative Defense. II. The District Court Erred by Finding the Birketts' Claim Fell Within the Misrepresentation Exception of the State Tort Claims Act. III. The District Court Erred by Finding That Jodene Gall Was Not Negligently Trained and Supervised. IV. The District Court Erred by Reconsidering the Issue of Sovereign Immunity in Contravention of the Law- of-the-case Doctrine

S-15-0086 State v. Travis T. Mitchell (Appellant)

Lancaster County, Judge John Colborn

Attorneys: Nathan J. Sohriakoff (Public Defender’s Office) (Appellant) --- Melissa R. Vincent (Attorney General’s Office)

Criminal: DUI, Refusal to submit to a chemical test, 4th offense, driving during revocation

Proceedings below: The court accepted the jury’s verdict and found appellant guilty of the crimes. He was sentenced five to 10 years in prison for DUI/refusal with 1-2 years imprisonment for driving during revocation. His license was also revoked 15 years. The Court of Appeals affirmed. See State v. Mitchell, 23 Neb. App. 657 (2016). Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Nebraska Court of Appeals erred by failing to find the district court should have declared a mistrial when the State violated due process and the Nebraska and U.S. Constitutions by inappropriately commenting on the Appellant’s pre-trial silence.

 

 

S-15-1137 In re Interest of Sloane O.

Separate Juvenile Court for Douglas County, Judge Douglas Johnson

Attorneys: Anthony Clowe (County Attorney’s Office) --- Karen S. Nelson (Carlson & Burnett LLP) (Appellant, Sabrina O., mother)

Civil: Placement

Proceedings below: This case was previously before the Supreme Court. See In re Interest of Sloane O., 291 Neb. 892 (2015) (reversed and remanded for further proceedings). The court denied the mother’s special appearance and placed Sloane O. in the care and custody of DHHS for placement to exclude the home of the mother (Appellant).

Issues: l. The Separate Juvenile Court erred in determining that the hearing held on November 3, 2015, was an ex parte hearing, when the notice and nature of the proceeding was for a protective custody hearing/detention hearing. 2. The Separate Juvenile Court erred in hearing the Motion for Protective Custody when there was evidence that the mother was served and there was no evidence that the legal parties had notice of the hearing, and as such, the Mother’s due process rights were violated. 3.  The Separate Juvenile Court for Douglas County erred in finding that "notice, service, and jurisdiction” were proper and erred in not ruling on the Mother’s Special Appearance. 4. The continued placement of custody of Sloane O. with the Nebraska Department of Health and Human Services violates the mother’s rights of substantive and procedural Due Process as she had no notice of the hearing and there was insufficient evidence for the Separate Juvenile Court to find a factual basis detain her child.

 

Thursday, September 1, 2016

S-15-0405 State v. Dustin Chauncy (Appellant)

Scotts Bluff County District Court, Judge Leo P. Dobrovolny

Attorneys: Todd W. Lancaster (Nebraska Commission on Public Advocacy (Appellant) --- Stacy M. Foust (Attorney General’s Office)

Criminal: Child abuse resulting in death

Proceedings below:  Following a jury trial, Appellant was convicted and sentenced to 80 years to life imprisonment.

Issues on Review: 1) The district court erred by not granting Appellant's motion to dismiss the indictment due to the grand jury's finding of probable cause not being supported by the record, pursuant to Neb. Rev. Stat. §29-1418(3) (Reissue 2008), 2) the district court erred by not granting Dustin's motion to quash the indictment based on the following irregularities: a) the appointment of the special prosecutor was improper and without statutory authorization, b) during the grand jury proceedings, the special prosecutor improperly misled the jury in advising them what law and penalties applied to the case, 3) the district court erred by not granting Dustin's motion in limine prohibiting the prosecution from submitting evidence regarding DNA in the form of sperm being presented at trial, and 4) the prosecution committed misconduct by disobeying the district court's order concerning DNA in the form of sperm being presented to the jury and the district court erred by not granting Dustin's motion for a mistrial after the prosecution committed misconduct.

 

 

S-15-0937 Clarence W. Devney v. Elizabeth A. Devney (Appellant)

Saunders County District Court, Hon. Mary C. Gilbride

Attorneys: Michael B. Lustgarten (Lustgarten & Roberts), for appellant. Frederick D. Stehlik and Zachary W. Lutz-Priefert (Gross & Welch), for appellee.

Civil: Dissolution of marriage

Proceedings Below: Court dissolved the parties’ marriage and enforced a postnuptial agreement.

Issue: Did the court err by enforcing a postnuptial agreement?

 

S-15-0879 Todd Steckelberg (Appellants) v. Nebraska State Patrol

Lancaster County District Court, Judge Susan I. Strong

Attorneys: Joy Shiffermiller (Shiffermiller Law Office, P.C., L.L.O.) (Appellant) --- David Lopez (Attorney General’s Office)

Civil: Public Records Act; mandamus

Proceedings below: Following a hearing, the district court denied Appellant’s petition for mandamus to release documents and allowed Appellee to change its claimed exemption.

Issues: The Trial Court erred in 1) finding that the Appellant had not met his burden of proof of showing that the documents were public records under Neb. Rev. Stat. § 84-712.01, 2) finding that the records requested were exempt under Neb. Rev. Stat. § 84-712.05(7), 3) allowing the State to mend it's hold to declare a different reason for exemption under the statutes, since the records were clearly not exempt under Neb. Rev. Stat. § 84-712.05(15), 4) failing to allow the Appellant and/or his counsel to review the records the court reviewed in camera, 5) failing to order the Mandamus prayed for by the Appellant.

S-15-0700 Brenton R. Stewart & Mary M. Stewart (Appellants) v. Nebraska Department of Revenue, an agency of the State of Nebraska, and Leonard J. Sloup, in his official capacity as the Acting Tax Commissioner

Lancaster County District Court, Judge Jeffre Cheuvront

Attorneys: Tracy A. Oldemeyer & Andre R. Barry (Cline Williams Wright Johnson & Oldfather, LLP) (Appellants) --- L. Jay Bartel (Attorney General’s Office)

Civil:  Nebraska Special Capital Gains Tax Exclusion

Proceedings below: The district court affirmed the decision of the Tax Commissioner denying Appellants’ petition for redetermination of a deficiency issued by the Department of Revenue for income tax to Appellants for the 2010 tax year.  Both parties filed a Petition to Bypass the Court of Appeals which were granted by the Nebraska Supreme Court.

Issues: The district court erred in 1) failing to give controlling effect to the plain language of §§77-2715.08 and 77-2715.09, which set forth, in clear and unambiguous terms, all of the requirements necessary to qualify for the Nebraska Special Capital Gains Exclusion, and which do not create any additional "economic substance" or "business purpose" requirement, or any other limitation on how, when, or under what circumstances earlier sales or transfers of stock must occur to meet the five unrelated shareholder requirement, 2) its application of the "sham transaction" doctrine to disregard the sales to Hohwieler, Vincent and Carlson, because application of the "sham transaction" doctrine is incompatible with the plain meaning of §§77-2715.08 and 77-211,5.09 and the "sham transaction" doctrine itself, which cannot be applied to defeat legislative intent, 3) failing to recognize that the "sham transaction" doctrine does not apply if a transaction has any practical economic effect or business purpose, such as a real and valid transaction with a purpose of meeting the requirements set forth by statute, and in failing to recognize that the transaction for which the Exclusion was claimed-the sale of the Stewarts' lifetime investment in their Pioneer stock to Aurora Cooperative did undoubtedly have both economic substance and a non-tax business purpose, and 4) basing its decision on a finding that there was no reasonable possibility of a profit to the Stewarts from the sale of shares to Hohwieler, Vincent, and Carlson, when the parties stipulated that Mary Stewart recognized a capital gain and paid income tax on her sale of the three shares to Hohwieler, Vincent, and Carlson.

S-15-0851, Donut Holdings, Inc. (APPELLANT) vs. William Risberg et al.

District Court of Lancaster County, Hon. Andrew R. Jacobsen

Attorneys: Terry K. Barber (Barber & Barger, P.C., L.L.O.)—William Risberg (Pro Se)

Civil: Franchise Agreements

Proceedings below: On Donut Holding, Inc.’s (DHI) claim on a promissory note against William Risberg, the district court entered judgment in favor of DHI. But on the contract claim against Risberg Stores, L.L.C. (Stores), the district court denied judgment to DHI.

Issues: 1. The District Court erred in failing to enter judgment in favor of Donut Holdings, lnc., and against Risberg Stores, L.L.C., for accrued and unpaid fees under the terms of the parties' franchise agreement. 2. The District Court erred in failing to grant a default judgment to Donut Holdings, lnc., and against Risberg Stores, L.L.C.. 3. The District Court erred in its findings of fact regarding the status of the franchise relationship between Donut Holdings, lnc., and Risberg Stores, L.L.C..

 

Friday, September 2, 2016

S-15-1057 In re Interest of Tyrone K., State v. Tyrone K. (Appellant)

Lancaster County Juvenile Court, Judge Reggie L. Ryder

Attorneys: Ashley J. Bohnet (County Attorney’s Office) --- Sarah J. Safarik (Public Defender’s Office)

Criminal: Transfer to county court

Proceedings below: The separate juvenile court granted the State’s motion to transfer and entered an order transferring Appellant’s case to the county court.

Issues: There was insufficient evidence to find Appellant’s case should be transferred to the county court.

 

                         

A-15-1051 Michael J. Wilczewski and Michelle A. Wilczewski (Appellants) v. Charter West National Bank

Douglas County, Judge W. Russell Bowie, III

Attorneys; John Stalnaker, Ashley A. Buhrman (Stalnaker Becker & Buresh PC) (Appellants) --- Jeffrey A. Silver (Appellee)

Civil: Arbitration;  Fraudulent misrepresentation, negligent misrepresentation, fraud and quantum meruit/unjust enrichment

Proceedings below: Charter West filed a Motion to Compel Arbitration pursuant to a purchase agreement between the parties. The court denied the motion and Charter West appealed. The Nebraska Supreme Court dismissed the appeal as not being a final order. See Wilczewski v. Charter West National Bank, 290 Neb. 721 (2015). Thereafter, the court held a hearing on whether the Appellants’ claims were subject to arbitration. The district court found the claims in the complaint were subject to arbitration under the Federal Arbitration Act and ordered the case to arbitration. The Appellants filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: l. The Court erred in finding that the Arbitration Clause applied to the instant matter. 2. The Court erred in not allowing Appellants a full opportunity for discovery on the issue of arbitrability. 3. The Court erred in finding that the Nebraska Uniform Arbitration Act is preempted by the Federal Arbitration Act. 4. The Court erred in dismissing the instant litigation instead of staying the matter pending arbitration.

S-15-1157 State v. Cyrus Kantaras (Appellant)

Buffalo County, Judge William T. Wright

Attorneys: Aaron M. Bishop (Public Defender’s Office) (Appellant) --- George R. Love (Attorney General’s Office)

Criminal: Plea: Possession with intent to distribute; Class III felony.

Proceedings below: Appellant entered a no contest plea to the charge and was sentenced to 4 years’ probation.

Issues: The court erred in imposing an excessive sentence.

 

 

S-15-1053 State v. Eric Benavides (Appellant)

Madison County, Judge James G. Kube

Attorneys: Chelsey R. Hartner (Public Defender’s Office for Appellant) --- Nathan A. Liss (Attorney General’s Office)

Criminal: Plea: Assault in the 3rd degree—domestic, a Class IV felony

Proceedings below: Pursuant to a plea agreement, Appellant entered a guilty plea to Assault in the 3rd degree—domestic, a Class IV felony. After a sentencing hearing, Appellant was sentenced to a term of 12-18 months in the Department of Corrections. Appellee, the State, filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: 1. The lower court erred in sentencing Appellant as it failed to apply Neb. Rev. Stat. § 29-2204.02 (2015 Supp.) as amended by L.B. 605 which became effective August 30, 2015. 2. The lower court erred in sentencing Appellant to a term of incarceration rather than a term of probation.

 

 

S-15-960, State v. Jeffrey Hessler [appellant]

Scotts Bluff County, Honorable Randall L. Lippstreu

Attorneys: Alan G. Stoler and Jerry M. Hug for appellant; James D. Smith (Attorney General’s Office) for appellee

Civil: Postconviction action

Proceeding below: District court denied relief after conducting an evidentiary hearing

Issues: Did the district court err in 1) determining appellant was competent to plead no contest and thus he was not denied due process of law or provided ineffective assistance of counsel, 2) determining trial counsel’s advice to plead no contest was not ineffective assistance of counsel, 3) finding counsel’s failure to discover and present mitigating evidence at sentencing was not ineffective assistance of counsel, or 4) determining appointed counsel’s failure to inform appellate of his right to appeal was not ineffective assistance of counsel?