Supreme Court Case Summaries

January 6, 7, 8 or 9, 2009

TUESDAY, JANUARY 6, 2009, subject to call at 9:00 a.m.

S-07-0617, State v. Parry Hedgcock (Appellant)

Cass County, Judge Randall L. Rehmeier

Attorneys: Donald B. Fieldler (Appellant) --- George R. Love (Attorney General’s Office)

Criminal: Possession of a controlled substance with intent to distribute; possession of a controlled substance, more than one pound.

Proceedings below: After a bench trial, Appellant was found guilty of the above crimes. He was sentenced 18 to 30 months on both counts, to be served concurrently.

Issues: The trial court erred in overruling Appellant’s motion to suppress evidence. The trial court erred in holding the Platte River Rest Area was not a de facto checkpoint.

S-07-1198, State v. Kenneth N. Rhodes (appellant)

Hall County, Judge James D. Livingston

Attorneys:  James R. Mowbray and Robert W. Kortus (Nebraska Commission on Public Advocacy) for appellant; Kimberly A. Klein (AG) for appellee

Civil:   Postconviction proceeding

Proceedings below:  After an evidentiary hearing, the district court denied postconviction relief

Issues:  Did the district court err in failing to find that Rhodes received ineffective assistance of counsel at trial and on direct appeal because counsel 1) failed to ascertain  Rhodes’ mental status to insure he was competent during the trial and sentencing, 2) failed to adequately pursue a plea offer or make a counter plea offer, 3) failed to adequately advise Rhodes of his right to testify, and 4) failed to assert the rule of lenity?  Did the district court violate double jeopardy principles at the enhancement phase by relying on convictions also used in the guilt-innocence phase?

S-07-1194, Marlo Johnson and Jennifer Johnson (Appellants) v. City of Kearney (Appellees)

Buffalo County, Judge John P. Icenogle

Attorneys: Arthur R. Langvardt (Appellants) – Justin R. Herrmann, Jeffrey H. Jacobsen (Jacobsen, Orr, Nelson, Lindstrom & Holbrook P.C. LLO)

Civil: validity of paving district ordinance

Proceedings Below: The district court affirmed a special assessment and determined that no procedural defect occurred to invalidate the ordinance in question.

Issues: Whether the district court erred in: (1) holding that the city council could consider withdrawals of previously-filed written objections to the creation of an improvement district after the statutory time for filing an objection had expired and (2) failing to void the assessment levied against Appellants.

S-08-0331, State v. William A. Epp (Appellant)

Gage County, Judge Paul W. Korslund

Attorneys: Todd W. Lancaster (Nebraska Commission on Public Advocacy) (Appellant) --- George R. Love (Attorney General’s Office)

Criminal: Robbery and possession of a deadly weapon by a felon

Proceedings below: A jury found Appellant guilty of the above crimes. A hearing was held and it was determined by the court that Appellant was a habitual criminal.  He was sentenced to two terms of 60 years to 60 years, each to run consecutively to each other. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The trial court erred in (1) not allowing Appellant to present evidence of third party guilt; (2) by admitting evidence of prior bad acts; (3) finding sufficient evidence to find Appellant guilty of count II, possession of a deadly weapon by a felon; (4) failing to grant Appellant’s motion for a mistrial based on prosecutorial comments during closing arguments; (5) admitting into evidence: Exhibit #197, #198 and #199; (6) finding Appellant was a habitual criminal as defined by Neb. Rev. Stat. § 29-2221 and (7) imposing excessive sentences.

S-06-0757, Jeffrey Jay Reed v. Christine Jennifer Reed (Appellant)

Hall County, Judge Teresa K. Luther

Attorneys: John W. Ballew, Jennifer L. Tricker (Ballew Covalt PC LLO) (Appellant) --- Mark Porto (Shamberg Wolf McDermott & Depue)

Civil: Dissolution

Proceedings below: This case was previously before the Nebraska Supreme Court. See Reed v. Reed, 275 Neb. 418 (2008). Appellant filed a motion for rehearing which was granted by the Nebraska Supreme Court. The order granting the motion for rehearing asked the parties to address the issues stated below.

Issues: (1) Whether the public policy of the Uniform Fraudulent Transfer Act, Neb. Rev. Stat. §§ 36-701 to 36-712 (Reissue 2004) would be served by applying the provisions of that act to the transfer of alleged marital assets? and (2) Whether the trial court’s jurisdiction to consider the Appellant’s fraudulent transfer claims was affected by the absence of the alleged transferees as parties?

S-08-0032, Wayne C. Piper (Appellant) v. Sherry L. Wilkerson
 
Douglas County, Judge Joseph S. Troia

Attorneys:  Joni Visek (Appellant)---Douglas W. Ruge II

Civil:  Partition and Equitable Accounting

Proceedings below:    District court equitably divided proceeds from the sale of a house that was owned by the unmarried parties as joint tenants. Court also ordered Sherry Wilkerson to return an engagement ring to Wayne Piper.

Issues: Whether district court erred in its equitable distribution of the proceeds from the sale of the house, and whether district court erred in ordering Wilkerson to return engagement ring to Piper and in failing to award attorney fees to either party.

WEDNESDAY, JANUARY 7, 2009, subject to call at 9:00 a.m.

S-08-0712, State v. Damien D. Watkins (Appellant)

Douglas County, Judge Gregory M. Schatz

Attorneys: Thomas M. Rowen (Appellant) --- Kimberly A. Klein (Assistant Attorney General)

Civil: Postconviction

Proceedings below: After a hearing, the district court denied Appellant’s motion for postconviction relief.

Issues: The district court erred in (1) finding Appellant had effective trial counsel as trial counsel was ineffective in failing to object during sentencing and also failing to properly advise Appellant of his possible sentence; (2) finding Appellant had effective trial counsel as trial counsel failed to raise all appealable issues; (3) failing to advise Appellant to his right to counsel before accepting his guilty plea; (4) denying Appellant’s motion to withdraw his guilty plea.

S-08-0012, State of Nebraska, ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. Julianne Dunn Herzog (Respodent)

Original Action

Attorneys: David A. Domina, Eileen Reilly Buzzello (Donima Law Group PC LLO) (Respondent) ---Kent L. Frobish (Assistant Counsel for Discipline) (Relator) --- Pro Se Reply Brief filed.

Civil: Attorney Discipline

Proceedings below: The referee found Respondent violated Neb. Ct. R. of Prof. Cond. § 3-503.2 and § 3-508.4(a) and (d). The referee recommended a public reprimand and 12 months probation.

Issues: The referee erred in (1) considering evidence involving conduct not charged in the formal charges; (2) finding that clear and convincing evidence proved Respondent endeavored to control Rosemary C. Dunn through the legal process; (3) finding evidence of violation of Neb. R. of Prof. Cond. §§ 3-503.2, 3-508.4(a) and (d); (4) recommending that a public reprimand, with probation, is an appropriate sanction.

S-08-0622, Steven R. Smith v. Mary K. Smith (Appellant)

Kearney County, Judge Stephen R. Illingworth

Attorneys: Grant A. Forsberg (Appellant) --- Susan K. Alexander

Civil: Modification of child custody

Proceedings below: The district court modified custody and awarded custody to Steven. The district court ordered that Mary is to have no further contact with any of the minor children.

Issues: The district court erred in (1) admitting certain exhibits over objection; (2) awarding Steven sole legal and physical custody of the minor children and ruling Mary have no future contact with her children; (3) ordering Mary to submit to an extensive psychological evaluation by Dr. Meidlinger without a finding of good cause; (4) finding that Mary must submit and partially fund a child custody evaluation by Dr. Meidlinger when Mary objected to participation of Dr. Meidlinger.

S-08-0498, State v. Anthony Babbitt (Appellant)

Lancaster County, Judge Jodi Nelson

Attorneys: John S. Berry (Appellant) --- Kimberly A. Klein (Attorney General)

Criminal: Attempted criminal impersonation

Proceedings below: After a bench trial, Appellant was found guilty of two of the six counts of attempted criminal impersonation. He was sentenced to 3 years probation for each count.

Issues: The district court erred in (1) finding sufficient evidence to support a verdict; (2) overruling Appellant’s motion for new trial.

S-07-1088, Sandra S. Rutherford v. Gregory A. Rutherford (Appellant)

Douglas County, Judge Joseph S. Troia

Attorneys: Clay M. Rogers, Kevin J. McCoy (Dwyer Smith Gardner Lazer Pohren & Rogers LLP) (Appellant) --- Donald A. Roberts (Lustgarten & Roberts PC LLO)

Civil: Modification of child support

Proceedings below: The trial court, after a hearing, modified Appellant’s child support obligation and made it retroactive to July 1, 2005. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: the trial court erred in (1) modifying child support to an amount unsupported by the record; (2) modifying child support by allegedly extrapolating from the guidelines, in an explicable manner, without any evidence of calculations which resulted in a rate on income over the guidelines double that merited by an even straight-line extrapolation from the guideline tables; (3) considering only an increase in income of the non-custodial parent without considering the needs of the children; (4) failing to consider Appellant’s obligations to his later-born children and payment of all health insurance premiums and costs in its calculations.

S-07-1353, In re Trust created by John A. Nixon, Sr., deceased

Douglas County Court, Judge Jeffrey Marcuzzo

Attorneys: John G. Liakos, Michael J. Matukewicz, Jason R. Fendrick (Liakos & Matukewicz LLP) (for Appellants Robert Nixon, Kenneth Nixon, Joanne Nixon Rickels, and Dianne Nixon Sullo) --- Mary A. Donovan, Heather Voegele-Anderson (Koley Jessen PC LLO) (for Appellee Richard Hugh Daley) --- David L. Buelt (Ellick Jones Buelt Blazek & Longo (for Appellee Wells Fargo Bank, N.A.)

Civil: Trust administration, Nebraska Uniform Trust Code, Neb. Rev. Stat. § 30-3801 et seq. (Supp 2006)

Proceedings below: The trial court found that Appellee Daley was an adopted child and the 1986 California adoption action was to be given full faith and credit pursuant to Article IV, Section I of the U.S. Constitution; 28 U.S.C. § 1738 and Miller v. Kingsley, 194 Neb. 123 (1975). Therefore, Daley was a child of decedent’s daughter Grace for purposes of descent under Neb. Rev. Stat. § 30-2209 and under the terms of the Nixon Family Trust. The trial court found that Daley was the sole beneficiary of Trust A of the Nixon Family Trust by being the only child of Grace and ordered delivery of Trust A to Daley. Appellants filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The county court erred in (1) finding the state of Nebraska is required give full faith and credit to the California adult adoption of Richard H Daley by Grace Nixon; (2) finding that Richard H. Daley is a child of Grace Nixon under the John A. Nixon Family Trust; (3) finding that Richard H. Daley is the only beneficiary of Trust A of the John A. Nixon Family Trust; (4) ordering the assets of Trust A of the John A. Nixon Family Trust to be delivered to Richard H. Daley.

THURSDAY, JANUARY 8, 2009, subject to call at 9:00 a.m.

S-08-0071, Sears Mfg. Homes, Inc. [Appellant] v. Richard King d/b/a King Insurance Brokerage

Douglas County, Judge Gerald E. Moran

Attorneys:       James B. Luers (Wolfe Snowden) for appellant---Patrick Vipond and Sean Minahan (Lamson Dugan & Murray) for appellee

Civil:  Negligent misrepresentation and failure to procure insurance

Proceedings below:  The district court granted summary judgment in favor of defendant King.

Issues:  Did the district court err in granting summary judgment in favor of defendant because construed in the light most favorable to plaintiff there were genuine issues of material fact?

S-07-1201, State of Nebraska ex rel. Glen R. Lanman and Teresa J. Lanman [Appellants] v. The Board of County Commissioners of Dawson County, Nebraska, Bill Stewart, Dean Kulger, Linda Benjamin, Roger Bauer, and Everett (Butch) Hagan, and Sanitary and Improvement District No. 1 of Gosper County (and Dawson County) Nebraska

Dawson County, Judge Donald E. Rowlands

Attorneys:       Terry K. Barber for appellants---Robert J. Huck and David J. Skalka (Croker, Huck)          for intervener SID No. 1---Kurt R McBride (Dawson County Attorney) for the Board and its individual members

Civil:  Action for mandamus

Proceedings below:  District court denied appellant’s request for a writ of mandamus directing the Board of Commissioners to incorporate a village in an area already incorporated as an SID.

Issues:  Did the district court err in 1) refusing to receive exhibit 9, 2) determining that no issue of material fact remained, 3) determining that appellees were entitled to summary judgment, 4) determining that the petition presented for incorporation of a village to the Board did not meet the statutory requirements, 5) determining that a village may not be incorporated within an area which is within the boundaries of a SID, or 6) in allowing the SID to intervene?

S-08-0188, Ann Rickerl (Appellant) v. Farmers Insurance Exchange

Douglas County, Judge Peter C. Bataillon

Attorneys: Michael F. Coyle, Todd C. Kinney (Fraser Stryker) (Appellant) – Daniel P. Chesire, Sean A. Minahan (Lamson, Dugan, and Murray) (Appellee)

Civil: breach of contract (automobile insurance)

Proceedings Below:  Both parties filed motions for summary judgment.  The district court granted Farmers’ motion and denied Rickerl’s motion.  Shortly after, the district court sustained Rickerl’s Motion to Alter or Amend Judgment and revised a portion of the original order determining that a question of fact remained as to damages Rickerl suffered.  Farmers filed a motion to dismiss.  The district court sustained that motion and dismissed Rickerl’s complaint. Rickerl appeals.

Issues: The appellant assigns that the district court erred in (1) finding that the Loss Payable provision of the Farmers’ insurance policy gave Farmers the unilateral right to choose whether to repair or replace a vehicle after an accident; (2) holding that Farmers did not breach the contract when it determined the amount of Rickerl’s damages and sent separate checks to Rickerl and Honda; and (3) determining as a matter of law the issue of Rickerl’s damages.

S-07-1160, L. Tim Wagner, Director of Insurance of the State of Nebraska, as Liquidator of Amwest Surety Insurance Co., Appellant v. United National Insurance Co., General Agents Insurance Company of America, Inc., Steven R. Kay, Guy A. Main, Arthur F. Melton, Douglas J. Paterson, Charles L. Schultz, Jeffrey A. Shonka, Mary Scheiner, John E. Savage, and Myrna A. Savage and John E. Savage, as Co-PersonalRepresentatives of the Estate of Richard H. Savage, Deceased, Appellees

Lancaster County, the Honorable John A. Colborn

Attorneys:       John H. Binning, Robert L. Nefsky, Jane F. Langan (Rembolt Ludke) and Mark I. Wallach, Matthew M. Mendoza (Calfee, Halter, & Griswold--Cleveland OH) (Appellant)--- Jerald R. Rauterkus (Erickson & Sederstrom) and Michael P. Comiskey and Hugh S. Balsam (Locke, Lord, Bissell & Liddell (Chicago IL) (Appellee United National Insurance Co)--- Kevin J. Schneider, Travis P. O'Gorman (Cline, Williams, Wright, Johnson & Oldfather) and R. Douglas Rees, Lauren N. Pierce (Cooper & Scully--Dallas TX) (Appellee General Agents Insurance Co. of America).

Proceedings Below:    Gainsco, United, and Wagner all filed motions for summary judgment concerning the enforceability and validity of the regulatory exclusion in the D&O policies. The district court sustained Gainsco's and United's motions and overruled Wagner's motion.

Issues: Wagner argues that the district court erred (1) by sustaining Gainsco's and United's motions for summary judgment, (2) by overruling and denying Wagner's motion for summary judgment, (3) by determining that certain portions of the regulatory exclusion applied to Wagner, and (4) by determining that the regulatory exclusion was valid and enforceable and not void as against public policy.

S-08-0261, In re Interest of Christian H., State v. Christian H. (Appellant)

Madison County, Judge Ross A. Stoffer

Attorneys: Matthew A. Headley (Public Defender) --- Gail Collins (County Attorney’s Office)

Criminal: Adjudication under Neb. Rev. Stat. § 43-247(2) and (1)

Proceedings below: The trial court overruled Appellant’s motion to suppress and found there was evidence beyond a reasonable doubt that Appellant committed the acts in the petition and adjudicated him accordingly.

Issues: The trial court erred in (1) overruling Appellant’s motion to suppress; (2) finding the State proved beyond a reasonable doubt that Appellant committed acts which would constitute a felony and is a juvenile within Neb. Rev. Stat. § 43-247(2); (3) finding the State proved beyond a reasonable doubt that Appellant committed acts which would constitute a felony and is a juvenile within Neb. Rev. Stat. § 43-247(1); (4) placing Appellant and the juvenile detention center during the pendency of the case.

FRIDAY, JANUARY 9, 2009, subject to call at 9:00 a.m.

S-08-0506, State v. Joshua D. Hamilton (Appellant)

Lancaster County, Judge Paul Merritt, Jr.

Attorneys: John C. Jorgensen (Deputy Public Defender) (Appellant) --- Nathan A. Liss (Assistant Attorney General)

Criminal: Attempted first degree sexual assault and third degree sexual assault of a child

Proceedings below: The trial court accepted Appellant’s plea of no contest. He was sentenced 10 to 15 years for the attempt charge and 3 to 5 years for 3rd degree sexual assault on a child. The sentences were ordered to run consecutively. After a hearing, the trial court found the offenses were aggravated and Appellant was made subject to lifetime parole and registration requirements under the Sex Offender Registration Act. The State filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred in (1) finding Appellant’s offenses were aggravated offenses for the purposes of lifetime parole supervision and the Nebraska Sex Offender Registration Act; (2) imposing excessive sentences.

S-07-1235, Harleysville Insurance Group (Plaintiff-Appellee) v. Rybin Plumbing Co., (Defendant) and Victoria M. Beck (Intervenor-Appellant)

Douglas County, Judge John D. Hartigan, Jr.

Attorneys: Matthew D. Hammes and Ralph A. Froehlich of Locher Pavelka Dostal Braddy & Hammes (Appellants); Dan H. Ketcham & Meredith J. Kuehler of Engles, Ketcham, Olson, & Keith (Appellee).
 
Civil: Disclaim Insurance Coverage for Wrongful Death

Proceedings Below: District court granted summary judgment to Harleysville Insurance Group based on the finding that neither the “Underlying” nor “Umbrella” insurance policies provided coverage for any negligence by Rybin that contributed to the death of Beck’s parents. 

Issues: Victoria Beck argues that the district court erred in (1) finding that the umbrella policy does not provide coverage for Rybin’s negligent acts or omissions resulting in the death of Beck’s parents and (2) failing to recognize that Harleysville waived its right to assert any exclusions under the umbrella policy when it failed to plead such exclusions.

S-08-0184, Trevor Walsh v. City of Omaha Police and Fire Retirement System et al. (Appellant)

Douglas County, Judge Robert V. Burkhard

Attorneys: Thomas F. Dowd (Dowd Howard & Corrigan, LLC) --- Jo A. Cavel, Deputy City Attorney for Appellant

Civil: Statutory interpretation of disability pension qualification

Proceedings Below: The district court granted Walsh’s motion for summary judgment and overruled the City of Omaha Police and Fire Retirement System (COPFRS) motion for summary judgment.

Issues: Whether the district court erred in (1) construing O.M.C. § 22-79 to permit disability pension for Walsh, who was not a COPFRS member at the time of application; (2) not affirming the COPFRS Board’s denial of Walsh’s pension request; and (3) overruling the COPFRS motion for summary judgment.

S-08-0726, James Risor v. Nebraska Boiler (Appellant)

Nebraska Workers’ Compensation Court

Attorneys: Paul Prentiss, Bill Lamson (Timmermier Gross & Prentiss) (Appellant) --- Martin V. Linscott

Civil: determination of benefits for injured employee

Proceedings below: The trial court determined that Risor sustained an accident arising out of his employment causing bilateral hearing loss. As a result he suffered 100% permanent impairment and entitled to benefits beginning February 12, 2004. The review panel reversed the finding that permanent total indemnity benefits would not commence until February 12, 2004 and entered an award providing for payments of said benefits from and after October 19, 1993.

Issues: The review panel erred in (1) placing Risor’s bilateral hearing loss under the statutory definition of “accident” rather than “occupational disease”; (2) finding the hearing loss was caused by an accident arising out of and during the course of employment with Nebraska Boiler; (3) determining that Risor gave proper and timely notice of his injury; (4)finding Risor’s claim was not barred under the applicable statute of limitations; (5) reversing the trial court’s award and ordering payment of indemnity from and after October 19, 1993 without allowing a credit for wages Risor continued to receive until he retired; (6) refusing to allow the requested post-judgment intervention of Twin City as a party of interest.

S-08-0215, In re Guardianship and Conservatorship of Everett D. Larson, an Alleged Incompetent Person

Douglas County, Judges Jane Prochaska and Susan M. Bazis

Attorneys: Diana J. Vogt (Sheretts & Boecker LLC) (For Appellants Margaret Badura, Dave Cullan and Kirk Meisinger, Interested Persons) --- Kevin J. Dostal, Ralph A. Froehlich, Patrick K. Nields (Locher Pavelka Dostal Braddy & Hammes LLC) (for Appellee W. Henry Looby, Guardian and Conservator)

Civil: Guardianship and conservatorship

Proceedings below: This case was before the Supreme Court. See In re Guardianship and Conservatorship of Larson, 270 Neb. 837 (2006) (remanded with directions). The trial court held that Appellants were not entitled to attorney fees. The trial court held that attorneys representing the guardian and conservator should be paid in full and the guardian ad litem and her attorney should be paid in full. The trial court also approved the accounting and fee requests submitted by the guardian/conservator before January 2008.

Issues: The court erred in (1) refusing to allow fees and costs to the attorneys retained by Mr. Larson as it effectively denied the allegedly incapacitated person the right to choose counsel; (2) refusing to pay expert witness fees for the witness on Larson’s behalf; (3) exhausting Larson’s estate by allowing excessive and unreasonable fees and costs to be paid to numerous other attorneys and the guardian/conservator; (4) allowing the same law firm to represent the guardian/conservator and Larson, causing a conflict of interest; (5) exhausting Larson’s estate by allowing payment of attorneys fees and costs to two law firms representing the guardian, the GAL and her attorney; (6) after remand by continuing the trial on Larson’s capacity over a period of 11 months and conducting hearings in an inefficient and prejudicial manner, thereby depleting Larson’s estate; (7) personally causing irrelevant to be put in the record; (8) allowing the guardian/conservator and his attorneys to be paid for actions not related to the “emergency” that allegedly created the need for the “temporary” emergency appointments of a guardian/conservator; (9) allowing the estate to pay fees to an attorney hired by the guardian/conservator to pursue a lawsuit that the Supreme Court had previously determined did not fall within the power of the temporary guardian/conservator; (10) suggesting that persons other than the estate might be held liable for attorney fees incurred by the guardian/conservator and petitioner’s counsel, impairing the ability of the guardian/conservator to determine the extent to which Larson’s estate was being depleted; (11) allowing the GAL and her counsel to participate in the proceedings as an attorney rather than as a guardian and paying fees to both, further exhausting Larson’s estate and prolonging the adjudication; (12) refusing to allow Mary Wilson to withdraw and paying her fees after Wilson violated her duty to zealously represent Larson, further exhausting his estate.