Supreme Court Case Summaries

October 9, 10, 11 or 12, 2012

TUESDAY, OCTOBER 9, 2012, subject to call at 9:00 a.m.

S-12-0035, KAAPA Ethanol, L.L.C. v. The Board of Supervisors of Kearney County, Nebraska; and the County of Kearney, Nebraska (Appellants)

Kearney County, Judge Stephen R. Illingworth

Attorneys: Charles W. Campbell (Angle Murphy & Campbell PCLLO) (Appellants) --- Justin R. Hermann, Daniel L. Lindstrom (Jacobsen Orr Lindstrom & Holbrook PCLLO) and William E. Peters (Peters & Chunka PCLLO) (Appellee)

Civil: Refund of personal property tax paid pursuant to Neb. Rev. Stat. § 77-1734.01 (Reissue 2003).

Proceedings below: The District Court found for the Appellee and ordered Kearney County to refund Appellee personal property taxes in the amount of $480,411.50. Appellee filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred in (1) failing to rule the decision of the Board was supported by sufficient relevant evidence; (2) ruling that the Appellee was entitled to a refund of personal property taxes assessed in 2006 pursuant to Neb. Rev. Stat. § 77-1734.01 based upon a clerical error, honest mistake or misunderstanding; (3) failing to rule that Appellee had waived the right to challenge the valuation of its personal property for the 2006 tax year by failing to protest the personal property tax valuation as required by Neb. Rev. Stat. § 77-1502.

A-12-0054 and A-12-0055 (consolidated) JQH La Vista Conference Center Development LLC (Appellant) v. Sarpy County Board of Equalization

Tax Equalization and Review Commission

Attorneys: Rosalynd J. Koob (Appellant) --- Michael A. Smith (County Attorney’s Office)

Civil: Protest of property valuation

Proceedings below: TERC affirmed the Board’s decision regarding property value for 2009 and 2010.

Issues: (1) TERC erred in failing to apply the proper statutory standard of review, merging its consideration of the Board’s presumption with the Taxpayer’s ultimate burden of persuasion, causing improper deference to the Board’s determination without considering all the evidence. (2) TERC erred in determining Appellant failed to meet its burden of establishing that the market value of the property as assessed by the Board was arbitrary, capricious and unreasonable and in disregard of the facts before it.

S-11-0659 and 11-0660 (consolidated) In re Interest of Zylena R. and Adrionna R.; State v. Elise M. (Appellant) and the Omaha Tribe of Nebraska (Intervenor)

Separate Juvenile Court for Lancaster County, Judge Roger Heideman

Attorneys: Alicia Henderson (County Attorney’s Office) and Hazell G. Rodriguez (Legal Aid of Nebraska) (GAL) --- Norman Langemach (for Appellant Elise M.) --- Rita Grimm and Rosalynd J. Koob (for Appellee/Intervenor Omaha Tribe of Nebraska)

Civil: Notice of Intent to Transfer to Tribal Court

Proceedings below: The juvenile court denied the motion of the Omaha Tribe of Nebraska to transfer the case to the Omaha Tribal Court. The Court of Appeals affirmed. 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 judgment of the juvenile court to deny the Notice of Intent to Transfer to Omaha Tribal Court; (2) affirming the finding that good cause had been shown to deny the Notice of Intent to Transfer to Omaha Tribal Court; (3) failing to find that the juvenile court erred in finding good cause had been shown to deny the Tribe’s Notice of Intent to Transfer because the proceeding was at an advanced stage when the Notice was filed and the Notice was not filed promptly after the Tribe received notice of the proceedings.

S-12-0139, Carolyn Jean Spady v. Roger Paul Spady (Appellant)

Adams County, Judge Stephen R. Illingworth

Attorneys: Mitchel L. Greenwall (Greenwall Bruner Frank, L.L.C) --- Kent A. Schroeder & Luke M. Simpson (Ross, Schroeder, & George, LLC) (Appellant) 

Civil: Jurisdiction; alimony; contempt of court

Proceedings below: Temporary alimony altered and Roger Spady held in contempt.

Issues: Whether the district court retained jurisdiction to award temporary alimony during pendency of appeal? Whether the district court erred in finding Appellant in contempt?

S-12-0039, Brook Valley Limited Partnership, a Nebraska Limited Partnership and Brook Valley II Limited Partnership, a Nebraska Limited Partnership v. Mutual of Omaha Bank, f/n/a Nebraska State Bank of Omaha, a state banking institution, Omaha Financial Holdings, Inc., a Nebraska Corporation, Successor to Midlands Financial Services, Inc., a Nebraska Corporation, and Omaha Financial Holdings, Inc., a Nebraska Corporation (Appellants)

Sarpy County, Judge David K. Arterburn

Attorneys: Thomas J. Culhane, Patrick R. Guinan (Erickson Sederstrom PCLLO) (Appellants) – Michael J. Mooney (Gross & Welch PCLLO)

Civil: Conversion; quiet title

Proceedings below: This case was previously before the Supreme Court. See Brook Valley Limited Partnership v. Mutual of Omaha Bank, 281 Neb. 455 (2011) (reversed and remanded for further proceedings). Upon remand for a trial upon the merits, the trial court found Appellants converted Appellees’ property by encumbering it with Deeds of Trust that were void and awarded Appellees damages of $2,267,056.86 along with prejudgment interest of 12% per annum.

Issues: 1. The trial court erred in not finding that BVII's claim for conversion on the July Loan
Deed of Trust was barred by the applicable statute of limitations.
2. The trial court erred in finding that the July Loan Deed of Trust was void.
3. The trial court erred in finding that the entire July Loan Deed of Trust was invalid.
4. The trial court erred in finding that the July Loan Deed of Trust was a conversion of BVII's property.
5. The trial court erred in finding that the "majority of the July Loan" was not for a partnership purpose.
6. The trial court erred in not severing that part of the July Loan Deed of Trust that it found was "invalid" from that part of the July loan Deed of Trust that it found was valid.
7. The trial court erred in finding that BVLP and BVII met their burden of proof that the "majority of the July Loan" was not for a partnership purpose.
8. The trial court erred in not requiring BVII to return the consideration it received from the July Loan.
9. The trial court erred in allowing BVII to keep the benefits from the July Loan and also awarding BVII damages resulting from the July Loan.
10. The trial court erred in awarding BVII a double recovery under the July loan.
11. The trial court erred in entering a judgment that is not sufficiently certain.
12. The trial court erred in not finding that BVLP and BVII ratified the July and October Loans.
13. The trial court erred in finding that the October Loan Deed of Trust was a conversion of BVLP's and BVII's property.
14. The trial court erred in finding that BVLP's and BVII's conversion claim was liquidated.
15. The trial court erred in awarding prejudgment interest.

WEDNESDAY, OCTOBER 10, 2012, subject to call at 9:00 a.m.

S-11-1021, Selma Development, L.L.C., et al. (Appellants) v. TierOne Bank
S-11-1022, TierOne Bank (Appellant) v. Michael P. Earl, et al.

(consolidated cases)

Douglas County, Judge Peter C. Bataillon

Attorneys: James D. Sherrets, Diana J. Vogt (Sherrets Bruno & Vogt LLC) (for Selma Development LLC, Michael P. Earl, Louis A. Wright, Gerald Winston Lee, Scott K. Schneiderman, Randall P. Roth and Edward T. Kileen III) --- Thomas M. White, C. Thomas White, Amy S. Jorgensen (White & Jorgensen) (for TierOne Bank, n/k/a Great Western Bank)

Civil: Guaranties; Trustee’s sale

Proceedings below: The Trial Court determined the total amount of debt to the Bank on date of trial was $936,229.99 and the fair market value of the real property was $630,000.00. The trial court found the sale price at the Trustee’s sale was $350,001.00 which left the amount the debtor was obligated to pay as $306,229.99. The trial court found Neb. Rev. Stat. § 76-1013 did not apply to guarantors and the guarantors’ obligation was not limited by Neb. Rev. Stat. § 76-1013. Therefore, the amount remaining due to the bank from the guarantors was $586,228.99.

Issues: The trial court erred in (1) entering an order that does not conform with Neb. Rev. Stat. § 76-1013; (2) entering a judgment calculated in a manner other than set forth in Neb. Rev. Stat. § 76-1013; (3) finding the terms of Neb. Rev. Stat. § 76-1013 do not apply to the obligation of a guarantor of the same debt; (4) interpreting the Trust Deed Sales Act to reach a result contrary to public policy; (5) not releasing the guarantors from their obligation because the Bank’s actions precluded the guarantors from appearing at the Trustee’s sale and protecting the value of the property; (6) failing to find the Bank was estopped from seeking more than the fair market value because it started the bidding for so much less than either the debt or the fair market value; (7) not requiring the Bank to adhere strictly to the notice and publication requirements for a Trustee’s sale; (8) failing to find the Bank is barred from collecting additional funds from the guarantors because the Bank failed to mitigate its damages; (9) allowing the Bank to assert on motion after trial that Neb. Rev. Stat. § 76-1013 does not apply to guarantors; (10) not allowing the Bank to ask for relief it had not pled by asserting that the deficiency of the guarantors was greater than that of the debtor; (11) entertaining a post-trial motion to amend its judgment which was filed outside the appropriate time limit.

S-12-0202, Brian J. Werner (Appellee) v. County of Platte, Nebraska (Appellant)

Platte County District Court--Judge Robert R. Steinke

Attorneys:  William M. Lamson, Jr., and Cathy S. Trent-Vilim, Lamson, Dugan and Murray, LLP, and Thomas M. Fehringer, Fehringer & Mielak, LLP (Appellee)---Vincent Valentino (Appellant)

Civil:  Political Subdivisions Tort Claims Act

Proceedings Below: Brian J. Werner sued Platte County under the Political Subdivisions Tort Claims Act after he was injured in an accident that occurred following a law enforcement pursuit. The Platte County District Court found that although the County was not negligent, it was strictly liable to Werner as an innocent third party. The court entered judgment for $3 million, but reduced it by 5 percent for Werner’s failure to use a seat belt. The court then applied the statutory $1 million cap. The County’s motion for new trial and motion for credit against the judgment were overruled, and the County appeals.

Issues: The County assigns as error the district court’s (1) admission of hearsay evidence; (2) determination that Werner was an “innocent third party” under Neb. Rev. Stat. § 13-911 (Reissue 2007); (3) failing to consider the totality of information as to whether the deputy sheriff knew who was driving the vehicle; (4) determination that Werner proved the necessary elements of a cause of action under § 13-911; (5) its failure to calculate statutory credits and deductions under § 13-911(2) and (3) from the amounts recoverable from the County; and (6) its failure to deduct the 5 percent mitigation of damages for failure to wear a seat belt after the statutory cap on damages was applied. 

 
S-12-0086, U.S. Bank National Association [appellant] v. Steven and Catherine Peterson,
S-12-0087, U.S. Bank National Association v. Jason D. Lunders
S-12-0088, U.S. Bank National Association v. David L. Skoglund
S-12-0089, U.S. Bank National Association v. Mark A. Huls (consolidated appeals).

Madison County, Honorable James G. Kube

Attorneys: Stephen H. Nelsen and Shawn D. Renner (Cline Williams) for appellant; D.C. Bradford and Justin D. Eichmann (Bradford & Coenen LLC) for appellees

Civil: Action to collect from guarantors on promissory notes

Proceedings below: District court held bank was entitled to summary judgment to enforce promissory notes against guarantors, but was not entitled to summary judgment award of prepayment fees. Court then granted summary judgment on the prepayment issue in favor of guarantors.

Issues: Did the district court err in interpreting the guanantors’ response to various requests for admissions as denials or in sustaining the guarantors’ motions for summary judgment and holding that the bank was not entitled to prepayment fees?

S-11-1094, Melissa Amen, Individually and on behalf of her minor child, K.L.A. v. Michael J. Astrue, Commissioner of the Social Security Administration

Certified Question of Law from the U.S. District Court for the District of Nebraska, Judge Lyle E. Strom

Attorneys: Maureen McBrien (Todd & Weld LLP, admitted Pro Hac Vice), Susan K. Sapp (Cline Williams Wright Johnson & Oldfather LLP) --- Deborah R. Gilg, (U.S. Attorney), Tony West (Assistant Attorney General), Karen Seifert (Federal Programs Branch Counsel, Pro Hac Vice)

Civil: Certified question of law

Certified Question: Can a child, conceived after her biological father’s death through intrauterine insemination using his sperm, and born within nine months of his death, inherit from him as his surviving issue under Nebraska intestacy law?

S-11-0959, Mary Kay Young (Appellant ) v. Govier & Milone, L.L.P.; Pamela Hogenson Govier, Baird, Holm, McEachen, Pedersen, Hamann &Strasheim, LLP, Baird Holm LLP and William G. Dittrick

Douglas County, Judge Peter C. Bataillon

Attorneys: James D. Sherrets, Diana J. Vogt, Thomas D. Prickett (Sherrets Bruno & Vogt LLC) (Appellant)--- William M. Lamson, Jr., Cathy S. Trent-Vilim (Lamson Dugan & Murray LLP) (Govier & Milone LLP) --- James M. Bausch, Mary Kay O’Connor (Cline Williams Johnson & Oldfather LLP) (for Baird Holm McEachen, Pedersen, Hamann &Strasheim, LLP, Baird Holm LLP and William G. Dittrick)

Civil: Professional negligence in divorce action

Proceedings below: The trial court granted the defendants’ motions for summary judgment and found Appellant was not entitled to summary judgment because of res judicata and judicial estoppel. 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 the defendants’ motion for summary judgment; (2) applying res judicata and judicial estoppel to find a postnuptial agreement enforceable as they are void, unenforceable and contrary to Nebraska law and public policy; (3) ignoring defendants failure to assert, preserve or advise Appellant of affirmative defenses to the postnuptial agreement which created a genuine issue of material fact; (4) failing to find defendant incorrect advice to Appellant was malpractice which was the proximate cause of damage to Appellant; (5) granting summary judgment in favor of defendants despite testimony of 3 experts that defendants breached the standard of care and proximately caused Appellant to forfeit her share of a $192 million marital estate; (6) failing to grant Appellant’s motion for summary judgment; (7) allowing defendants to argue that the case was unwinnable after charging more than $613,000 to argue otherwise; (8) failing to recuse itself after request by Appellant despite allowing defendants to egregiously violate the rules of discovery and appearance of bias and hostility toward Appellant.

THURSDAY, OCTOBER 11, 2012, subject to call at 9:00 a.m.

S-11-1033, State v. Alberto Magallanes (Appellant)

Douglas County, Judge Gary B. Randall

Attorneys:  Jami L. Jacobs (Public Defender’s Office for Appellant) --- Nathan A. Liss (Attorney General’s Office)

Criminal:  Counts I and II: Possession with Intent to Deliver a Controlled Substance. Counts III and IV: Failure to Affix Tax Stamp.

Proceedings below:  The trial court overruled Appellant’s motion to suppress evidence. After a stipulated trial to the court, he was found guilty on all counts. He was sentenced 20 to 40 years on both Counts I and II; and 1 to 2 years on both Counts III and IV. All sentences were ordered to be served concurrently.

Issues:  The district court erred in (1) denying Appellant’s motion to suppress as there was no probable cause; (2) denying Appellant’s motion to suppress as the evidence obtained was fruit of the poisonous tree.

S-11-1105, State v. Damien D. Watkins (Appellant)

Douglas County, Judge Gregory M. Schatz

Attorneys: Michael J. Wilson (Schaefer Shapiro LLP) (Appellant) --- Erin E. Tangeman (Assistant Attorney General)

Civil: Postconviction

Proceedings below: The trial court granted the State’s motion to dismiss and dismissed Appellant’s motion for postconviction relief.

Issues: The district court erred in dismissing the motion finding the issues were procedurally barred as Nebraska law states there is no procedural bar in postconviction proceedings of issues relating to competency to stand trial.

S-12-0135, State v. Edward J. Robinson, Jr. (Appellant)

Douglas County, Judge Gregory M. Schatz

Attorneys: Sarah M. Mooney (Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Civil: Postconviction

Proceedings Below: After an evidentiary hearing, the trial court denied Appellant’s motion for postconviction relief.

Issues: 1. The trial court erred when it ruled that trial counsel was not ineffective when she neglected to make a motion for a mistrial when she was informed that the jury discovered part of a marijuana cigarette in an exhibit offered during the trial and that the discovery of this extraneous evidence did not violate Mr. Robinson's right to a fair trial. 2. The trial court erred when it ruled that trial counsel was not ineffective when she neglected to inform her client that the jury discovered part of a marijuana cigarette in an exhibit offered during the trial until after his direct appeal.3. The trial court erred when it ruled that trial counsel was ineffective because she failed to call a specific defense witness.4. The trial court erred when it ruled that trial counsel was not ineffective because she failed to investigate a Crime stoppers telephone call.5. The trial court erred when it ruled that trial counsel was not ineffective in her handling of the cell phone evidence presented during Mr. Robinson's trial.6. The trial court erred when it ruled that trial counsel was not ineffective when she failed to establish at trial the importance of the identification of the vehicles used in this case. 7. The trial court erred when it ruled that trial counsel was not ineffective when she failed to make motions for mistrials during the prosecution's closing arguments. 8. The trial court erred when it ruled that trial counsel was not ineffective when she failed to make a motion for mistrial based upon the behavior of certain members of the jury. 9. The trial court erred when it ruled that trial counsel was not ineffective when she failed to timely file a motion for rehearing in the direct appeal.

S-12-0141, State v. Ryan L. Poe (Appellant)

Douglas County, Judge Gary B. Randall

Attorneys:  Michael J. Wilson (Schaefer Shapiro LLP) (Appellant) --- Stacy M. Foust (Attorney General’s Office)

Civil:  Postconviction

Proceedings below:  The district court entered an order granting the State’s Motion to Dismiss Appellant’s Postconviction Motion.

Issues:  The district court erred in dismissing Appellant’s motion for postconviction relief without an evidentiary hearing as (1) the motion alleged facts that, if proven, constitute prosecutorial misconduct; (2) the motion alleged facts that, if proven, constitute a violation of his constitutional right to present a complete defense; (3) the motion alleged facts that, if proven, constitute ineffective assistance of counsel.

FRIDAY, OCTOBER 12, 2012, subject to call at 9:00 a.m.

S-11-0539, State v. Dallas L. Huston (Appellant)

Lancaster County, Judge John A. Colborn

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

Criminal: Second degree murder

Proceedings below:  Appellant was found guilty by a jury of the above crime. He was sentenced 50 years to life in prison.

Issues:  The district court erred in (1) admitting evidence concerning Huston’s open relationship with the victim and a homosexual encounter between Appellant and his “little brother”; (2) admitting the opinions of police officers that Appellant committed murder; (3) admitting evidence concerning the common behavior of serial killers, speculation that Huston is a serial killer and the risk of future dangerousness. Appellant also assigns that if trial counsel failed to preserve the errors assigned, then he was denied effective assistance of counsel and counsel was ineffective in failing to object to admission of the opinions of the police officers.

S-12-0150, In re Interest of Samantha L. and Jasmine L.

Separate Juvenile Court for Douglas County, Judge Vernon J. Daniels

Attorneys:  John M. Baker (Special Assistant Attorney General for DHHS) (Appellant) ---waiver of right to file brief by Douglas County Attorney’s Office ---Matthew P. Saathoff (Appellee William H.) --- Molly Adair-Pearson (Appellee Kelly L.)

Civil:  Payment of costs in juvenile court action

Proceedings below:  The juvenile court ordered NDHHS to pay the costs associated with preparation for and attendance at the January 9, 2012 hearing as well as the next scheduled hearing.

Issues:  The juvenile court erred in ordering NDHHS to pay for costs associated with the January 9, 2012 hearing as the court has no authority to order payment of costs.

 
S-12-0208, Ricardo Moyera a/k/a David Gutierrez v. Quality Pork International (Appellant)

Nebraska Workers’ Compensation Court

Attorneys: Michael P. Dowd (Dowd Howard & Corrigan) --- Joseph W. Grant (Hotz Weaver Flood Breitkreutz & Grant) (Appellant)

Civil: Benefits under Workers’ Comp Act

Proceedings below: The trial court found that plaintiff was totally and permanently disabled and found that even though he was an illegal alien, he was entitled to permanent benefits. The review panel affirmed.

Issues: The court erred in (1) finding plaintiff suffered an injury to the body as a whole rather than a scheduled member injury; (2) granting permanent loss of earning power benefits to plaintiff as he was at all times an illegal resident of the U.S. and acknowledged he had taken no steps to become a legal resident. The review panel erred in affirming the award.

S-11-1112, State v. Danny Robinson, Jr. (Appellant)

Douglas County, Judge Thomas A. Otepka

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

Civil: Postconviction

Proceedings below: The district court denied Appellant’s motion.

Issues: The district court erred in (1) determining Appellant was not entitled to a postconviction appeal; (2) determining postconviction counsel was effective; (3) denying Appellant an evidentiary hearing on his successive motion for postconviction relief and reinstatement of appeal.

A-11-0083, Rita A. Sutton and Kai Carlson v. Helen Killham, Diane L. Johnson, Beth L. Zajonc, Dan A. Carlson, as Trustee of the Fred L. Carlson Trust and the Twila A. Carlson Trust and 3RP Operating Inc., (Intervener, Appellant)

Cheyenne County, Judge Brian Silverman

Attorneys:  Gregory J. Beal (Appellant) --- Robert M. Brenner (Appellees Helen Killham et al.) --Sterling Huff (Island & Huff PCLLO) (Appellee Successor Receiver)

Civil: Receivership of oil well; summary judgment

Proceedings below:  Appellant filed a claim with the former Receiver. The current Receiver disallowed the claim and this case commenced. The trial court granted the Receiver’s motion for summary judgment. The Court of Appeals affirmed. See Sutton v. Killham, 19 Neb. App. 842 (2012). 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 order granting summary judgment in favor of the Receiver; (2) discussing the merits other than only whether there were any genuine questions of fact; (3) refusing to grant any reasonable inferences to the Claimant; (4) finding the Receiver was properly bonded.