Supreme Court Case Summaries

October 6, 7, 8, or 9, 2009

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

S-08-0434, State v. Terry J. Sellers (Appellant)

Douglas County, Judge Peter C. Bataillon

Attorneys: Clarence E. Mock, Denise E. Frost (Johnson & Mock) (Appellant) --- George R. Love (Attorney General’s Office)

Criminal: 2 counts of first degree murder; 2 counts of use of a weapon to commit a felony; one count of attempted first degree murder and one count of use of a weapon to commit a felony

Proceedings below: A jury found Appellant guilty of the above charges. He was sentenced to consecutive sentences of life imprisonment for the murder charges, 50 years on the use of a weapon charges related to the first degree murder charges and 40 to 50 year sentences on the attempted first degree murder and use of a weapon to commit a felony charges.

Issues: The trial court erred in (1) denying Appellant’s motion for a jury instruction and motion for mistrial after extraordinary prejudicial conduct by a prosecution witness and her attorney during testimony; (2) giving Instruction No. 22 to the jury; (3) giving Instruction No. 24 to the jury; (4) refusing to permit Appellant to adduce evidence of two handguns seized from the residence where prosecution witness DaWayne Kearney was arrested. (4)Appellant alleges ineffective assistance of trial counsel for failure to object to Instruction Nos. 22 and 24.

S-08-1308, State v. Daryle M. Duncan (Appellant)

Douglas County, Judge J. Russell Derr

Attorneys: Brian S. Munnelly (Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The trial court denied Appellant’s motion for postconviction relief.

Issues: (1) Appellant received ineffective assistance of counsel during his trial when counsel failed to object to the Crime-Stoppers testimony based on his confrontation rights under U.S. Const. Amend. VI and XIV and Neb. Const. Art. I, § 11 and on Rules 401, 403, 801 and Neb. Evid. R. 802 and for failing to move for mistrial based on the testimony. (2) Trial counsel was ineffective in failing to interview and call as witnesses people who knew Liwaru’s animosity and attempt to physically harm Muhammed and various confrontations with Muhammad. (3) Trial counsel was ineffective for failing to raise confrontation claims based on the courts limitation of cross-examination of Liwaru. (4) Defendant received ineffective assistance of counsel during cross-examination of Jaahlay Liwaru for counsel’s failure to impeach Liwaru. (5) Defense counsel ignored Appellant’s continuous plea to put forth his alibi defense to this crime. (6) Defense counsel failed Appellant and rendered ineffective assistance by failing to call a single witness on behalf of the defendant.

S-08-1291, State v. Domingo J. Sepulveda (Appellant)

Douglas County, Judge John D. Hartigan, Jr.

Attorneys: Sarah M. Mooney (Appellant) --- James D. Smith (Attorney General’s Office)

Civil: Postconviction relief

Proceedings below: The trial court denied Appellant’s request for postconviction relief. Both sides filed Petitions to Bypass the Court of Appeals which were granted by the Nebraska Supreme Court.

Issues: The trial court erred in (1) finding that manslaughter upon a sudden quarrel is an intentional crime; (2) ruing that Appellant’s trial counsel was not ineffective in failing to object to the jury’s finding of guilt as to both manslaughter and use of a deadly weapon to commit a felony and in failing to object to the jury instruction for use of a deadly weapon if Appellant was convicted of manslaughter; (3) ruling that Appellate counsel was not ineffective in failing to allege in his direct appeal that Appellant could not be convicted of both manslaughter and use of a weapon to commit a felony; (4) not finding that there was an actual, factual and legal innocence in this case relating to the use of a weapon; (5) refusing to find that it was plain error for the court to allow the jury verdict of guilty to use of a deadly weapon to commit a felony to stand when the underlying felony was an unintentional crime; (6) ruling that Appellant’s trial counsel was not ineffective in failing to call certain key defense witnesses.

S-09-0086, State v. Terrence K. Gorup (Appellant)

Sarpy County, Judge David Arterburn

Attorneys: Ann C. Addison-Wageman (Appellant) --- George R. Love (Attorney General’s Office)

Criminal: Possession of a controlled substance: methamphetamine

Proceedings below: This case was previously before the Supreme Court. See State v. Gorup, 275 Neb. 280 (2008) (reversed and remanded for further proceedings). Below, the trial court again denied Appellant’s motion to suppress. After a stipulated bench trial, Appellant was found guilty of possession of a controlled substance.

Issues: The district court erred in overruling Appellant’s motion to suppress and admitting as evidence at trial, the items seized as a result of an unreasonable search and seizure.

S-08-1302, Rodney M. Wetovic, Nance County Attorney v. The County of Nance, a Body Politic and Corporate; Nance County Board of Supervisors, Dennis Jarecke, Chairman, Henry E. Santin, Carl H. Hewquist, Curtis Peterson, Robert Voichoskie, John Small and Andrew Ditter (Appellants)

Nance County, Judge Michael J. Owens

Attorneys: George E. Martin, III, Aimee Bataillon (Spencer Fane Britt & Browne LLP) (Appellants) --- Mark M. Sipple (Sipple Hansen Emerson & Schumacher) and Rodney M. Wetovick

Civil: Declaratory judgment action

Proceedings below: The district court granted judgment in favor of Wetovic and ordered the county board approve and fund his 2007-2008 budget request. Appellants filed a petition to bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: (1) Once the 2007-2008 budget year ended, the district court lacked jurisdiction under the Uniform Declaratory Judgments Act, Neb. Rev. Stat. § 25-21,146 et seq., to consider Appellee’s 2007-2008 proposed budget. (2) The district court lacked authority under the Uniform Declaratory Judgments Act to order the Board to approve the Appellee’s 2007-2008 proposed budget. (3) Because the Board had ample evidence that the Appellee’s 2007-2008 proposed budget was unreasonable, the district court erred in finding that the Board acted unreasonably when it disapproved the budget and then altered it. (4) The district court erred in finding the Appellee’s demand for a full-time clerical assistant was reasonable. (5) The district court erred in failing to consider the Board’s authority under Neb. Rev. Stat. § 23-908 to alter the Appellee’s proposed budget.

S-09-0184, David L. Fulkerson and Countrywide Insurance Agency, Inc., a Nebraska Corporation (Relators) v. Honorable Peter C. Bataillon, Judge District Court for Douglas County (Respondent) v. State of Florida ex rel. Department of Insurance (Intervenor)
Original Action for Peremptory Writ of Mandamus
Attorneys: William E. Gast and Michael D. McClellan (Gast &McClellan) (for Relators) --- Tom Stine (Assistant Attorney General) (for Respondent)

Statement of the case: The issue before the Court is whether the Respondent is in compliance with the Supreme Court’s mandate arising out of the Court’s June 6, 2008 opinion in State of Florida v. Countrywide Insurance Agency, Inc. 275 Neb. 842 (2008).

Statement of errors: (1) Respondent erred in entering an order scheduling another jury trial in the underlying action. (2) Respondent erred in overruling Relators’ motion for summary judgment. (3) Respondent erred in overruling Relators’ motion for entry of judgment in conformity with the mandate of the Nebraska Supreme Court.

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

S-07-0972 & S-07-0973 (consolidated) State v. Patrick W. Schroeder (Appellant)

Pawnee County, Judge Daniel E. Bryan

Attorneys: Robert W. Kortus (Nebraska Commission on Public Advocacy) (Appellant) --- James D. Smith (Attorney General’s Office)

Criminal: Count I: First degree murder; Count II: Use of a deadly weapon; Count III: Second degree forgery; habitual criminal

Proceedings below: A jury found Appellant guilty of the above crimes. He was sentenced to life in prison on Count I; 20 to 20 years on Count II and 30 to 60 years for Count III, all to be served consecutively.

Issues: (1) The trial court erroneously failed to suppress evidence that was illegally obtained in violation of Appellant’s 4th, 5th and 14th Amendment rights to the U.S. Constitution and art. I, §§ 3, 7, and 12 of the Nebraska Constitution and the exclusionary rule. (2) The district court erroneously consolidated both cases for trial and then erroneously failed to sever the counts. (3) The district court railed to properly instruct the jury on lesser included offenses denying Appellant a jury determination of guilt or innocence, due process and fair trial in violation of his rights under the 5th, 6th, and 14th amendments to the U.S. Constitution and under article I, §§ 3 and 11 of the Nebraska Constitution. (4) The district court erroneously failed to change venue denying Appellant due process and a fair trial before an impartial jury in violation of his rights under the 5th, 6th, and 14th Amendments to the U.S. Constitution and under article I, §§ 3 and 11 of the Nebraska Constitution.

S-08-1333, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. Bryan E. Smith, Jr. (Respondent)

Original Action

Attorneys: John W. Steele (Assistant Counsel for Discipline) --- no brief filed on behalf of Respondent

Civil: Attorney discipline

Proceedings below: Respondent did not answer or otherwise plead to the formal charges. The Supreme Court granted Relator’s motion for judgment on the pleadings.

Issues: What is the appropriate discipline?

S-09-0355, In re Adoption of Corbin J.

Arthur County, Judge Edward D. Steenburg

Attorneys: Brian J. Davis (Berreckman & Davis PC) (Appellant putative father) --- Kelly N. Tollefsen (Morrow Poppe Watermeier & Lonowski PCLLO) (biological mother and step-father)

Civil: Adoption

Proceedings below: The trial court found Appellant to be the putative father of the minor child but found he did not file the required notice of objection to adoption and intent to obtain custody under Neb. Rev. Stat. § 43-104.08 to 43-104.25, that Appellant’s consent was not required and entered the final adoption decree.

Issues: The county court erred in (1) finding that the specific sections of Neb. Rev. Stat. § 43-104 applied in this case removing the requirement of consent; (2) finding Appellant is a “putative” father; (3) sustaining the Appellees’ motion for summary judgment and denying Appellant’s motion; (4) overruling Appellant’s objection to the final adoption and entering the decree; (5) failing to record the proceeding to establish a record in the final adoption hearing held on March 3, 2009.

S-08-1196, State v. Mark A. Macek (Appellant)

Lancaster County, Judge Jodi Nelson

Attorneys: Peter K. Blakeslee (Appellant) --- James D. Smith (Attorney General’s Office)

Criminal: DUI, 4th Offense

Proceedings below: Appellant entered a guilty plea to the DUI charge. After the enhancement hearing, it was determined to be his 4th offense. He was sentenced to 180 days in jail and a 15 year license suspension.

Issues: The trial court erred in concluding that Exhibits 2 and 3 could be used to enhance Appellant’s conviction.


S-08-1330, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. Donald J. Loftus (Respondent)

Original Action

Attorneys: Donald J. Loftus --- John W. Steele (Assistant Counsel for Discipline)

Civil: Attorney discipline

Proceedings below: Respondent was disciplined in the State of California for various ethical violations. Counsel for Discipline filed a motion for reciprocal discipline after Respondent self-reported the disciplinary action from California.

Issues: What should the sanction and discipline be in this reciprocal matter?

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

S-09-0156, State v. Michael J. Glover (Appellant)

Douglas County, Judge Gergory M. Schatz

Attorneys: Thomas J. Garvey (Appellant) --- James D. Smith (Attorney General’s Office)

Civil: Postconviction

Proceedings below: This case was previously before the Supreme Court. See State v. Glover, 276 Neb. 622 (2008). Upon remand, the district court held an evidentiary hearing per mandate of the Supreme Court. The trial court denied postconviction relief after holding an evidentiary hearing.

Issues: The district court erred in (1) denying Appellant a hearing; (2) finding that Appellant’s plea was knowingly, voluntarily and intelligently entered; (3) failing to find trial counsel ineffective.

S-08-1212, Richard D. Myers, Trustee of the Floors & More, Inc. Ch. 7 Bankruptcy Estate v. Jeff Christensen, Tiffany Christensen, and Gencon, Inc., f/k/a Christensen Interior Contracting, Inc. v. Charter West National Bank (Appallant).

Douglas County, Judge Gregory M. Schatz

Attorneys: Jeffrey Silver (Appellant Charger West National Bank) – Brett S. Charles (McGill, Gotsdiner, Workman & Lepp) (Bankruptcy Estate)

Civil: Bankruptcy Garnishment

Proceedings below: the trial court determined that Charter West was liable to the Trustee as garnishee and entered judgment in favor of the Trustee and against Charter West in the amount of $10,450.05.

Issues: The trial court erred in finding garnishee liability against Charter West notwithstanding Charter West’s first perfected security position in all of the judgment debtor’s property.

S-09-0165, Willard Teadtke and Lola Teadtke, Husband and Wife, as Trustees of the Willard and Lola Teadtke Trust v. E.D. Havranek a/k/a Eddy Havranek and Karen K. Havranek (Appellants) and Town of Lynch, Boyd County, Nebraska a/k/a Lynch Nebraska and Boyd County, Nebraska and John Doe and Mary Doe

Boyd County, Judge Mark D. Kozisek

Attorneys: Shannon L. Doering (Appellants) --- Tom D. HOckabout (Egley Fullner Montag & Hockabout) (for Appellees Willard and Lola Teadtke)

Civil: Action for prescriptive easement

Proceedings below: The district court held that it had jurisdiction and that a public easement should be granted and that the extent of the easement would vary. Appellants filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred (1) in exercising equitable jurisdiction over Plaintiffs’ claim for a prescriptive easement when the record established that Plaintiffs failed to avail themselves of the legal remedy provide in Neb. Rev. Stat. §§ 39-1713 to 39-1719 prior to seeking equitable relief; (2) granting equitable relief in the form of a public prescriptive easement when the Plaintiffs failed to even allege, much less establish, the existence of such; (3) concluding that the Plaintiffs had established the requisite elements of a prescriptive easement by clear and convincing evidence; (4) granting the Plaintiffs a prescriptive easement in excess of the amount of property that may have been used by the Plaintiffs or their predecessors at any time.

Cross-Appeal: The trial court erred in failing to tax as costs the $2,707.71 expense incurred by the Plaintiffs for the real estate survey of the road in question.

S-09-0060, Donna Bamford and Donna Bamford as Special Administrator of the Estate of James W. Bamford (Appellees) v. Bamford, Inc., a Nebraska corporation; Jeffrey L. Orr, Trustee; Charles Bamford, Trustee; James Votaw, Trustee; and Jane K. Davolt, Personal Representative of the Estate of Thomas D. Davolt, a/k/a Tom Davolt, Deceased (Appellants)

Buffalo County District Court--Judge John P. Icenogle

Attorneys:       Shawn D. Renner, Kevin J. Schneider, Keith T. Peters, and Bren H. Chambers, Cline, Williams, Wright, Johnson & Oldfather, L.L.P. (Appellants)---Michael L. Johnson, Leininger, Smith, Johnson, Baack, Placzek & Allen

Civil:   Voting Trust

Proceedings Below: The district court entered an order declaring that the Bamford Irrevocable Voting Trust is void and of no effect and that Donna Bamford has the right to revoke or terminate the trust and has done so. The court ordered Bamford, Inc. to issue or reissue stock certificates demonstrating that all outstanding shares of the company stock held by James had been transferred to Donna.

Issues: The district court erred in holding that the trust is void because the trust document did not expressly limit its duration to 10 years and in holding that the trust is not effective as an irrevocable proxy.

S-09-0150, Anne Underhill (Appellant) v. Shiloh Hobelman

Lancaster County, Judge Robert R. Otte

Attorneys: Gary J. Nedved, Joel Bacon (Keating O’Gara Nedved & Peter PC LLO) (Appellant) --- Travis P. O’Gorman (Cline Williams Wright Johnson & Oldfather LLP)

Civil: Personal injury

Proceedings below: The district court found Neb. Rev. Stat. § 54-601 did not impose strict liability for the mischievous and playful acts of a dog and granted summary judgment to Hobelman. The 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) granting HObelman’s motion for summary judgment on the issue of strict liability under Neb. Rev. Stat. § 54-601; (2) finding a dog owner is not strictly liable under Neb. Rev. Stat. § 54-601 for a dog injuring a person if the act was playful or mischievous.

S-09-0130, State v. Marcus L. Hudson (Appellant)

Douglas County, Judge Sandra Dougherty

Attorneys: Scott C. Sladek (Public Defender’s Office) --- George R. Love (Attorney General’s Office)

Criminal: First degree murder, use of a firearm to commit a felony and felon in possession of  a firearm.

Proceedings below: A jury found Appellant guilty of the above crimes. He was sentenced to life imprisonment for first degree murder; 10 to 20 years for use of a weapon and 5 to 10 years for felon in possession. The sentences were ordered to run consecutively to each other.

Issues: The trial court erred in (1) overruled Appellant’s objection and allowed the State to present hearsay testimony by Shenika Johnson under Neb. Rev. Stat. § 27-801(4)(b); (2) finding sufficient evidence to convict Appellant of the three charges.

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

S-09-0101, State v. Stephen E. France (Appellant)

Dawson County, Judge James Doyle

Attorneys: Corey A. Burns (Appellant) --- George R. Love (Attorney General’s Office)

Criminal: First degree murder and use of a weapon to commit a felony

Proceedings below: A jury found Appellant guilty of the above crimes. He was sentenced to life in prison without parole for first degree murder and a consecutive sentence of 15 to 20 years for the weapon conviction.

Issues: The jury erred in (1) failing to find Appellant legally insane at the time of the offenses; (2) failing to find Appellant acted in self defense.

S-09-0152, Glenn T. Holsapple (Appellant) v. Union Pacific Railroad Company

Douglas County, Hon. W. Russell Bowie

Attorneys: John J. Higgins and Robert T. Dolan (Appellant) v. David J. Schmitt and John M.
Walker, (Lamson, Dugan, and Murray)

Civil: Federal Employers’ Liability Act (FELA)

Proceedings Below: The district court sustained Union Pacific Railroad Company’s (UP) summary judgment motion, finding as a matter of law that Holsapple was not within the course and scope of his employment at the time of his injury.

Issues on Appeal: Holsapple argues the district court erred in finding that Holsapple was not acting in the course and scope of his employment with UP at the time of his injury.

S-09-0003, Virginia Sinsel, Mother and Next Friend of Heidi Sinsel, a Minor Child (Cross-Appellant) v. Linda Olsen, Parent and Next Friend of Jacob Olsen, a Minor Child (Appellants)

Kearney County, Judge Stephen Illingworth

Attorneys: Betty L. Egan (Walentine, O’Toole, McQuillan & Gordon)  (Appellants) --- Maren Lynn Chaloupka (Chaloupka Holyoke Hofmeister Snyder & Chaloupka) and Bryan S. McQuay (Person & McQuay) (Cross-Appellant)

Civil: negligence

Proceedings below: A jury returned a verdict on behalf of plaintiff and against defendant Jacob Olsen and assessed damages of $50,000 and against defendant Linda Olsen and assessed damages at $75,000. Appellee filed a petition to bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The trial court erred in (1) overruling Linda Olsen’s motion for a directed verdict; (2) failing to properly instruct the jury. Appellant also assigns as error that the jury awarded an excessive verdict.

Cross-Appeal: Prejudgment interest should be assessed at the rate effective on the date of the Neb. Rev. Stat. § 45-103.02 settlement offer, not the date of the judgment.

S-09-0016, Shari Miller v. School District No. 18-0011 of Clay County, aka Harvard Public Schools (Appellant)

Clay County, Honorable Vicky L. Johnson

Attorneys: Karen A. Haase, Steve Williams, and Adam J. Prochaska (Harding & Shultz, P.C., L.L.O. (Appellant)-- Scott J. Norby (McGuire and Norby) (Appellee)

Civil: Termination of Employment Contract

Proceedings Below: After a hearing, the court reversed the Board of Education’s decision to terminate Miller’s employment as a teacher because Harvard failed to show that a reduction in force (RIF) was necessary, pursuant to Neb. Rev. Stat. § 79-847.

Issues: Did the court err in determining that there was no RIF as required by § 79-847?

S-09-0048 and S-09-0104, Hearst-Argyle Properties, Inc., and The Hearst Corporation (Appellants) v. Entrex Communication Services, Inc., Communication Structures & Services, Inc.; and Dudutis Erection & Maintenance, Inc.

Douglas County, Judge Thomas A. Otepka

Attorneys: J. Joseph McQuillan (Wallentine O’Toole, McQuillan & Gordan) (Appellants) --- William R. Johnson, Craig F. Martin (Lamson Duggan & Murray LLP) (Entrex Communication Services, Inc.) --- Dean Suing (Katskee Henatch & Suing) (Dudutis Erection & Maintenance, Inc.) --- Thomas A. Grennan, Francie C. Riedmann (Gross & Welch PC LLO) (Communication Structures & Services, Inc.)

Civil: gross negligence and damage; subrogation

Proceedings below: A previous opinion from the Supreme Court affirmed the dismissal of claims of Hearst’s property insurers. See Lexington Insurance Company v. Entrex Communication Services, 275 Neb. 702 (2008). The issue presented to the district court is Hearst’s $250,000 deductible. The district court granted Appellees’ motion for summary judgment finding that the clear and unambiguous language of the contract agreed upon by the parties required Appellants to pay the cost of the deductible and allegations of gross negligence did not preclude enforcement of the parties agreed upon method of risk allocation.