Supreme Court Case Summaries

October 4, 5, 6, or 7, 2011

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

S-10-1011, State of Nebraska v. Joshua W. Nolan (Appellant)

Douglas County, Judge Marlon Polk

Attorneys: Brian S. Munnelly (Appellant) --- James D. Smith (Attorney General’s Office)

Criminal: First degree murder and use of a weapon to commit a felony. This is a direct appeal of the conviction and sentences imposed.

Proceedings below: The trial court overruled Appellant’s motion to suppress evidence. A jury found Appellant guilty of the above crimes and sentenced him to life imprisonment on the murder charge and 10 to 10 years on the weapon charge. The sentences were ordered to be served consecutively.

Issues: The trial court erred in (1) overruling Appellant’s motion to suppress evidence as the officer did not have a reasonable suspicion to initiate a traffic stop; (2) overruling his motion to suppress as the arresting officer did not have a reasonable suspicion to conduct a pat-down search of Appellant; (3) overruling his motion to suppress the identification of the defendant made by Heather Riesselman and Carrie Schlabs; (4) allowing the State to introduce evidence of a .44 caliber handgun in violation of Neb. Rev. Stat. 27-404(2) in the absence of a 404 hearing to determine admissibility; (5) allowing the State to introduce evidence of a .44 caliber handgun as the prejudicial value of the weapon did not outweigh the probative value; (6) allowing testimony of Patricia Love at trial regarding call information on a Verizon phone account; (7) failing to disqualify and recuse itself from the proceedings; (8) giving the “acquittal first” step instruction to the jury; (9) finding sufficient evidence to support the convictions. Appellant also alleges ineffective assistance of counsel.

S-11-0077, Big John Billiards, Inc., a Nebraska Corporation and Douglas County Health Department (Appellees) v. State of Nebraska, Department of Health and Human Services, Kerry winterer as Chief Executive Officer and Director of the Department of Health and Human Services, Nebraska Liquor Control Commission, Hobart Rupe, as Executive Director of the Nebraska Liquor Control Commission (Appellants)

Lancaster County, Judge Jodi Nelson

Attorneys: Dale A. Comer, Lynn A. Melson, Natalee J. Hart (Attorney General’s Office) (Appellants) --- Theodore R. Boecker, Jr. (Boecker Law PC LLO)

Civil: Declaratory Judgment. This case involves a determination of the constitutionality of the Nebraska Clean Indoor Air Act.

Proceedings below: The district court found three statutory exemptions set forth in Neb. Rev. Stat. § 71-5730(1), (3) and (4) to be unconstitutional special legislation prohibited by Neb. Const. art. III, § 18 and found these statutory provisions were severable from the Nebraska Clean Indoor Air Act such that the remainder of the Act remain in full force and effect.

Issues: The district court erred in (1) sustaining the plaintiff’s motion for partial summary judgment, in part, and overruling the state defendants’ motion for summary judgment as the district court lacked subject matter jurisdiction as to any claims against the State of Nebraska, Department of Health and Human Services and Nebraska Liquor Control Commission; (2) applying a special legislation test or analysis which focused on the purpose of the Nebraska Clean Indoor Air Act as a whole rather than the legislature’s purpose in creating each class or exemption; (3) determining that the three statutory exemptions found in Neb. Rev. Stat. § 71-5730(1), (3) and (4) were unconstitutional special legislation.

Cross-Appeal: The district court erred in concluding that the entire smoking ban should not be invalidated but merely should be subject to a severing of unconstitutional provisions.

S-11-0233, Alisha Marie Conroy v. Jeremy Eugene Conroy (Appellant)

Lancaster County, Judge Robert R. Otte

Attorneys: James H. Hoppe (Appellant) --- Kevin Ruser (Civil Clinical Law Program) and Senior Certified Students Austin Leighty and Troy J. Bird (Appellee)

Civil: Modification of dissolution decree. This case involves a challenge of paternity.

Proceedings below: Appellant attempted to challenge the 2009 decree of dissolution after the minor child was determined to not be his biological child. The trial court found Neb. Rev. Stat. § 43-1401 et seq. does not apply in this case as the child was a child born of the marriage. The trial court found Appellee did not commit fraud and Appellant failed to use reasonable diligence before trial or in time to move for a new trial and found the genetic tests were not newly discovered evidence.

Issues: The trial court erred in finding that § 43-1401 et seq. does not apply to minor children born during a marriage.

 
S-11-0145, State v. Richard Halverstadt (Appellant)

Lancaster County, Judge Jodi Nelson

Attorneys: Jeffry D. Patterson (Bartle & Geier Law Firm) (Appellant) --- Kimberley Klein (Attorney General’s Office)

Criminal: Overweight axels (2 counts) and overweight capacity plates; violation of county weight permits

Proceedings below: The county court found Appellant guilty of the above offenses and fined him a total of $3100 plus costs. The district court affirmed.

Issues: The district court erred in (1) finding Appellant’s permit was retroactively revoked when his violations consisted solely of exceeding weight limits specified by the permit; (2) finding Appellant violated § 60-6,300 and was liable for a fine when at all times he had valid permits pursuant to § 60-6,298 and he was not the owner of the tractor trailer.

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

A-09-1309, In re Estate of Joseph James Teague, Deceased, by and through his Personal Representative, Joani M. Martinosky (Appellant) v. Crossroads Cooperative Association, a Nebraska Corporation

Cheyenne County, Judge Derek C. Weimer

Attorneys: R. Kevin O’Donnell, Michael D. Samuelson (McGinley O’Donnell Reynolds & Korth PCLLO) (Appellant) --- Steven W. Olsen, John F. Simmons (Simmons Olsen Law Firm PC)

Civil: Applicability of Nebraska Workers’ Compensation Act to the case

Proceedings below: The trial court found the exclusive remedy for Appellant was the Nebraska Workers’ Compensation Act and dismissed the complaint for failure to state a claim upon which relief could be granted. The Court of Appeals dismissed the appeal under Neb. Ct. R. 2-107(A)(2) finding lack of jurisdiction. Appellant filed a motion for rehearing which was sustained. The Court of Appeals affirmed the trial court. See 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 (1) affirming the district court’s determination to sustain the motion to dismiss for failure to state a claim upon which relief could be granted; (2) affirming the district court’s finding that the Nebraska Workers’ Compensation Act applied to this case; (3) failing to recognize an exception to the exclusivity provisions of the Act in light of the facts of this case; (4) failing to find that employers seeking the applicability of the Act must be held to the same standard of conduct as employees otherwise it improperly deprives an employee due process and equal protection under the law.

S-11-0094, State v. Joseph E. Tamayo (Appellant)

Douglas County, Judge J. Patrick Mullen

Attorneys: James J. Regan (Appellant) – Stacy M. Foust and James D. Smith (Attorney General’s Office)

Criminal: Absolute discharge under Neb. Rev. Stat. 29-1207. This is a case involving speedy trial rights.

Proceedings below: This case was previously before the Supreme Court. See State v. Tamayo, 280 Neb. 836 (2011) (affirmed as modified, remanded with directions). Upon remand, the trial court determined the State had met its burden and excluded the time while Appellant had a psychiatric evaluation, from April 8, 2008 through October 28, 2008 and denied the Appellant’s motion for discharge.

Issues: The district court erred in (1) finding there was a period of delay affecting Appellant’s right to speedy trial that should be excluded under Neb. Rev. Stat. § 29-1207(4)(f); (2) finding there were facts to support the conclusion that the psychiatric evaluation of the Appellant caused an excludable delay in connection with the calculation of his right to speedy trial; (3) finding there was “good cause” as defined by Neb. Rev. Stat. 29-1207(4)(f) for the failure of the State to bring Appellant to trial within the time required by law.

S-11-0029, Douglas R. Switzer & Hathaway Switzer LLC (Appellants) v. Thomas & Thomas Court Reporters, LLC (Appellee).

Douglas County, Judge Gregory M. Schatz

Attorneys: Douglas R. Switzer & Richard P. Hathaway (Appellant); Ronald E. Reagan (Appellee)
                                                                             
Civil: Breach of Contract

Proceedings Below: The district court found that the appellants and appellees were parties to an implied or constructive contract and awarded the appellees $5,992.00, along with taxable costs.

Issues: Whether the district court erred when it found that the appellants were parties to a contract with the appellees, and when it found that Douglas Switzer was a party to the contract and personally liable.
                                                                                                                    

S-11-0174, Darlene Howsden [appellant] v. Roper’s Real Estate Company

Lancaster County, Honorable Jeffre Cheuvront

Attorneys:  Jefferson Downing and Joel Bacon (Keating, O’Gara) for appellant; James Snowden and Joseph Aldridge (Wolfe, Snowden) for appellee

Civil:  Suit against alleged third-party for work-related injuries.

Proceedings below:  District court granted summary judgment in favor of appellee, reasoning that appellee was so closely related to appellant’s employer that appellant’s exclusive remedy was via workers’ compensation.

Issues:  Did the court err in ruling that the exclusive remedy rule applied and/or that it was bound by Millard v. Hyplains Dressed Beef, Inc., 237 Neb. 907, 468 N.W.2d 124 (1991)?

S-10-1170, Kevin J. Peterson and Patti J. Peterson v. Stacia E. Sanders a/k/a Stacia E. Woods; The Heirs and Devisees of Stacia E. Sanders; Floyd M. Sanders; The Heirs and Devisees of Floyd M. Sanders; Kenneth E. Sanders; The Heirs and Devisees of Kenneth E. Sanders; Alice F. Martin; The Heirs and Devisees of Alice F. Martin; Loree Mann; The Heirs and Devisees of Loree Mann; Myra Gaines; The Heirs and Devisees of Myra Gaines; Alva Richard Sanders; The Heirs and Devisees of Alva Richard Sanders; Theodore C. Sanders; The Heirs and Devisees of Theodore C. Sanders; And all Persons Having, or Claiming to have, any interest in the East Half (E ½) of the Southeast Quarter (SE ¼) of Section Twenty-Eight (28) and the West Half (W ½) of the Southwest Quarter (SW ¼) of Section Twenty-Sever (27), Township Twenty-two (22) North, Range (58) West of the 6th P.M., Scotts Bluff County, Nebraska, Real Names Unknown [appellants]

Scotts Bluff County, Honorable Randall Lippstreu

Attorneys:  Rick L. Ediger and Katie S. Baltensperger (Simmons Olsen) for appellants; Pamela Epp Olsen (Cline Williams) for appellees

Civil:  This is an action to terminate mineral interests under Nebraska’s Dormant Mineral Interest Act

Proceedings below:  District court found appellants had abandoned their mineral interests for 23 years and terminated the interests, vesting title to the entire real estate in the appellees.

Issues: Did the district court err in determining that application of the Nebraska Dormant Mineral Act was not an unconstitutional application of the Act?

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

S-11-0220, State v. Robert Dunkin (Appellant)

Lancaster County, Judge Jeffre Cheuvront

Attorneys: Sanford Pollack (Pollack & Ball LLC) (Appellant) --- Kimberly Klein (Attorney General’s Office)

Civil: Postconviction action. This case involves a challenge to Appellant’s conviction and sentence alleging ineffective assistance of counsel among other errors.

Proceedings below: The district court denied Appellant’s motion for postconviction relief and find he did not receive ineffective assistance of counsel and Appellant failed to make a timely request of trial counsel to appeal his sentence.

Issues: The trial court erred in (1) failing to grant Appellant’s motion for postconviction relief as his right to effective assistance of counsel was violated through the discover, trial, plea and sentencing phases of his case; (2) failing to grant Appellant’s motion for postconviction relief as his right to effective assistance of counsel was violated when trial counsel disregarded his request to appeal his sentence.

S-11-0153, In re Interest of Elizabeth S.

Separate Juvenile Court for Lancaster County, Judge Linda S. Porter

Attorneys: Sanford J. Pollack (for Appellant Victoria G.) --- Shellie Sabata (County Attorney’s Office) --- James Hatheway (Department of Health and Human Services)

Civil: Termination of parental rights. This case involves the mother’s attempt to relinquish her parental rights to her minor child.

Proceedings below: The mother attempted to relinquish her rights to her minor child Elizabeth. DHHS refused to accept the relinquishment. Mother filed a motion to require DHHS to accept her relinquishment which was overruled. The trial court found that the allegations in the State’s petition were true and terminated the mother’s parental rights finding such termination was in the child’s best interests.

Issues: Appellant argues it was error to (1) not requiring DHHS to accept the relinquishment of the mother as it was in the child’s best interests; (2) not requiring DHHS to accept the relinquishment of the mother as DHHS does not have discretion to refuse to accept a relinquishment that is in the best interests of the child; (3) fail to find that DHHS’s refusal to accept the relinquishment was a violation of its own polices and statutory obligations; (4) finding that the mother had substantially and repeatedly or continuously neglected said child and refused to give the child necessary parental care and protection; (5) finding that reasonable efforts have failed to correct the conditions leading to the adjudication; (6) finding termination of the mother’s rights was in the best interests of the minor child.

 
S-10-1219, Heritage Bank v. Jerome J. Bruha (Appellant)

Valley County, Hon. Karin L. Noakes

Attorneys: Barry D. Geweke (Appellant) --- Kent E. Rauert

Civil: Summary judgment; holder in due course status. This case involves banking law.

Proceedings Below: Heritage Bank sued Bruha alleging 4 separate causes of action all relating to unpaid promissory notes allegedly owed by Bruha. Over the course of several orders, the district court granted the Bank summary judgment as to all causes of action, and further determined damages with regard to one of the 4 notes, #1723, which is at issue in this appeal. The issue of damages is still outstanding on the other 3 notes. The district court later found that the order granting partial summary judgment was final, noting that the remainder of the case was still in the discovery phase, but that the Bank had been awarded a judgment which could end with Bruha’s property being foreclosed and sold before trial and appeal could occur on the unresolved issues.

Issues on Appeal: Bruha assigns that that the district court erred in finding that the Bank was a holder in due course of the promissory note in question, and in granting judgment in the Bank’s favor.

S-10-1163, In re Matter of the Adoption of Amea R.

Douglas County Court, Judge Craig Q. McDermott

Attorneys: Susan J. Spahn (Fitzgerald Schorr  Barmettler & Brennan PCLLO) (for Appellant Edward L., Jr.) ---William M. Lamson, Jr., Anne Marie O’Brien, Gage R. Cobb (Lamson Dugan & Murray LLP) (for Appellees Ethel and Edward L. Sr.)

Civil: Adoption. This case involves a challenge to an adoption of a minor child.

Proceedings below: The trial court found that Appellant did not have standing and dismissed all pleadings and motions of Appellant, including those filed on his father, Edward L. Sr.’s behalf. Appellant filed a petition to bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The county court erred in (1) determining Appellant was required to have standing, personally and by granting the motion to objecting to standing; (2) failing to find Appellant was involved in the proceedings based upon his father’s standing; (3) dismissing the pleadings filed by Edward L. Sr. by and through Appellant, including but not limited to the motion to compel [Edward L. Sr.] to appear and motion to dismiss.

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

S-11-0301, State v. Douglas M. Mantich (Appellant)

Douglas County, Judge J. Patrick Mullen

Attorneys: Adam J. Sipple (Johnson & Mock) (Appellant) --- J. Kirk Brown (Attorney General’s Office)

Civil: Postconviction action. This case involves challenges to a defendant’s sentence of life imprisonment.

Proceedings below: The trial court sustained the State’s motion to dismiss and entered an order denying Appellant’s postconviction claims without holding an evidentiary hearing.

Issues: The trial court erred in dismissing Appellant’s amended complaint and by failing to vacate the sentence based on record before the court that Appellant was a juvenile and (1) whether Graham v. Florida, 130 S. Ct. 2011 (2010) is retroactive and applicable in this collateral proceeding; (2) whether Graham is applicable to Appellant’s conviction for felony murder in the absence of evidence that Appellant killed; attempted to kill or was both a major participant in the felony committed and recklessly indifferent to human life; (3) whether the court erred in dismissing Appellant’s amended motion; (4) whether the trial court properly denied relief without an evidentiary hearing on the basis the record affirmatively shows Appellant’s sentence does not violate the 8th Amendment. The trial court erred in failing to vacate Appellant’s sentence based on the record that the sentence was unconstitutionally disproportionate to the offense of conviction. The trial court erred by failing to grant an evidentiary hearing to the extent necessary to establish ineffective assistance of counsel claims or his underlying 8th Amendment claims.

S-11-0003, State v. James Nelson (Appellant)

Cheyenne County, Judge Derek Weimer

Attorneys: Kelly S. Breen (Commission on Public Advocacy) --- Kim Klein (Attorney General)

Criminal: Possession of a controlled substance with intent to deliver; cocaine, a Class IB felony

Proceedings below: The district court sustained Appellant’s motion to suppress and the State appealed. The Court of Appeals, one-judge panel, reversed and remanded. See State v. Nelson, A-09-0082, memo opinion filed July28, 2009. Upon remand, the second motion to suppress was overruled and a jury trial was held. Appellant was found guilty and sentenced 20 to 21 years in prison.

Issues: The district court erred in (1) denying Appellant’s motion to suppress as police lacked a reasonable and articulable suspicion of criminal activity sufficient to justify the prolonged detention of Appellant for a canine sniff; (2) denying Appellant’s motion for new trial based on newly discovered evidence; (3) denying Appellant’s motion for new trial based on prosecutorial misconduct.
 

S-11-0030, Prime Home Care, LLC (Plaintiff/Appellee) v. Pathways to Compassion, LLC (Defendant/Appellant)

Douglas County, Judge James T. Gleason

Attorneys:  Patrick D. Pepper (McGrath North) (Appellant) --- Tiernan T. Siems, Andrew M. Collins (Ericson Sederstrom) (Appellee)

Civil: Injunction. This case is about a trademark and trade name dispute under Nebraska’s Trade Name Act.

Proceedings below:     The District Court awarded an injunction in favor of Prime Home Care prohibiting Pathways to Compassion, LLC from utilizing the phrase “Compassionate Care Hospice of Nebraska” and “Compassionate Care Hospice.”

Issues: Whether 1) the trade name “Compassionate Care Hospice” is distinctive and not descriptive; 2) whether the trade name had acquired a secondary meaning with Prime Home Care; whether the trade name was entitled to registration and protection under Nebraska’s Trade Name Act; and 3) whether the district court appropriate considered testimony, opinion, and evidence with respect to use of the phrase prior to October 1, 2006, over Pathways objections.

S-10-1235, Dwight Trumble (Appellant) v. Sarpy County Board, School District No. 1of Douglas County; School District No. 59 of Douglas County; School District No. 15 of Douglas County; School District No. 10 of Douglas County; School District No. 27 of Sarpy County; School District No. 17 of Douglas County; School District No. 54 of Douglas County; School District No. 66 of Douglas County; School District No. 1 of Sarpy County; School District No. 27 of Sarpy County; and School District No. 46 of Sarpy County

Sarpy County, Judge William B. Zastera

Attorneys: Thomas J. Culhane, Matthew V. Rusch (Erickson Sederstrom PCLLO) (Appellant) --- Elizabeth Eynon-Kokrda, Kelly R. Dahl, Kenneth W.  Harman (Baird Holm LLP) (for Appellee Omaha Public Schools, School District No. 1 of Douglas County)

Civil: Recovery of property taxes under Neb. Rev. Stat § 77-1735

Proceedings below: The trial court granted Appellee’s motion to dismiss finding it lacked subject matter jurisdiction.

Issues: The trial court erred in concluding that it lacked subject matter jurisdiction and in dismissing on the basis of Neb. Ct. R. Pldg. § 6-1112(b)(1).

Cross-Appeal: The district court (1) lacked jurisdiction because Appellant’s complaint presented non-justiciable political questions; (2) failing to grant OPS’ motion to continue Appellant’s hearing on the motion for summary judgment.