Supreme Court Case Summaries

January 4, 5, or 6, 2012

WEDNESDAY, JANUARY 4, 2012, subject to call at 9:00 a.m.

S-10-0998, State v. Tyler W. Britt (Appellant)

Dawson County, Judge James E. Doyle, IV

Attorneys: David W. Jorgensen (Nye Hervert Jorgensen & Watson PC) ---Nathan A. Liss (Attorney General’s Office)

Criminal: Driving under the influence, alcohol content of .15 or more

Proceedings below: A jury found Appellant guilty in county court. The district court affirmed. The Court of Appeals affirmed in a memorandum opinion, State .v Tyler W. Britt, A-10-0998. Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred in (1) finding the Affidavit submitted by Cecil B. Garner was not testimonial in nature; (2) failing to determine that plain error occurred as a result of admitting the affidavit of Cecil B. Garner over Appellant’s hearsay objection.

S-11-0508 and 11-0509 (consolidated), Mahnaz Beigi Hossaini v. Adel Vaelizadeh (Appellant)

Lancaster County, Judge Jeffre Cheuvront

Attorneys: Matthew Stuart Higgins (Appellant father) --- Terrance A. Poppe (Morrow Poppe Watermeier & Lonowski PCLLO) (Appellee mother)

Civil: Contempt; child custody and visitation

Proceedings below: the trial court found both parents in contempt of the custody order stemming from two different orders to show cause. Appellant was found in contempt based on an order to show cause filed by Appellee on November 12, 2010 and Appellee was found in contempt of an order to show cause from a motion filed by Appellant on March 4, 2011. A hearing was held on both motions on March 25, 2011. The trial court found Appellee’s actions were understandable under the circumstances based on Appellant’s behavior and awarded her costs and attorney fees in the amount of $7512.87 while denying Appellant’s request for costs and fees.

Issues: The trial court erred in (1) finding Appellee in “mere technical contempt” as the Appellee’s refusal to facilitate visitation in February 2011 was a willful violation of the visitation order; (2) failing to award Appellant costs and attorney fees and provide make-up visitation time; (3) finding Appellant in contempt because the visitation order was ambiguous; (4) finding Appellant in contempt because the Appellee was equitably estopped from claiming he violated the custody order; (5) finding his violation of the order was willful.

S-11-0482, In re Interest of Ryder J.

Lincoln County Court, Judge Kent D. Turnbull

Attorneys: Luke T. Deaver (Appellant, Randal R., natural father) --- Jennifer Wellan (County Attorney’s Office)

Civil: Termination

Proceedings below: The trial court terminated the parental rights of Appellant finding clear and convincing evidence under Neb. Rev. Stat. §§ 43-292(9) and (10) and that termination was in the best interests of the minor child.

Issues: The trial court erred in (1) finding Appellant subjected the juvenile or another child to aggravated circumstances under § 43-292(9); (2) violating the ex post facto clause of the Nebraska and U.S. Constitutions when it terminated parental rights based upon an incident that occurred prior to the Legislature’s amendment of § 43-292(9); (3) finding Appellant was a parent as within the meaning of § 43-292(10) as Appellant had no parental relationship with the child that was injured; (4) finding termination was in the child’s best interests; (5) finding Appellant was an unfit parent.

THURSDAY, JANUARY 5, 2012, subject to call at 9:00 a.m.

S-10-0986, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court v. John P. Ellis (Respondent)

Original Action

Attorneys: Kurt D. Maahs, James C. Morrow (Morrow Willnauer Klosterman Church LLC) (Respondent) --- Kent L. Frobish (Assistant Counsel for Discipline)

Civil: Attorney Discipline

Proceedings below: The Referee found that Respondent violated Neb. Ct. R. Prof. Cond. §§ 3-501.4, 3-501.3, 3-501.15, 3-501.16, 3-508.4 and Neb. Rev. Stat. § 7-104 (Reissue 2007). The Referee recommended disbarment.

Issues: Respondent filed exceptions to the Referee’s report and argues that (1) Respondent did not violate the Nebraska Rules of Professional Conduct; (2) the mitigating factors indicate appropriate sanctions other than a recommendation of disbarment.

S-11-0333, City of Waverly, Nebraska (plaintiff-appellee) v. Richard M. Hedrick (defendant-appellant)

Lancaster County—Judge Robert R. Otte

Civil—Condemnation

Attorneys: Donald J. Pepperl of Donald J. Pepperl, P.C., L.L.O. (appellant)—Mark A. Fahleson & David J.A. Bargen of Rembolt Ludtke LLP

Proceedings Below: After a trial, the county court granted Waverly a set-off on the compensation it was to pay Hendrick. The set-off was for a special assessment that Waverly had previously applied to the land.

Issues: The district court erred in (1) finding the county court did not have subject matter jurisdiction of the condemners right of setoff of a statutory lien on a district court eminent domain judgment; (2) finding the district court had legal authority to confer subject matter jurisdiction on the county court in a eminent domain judicial proceeding; (3) not finding that only the Legislature can create subject matter jurisdiction; (4) finding that Hedrick had to file an objection to raise issue of subject matter jurisdiction; (5) not finding that the City was a condemnee ad defined by Neb. Rev. Stat. § 76-701; (6) not finding that the City was required to make itself a condemnee in the county court proceedings to be entitled to compensation for the claimed statutory lien; (7) not finding the City was required to receive a separate award from the county court appraisers to be entitled to be compensated for its claimed statutory lien; (8) not finding that the judgment for compensation that could not be partially claimed by the City by filing a motion after the return of appraisers in either district or county court; (9) not finding that the City was required to file a timely  Notice of appeal in the county court administrative proceedings to protect a claimed lien on the subject property; (10) not finding that the City claimed statutory lien was an in rem claim on the subject real property and not a personal obligation of Hedrick or a lien or claim on his personal property.

S-11-432, Field Club Home Owners League and Thornburg Place Neighborhood Association (appellants) v. Zoning Board of Appeals of Omaha, the City of Omaha, and Volunteers of America, Dakotas.

Douglas County, Honorable Marlon A. Polk

Attorneys: David J. Lanphier (Broom, Clarkson, Lanphier & Yamamoto) for appellants; Rosemarie R. Horvath (Asst. Omaha City Atty) and Donald J. Kleine (Pansing Hogan Earnst & Bachman LLP) for appellees.

Civil:  Variance requests to zoning code

Proceedings below:  District court held the Omaha Zoning Board properly granted the variances requested

Issues: Did the district court err in 1) upholding the decision of the Zoning Board to grant variances, 2) denying appellants an opportunity to conduct additional discovery and present additional evidence and allowing the City to offer additional evidence, or 3) in concluding Volunteers of America, Dakotas had standing?

 
S-11-0252, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court v. Paul W. Seyler (Respondent)

Original Action

Attorneys: Kent L. Frobish (Assistant Counsel for Discipline) (Relator) --- Andre R. Barry (Cline Williams Wright Johnson & Oldfather LLP) (for Respondent)

Civil: Attorney Discipline

Proceedings below: The Referee found Respondent violated Neb. R. of Prof. Cond. §§ 3-501.1, 3-501.3, 3-501.4 and 3-508.4 and violated his oath of office. Public reprimand was the recommendation.

Issues: The Relator filed exceptions to the referee’s recommendation of a public reprimand on the grounds of the sanction being too lenient. Relator contends that Respondent’s license should be suspended for no less than 90 days. Respondent field exceptions to the Referee’s finding that he failed to act competently in violation of § 3-501.1.

FRIDAY, JANUARY 6, 2012, subject to call at 9:00 a.m.

S-11-0602, Daniel B. obo Marcy Jo G. v. Mary Jo G. (Appellant)

Lancaster County, Judge Steven D. Burns

Attorneys: Sally A. Rasmussen (Mattson Ricketts Davies Steward & Calkins) (for Appellant Mary Jo G.) --- Amie Martinez (Anderson Creager Wittstruck) (for Appellee Daniel B.)

Civil: Paternity, custody and visitation

Proceedings below: The trial court awarded joint legal and physical custody of Marcy Jo to the parties and ordered Daniel to pay $180 a month child support and ½ of the health care expenses. Each party was ordered to pay for child care during the time he or she had custody of the child and ordered alternating dependency exemptions. The court ordered each to be responsible for his or her own attorney fees and expenses.

Issues: The trial court failed to accord the factual underpinnings of the sanctions appropriate weight in its custody decision. (2) Finding Daniel engaged in inappropriate sexual contact with his siblings rather than finding he sexually molested his younger siblings. (3) The trial court erred in entering a parenting order that does not protect the minor child and is not in her best interests. (4) The trial court erred in failing to properly apply the Parenting Act. (5) The trial court erred in entering orders “ensuring” or “directing” the child’s religion and schooling.

Cross Appeal: The trial court erred in imposing sanctions for the reason that the discovering party failed to file a motion to compel and as such, the trial court did not have the ability to impose sanctions. Further, the sanctions imposed were overly restrictive.

S-11-293, Brian Shipley (Appellant) v. The Department of Roads and Cass County (Appellees)
S-11-294, Kenneth E. Stoddard and Sondra K. Stoddard, guardians of Jamin L. Stoddard, an incapacitated person, and Nebraska Department of Health and Human Services (Appellants) v. The Department of Roads, an Agency of the State of Nebraska, and Cass County, a Political Subdivision of the State of Nebraska (Appellees) (Consolidated Cases)

Cass County, Judge Randall Rehmeier

Attorneys: James R. Welsh, Welsh & Welsh, P.C. (Appellants) --- Jon Bruning, Attorney General, Douglas L. Kluender, Assistant Attorney General (Appellees)

Civil: lawsuit arising out of a collision between a vehicle and train at a crossing

Proceedings below: The district court granted summary judgment in favor of the Appellees.  The court found Appellees were entitled to sovereign immunity on some of the Appellant’s claims.  As to the remaining claims, the court found the evidence was insufficient to create a question of fact on the issue of proximate causation. 

Issues: Whether the district court erred in (1) finding Cass County’s violations of the Manual on Uniform Traffic Control Devices had no bearing on this case; (2) finding Titles 415 and 428 did not apply to this case; (3) granting summary judgment on the Appellant’s failure to improve sight restrictions claim; and (4) finding sovereign immunity applied to the determination of whether Cass County or the State of Nebraska failed to warn drivers of the hazard at Beach Road. 

 
S-11-0562, Butler County School District 12-0502, a/k/a East Butler Public School District, a political subdivision of the State of Nebraska (Appellant) v. In re Matter of the Freeholders Petitions 1 through 10; Fern Jansa, Linda L. Semrad, Joyce A. Kucera and William F. Semrad; Roland and Adelyne Koranda and Janet Koranda; Lawrence J. Mach and Margaret A. Mach and Marvin V. Wiota and Adelyne Woita; Darwin L. Vermeline and Sharon J. Vermeline, Co-Trustees; Mark A. and Julia A. Urban, Raymond J. Urban, Jr., and Ruby A. Urban; Leon W. Vermeline and Patty A. vErmeline; Eugene T. Kros and Millie Kros, Donald R. Kros; Fred D. and Kathleen A. Vrana and Ben W. Vrana; Donald L. and Norma Veskrna, Michael R. Veskrna; Wayne E. Vermeline and Marian Vermeline (Appellees)

Saunders County, Judge Mary C. Gilbride

Attorneys: Rex Schultze, Derek A. Aldridge, Dyana Wolkenhauer (Perry Guthery Haase & Gessford PCLLO) (Appellant) --- Maureen Freeman-Caddy (Bromm LIndahl Freeman-Caddy & Lausterer) (Appellees)

Civil: Appeal from Freeholder’s Board of Saunders County; Transfer of certain tracts of land from one school district to another

Proceedings below: The Freeholder’s Board approved the Appellees’ freeholder petitions and transferred certain tracts of land owned by Appellees into Saunders County School District 78-039, a/k/a Wahoo Public Schools. Appellant and an individual taxpayer of the East Butler School District filed petitions in error with the district court. The district court found that the petitions in error were not timely filed and the district court did not have jurisdiction over the appeal. The district court found that Appellant school district, did not have standing to appeal an action of the Freeholder’s Board and the taxpayer did not have standing to appeal an action of the Freeholder’s Board. 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) finding the petitions in error were not timely filed; (2) finding Appellant did not have standing to appeal an action of the Freeholder’s Board; (3) finding Appellant paid the costs and legal bills to appeal the action of the Freeholder’s Board; (4) finding that the taxpayer did not have standing to appeal the action of the Freeholder’s Board; (5) dismissing the action for lack of jurisdiction.

S-11-0584, David Pittman (Plaintiff/Appellant) v. Western Engineering Company, Inc. (Defendant/Appellee) and Evert Falkena (Defendant/Appellee)

Lincoln County, Judge Donald E. Rowlands

Attorneys:  Robert Hippe (Robert Pahlke Law Group) (Appellant) --- Dean J. Sitzman, Krista M. Carlson (Wolfe Snowden) (Appellees)

Civil:  Negligent Infliction of Emotional Distress

Proceedings below:     The District Court for Lincoln County granted defendants/appellees’ motion for summary judgment.

Issues: Pittman assigns that the district court erred in finding (1) the Workers’ Compensation Act barred the claim of negligent infliction of emotional distress; (2) that Pittman has released the defendants from liability for his tort claim by receiving, and then applying to lump-sum, the dependent’s benefits his wife had under the Act; (3) a tort claim of bystander negligent infliction of emotion distress is not a free-standing tort but, rather, is derivative of the claim of the person seriously injured or killed; and (4) that Pittman’s claim against Evert Falkena is barred by the fellow servant rule.