Supreme Court Case Summaries

TUESDAY, JANUARY 4, 2011, subject to call at 9:00 a.m.

S-10-045, Charles F. Robinson (Appellant) v. Dustrol, Inc.

Saunders County, Honorable Mary C. Gilbride

Attorneys: Adam J. Sipple (Johnson & Mock) for appellant; Stephen G. Olson and Kristina J. Kamler (Engles Ketcham) for appellee

Civil:  Action for negligence of a highway contractor

Proceedings below: Jury returned a verdict in favor of the appellee highway contractor.

Issues:  Did the trial court err in 1) overruling appellant’s motion for a directed verdict on the issues of negligence and proximate cause, 2) overruling appellant’s motion for new trial on the basis that the verdict was not supported by sufficient evidence, 3) giving jury instruction Nos. 2, 13, and 15 to the jury, 4) failing to instruct the jury that a highway contractor was not excused from its duty of care even if it was more convenient for another to perform the duty, and 5) defining negligence in instruction No. 1 based on what a reasonably careful person, rather than a reasonably careful contractor, would do under similar circumstances?

S-10-0042, Lucille Kilgore v. Nebraska Department of Health and Human Services and State of Nebraska (Appellants)

Douglas County, Judge Marlon A. Polk

Attorneys: Frederick J. Coffman, Stephanie Caldwell (Attorney General’s Office) (Appellants) --- Raymond Aranza, Leanne A. Gifford (Scheldrup Blades Schrock Smith Aranza PC)

Civil: Violations of the Fair Labor Standards Act

Proceedings below: This case was previously before the Supreme Court. See, Kilgore v. Health and Human Services, 277 Neb. 456 (2009) (appeal dismissed). On remand, the district court allowed Kilgore to amend her second amended complaint and add an unjust enrichment claim against the State. The district court found for the plaintiff, Kilgore and awarded damages.

Issues:  The district court erred in (1) assuming jurisdiction over claims arising out of the Fair Labor Standards Act (FLSA); (2) concluding Kilgore was entitled to relief under the Equal Pay Act; (3) awarding damages beyond the two year statute of limitations on the FLSA claims; (4) awarding damages based on speculation and conjecture; (5) allowing the second amended petition to be amended to include a claim of unjust enrichment against the State; (6) awarding Kilgore relief under the theory of unjust enrichment.

Cross-Appeal: The district court erred in (1) failing to award attorney fees for the appellate process; (2) denying Kilgore’s motion for prejudgment interest.

S-10-0502, Leanne M. Klotz v. John R. Klotz (Appellant)

Seward County, Judge Alan G. Gless

Attorneys: James H. Hoppe, Jerrod P. Jaeger (Appellant) --- Terrance A. Poppe (Morrow Poppe Watermeier & Lonowski PCLLO)

Civil: Dissolution

Proceedings below: The trial court dissolved the parties’ marriage and awarded sole legal and physical custody of the minor child to Appellee.

Issues: The trial court erred in (1) placing custody of the minor child with Appellee; (2) placing custody of the minor child with Appellee when she resides with a person required to register as a sex offender under the Sex Offender Registration Act.

 
S-10-0458, City of Falls City, Nebraska v. Nebraska Municipal Power Pool (Appellant) and J. Gary Stauffer, John Harms, Evan Ward, Ron Haase and Chris Dibbern and Central Plains Energy Project;  American Public Energy Agency (Intervenor) v. J. Gary Stauffer and Even Ward (Intervention Defendants)

Lancaster County, Judge Steven D. Burns

Attorneys:  Daniel E. Klaus, David J.A. Bargen (Rembolt Ludtke LLP) (Appellant) --- James P. Fitzgerald, James G. Powers (McGrath North Mullin & Kratz PC LLO) (for Appellees Stauffer, Harms, Ward, Haase and Dibbern) --- Robert W. Mullin, David S. Houghton (Lieben Whitted Houghton Slowiaczek & Cavanagh PC LLO) and Douglas E. Merz (For Appellee City of Falls City)

Civil:  Order on costs

Proceedings below:  This case was previously before this Court. See City of Falls City v. Nebraska Municipal Power Pool, 279 Neb. 238 (2010) (reversed and remanded). Upon remand, the district court dismissed the claims of Appellee Falls City. Nebraska Municipal Power Pool (NMPP) filed a motion for award of costs. The district court awarded $4,092.48 to NMPP and $1,240.02 to the individual defendants and $8,646.70 to Central Plains Energy Project (CPEP).

Issues: The district court erred in (1) determining only those costs prescribed by statute are recoverable by NMPP; (2) reducing the costs recoverable by NMPP based on the claims asserted by the APEA; (3) determining that the costs for copies of depositions, videotaping of depositions and electronically displaying testimony and exhibits are not recoverable; (4) determining that it did not have discretion under Neb. Rev. Stat. § 25-1711 to award costs not otherwise prescribed by statutes or recognized under a uniform course of procedure.

Individual Defendant’s Cross-Appeal: The district court erred in (1) holding that the expense for copies of depositions was not properly taxable in favor of the prevailing parties; (2) holding the expense for video recording depositions was not properly taxable in favor of the prevailing parties; (3)

WEDNESDAY, JANUARY 5, 2011, subject to call at 9:00 a.m.

S-10-0671, State v. Mauro Yos-Chiguil (Appellant)

Buffalo County, Judge John P. Icenogle

Attorneys: Pro Se Appellant --- Stacy M. Foust (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The trial court denied Appellant’s postconviction claims without an evidentiary hearing. 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 postconviction motion was procedurally barred; (2) denying Appellant’s motion for an evidentiary hearing; (3) failing to find counsel was ineffective in failing to perfect a direct appeal; failing to advise Appellant of Neb. Rev. Stat. § 29-1819.02 and failing to advise him of the alcohol intoxication defense; (4) not strictly complying with the terms of Neb. Rev. Stat. § 29-1819.02 during the course of the plea process; (5) denying Appellant’s motion for appointment of counsel.

S-10-0637, McLaughlin Freight Lines, Inc. (Appellant) v. Marvin Gentrup (Appellee)

Cuming County District Court--Judge Robert B. Ensz

Attorneys: Damien J. Wright, Welch Law Firm, P.C. (appellant)--Todd B. Vetter; Fitgerald, Vetter & Temple (appellee)

Civil: tort, res ipsa loquitor

Proceedings Below: The District Court granted the defendant’s motion for summary judgment.

Issues: Appellant assigns the following four errors:

1) The District Court erred in determining that Defendant had satisfied his burden of showing that there was no genuine issue of material fact as to whether cows would not ordinarily escape through the latched gate of Defendant’s holding pen in the absence of negligence.

2)The District Court erred in determining that Plaintiff presented no evidence to contradict Defendant’s evidence that the factual situation was one where a cow, in the normal course of events, would ordinarily escape through the latched gate of Defendant’s fenced holding pen in the absence of negligence.

3) The District Court erred in distinguishing fencing and gates in the present case from the fencing and gates in the case of Roberts v. Weber & Sons, Co., 248 Neb. 243, 533 N.W.2d 664 (1995).

4) The District Court erred in determining that Defendant was entitled to judgment as a matter of law and dismissing Plaintiff’s Amended Complaint for the reasons set forth in the assigned errors above.

 
S-10-0622, State v. Rocky J. Sharp (Appellant)

Douglas County, Judge Patricia A. Lamberty

Attorneys: Leslie E. Cavanaugh (Public Defender) --- Stacy M. Foust (Attorney General’s Office)

Criminal: Possession with intent to deliver

Proceedings below: The trial court overruled Appellant’s motion to suppress. After a stipulated bench trial, he was found guilty and sentenced 3 to 5 years.

Issues: The trial court erred in overruling Appellant’s motion to suppress evidence obtained from an unreasonable stop and search.

THURSDAY, JANUARY 6, 2011, subject to call at 9:00 a.m.

S-09-0929, Rex J. Moats (Appellant) v. Republican Party of Nebraska a/k/a the Nebraska Republican Party

Attorneys: David A. Domina (Appellant) --- L. Steven Grasz (Husch Blackwell Sanders LLP)

Civil: Defamation; Nebraska Consumer Protection Act violations; Invasion of Privacy

Proceedings below: The trial court granted the Appellee’s motion to dismiss. 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) dismissing Appellant’s complaint for failure to state a claim upon which relief could be granted; (2) failing to recognize that any, each and all eleven publications constituted violations of Neb. Rev. Stat. § 59-1602 et seq. by the Republican Party; (3) failing to recognize that any, each, and all eleven claims asserted by Appellant constituted defamation against him; (4) failing to recognize Appellant stated one or more claims having been placed in a false light contrary to Neb. Rev. Stat. § 20-201 et seq.; (5) failing to grant Appellant leave to amend his complaint to cure any technical deficiencies such as pleading special damages with particularity.

S-10-0457, State v. Terence Nero (Appellant)

Lancaster County, Judge Robert Otte

Attorneys: Joseph D. Nigro (Public Defender) --- Kimberly Klein (Attorney General)

Criminal: burglary, Class III felony

Proceedings below: The district court denied Appellant’s plea in abatement and overruled his motion for a bill of particulars. After a trial to the court, Appellant was found guilty of the above crime. He was sentence 24 to 40 months in prison.

Issues: The district court erred in (1) failing to require the state to specify what underling felony Appellant was attempting to commit when prosecuting for burglary under Neb. Rev. Stat. § 28-507; (2) finding sufficient evidence to support a conviction.

 
S-10-0105, State v. Joseph D. Hotz (Appellant)

Dawes County, Judge Brian C. Silverman

Attorneys: Jeffery A. Pickens (Commission on Public Advocacy) and Paul Wess (Public Defender) (Appellant) --- James D. Smith (Attorney General’s Office)

Criminal: Second degree murder, attempted second degree murder, terroristic threats, three counts of use of a weapon to commit a felony.

Proceedings below:  A jury found Appellant guilty of the above crimes. He was sentenced to an aggregate of 42 to 125 years in prison. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred in (1) excluding expert opinion testimony concerning whether Appellant’s mental diseases at the time of the acts impaired his mental capacity to such an extent that he either did not understand the nature and consequences of what he was doing or did not know the difference between right and wrong; (2) not giving an insanity instruction; (3) not receiving Appellant’s evidence in support of his motion for new trial; (4) denying his motion for new trial; (5) imposing consecutive sentences for his convictions for attempted second degree murder and terroristic threats.

S-10-0484, State v. Jason L. Golka (Appellant)

Sarpy County, Judge William B. Zastera

Attorneys: Jeffery A. Pickens (Commission on Public Advocacy) (Appellant) --- Stacy M. Foust (Attorney General’s Office)

Civil: Postconviction

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

Issues:  The district court erred in (1) denying relief without an evidentiary hearing on his claim that his jury waiver was based on ineffective assistance of counsel; (2) denying relief without an evidentiary hearing on his claim that his guilty plea was based on ineffective assistance of counsel; (3) denying relief without an evidentiary hearing on his claim that he received ineffective assistance of counsel when counsel failed to argue on direct appeal that the trial court failed to inform Appellant of the nature of the charges and his right to be presumed innocent; (4) denying relief without an evidentiary hearing on his claim that his life sentences constitute cruel and unusual punishment as he was 17 years old at the time of the murders.

FRIDAY, JANUARY 7, 2011, subject to call at 9:00 a.m.

S-10-0648, State v. Leroy J. Parmar (Appellant)

Douglas County, Judge J. Russell Derr

Attorneys: James R. Mowbray and Robert W. Kortus (Commission on Public Advocacy) (Appellant) --- George R. Love (Attorney General’s Office)

Civil: Postconviction/ DNA Testing Act

Proceedings below: The trial court denied Appellant’s motion to vacate his conviction under the DNA Testing Act or in the alternative grant him a new trial based on newly discovered exculpatory DNA evidence.

Issues: The district court erred in (1) finding Appellant was not entitled to relief under the DNA Testing Act, Neb. Rev. Stat. § 29-4116 et seq. and denying him a new trial; (2) determining the DNA evidence failed to exonerate Appellant; (3) determining the DNA evidence was not of such nature that had it been admitted at trial a different result would have occurred; (4) determining that Appellant was not entitled to a new trial on the basis of failure to preserve and make available evidence submitted to the safekeeping of the court; (5) applying a standard of “bad faith” to the failure on the part of the court to preserve the evidence entrusted to the courts.

S-10-0471, State v. Nicholas Grizzle (Appellant)

Cass County, Judge Randall L. Rehmeier

Attorneys: Julie Bear (Appellant) --- James D. Smith (Attorney General)

Criminal: Plea and trial; DUI, 3rd offense aggravated; refusal to submit to chemical test; procuring alcohol for minor

Proceedings below: Appellant entered a guilty plea to refusal to submit to a chemical test and was sentenced to 30 days jail, six months’ license revocation and $500 fine. The trial court overruled Appellant’s plea in bar. The plea in bar was affirmed in the original interlocutory appeal to the Court of Appeals, see State v. Grizzle, 18 Neb. App. 48 (2009) (Petition to bypass overruled by this Court). A jury trial occurred on DUI and procuring alcohol charges and he was found guilty of those counts. Appellant was sentenced, after enhancement, to concurrent sentences of six months in county jail for each offense.

Issues: The district court erred in (1) sentencing the Appellant to multiple punishments for the same offense in violation of Double Jeopardy; (2) finding 2 valid prior convictions for purposes of enhancement.

S-10-0619, State v. Danny L. Sing (Appellant)

Douglas County, Judge Patricia Lamberty

Attorneys: Timothy D. Mikulicz (Appellant) --- George R. Love (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The trial counsel denied Appellant’s motion without an evidentiary hearing.

Issues: The district court erred in dismissing Appellant’s motion for postconviction relief without an evidentiary hearing.

S-10-0280, StoreVisions Inc. v. Omaha Tribe of Nebraska a/ka/ Omaha Nation (Appellant)

Thurston County, Judge Darvid D. Quist

Civil: Breach of contract, sovereign immunity

Attorneys: Michael J. Whaley and Elizabeth M. Skinner (Gross & Welch P.C. L.L.O.) --- Ben Thompson (Thompson Law Office P.C. LLO) (Appellant)

Proceedings Below: Plaintiff-appellee Storevisions Inc. (Storevisions) filed a complaint against appellant defendant-appellant Omaha Tribe of Nebraska (Omaha Tribe) alleging eleven separate causes of action for breach of contract based on eleven separate contracts entered into between the parties.  Omaha Tribe of Nebraska moved to dismiss the action arguing that the district court lacked jurisdiction to consider the action based on Omaha Tribe’s sovereign immunity.  The district court concluded that Omaha Tribe had waived its sovereign immunity and denied the motion to dismiss.  

Issues:  Whether the district court’s denial of the motion to dismiss is a final appealable order and whether the Omaha Tribe waived its sovereign immunity.