S-07-1239, State v. Bradley C. Williams (Appellant)
Douglas County, Judge J. Russell Derr
Attorneys: Daniel W. Ryberg (Appellant) --- James D. Smith (Attorney General’s Office)
Criminal: Third degree assault
Proceedings below: Appellant entered a guilty plea to the charge. The plea agreement included the provision that Appellant could withdraw his guilty plea upon completion of a men’s non-violence program through the YWCA. If he failed to complete the program, he would be sentenced by the county court. Appellant was terminated from the program. He moved to withdraw his guilty plea, which was denied. The county court sentenced Appellant to 90 days in jail. The district court affirmed.
Issues: The district court erred in (1) ruling there was no abuse of discretion by the county court by participating in the plea agreement; (2) finding the county court could accept a conditional plea; (3) not finding the county court erred in accepting a contingent plea; (4) finding it was not error to deny Appellant’s motions to withdraw guilty plea; (5) failing to find his sentence was excessive.
S-07-0670, State v. Antonio Banks (Appellant)
Lancaster County, Judge Jeffre Cheuvront
Attorneys: Shawn Elliott (Public Defender’s Office) --- James D. Smith (Attorney General’s Office)
Criminal: First degree murder, use of a firearm to commit a felony
Proceedings below: A jury found Appellant guilty of the above crimes. The district court sentenced Appellant to a term of life imprisonment for first degree murder and 20 to 30 years in prison for the firearm charge.
Issues: The district court erred in (1) failing to strike for cause five jurors; (2) failing to sustain Appellant’s motion for change in venue; (3) failing to instruct the jury on the theory of premeditated first degree murder and the lesser offenses of second degree murder and manslaughter, thus denying Appellant a fair trial and right to due process of law; (4) failing to instruct the jury on the lesser offense of robbery and attempted robbery, thus denying Appellant of a fair trial and right to due process of law; (5) failing to instruct the jury on whether Appellant had abandoned his criminal intent; (6) failing to instruct the jury on self-defense; (7) failing to permit the defense to cross-examine a witness on his drug-use, in violation of the 6th Amendment right to confrontation; (8) failing to instruct the jury properly on the manner in which the credibility of accomplice testimony must be assessed; (9) failing to instruct the jury on the manner in which the credibility of a witness who was testifying pursuant to a grant of immunity must be assessed; (10) permitting the State to amend the use of a weapon charge to reflect the allegation that a deadly weapon had been used, thereby increasing the penalty range; (11) failing to sustain Appellant’s motion for a directed verdict when there was insufficient evidence for the jury to find him guilty of the charged offenses.
S-08-0026) In re Interest of Taylor W.
S-08-0074) In re Interest of Levi C. (consolidated on appeal)
Separate Juvenile Court for Lancaster County, Judge Toni Thorson
Attorneys: Shellie Sabata, Barbara Armstead (Lancaster County Attorney’s Office) --- B. Gail Steen (Attorney General’s Office on behalf of Office of Juvenile Services)
Criminal: Specific detention as part of adjudication under Neb. Rev. Stat. § 43-247(1).
Proceedings below: The trial court ordered the youth into a specific detention facility for an evaluation despite argument that the court lacked authority to do so.
Issues: The trial court erred in ordering a specific detention facility and not allowing DHHS/OJS to determine placement of the youth for purposes of an evaluation.
S-05-1520, Vicki King, Special Administratrix of the Estate of Bradley B. King, deceased (Appellant) v. Burlington Northern and Santa Fe Railway Company
Douglas County, Judge W. Mark Ashford
Attorneys: Richard J. Dinsmore, Jayson D. Nelson (Appellant) --- Nichole S. Bogen, James A. Snowden (Wolfe Snowden Hurd Luers & Ahl LLP)
Civil: Federal Employers Liability Act (FELA) and the Locomotive Inspection Act (LIA); negligence
Proceedings below: The trial court sustained BNSF’s motion in limine to exclude Dr. Frank’s proposed expert testimony that the decedent’s alleged occupational exposures to diesel exhaust caused him to contract multiple myeloma. After excluding Dr. Frank’s causation opinion, the trial court found insufficient evidence to support the case and entered summary judgment in favor of BNSF. The Court of Appeals affirmed. See, King v. Burlington Northern Santa Fe Railroad Company, 16 Neb. App. 544 (2008). Appellant King filed a Petition for Further Review which was granted by the Nebraska Supreme Court.
Issues: The Court of Appeals erred in (1) failing to apply the standard of Epp v. Lauby, 271 Neb. 640 (2006) to the review of the district court’s decision to exclude the testimony of Dr. Arthur Frank, Ph.D; (2) accepting the district court’s requirement that an expert must present peer reviewed studied that “conclusively state that exposure to diesel exhaust or benzene causes multiple myeloma”; (3) its reliance upon Missouri Pacific R. Co. v. Navarro, 90 S.W.3d 747 (Tex. App. 2002); (4) denying Appellant’s motion to expand the record to include peer-reviewed science published after the district court’s ruling; (5) accepting the district court’s conclusion that Dr. Frank did not conduct a reliable differential diagnosis because he did not “rule out” other known risk factors; (6) failing to permit Appellant to obtain additional expert testimony after disallowing Appellant’s expert witness.
S-06-1363, Ord, Inc.; D & J Trust; and Dan Liebig, Trustee v. AmFirst Bank, N.A. and Van Korell (Appellants)
Red Willow County, Judge Donald E. Rowlands
Attorneys: James M. Bausch, Andre R. Barry (Cline Williams Wright Johnson & Oldfather LLP) (Appellants AmFirst Bank and Van Korell) --- Ronald D. Mousel and Mark J. Appleton
Civil: Negligence, fraud, breach of fiduciary duty and breach of Nebraska Securities Act
Proceedings below: A jury returned a verdict in favor of Appellees on all of the claims and awarded damages of $110,768.87 to D&J Trust and $204,124.25 to Ord, Inc. The Appellant’s filed a motion for remittitur and a motion for judgment nothwithstanding the verdict, or in the alternative, a new trial. The district court entered an order (1) rescinding the Assignment and Hold Harmless Agreements; (2) awarding D&J Trust $31,832.24 in attorney fees and $14,608.90 in interest on its claims under the Nebraska Securities Act and ordering Appellant’s to pay costs of $451.44; (3) reducing the jury’s verdict in favor of Ord, Inc. by $15,600 and the verdict in favor of D&J Trust by $24,400. The jury’s verdicts were affirmed in all other respects. The Court of Appeals affirmed in a memorandum opinion. AmFirst Bank and Van Korell filed a Petition for Further Review which was granted by the Nebraska Supreme Court.
Issues: The Court of Appeals erred in (1) applying the doctrine of collateral estoppel based on its prior interlocutory ruling, on a different issue, in this same case; (2) disregarding the requirement that all parties to an instrument sought to be cancelled are necessary parties to the suit for cancellation; (3) failing to give appropriate weight to the written agreement between AmFirst Bank and its lessee, Kent Carter and in holding that there was substantial evidence to support the jury’s verdict that Carter was an agent of AmFirst Bank; (4) holding that Appellees’ proposed jury instructions on the subject of agency would only serve to mislead and confuse the jury on the law of agency because they used the term “employee” rather than “agent.”
S-07-0718, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. John E. Hubbard (Respondent)
Attorneys: John R. Douglas, David A. Blagg (Cassem Tierney Adams Gotch & Douglas) (Respondent) --- Kent L. Frobish (Assistant Counsel for Discipline)
Civil: Attorney Discipline
Proceedings below: The referee found a violation of Rule 8.4(a) and (b) and violation of the oath of office. The referee recommended Hubbard be placed on probation for a period of 5 years, beginning on the date of the probation in his criminal case, along with participation in the Nebraska Lawyer’s Assistance program, regular monitoring and reviews. In addition, the referee recommended that Hubbard be publicly reprimanded and suspended from the practice of law for one year.
Issues: The referee erred in (1) finding a violation of Rule 8.4 of the Rules of Professional Conduct; (2) failing to factor into the conclusion regarding a violation of the Rules and recommendation for discipline the factual findings that Hubbard’s use of cocaine was not within the context of the actual practice of law; (3) finding a violation of the Rules and subsequent recommendation regarding discipline based upon speculation regarding the possibility of future contact with his cocaine supplier; (4) recommending a public reprimand and a one year suspension; (5) ignoring the comment to Rule 8.4; (6) utilizing cases for comparison that were decided under the Code of Professional Responsibility rather than the relevant Rules of Professional Conduct; (7) basing a violation on a finding of “persistent” conduct; (8) basing the recommendations for discipline on findings of repeated law violations; (9) finding a violation of the Rules based upon speculation of possible future contact with a drug supplier; (10) basing a recommendation for discipline upon speculation that discipline will deter others; (11) basing a recommendation for discipline on the impermissible factor of public perception; (12) making erroneous factual conclusions; (13) recommending that Hubbard’s work product be reviewed by an attorney acceptable to the Counsel for Discipline; (14) recommending suspension of one year.
S-07-1320, State v. Shane J. Anderson (Appellant)
Box Butte County, Judge Brian Silverman
Attorneys: Kristen D. Mickey (Appellant) --- James D. Smith (Attorney General’s Office)
Criminal: distribution of bond money
Proceedings below: The trial court found Appellant’s criminal bond money held by the state judicial system was subject to garnishment by a civil judgment creditor.
Issues: The trial court erred in (1) finding Appellant’s criminal bond was subject to garnishment by a civil judgment creditor; (2) awarding Appellant’s criminal bond money to a civil judgment creditor contrary to the attorney lien in favor of defense counsel.
S-08-0178, B.J.M., a/k/a M.J.V., a minor child, ex rel., Nebraska Children’s Home Society, A Nebraska Non-Profit Corporation v. Jason V. and Angela V. (Appellants)
Knox County, Judge Patrick G. Rogers
Attorneys: Kathleen Koenig Rockey, Christopher C. Hilkemann (Copple Rockey & McKeever PC LLO) and Kelly N. Tollefsen (Morrow Poppe) (Appellants) --- Jeffrey M. Doerr (GAL for minor child) ---Tom D. Hockabout (Moyer Moyer) (for Nebraska Children’s Home Society)
Civil: Revocation of Adoption; Petition for Writ of Habeas Corpus
Proceedings below: The trial court granted the Home’s petition for revocation of adoption and returned the minor child to the care of the Home.
Issues: The trial court erred in (1) finding the minor child was illegally detained and was in illegal custody of the Appellants; (2) finding it was in the best interests of the minor child to be returned to the custody and control of the Home; (3) considering the “spirit” with which the birth mother entered into the open adoption agreement in determining the best interests of the minor child; (4) considering the wishes of the birth mother when determining the best interests of the child; (5) considering the possibility of future litigation concerning the minor child and the potential effect of the Appellants’ biological minor child, G.V.
S-07-1300, In re Interest of J.R.
Douglas County, Judge Gregory M. Schatz
Attorneys: Sean M. Conway (Assistant Public Defender) --- Jeffrey J. Lux (Douglas County Attorney’s Office)
Civil: Mental health board commitment
Proceedings below: The Mental Health Board found Appellant J.R. was a dangerous sex offender and committed him to secure inpatient treatment. The district court affirmed. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: The Sex Offender Commitment Act, Neb. Rev. Stat. § § 71-1201 to 71-1226, (1) is punitive in nature and retroactive in application and therefore an ex post facto law; (2) is punitive in nature and places Appellant twice in jeopardy for the same offense; (3) allows an alleged dangerous sex offender to be committed following a diagnosis of a personality disorder upon a showing of two or more prior convictions for sex offenses; (4) requires that an alleged dangerous sex offender admitted to emergency protective custody be held in a jail or correctional facility when the Nebraska Mental Health Commitment Act, Neb. Rev. Stat. § 71-919 requires placement in an appropriate medical facility. The Board erred in (1) finding that Appellant is a dangerous sex offender as defined by Neb. Rev. Stat. § 83-174.01; (2) finding that neither voluntary hospitalization nor other treatment alternatives less restrictive of Appellant’s liberty were available or would suffice under Neb. Rev. Stat. § 71-1209.
S-07-1041, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. Shaun F. Downey (Respondent)
Attorneys: Pro Se Respondent --- John W. Steele (Assistant Counsel for Discipline)
Civil: Attorney discipline
Proceedings below: The referee found the Respondent had violated Rule 8.4 of the Nebraska Rules of Professional Conduct and recommended indefinite suspension with no possibility of restatement prior to release from his criminal probation in 2012. Neither party has taken exceptions to the finding of the referee.
Issues: None assigned.
S-07-1075, State v. Edward Poindexter (Appellant)
Douglas County, Judge W. Russell Bowie
Attorneys: Robert F. Bartle, Beth L. Hamilton, John C. Vanderslice (Appellant) --- James D. Smith (Attorney General’s Office)
Proceedings below: The trial court granted Appellant an evidentiary hearing. After the hearing, the trial court denied Appellant post-conviction relief.
Issues: The district court erred in (1) failing to find the unitary trial procedure in place in 1971 was plain structural error sufficient to warrant a new trial; (2) failing to find trial and appellate counsel failed to challenge the unitary trial process and failed to present and preserve critical evidence and effectively challenge and rebut prosecutorial evidence; (3) failing to give appropriate weight to significant instances of prosecutorial misconduct which served to deny Appellant’s right to due process and a fair trial.
S-34-070006, David V. Hartmann (Appellant) v. Nebraska State Bar Commission
Nebraska State Bar Commission
Attorneys: Sean J. Brennan (Appellant) --- Brad Roth, Chris Blomenberg (McHenry Haszard Hansen Roth & Hupp)
Civil: Denial of application to sit for bar examination
Proceedings below: The Commission denied Hartmann’s application to sit for the Nebraska State Bar examination.
Issues: The Commission erred in denying Appellant’s application by finding he lacked the requisite character and fitness for admission to the Nebraska Bar Association.
S-07-0165, Robert D. Trump (Appellant) v. Gary W. Trump
Gage County, Judge Paul Korslund
Attorneys: Pro Se Appellant --- Daniel E. Klaus, David J.A. Bargen (Rembolt Ludtke)
Civil: fraud, negligence, false misrepresentation, breach of fiduciary duty
Proceedings below: The trial court granted Appellee’s motion to dismiss. The Court of Appeals affirmed in a memorandum opinion. Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.
Issues on Review: The Court of Appeals erred in finding the complaint was properly dismissed pursuant to Rule 12(b)(6).
S-08-0025, Stuart A. Carter v. Nahoko Hata Carter (Appellant)
Douglas County, Judge J. Russell Derr
Attorneys: Susan Ann Koenig (Appellant) --- Christopher A. Vacanti
Civil: Custody under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Proceedings below: The trial court found it had jurisdiction to determine the custody of the minor child. The court set up a parenting plan for joint custody.
Issues: The district court erred in (1) applying UCCJEA as there was no subject matter jurisdiction; (2) awarding the parties joint legal and physical custody of the child as it was not in the child’s best interests; (3) failing to award Nahoko attorney fees.
S-07-1369, In re Estate of Patti Johnson, Deceased
S-07-1370, In re Conservatorship of Victoria Johnson
S-07-1371, In re Conservatorship of Kayla Johnson
S-07-1372, In re Conservatorship of Monica Johnson (all consolidated)
Cheyenne County, Judge Randin Roland
Attorneys: David A. Domina, Brian E. Jorde (Appellant Gary Johnson, Personal Representative of the Estate and Conservator of the minor children) --- Steven F. Mattoon (Guardian Ad Litem) ---Michael J. Javoronok (for Monte Neilan, previous attorney for the Personal Representative)
Proceedings below: The trial court approved the $2.9 million wrongful death settlement and distributed the funds between the survivors: spouse and children. The trial court ordered that all money awarded to the children be placed into restricted accounts with no withdrawals without court approval. The trial court directed the funds be placed into income mutual funds or other investments recommended and approved by the court. The trial court overruled Appellant’s request for attorney fees finding it had a verbal only, contingent fee agreement and found Domina violated Neb. R. of Prof. Cond. 1.5(e). The trial court found Neilan should be awarded $490,750.
Issues: The county court erred in (1) imposing restrictions on the conservator’s investment of funds; (2) approving annuity purchases for the three minor children but failing to do so that would qualify the purchases for advantageous income tax protection; (3) rejecting the Personal Representative’s proposed division of the settlement proceeds; (4) awarding attorney fees because it (a) determined that no fees should be awarded for the services of the Personal Representative’s attorneys, Domina Law Group and (b) rejected the Personal Representative’s proposed division of fees.
S-07-1048, State v. Wesley L. Williams (Appellant)
Douglas County, Judge Peter C. Bataillon
Attorneys: Thomas C. Riley (Public Defender) --- James D. Smith (Attorney General’s Office)
Criminal: First degree murder; use of a weapon to commit a felony/ motion for absolute discharge
Proceedings below: The trial court overruled the motion for discharge. The State filed a Petition to Bypass the Court of Appeals which was granted.
Issues: The trial court committed reversible error by overruling the Appellant’s motion for discharge because the State failed to bring his case to trial within the six month statutory period required by Neb. Rev. Stat. § 29-1207 (Reissue 1995).
S-08-0154) Lancaster County Board of Equalization and Treetop, Inc. (Appellants) v. Norman H. Agena, Lancaster County Assessor
S-08-0155) Lancaster County Board of Equalization and John L. Large (Appellants) v. Norman H. Agena, Lancaster County Assessor
S-08-0156) Lancaster County Board of Equalization and Dirk S. Johnson and Jessica Johnson (Appellants) v. Norman H. Agena, Lancaster County Assessor
S-08-0157) Lancaster County Board of Equalization and Lincoln City Church (Appellants) v. Norman H. Agena, Lancaster County Assessor
Cases consolidated on appeal
Nebraska Tax Equalization and Review Commission
Attorneys: William E. Peters (Peters & Chunka PC LLO) (Lancaster County Board of Equalization) --- Vincent Valentino, Charles W. Campbell (Angle Murphy Valentino & Campbell PC) (Lancaster County Assessor, Norman H. Agena) --- William F. Austin (Erickson & Sederstrom PC) (Jon L. Large, Cross-Appellant) --- Steven E. Guenzel (Johnson Flodman Guenzel & Widger) (Treetop Inc., Cross-Appellant)
Civil: Determination of special valuation of real property
Proceedings below: The taxpayers were notified by the County Assessor that their subject property was disqualified from special valuation consideration. The taxpayers appealed to the Board which held a public hearing on the protests. The Board allowed the protest and granted special valuation status to the taxpayers (greenbelt status). The Assessor appealed the decision to the Tax Equalization and Review Commission. TERC reversed the action of the Board.
Issues: TERC erred in finding that the primary use of the parcel was not for commercial agricultural use.
Cross Appeal (S-08-0155): TERC erred in (1) concluding the primary use of the subject property was not for agricultural or horticultural purposes as defined by Neb. Rev. Stat. § 77-1359(2) (Cum. Supp. 2006); (2) in disregarding the plain language of the directive issued by the Property Tax Administrator; (3) failing to accord the decision of the Board the proper presumption that the Board had faithfully performed its duties, acted upon sufficient competent evidence to justify its actions and such presumption would remain until rebutted by clear and convincing evidence; (4) concluding that a difference of opinion on “primary use” constitutes clear and convincing evidence; (5) admitting, over objection, testimony of a dissenting County Commissioner regarding his opinion as to factors that should be considered in determining agricultural or horticultural purposes.
Cross-Appeal (S-08-104): TERC erred in its application of unconstitutional amendments to the “greenbelt” law as the basis for denying Treetop “greenbelt” status; TERC erred in finding that the primary use of the parcel was not for commercial agricultural use.
S-07-1138 State v. Kenneth R. Wells (Appellant)
Douglas County, Judge J. Russell Derr
Attorneys: Beau G. Finley (Appellant) --- James D. Smith (Attorney General’s Office)
Criminal: Possession of a controlled substance with intent to deliver/ motion for discharge
Proceedings below: The trial court denied Appellant’s motion for discharge. The State filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: The trial court erred by overruling the Appellant’s motion to discharge because the State failed to bring the case to trial within the statutory six month period required by Neb. Rev. Stat. § 29-1207 (Reissue 1995).
S-08-0135, State v. Michael P. Davis (Appellant)
Douglas County, Judge James M. Murphy
Attorneys: Matthew R. Kahler (Finley Law Offices PC LLO) --- George R. Love (Attorney General’s Office)
Criminal: First degree murder and use of a weapon to commit a felony
Proceedings below: The trial court granted Appellant’s motion for postconviction relief and granted him the right to file a new direct appeal.
Issues: (1) There was insufficient evidence to support a conviction; (2) Trial counsel was ineffective in that he had a 16 year old defendant waive his right to a jury trial; (3) Trial counsel was ineffective in that he had a 16 year old defendant waive his right to testify; (4) Trial counsel was defective in that counsel did not present any evidence of Appellant’s significant mental conditions during trial; (5) Trial counsel was ineffective in that he failed to have Appellant undergo a competency exam prior to trial; (6) The trial court erred in including malice as an element of second degree murder; (7) The trial court abused its discretion by imposing an excessive sentence upon Appellant.
S-07-0556, State v. Roger K. Schmidt, Sr. (Appellant)
Jefferson County, Judge Paul W. Korslund
Attorneys: James R. Mowbray, Kelly S. Breen (Nebraska Commission on Public Advocacy) (Appellant) --- James D. Smith (Attorney General’s Office)
Criminal: First degree sexual assault; sexual assault of a child
Proceedings below: Appellant was convicted of counts II, III, IV and VI and acquitted on counts V and VII. He appealed to the Court of Appeals which affirmed the convictions and sentences. See State v. Schmidt, 16 Neb. App. 741 (2008). 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) affirming Appellant’s convictions as July No. 14 was confusing, misleading and prejudicial to Appellant’s defense; (2) affirming Appellant’s convictions despite the trial court’s denial of his right to confrontation and cross-examination to demonstrate the bias, prejudice and lack of credibility of the prosecutrix; (3) affirming Appellant’s convictions despite the trial court’s denial of his right to compulsory process and the impairment of his right to effective confrontation.