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Supreme Court Call - Case Summaries

Tuesday, March 28, 2017

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?

S-16-0981, In re Interest of Carmelo G.

Douglas County Separate Juvenile Court, Judge Vernon Daniels

Attorneys: Thomas C. Riley & Zoe R. Wade (Public Defender’s Office) (Appellant - mother) --- Paulette Merrell (Douglas County Attorney)     

Civil: Placement

Proceedings below: The trial court continued the protective placement of the minor child excluding Appellant’s home.

Issues: 1) Appellant was denied due process of law due to the unreasonable delay of more than eight months between the issuance of an ex parte immediate custody order and the temporary order continuing the child’s detention outside the parental home pending adjudication, and 2) Appellant was denied due process of law when the juvenile court found continued detention of the child pending adjudication was necessary based on Appellant’s noncompliance with an invalid and coercive safety plan. 

S-16-0506, State of Nebraska v. Earnest D. Jackson (Appellant)

Douglas County District Court, Judge J. Russell Derr

Attorneys: Douglas J. Peterson & Melissa R. Vincent (Attorney General’s Office) — Jeffery A. Pickens (Nebraska Commission on Public Advocacy) (Appellant)

Criminal: Excessive sentence

Proceedings Below: The district court resentenced Appellant to 60 to 80 years imprisonment for first degree murder after his mandatory term of life imprisonment was vacated based on State v. Mantich, 287 Neb. 320 (2014) and Miller v. Alabama, 132 S. Ct. 2455 (2012).

Issues: The district court abused its discretion and imposed an excessive sentence because it failed to properly consider the applicable legal principles.

 

S-16-0604, Terry P. Brown and Linda S. Brown v. Jacobsen Land and Cattle Company and State of Nebraska, ex rel. Game and Parks Commission (Appellant)

Banner County, Judge Derek C. Weimer

Attorneys: Douglas J. Peterson & Charles E. Chamberlin (Attorney General’s Office) — Andrew W. Snyder (Chaloupka, Holyoke, Snyder, Chaloupka & Longoria, PC, LLO)

Civil: Quiet title

Proceedings Below: The district court allowed the State to intervene, but determined that the State’s interest was insufficient to allow it to present evidence. The court granted summary judgment in in favor of Terry and Linda Brown on the issue of whether their filing a lis pendens precluded any subsequent purchaser from obtaining an interest in the disputed property. Following trial, the court found that the Browns met their burden of proving adverse possession to the property.

Issues: The State assigns that the court erred in (1) determining that the lis pendens operated to make the State a subsequent purchaser, or in the alternative, refusing to cancel the lis pendens based upon the Browns’ extensive knowledge of the State’s interest before the Browns filed their complaint; (2) refusing to consider the effect of equitable title on the State’s interest and ability to defend against the Browns’ claims; (3) determining that equitable title to the disputed property would not affect the State’s interest in the Browns’ claims and its ability to defend against the claims; (4) determining that the State had a sufficient interest to intervene but not a sufficient interest to resist the Browns’ claim of adverse possession; (5) determining that the Browns met their burden of proving adverse possession; and (6) refusing to modify the case progression order.

 

S-16-0608, In re Estate of Herman M. Vollman; Cathy Densberger, personal representative of the Estate of Herman M. Vollmann (Appellant) v. State of Nebraska, Department of Health and Human Services

Otoe County Court, Hon. John F. Steinheider

Attorneys:  Phillip Wright; Ronald L. Sanchez (Special Assistant Attorney General)

Civil:   Probate – Medicaid Reimbursement

Proceedings below:  County court sustained DHHS’s motion for summary judgment and entered judgment in favor of DHHS in the full amount of DHHS’s claim against the Estate of Herman M. Vollmann for reimbursement of Medicaid payments.

Issues: Whether district court erred when it determined that DHHS was entitled to its entire claim for Medicaid benefits made on behalf of Herman M. Vollmann rather than excluding amounts that were paid for room and board at a nursing facility.

 

S-16-0145, Mary Cohan and Terry Cohan, individually and as husband and wife (Appellants) v. Medical Imaging Consultants, P.C.; Robert Faulk, M.D.; Bellevue Obstetrics and Gynecology Associates, P.C.; Michael Woods, M.D.; and Michelle Berlin, PA-C

Douglas County District Court, Judge James T. Gleason

Attorneys: Richard J. Rensch & Sean P. Rensch (Rensch & Rensch Law, P.C., L.L.O.) (Appellants) --- David D. Ernst & Kallie Chesire Olson (Pansing Hogan Ernst & Bahman LLP) (Appellees - Medical Imaging Consultants, P.C.; Robert Faulk, M.D.) --- William R. Settles & Kate Geyer Johnson (Lamson, Dugan & Murray, LLP) (Appellees - Bellevue Obstetrics and Gynecology Associates, P.C.; Michael Woods, M.D.; and Michelle Berlin, PA-C)

Civil: Medical Malpractice

Proceedings below: At the close of Appellants’ case-in-chief, the trial court sustained Appellees’ motion for directed verdict and dismissed Appellants’ claim with prejudice.

Issues: The trial court erred as a matter of law when it 1) granted Appellees’ motions for directed verdict on the issues of both proximate cause and damages and thereby dismissing, with prejudice Appellants’ claims against Appellees and thereby foreclosing Appellants’ opportunity to have these issues decided by the jury, and 2) dismissed Appellants’ first amended complaint on the basis that Mary Cohan had failed to offer sufficient proof of damage or causation other than for a “loss of chance of a lower rate of “non-recurrence” (of her breast cancer) which the trial court postulated under current Nebraska law, does not constitute a proper measure of damage.  

Issues on Cross-Appeal: The trial court erred when it allowed the entirety of Dr. Naughton’s testimony to be presented at trial.

Issues on Cross-Appeal: The trial court erred in denying Appellees’/Cross-Appellants’ motions to strike the testimony of Dr. Michael Naughton.

 

Wednesday, March 29, 2017

S-16-0304, Floyd L. Morrison (Appellant) v. Nebraska Dep’t. of Corrections

District Court of Lancaster County, Hon. Lori A. Maret

Civil: Constitutional Question and Procedural Question

Attorneys: Floyd L. Morrison (pro se) –Douglas J. Peterson and James D. Smith (AG’s Office)

Proceedings below: District court granted the defendant’s motion to dismiss.

Issues: Constitutionality of NDCS’ policy to not allow victims to visit offenders; whether district court can consider a pro se litigant’s original petition where his first amended petition merely states the changes the litigant would like to make, rather than repeating the original petition with changes already made.

 

S-16-0865, Douglas County, Nebraska (Appellant) v. Elizabeth A. White, James F. White, & James McGough

Douglas County District Court, Judge W. Mark Ashford

Attorneys: Donald W. Kleine & Meghan M. Bothe (County Attorney’s Office) (Appellant) — Jim K. McGough (McGoughLaw P.C., L.L.O.) (GAL)

Civil: GAL fees; jurisdiction

Proceedings Below: The district court ordered Appellant to pay $1,719.87 to the GAL for fees.

Issues: The district court erred in 1) concluding that it had jurisdiction over the issue of McGough’s attorney fees in contradiction of Neb. Ct. R. § 2-109(F) because he failed to file a motion for payment of attorney fees incurred on appeal of this civil matter in the appropriate court within ten days after the release of the opinion or entry of the order disposing of the appeal, and 2) ordering McGough’s attorney fees incurred during his unsuccessful defense of White v. White, 293 Neb. 439, 447-450 (2016), to be paid by Douglas County, the prevailing party, without a statutory basis for payment and in direct contradiction to the law of the case.

 

S-16-0938, In re Interest of Cassandra B. and Moira B.

Separate Juvenile Court for Lancaster County, Judge Linda S. Porter

Civil: Disposition

Proceedings below: This case was previously before the Supreme Court. See In re Interest of Cassandra B., 290 Neb. 619 (2015) (affirmed). The court entered an Order of Review finding Moira B. shall remain in the temporary legal custody of DHHS for placement, treatment and care.

Issues: The separate juvenile court erred in failing to terminate the court’s jurisdiction over Moira.

 

 

S-16-0614, State of Nebraska v. Bashir V. Loding (Appellant)

Douglas County District Court, Judge Gregory M. Schatz

Attorneys: Douglas J. Peterson & Nathan A. Liss (Attorney General’s Office) — Thomas C. Riley & W. Patrick Dunn (Public Defender’s Office) (Appellant)

Criminal: 1st degree sexual assault of a child; insufficient evidence; ineffective assistance; excessive sentence

Proceedings Below: Following a jury trial, Appellant was convicted and sentenced to 35 to 50 years imprisonment.

Issues: 1) The district court committed clear error in finding a guilty verdict because evidence was insufficient for a reasonable trier of fact to find the elements of the crime beyond a reasonable doubt, 2) Appellant was denied effective assistance of counsel due to trial counsel’s constitutionally deficient representation in the following specific instances: A) a member of counsel that participated in critical stages of the proceedings was not a certified law student or an admitted member of the Nebraska Bar; B) Appellant did not validly consent to representation by a certified law student; and C) trial counsel made prejudicial errors during opening and closing statements, and 3) the sentence imposed by the district court was excessive and, as such, an abuse of discretion.

S-16-0628, Ryan Revocable Trust v. Ryan

District Court of Sarpy County, Hon. William B. Zastera

Attorneys: For Intervenors/Appellants: Paul Heimann, Bonnie M. Boryca, Karen M. Keeler (Erickson Sederstrom); For Defendant/Appellee Constance Ryan: Larry E. Welch, Jr., Damien J. Wright (Welch Law Firm); For Defendant/Appellee Streck, Inc.: Thomas H. Dahlk, Victoria H. Buter (Kutak Rock) and Ronald E. Reagan (Reagan, Melton, & Delaney); For Plaintiffs/Trustee/Amicus: Marnie A. Jensen, Mark A. Hill (Husch Blackwell) and Richard R. Winter, Maureen B. Schoaf, Chelsea Ashbrook McCarthy (Holland & Knight)

Criminal/Civil: Civil; Statutory and/or Equitable Intervention

Proceedings Below: The Appellants filed a Complaint in Intervention. The Defendants/Appellees filed a motion to strike the complaint-in-intervention, which the district court granted.

Issues: Whether the District Court erred in denying the Appellants’ complaint-in-intervention.

 

Thursday, March 30, 2017

S-16-0563, State v. Henry O. Salvador Rodriguez (Appellant)

Sheridan County, Judge Travis P. O’Gorman

Attorneys: Siobhan E. Duffy (Attorney General’s Office) --- Travis Penn (Penn Law LLC) (Appellant)

Criminal: Possession with intent to deliver (Methamphetamine); greater than 10 grams

Proceedings below: The court overruled Appellant’s motion to suppress evidence. After a trial to a jury, Appellant was found guilty of the crime. He was sentenced 8-12 years in prison.

Issues: Appellant argues the district court erred in (1) overruling Appellant’s motion to suppress the evidence obtained from a warrantless search of his home; (2) allowing evidence of past methamphetamine use by Appellant; (3) failing to give a limiting instruction concerning to what purpose the evidence of past methamphetamine use could be used; (4) overruling his objections to the State’s closing arguments.

 

S-16-0496, Applied Underwriters, Inc. and Applied Risk Services, Inc. (Appellants) v. S.E.B. Services of New York, Inc. and 20th Century Services of New York, Inc.

Douglas County, Hon. Kimberly Miller Pankonin

Attorneys:  Jeffrey A. Silver; Stephen M. Bruckner, Patrick S. Cooper (Fraser Stryker)

Civil:  Contract

Proceedings below:  District court sustained defendants’ motion to dismiss after it determined that it lacked personal jurisdiction over the defendants, that the forum selection clause in agreement was unenforceable, and that even if forum selection clause were enforceable, Nebraska was not a reasonably convenient place for trial.

Issues: Whether district court had personal jurisdiction over defendants based on Nebraska’s long-arm statute; whether reinsurance participation agreement and its forum selection clause were enforceable; and whether Nebraska was a reasonably convenient place for trial.

 

S-16-0222, Steven B. Anderson v. Steve Finkle (Appellant)

District Court for Douglas County, Hon. Shelly R. Stratman

Attorneys: Benjamin M. Belmont and William Oliver Jenkins, Brodkey, Peebles, Belmont & Line, Omaha; John A. Kinney and Jill M. Mason, Kinney Mason, Omaha.

Proceedings Below: Anderson filed a complaint against Finkle on a promissory note. The district court entered judgement in Anderson’s favor for $55,000. Finkle appeals.

Issues on Appeal: Finkle assigns that the district court erred in (1) applying the parol evidence rule to bar consideration of evidence outside of the agreement; (2) finding the note valid and enforceable; and (3) in discrediting Anderson’s testimony as a matter of law.

S-16-0307, Steve Anderson (appellee) v. Steve Finkle (appellant)

District Court for Douglas County, Hon. Shelly R. Stratman.

Attorneys:  John A. Kinney and Jill M. Mason (Kinney Mason, PC, LLO) (appellee); Benjamin M. Belmont and Wm. Oliver Jenkins (Brodkey, Peebles, Belmont & Line LLP) (appellant)

Civil:   breach of contract

Proceedings below:  Steve Anderson filed a complaint against Steve Finkle on a promissory note. After a bench trial, the district court entered judgment Anderson’s favor for $55,000. The district court then denied Finkle’s motion for new trial. Anderson died after the trial but before judgment was entered. Anderson’s estate eventually filed a motion for revivor, which the district court granted. Finkle appeals.                         

Issue:   Appellant argues: (1) The district court lacked jurisdiction after Anderson died and before the court entered an order of revivor, and therefore lacked jurisdiction to enter judgment after trial and to rule on the motion for new trial. (2) The district court lacked jurisdiction to enter an order of revivor after Finkle perfected his first appeal in this case, case No. S-16-222. (3) The district court erred when it applied the parol evidence rule to bar consideration of evidence outside the agreement. (4) The district court erred in finding the promissory note valid and enforceable. (5) The district court erred in failing to discredit testimonial evidence of Anderson as a matter of law.

S-16-0415, In re Trust of Radford

Douglas County, Hon. Stephanie R. Hansen

Attorneys: Richard A. DeWitt; Steven G. Ranum (Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, LLC) — Jeffrey J. Blumel; Kelsey M. Weiler (Abrahams Kaslow & Cassman LLP)

Civil: disposition of trust

Proceedings Below: Upon application for direction filed by the trustee, the county court determined that $200,000 transferred by the decedent, Sheila Radford, to her daughter, Mary Radford, three years before the trust instrument was adopted, should be treated as an advancement of Mary’s inheritance and counted against Mary’s share of the residuary of the trust because Mary executed a contemporaneous writing acknowledging the $200,000 as inheritance.

Issues: The appellant, Mary Radford, assigns that the county court erred in (1) determining that Neb. Rev. Stat. § 30-2350 applied to trusts; (2) finding that the doctrine of ademption applies to a gift made before the trust instrument is made; (3) ignoring the intent of Sheila Radford to give her daughter Mary Radford a 1/6 interest in the Trust; and (4) determining that a deduction should be made to Mary Radford’s share of the trust based on the 2007 gift.

 

S-16-0761, State v. Eddie H. Dehning (Appellant)

Deuel County, Judge Derek C. Weimer

Attorneys: Steven E. Elmshaeuser (Appellant) --- Joe Meyer (Attorney General’s Office)

Criminal: Exploitation of a vulnerable adult; theft by unlawful taking

Proceedings below: A jury returned a verdict of guilty on both accounts. He was sentenced to 60 to 60 months for Count I with a consecutive sentence of 5 to 10 years. The sentences were also ordered to be served consecutively to another criminal case.

Issues: 1. The evidence was insufficient to prove he was guilty beyond a reasonable doubt. 2. The sentence imposed was excessive.

Friday, March 31, 2017

S-16-0190, State v. Robyn J. Wood (Appellant)

Douglas County District Court, Judge J. Russell Derr

Attorneys: Nathan A. Liss (Attorney General’s Office) --- Jim K. McGough (McGoughLaw P.C., L.L.O.) (Appellant)

Criminal: 1st degree sexual assault of protected person, Class III felony; motion in limine

Proceedings below: Following a jury trial, Appellant was convicted and sentenced to probation.

Issues: 1) The district court erred in overruling Appellant’s motion for new trial after the State offered no evidence that Appellant “subjected” the victim to sexual penetration as required by the charged conduct, 2) the evidence was insufficient to support the verdict that the Appellant had subjected the victim to sexual penetration, and 3) the district court erred by overruling Appellant’s motion in limine and allowing the jury to consider irrelevant evidence of Appellant’s attendance at a sexual anonymous meeting that had no bearing on the charged conduct.

 

S-16-0347, In Re Estate of James S. Chapman, Carol Vinjamuri and Lois Bentz v. Penny Dupuy

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

Attorneys: Jill Gettman & Scott Daniel, Gettman & Mills --- Brian Jorde, Domina Law

Civil: disqualification of counsel

Proceedings Below: The district court disqualified Jill Gettman from representation of the contestants/appellants Vinjamuri and Bentz.

Issue on Appeal: (1) Whether the district court erred in disqualifying Gettman; and (2) Whether that order was final and appealable.

 

S-16-0593, In the Matter of Hike v. Nebraska Department of Roads

Sarpy County, Judge William Zastera

Attorneys: Jason Bruna (Sherrets Bruno & Vogt) (Appellants)– Attorney General

Civil: Constitutional Inverse Condemnation

Proceedings below:  The court determined the Appellants’ claims were subject to a 2 year statute of limitations period under Neb. Rev. Stat. 25-218 and thus, the claims were time-barred.

Issues: The district court erred in (1) finding the Hikes’ claims were time barred even though initially raised in a condemnation proceeding filed by Appellee in 2008; (2) failing to judicially estop Appellee from raising the statute of limitations as a defense; (3) erred in applying Neb. Rev. Stat. 25-218 to the Hikes’ claims.

 

S-16-0641, Gary Walters, Denise Walters, Aaron Schmid, Jacquelyne Romshek, and Corey Micek (appellants) v. Steven Colford and Sara Colford and Daniel Adamy

Butler County District Court, Judge Mary C. Gilbride

Attorneys: Jeffrey Silver –  Todd Vetter (Colfords)/Robert Bierbower (Adamy)

Civil: Nuisance, violation of restrictive covenants, conspiracy

Proceedings below: This is the appellants’ appeal from the district court’s orders granting summary judgment to the Colfords and Adamy on the appellants’ claims that they were entitled to an implied servitude on the Colfords’ property and a mandatory injunction requiring the Colfords to remove a large garage on their property. The district court granted the appellees’ motion for summary judgment on the nuisance and restrictive covenant claims, but did not dispose an invasion of a privacy claim and a conspiracy claim. After the Court of Appeals dismissed the appellants’ first appeal, A-16-0109, the district court entered a summary judgment on the appellants’ conspiracy claim and dismissed the complaint.

Issues: Whether the court erred in granting summary judgment to the appellees on the appellants’ claims.  

 

S-16-0376, State of Nebraska v. Shawn L. Cross (Appellant)

Scottsbluff County District Court, Hon. Randall L. Lippstreu

Attorneys:  Appellant proceeds pro se; Kimberly A. Kline and Douglas J. Peterson for Appellee

Civil:   Postconviction action             

Proceedings below:  The court denied Cross’ motion for new trial without an evidentiary hearing.

Issue:  Whether the court applied the correct standard for a motion for new trial based on newly discovered evidence. Whether the court erred in failing to hold an evidentiary hearing on the motion for new trial and denying the     motion for new trial.