S-09-0619, State v. Germai R. Molina (Appellant)
Hall County, Judge James D. Livingston
Attorneys: John H. Marsh (Knapp Fangmeyer Aschwege Besse & Marsh PC) (Appellant) --- Kimberly A. Klein (Attorney General’s Office)
Proceedings below: The district court denied Appellant’s motion for postconviction relief.
Issues: The district court erred in (1) denying Appellant’s verified motion for postconviction relief; (2) finding there was no prosecutorial misconduct in closing arguments; (3) finding no ineffective assistance of counsel in failing to make certain objections; (4) finding the issues concerning intent were raised by Appellant on direct appeal and analyzed by the Supreme Court; (5) finding the failure of counsel to offer an edited portion of a video statement was not ineffective assistance; (6) finding there was no likelihood of prevailing on an excessive sentence claim; (7) finding there is nothing shown that a continuance would have been granted or that witness Maria Alvarez would have added anything to his case that would have changed the outcome at trial.
S-09-0546, State v. Tyler R. Nuss (Appellant)
Hall County, Judge James D. Livingston
Attorneys: Arthur S. Wetzel (Anderson Vipperman Kovanda &Wetzel) and Mark Porto (Shamberg Wolf McDermott & DePue) (Appellant) --- George R. Love (Attorney General’s Office)
Criminal: Possession of visual depictions of sexually explicit conduct of minors
Proceedings below: The trial court overruled Appellant’s motion to suppress. After a trial to the court, Appellant was found guilty of the above crime. He was sentenced to a term of probation.
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) denying Appellant’s motion to suppress; (2) finding Appellant guilty of the crime of knowingly possessing visual depictions of sexually explicit conduct.
S-09-0529, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. David R. Tarvin, Jr. (Respondent)
Attorneys: John W. Steele (Assistant Counsel for Discipline) --- no brief filed by Respondent
Civil: Attorney discipline
Proceedings below: Respondent having failed to respond to the formal charges or otherwise plead, the relator moved for judgment on the pleadings which was granted by the Supreme Court.
Issues: The parties were directed to brief the issue of sanctions. There is no report from a referee to which exceptions can be taken.
S-08-0618, Muriel D. Walton (Appellant) v. Arun-Angelo Patil, M.D. (Appellee)
Douglas County --Judge John D. Hartigan, Jr.
Attorneys: Marvin O. Kieckhafer and R. Laubenthal, Smith Peterson Law Firm, L.L.P. (Appellant)---Patrick G. Vipond and William R. Settles, Lamson, Dugan and Murray, L.L.P.
Civil: Medical Malpractice
Proceedings Below: Muriel D. Walton sued Arun-Angelo Patil, M.D., for medical malpractice. The district court granted Patil’s motion for directed verdict and overruled Walton’s motion for new trial.
Issues: Whether the district court erred (1) in sustaining Patil’s objection to Walton’s notice of intent to use the discovery deposition of Walton’s expert at trial; (2) in denying Walton’s motions to continue trial and for new trial; and (3) in granting Patil’s motion for directed verdict.
S-09-0530, Mental Health Board of the 4th Judicial District v. G.H. (Appellant)
Douglas County, Judge Thomas A. Otepka
Attorneys: Zoe R. Wade (Public Defender’s Office) --- Jeffrey J. Lux (County Attorney’s Office)
Civil: Commitment under the SORA
Proceedings below: The Board determined Appellant is a dangerous sex offender and committed him to the Department of Health and Human Services for inpatient sex offender treatment. The district court affirmed.
Issues: The Board erred in finding there was clear and convincing evidence that Appellant was a dangerous sex offender under Neb. Rev. Stat. §§ 71-1203(1) and 830174.01 and warranted inpatient treatment.
S-08-0959, State v. Kevin A. Simnick (Appellant)
Lancaster County, Judge Jeffre Cheuvront
Attorneys: Webb E. Bancroft (Public Defender’s Office) --- Kimberly A. Klein (Attorney General’s Office)
Criminal: First degree sexual assault, a Class II felony under Neb. Rev. Stat. § 28-319
Proceedings below: Appellant entered a no contest plea to the charge. The trial court accepted said plea and he was sentenced to 20 to 35 years in prison and required to register under the sexual offender notification act with acknowledgment of Lifetime Parole Supervision. The Court of Appeals affirmed. See State v. Simnick, 17 Neb. App. 766 (2009). 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 (1) finding Appellant’s plea was freely, voluntarily, knowingly and intelligently made; (2) determining that the trial court’s finding that Appellant was subject to Lifetime Parole pursuant to Neb. Rev. Stat. § 83-174.03 was not a violation of ex post facto law.
S-09-0375, State v. William E. Smith (Appellant)
Douglas County, Judge Patricia A. Lamberty
Attorneys: Kevin J. Oursland (Appellant) --- Nathan A. Liss (Attorney General)
Criminal: Possession of a controlled substance with intent to deliver
Proceedings below: The trial court overruled Appellant’s motion to suppress. Following a stipulated trial, Appellant was found guilty. He was sentenced 3 to 5 years in prison.
Issues: The trial court erred in finding the warrantless search of Appellant was reasonable.
S-09-0311, State v. Lora L. McKinney (Appellant)
Seward County, Judge Alan G. Gless
Attorneys: Sean J. Brennan (Appellant) --- James D. Smith (Attorney General’s Office)
Proceedings below: The district court denied Appellant’s motion for an evidentiary hearing and granted the State’s motion to dismiss.
Issues: The district court erred in (1) granting the State’s motion to dismiss based on a procedural bar of factual and legal issues regarding harmless error analysis; (2) granting the State’s motion to dismiss based on a procedural bar on the issue of obtaining a DNA sample from Terri Fort and Joe Walker; (3) refusing to conduct an evidentiary hearing on the issue of the ineffectiveness of trial and appellate counsel in violation of the 6th and 14th Amendments to the U.S. Constitution and Neb. Const. art I, § 3.
S-09-0425, State v. Eric Lewis (Appellant)
Lancaster County, Judge Paul D. Merritt, Jr.
Attorneys: Stuart B. Mills (Appellant) --- J. Kirk Brown (Attorney General’s Office)
Criminal: Second degree murder
Proceedings below: The district court found Appellnat competent to stand trial but did not find he was competent to represent himself and appointed counsel. A jury found Appellant guilty of the above crime and Appellant was sentenced to a period of not less nor more than life imprisonment.
Issues: The district court erred in failing to find Lewis competent to represent himself at trial depriving him of his constitutional right to self representation. Additionally, the court erred in finding sufficient evidence to submit to the jury the issue of murder in the 2nd degree.
S-09-0600, Nebraska Public Advocate v. Nebraska Public Service Commission v. Sourcegas Distribution LLC and Knight Inc. formerly known as Kinder Morgan Inc. (Appellants)
Lancaster County, Judge John A. Colborn
Civil: Administrative Appeal
Attorneys: Roger P. Cox & Jack L. Shulz (for appellee the Nebraska Public Advocate) --- Mark A. Fahleson & Troy S. Kirk (Remboldt Ludtke LLP) & Stephen M. Bruckner & Russell A. Westerhold (Fraser Styker) for appellant Sourcegas --- Stevin G. Seglin (Crosby Guenzel LLP) for appellant Knight Inc.
Proceedings Below: The Public Advocate filed a Formal Complaint with the Nebraska Public Service Commission (Commission) against Kinder Morgan and Sourcegas challenging the implementation of rates for natural gas agreed to in a Stipulation and Agreement, and approved of, in an order by the Commission on December 27, 2006. The Commission dismissed the Formal Complaint concluding that it was an impermissible collateral attack on the December 27, 2006, order. The district court affirmed in part, reversed in part and remanded the Commission’s dismissal of the Formal Complaint concluding that the Formal Complaint was a collateral attack on the “interim rates” agreed upon in the December 27, 2006, order, but it was not a collateral attack on the “final rates” agreed upon in the order. The district court remanded the case for a determination by the Commission on whether Kinder Morgan was required to pro-rate its billing to ensure that customers were not charged the higher final rates allowed in the December 27, 2006, order when the December 27, 2006, order explicitly stated that the higher rates would not go into effect until January 1, 2007.
Issues: Kinder Morgan argues on appeal that: 1) the district court erred in concluding that the Formal Complaint was not a collateral attack on the final rates set in the December 27, 2006, order; 2) the Formal Complaint is an improper method of challenging Kinder Morgan’s commission approved tariff; 3) the Public Advocate could have raised the proration issue during the rate case: 4) the district court erred in not considering whether Nebraska law allows proration of rate changes, and whether the Commission lacked the power to grant the retroactive relief requested by the Formal Complaint; 5) Sourcegas argues that it is not a Proper Party to the action; 6) Kinder Morgan argues that the Commission lacked subject matter jurisdiction over it as it is no longer a “jurisdictional entity.”
Issue on Cross Appeal: The Public Advocate argues that the district court erred in concluding that the Formal Complaint was an impermissible collateral attack on the interim charges in the December 27, 2006, order.
S-09-0448, City of Fremont (Appellant) v. Wanda Kotas, Jerry Hart and John Weigert
Dodge County, Judge John E. Samson
Attorneys: J.L. Spray, Stephen D. Mossman (Mattson Ricketts Davies Stewart & Calkins) and Dean Skokan (Fremont City Attorney) (Appellant) --- Kris W. Kobach (Immigration Reform Law Institute, University of Missouri—Kansas City School of Law)
Civil: Declaratory Judgment Action; City Initiative Petition
Proceedings below: The district court determined it lacked subject matter jurisdiction over the issues raised in the First Cause of Action in the City’s Amended Complaint; granted the Petitioners’ Motion to Dismiss the First Cause of Action and granted summary judgment on the Second Cause of Action in the City ‘s Amended Complaint. The City 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 it lacked subject matter jurisdiction over the issues raised in the First Cause of Action in the City’s Amended Complaint; (2) failing to find that Neb. Rev. Stat. § 18-2538 provided the necessary statutory framework to determine the issues raised in the First Cause of Action in the City’s Amended Complaint; (3) granting Petitioners’ motion to dismiss the First Cause of Action in the City’s Amended Complaint; (4) failing to find the City Initiative Petition circulated and filed by Petitioners contained multiple subjects; (5) failing to find the City Initiative Petition was invalid for violating the “single subject rule”; (6) granting summary judgment on the Second Cause of Action in the City’s Amended Complaint.
S-09‑0511, Nazhat Mahmood (Appellee) v. Rajul-i-Haque Mahmud
Douglas County, Judge Craig Q. McDermott
Attorneys: John C. Wieland, Kevin J. McCoy (Smith, Gardner, Slusky, Lazer, Pohren & Rogers, LLP) (Appellant) ‑‑‑Elisabeth S. Borchers, Tyler C. Block (Marks Clare & Richards, L.L.C.)
Civil: Protection Order (Petitioner sought domestic abuse protection order against respondent, her former husband, whom she accused of making harassing telephone calls and letters.)
Proceedings below: The district court entered a harassment protection order.
Issues: The respondent assigns that the district court erred because: (1) the court lacked jurisdiction to issue a harassment protection order upon petitioner’s petition and affidavit; (2) issuance of a harassment protection order upon a petition and affidavit for a domestic abuse protection order, and a hearing without notice to the pro se respondent as to the type of order being defended against, prejudiced respondent and violated his due process rights; (3) issuance of a harassment protection order upon a petition and affidavit for a domestic abuse protection order was invalid because it did not comport with applicable statutes; (4) the evidence did not support issuance of a domestic abuse protection order; and (5) the evidence did not support issuance of a harassment protection order.
S-09-0225 Knights of Columbus Council 3152, et al. (Appellant) v. KFS BD, Inc., a Nebraska Corporation, and Mutual of Omaha Insurance Company, Reid D. House, Jeffrey H. Sime, Richard A. Witt, and Kenneth R. Cook (Appellees)
S-09-0477 Allen Roos and Dean Roos, Co-Trustees of the Leslie D. Roos and Ruby S. Roos Trust; Lloyd Gerdes; Marlene Gerdes; Jerry J. Watton and Helen Q. Watton; Timothy S. Earhart and Rojean L. Earhart; and Mary K. Oetgen Bebout, Trustee of the Frederick Oetgen Irrevocable Trust (Appellants) v. KFS-BD, Inc., a Nebraska Corporation; and Mutual of Omaha Insurance Company, a Nebraska Corporation
Otoe County, Honorable Paul W. Korslund
Attorneys: J.L. Spray and Randall V. Petersen (Mattson, Ricketts, Davies, Steward & Calkins) (Appellants)—Joseph E. Jones and Timothy J. Thalken (Fraser Stryker PC LLO) (Mutual of Omaha); Daniel E. Klaus (Rembolt Ludtke LLP) (Reid D. Houser and Jeffrey N. Sime); James M. Baush and Andre R. Barry (Cline Williams Wright Johnson & Oldfather, LLP) (KFS BD, Inc.); (Gail S. Perry and Derek C. Zimmerman (Baylor, Evnen, Curtiss, Grimit & Witt, LLP) (Richard Witt and Kenneth Cook) (Appellees)
Civil: Contract and Tort
Proceedings Below: The court granted defendants’ motions to dismiss, with prejudice, concluding that the allegations on the face of the complaint present an insuperable bar to relief.
Issues in S-09-0225: Did the court err by dismissing the complaint, finding that Knights failed to state a claim for relief based on (1) fraudulent misrepresentation; (2) fraudulent concealment; (3) negligent misrepresentation; (4) and breach of contract.
Issues in S-09-0477: Did the district court err in (1) dismissing plaintiffs’ claim for fraudulent concealment; (2) fraudulent misrepresentation; (3) granting mutual of Omaha’s motion to dismiss with prejudice; (4) sustaining the objection to exhibit 30; (5) denying plaintiffs’ motion for leave to file a third amended complaint; (6) granting defendants’ motion for summary judgment.