Supreme Court Case Summaries

November 3, 4, 5, or 6, 2009

TUESDAY, NOVEMBER 3, 2009, subject to call at 9:00 a.m.

S-09-0151,  State v. Venh Lam (Appellant)

Lancaster County, Judge Jeffre Cheuvront

Attorneys: Pro Se Appellant --- Nathan A. Liss (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The trial court found Appellant was not entitled to postconviction relief and denied an evidentiary hearing.

Issues: The district court erred in (1) denying Appellant’s motion for an evidentiary hearing and motion for postconviction relief; (2) denying Appellant’s motion for appointment of counsel.

S-08-01314,  Deutsche Bank National Trust Company, as trustee, under the Pooling and Servicing Agreement dated as of September 1, 2002, Morgan Stanley Dean Witter Capital I Inc., Trust 2002-NC4, by and through its loan servicing agent, Litton Loan Servicing L.P. v. Max D. Siegel and Angela M. Siegel (Appellants) and Platte Valley State Bank and Trust Company

Buffalo County, Judge John P. Icenogle

Civil: Foreclosure

Attorneys: Eric H. Lindquist (Eric H. Lindquist, P.C., L.L.O.) --Michael J. Synek (Appellants) 

Proceedings Below: The district court concluded that appellee Litton was the real party in interest and entered a decree of foreclosure against appellants on March 21, 2007.  The district court held a hearing on appellee’s motion for confirmation of sale and confirmed the sale of the appellants’ property.  The district court found that the property sold for a fair value and found no evidence that another bidder would pay more than $206,000.  The district court denied appellants’ request to file a counterclaim alleging violations of the Federal Truth and Lending Act.  

Issues: Whether the district court erred by (1) concluding that Litton was the real party in interest; (2) failing to order a resale of the real estate in question; and (3) whether appellants’ claimed rescission of the loan under the Federal Truth and Lending Act precluded the district court from confirming the sale and conducting further proceedings.

S-09-0267, Copple Construction, L.L.C. v. Columbia National Insurance Company (Appellant) and Tyson Fresh Meats, Inc. (Cross-Appellant)
 
Dakota County, Hon. William L. Blinkard

Attorneys:      Jerald L. Rauterkus, Sara A. Lamme (Erickson Sederstrom), representing Columbia National Insurance Company; Daniel B. Shuck, representing Tyson Fresh Meats, Inc.;
Paul D. Lundberg, representing Copple Construction, L.L.C.

Civil:  Insurance

Proceedings below:    District court sustained Copple Construction, L.L.C.’s motion for summary judgment and declared that Copple’s claim was covered under the insurance policies issued by Columbia National Insurance Company. Court overruled Columbia’s motion for summary judgment. Court ordered Columbia to pay Copple attorney fees of $15,519.34 but denied Tyson Fresh Meats, Inc.’s application for attorney fees.

Issues: Whether district court erred in sustaining summary judgment against Columbia and finding that no exclusions applied to Copple’s claim. Whether court erred in finding that pollution exclusion did not preclude coverage because although biogases were potential pollutants, they did not act as pollutants in the incident at issue. Whether court erred in awarding attorney fees to Copple.

On cross-appeal, whether court erred in failing to award attorney fees to Tyson.

S-09-0164, Dutton-Lainson Company, a Nebraska Corporation (Appellant) v. The Continental Insurance Company, a Corporation; and Northern Insurance Company of New York, a Corporation

Douglas County, Judge Peter Bataillon

Attorneys: James W.R. Brown, Steven J. Olson, Thomas R. Brown (Brown & Brown PC LLO) (Appellant) --- Peter B. Kupelian (Kupelian Ormond & Magy PC) and Thomas J. Culhane (Erickson & Sederstrom PC LLO) (for Appellee Northern Insurance Company of New York) --- Robert S. Keith (Engles Ketcham Olson & Keith PC) and Eileen King Bower, David Cutter (Troutman Sanders LLP) (for Appellee The Continental Insurance Company)

Civil: Damages for breach of contracts to indemnify Appellant against liability

Proceedings below: This case was previously before the Supreme Court. See Dutton-Lainson Company v. The Continental Insurance Company, 271 Neb. 810 (2006) (reversed and remanded for further proceedings). Upon remand, the case was tried to the district court. The district court entered judgment for Dutton against Continental in the amount of $475,190.21 and against Northern in the amount of $74,937.89. Costs were taxed to the defendants.

Issues: The trial court erred in (1) failing to hold Northern had waived notice with respect to the Well No. 3 and Area-Wide subsites; (2) holding that Northern was prejudiced by the alleged lack of notice with respect to the Well No. 3 and Area-Wide subsites; (3) finding certain deposits of wastes containing TCE and/or TCA from February 1962 to 1964 and October 1964 to July 1982 constituted one occurrence; (4) failing to hold these events constituted three occurrences; (5) holding that the “evidence as to employee costs were not proved.” (6) not holding Appellant is entitled to recover employee costs of $1,031,836.99 through June 29, 2007; (7) not allowing prejudgment interest on the judgment; (8) finding an obligation is not liquidated when it is incurred for services to be rendered, the services have been performed, the contract price has been invoiced and paid; (9) not applying the contracts of insurance “as made” by the parties; (10)revising the insurance contracts after the claims arose to provide what the court deemed a “fair” result; (11) not holding the liability of the defendants is joint and several; (12) not holding defendants breached their contracts to defend; (13) not entering declaratory judgment that defendants are liable for indemnity and defense costs incurred after June 29, 2007; (14) not allowing attorney fees to Appellant; (15) failing to determine the damages for breach of the contract to defend; (16) holding that Appellant “decided to have insurance for only 74 months of this 480 month period.”; (17) holding that “the action of Dutton that caused damages would have had to occur during the policy period in order for there to be insurance.”

The Continental Cross-Appeal: The district court erred in (1) holding that a PRP letter is akin to a “suit” triggering a duty to defend under Continental policies; (2) determining that Dutton was not required to prove that property damage occurred within the Continental Policy periods to obtain coverage; (3) erred in finding Dutton gave proper notice to Continental for 2 of the subsites; (4) erred in wholesale adopting Dutton’s categorization of damages; (5) failing to allocate Dutton’s damages over the entire time period that the dames was presumed to take place.

Northern Cross-Appeal: The trial court erred in (1) finding there is an “occurrence” under the Northern policies; (2) in determining the amount of Dutton’s damages recoverable from Northern and categorizing such damages as defense or indemnity.

WEDNESDAY, NOVEMBER 4, 2009, subject to call at 9:00 a.m.

S-08-0962, In re Interest of Chance J.

Douglas County Separate Juvenile Court, Judge Vernon Daniels

Attorneys: Patrick Campagna and Justin A. Roberts (Senior Certified Law Student) (Lustgarten & Roberts PC LLO) (Appellant Andrew J.) --- Jennifer Chrystal-Clark and Carolyn H. Curry (Senior Certified Law Student) (Douglas County Attorney’s Office)

Civil: Termination of Parental Rights

Proceedings below: The juvenile court terminated the natural father’s parental rights. The Court of Appeals reversed the finding of the juvenile Court and remanded for further proceedings. See, In re Interest of Chance J., 17 Neb. App. 645 (2009). The State filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred in (1) reversing the juvenile court’s finding that the State proved by clear and convincing evidence that Andrew J. abandoned Chance J. under Neb. Rev. Stat §§43-292(1) and (9) and erred in concluding that reasonable efforts were required; (2) reversing the juvenile court’s finding that termination of Andrew J.’s parental rights was in Chance’s best interests.

S-09-0400, Philip Pierce, et al. (Appellants) v. Paul Drobny, et al.

Knox County, Judge Robert B. Ensz

Attorneys: Thomas H. DeLay (Jewell Collins DeLay Flood & Doele) (Appellants) --- John F. Recknor, Randall Wertz (Recknor Wertz & Associates)

Civil: Declaratory judgment; open meetings laws

Proceedings below: The trial court granted Appellees’ Rule 12(b)(6) motion, without leave to amend, finding the complaint did not state a claim upon which relief could be granted.

Issues: The district court erred in (1) granting Appellees’ Rule 12(b)(6) motion to dismiss; (2) not allowing Appellants to amend their complaint; (3) finding no claim for relief under the Open Meetings Act and any relief would be merely advisory; (4) finding the election on the bond issue rendered moot any relief granted by the Legislature to the Appellants under the Open Meetings Act finding (a) the remedy provided by the Act was not a legally cognizable interest of the Appellants; and (b) the claim for relief was not based on existing facts and rights for which the Legislature had designated relief.

S-09-0138, State ex rel. Amanda J. McArthur v. Justin Lee Tatum v. Amanda J. McArthur (Appellant/Third Party Defendant)

Buffalo County, Judge John P. Icenogle

Attorneys: D. Brandon Brinegar (Ross Schroeder & George LLC) (Appellant) --- Jack W. Besse (Knapp Fangmeyer Aschwege Besse & Marsh PC)

Civil: paternity and child support

Proceedings below: The trial court set custody and visitation, allowed Appellant to remove the minor child to Texas during her educational studies, ordered the child be returned to Nebraska once the education is completed, ordered child support and visitation while the child resides in Texas.

Issues: The district court erred in (1) awarding the parties both joint legal and physical custody of the minor child without finding such was in the child’s best interests and neither had requested or agreed to joint custody; (3) issuing conditional orders regarding the removal and return of the minor child; (4) ordering return of the minor child upon completion of Appellant’s educational program; (5) ordering a visitation schedule while the child is in Texas which is burdensome on Appellant.

S-08-1230, Smeal Fire Apparatus Co. v. Robert Kreikemeier and R.K. Manufacturing, Inc. (Appellants)

Dodge County, Judge Gerald Moran

Attorneys: Thomas B. Thomsen (Sidner Svoboda Schilke Thomsen Holtorf Boggy Nick & Placek) (Appellants) --- Paul R. Elofson (Fitzgerald Schorr Barbettler & Brennan PC LLO)

Civil: Civil Contempt

Proceedings below: This case was previously before the Supreme Court. See Smeal Fire Apparatus Co. v. Kreikemeier, 271 Neb. 616 (2006) (reversed and remanded for further proceedings). The district court found in favor of plaintiff finding Appellants willfully, knowingly and intentionally violated the terms of the injunction by proof beyond a reasonable doubt. Appellants were ordered to pay costs and attorney’s fees in the amount of $126,601.29 and a sanction of $5,000 per day payable to the Clerk of the Court in the event Appellants failed to purge their contempt.

Issues: The district court erred in (1) finding Appellants in contempt of court for violation of the injunction entered June 19, 1990; (2) determining that proof of the violation had been established beyond a reasonable doubt; (3) finding Appellants willfully disobeyed the terms of said injunction, with knowledge and intentionally; (4) ignoring the testimony of Professor Wayne Whaley; (5) ignoring the deposition testimony of Professor Whaley; (6) entering judgment against Appellants in the amount of $126,601.29; (7) failing to give weight to Exhibit 43; (8) finding in the February 28, 2003 order that Appellant Kreikemeier admitted he ground valve spools in a way that violated the injunction.

Cross-Appeal: The district court erred in failing to award Smeal the full amount of attorney fees and expenses requested in the sum of $168,817.61; (2) not ruling that its order of January 28, 2008 had become the law of the case and/or res judicata as to the factual issue that Kreikemeier’s grinding method was offensive to the injunction.

S-09-0304 Allan A. Armbruster, Jr., Special Administrator of the Estates of Henry W. and Esther Z. Crawford, Deceased (Appellants) v. Baird, Holm, McEachen, Pederson, Hamann & Strasheim, LLP, a Nebraska Limited Liability Partnership, Kent O. Littlejohn, Esq. & Ronald C. Jensen, Esq.

Douglas County, Judge Gerald H. Moran

Attorneys: Allan A. Armbruster, Jr. (Appellants) --- Michael G. Mullin and Amy L. Van Horne (Kutak Rock LLP)

Civil: Legal Malpractice

Proceedings below: This case was previously before the Supreme Court. See Armbruster v. Baird Holm, McEachen, Pederson, Hamm & Strasheim, LLP, et al., S-06-0677 (Memorandum Opinion) (affirmed in part and reversed in part). Upon remand, the district court denied Armbruster’s motion for partial summary judgment, granted the law firm’s motion for summary judgment and dismissed the action with prejudice.

Issues: The trial court erred in (1) ruling that the statute of limitations began to run against the right of a beneficiary to commence suit for the collection of the estates’ malpractice claims prior to the date that he or she was apprised of the fact that the Personal Representatives did not intend to or had failed, refused or neglected to perform such duty; (2) finding the statute of limitations expired on November 7, 2005; (3) ruling that the beneficiaries or heirs of Mrs. Crawford were charged with “knowing” facts that put them on inquiry notice retroactive to the date it deemed Armbruster had acquired such knowledge; (4) ruling that there was no genuine issue of material fact that heir Pierce had knowledge of facts sufficient to put him on inquiry notice on or before the expiration of the two year statute of limitations; (5) ruling that heir Ms. Pierce had facts sufficient to put her on inquiry notice as she was unaware of any fact related to the Crawford proceeding until December 11, 2005; (6) not ruling that the doctrine of fraudulent concealment or equitable estoppel estops the law firm from an inequitable resort to a statute of limitations defense; (7) failing to find that no genuine issue of material fact is present that defeats summary judgment on the issue of the law firm’s professional negligence; (8) sustaining the law firm’s summary judgment motion and dismissing Appellant’s action; (9) failing to sustain Armbruster’s motion for partial summary judgment.

S-08-1184, City of Falls City, Nebraska (Appellee and Cross-appellant) v. Nebraska Municipal Power Pool (Appellant) and J. Gary Stauffer, John Harms, Evan Ward, Ron Haase, Chris Dibbern and Central Plains Energy Project (Appellees and Cross-appellants) American Public Energy Agency (Intervenor- Appellee) v. J. Gary Stauffer and Evan Ward (Intervention Defendants - Appellees)

Lancaster County, Judge Steven D. Burns

Civil: Breach of Contract

Attorneys: Robert W. Mullin and David S. Houghton (Lieben, Whitted, Houghton, Slowiaczek & Cavanagh, P.C., L.L.O.), Douglas E. Merz (Weaver & Merz) (Appellee and Cross-appellant Fall City) --- Daniel E. Klaus and David J.A. Bargen (Remboldt Ludtke LLP) (Appellant) and James P. Fitzgerald James G. Powers (McGrath North Mullin & Kratz, P.C. L.L.O.) (Appellees and cross-appellants J. Gary Stauffer, John Harms, Evan Ward, Ron Haase and Chris Dibbern)

Proceedings Below:  This case was tried without a jury and the district court found in favor of appellee Fall City concluding, inter alia, that Fall City had standing to sue and that appellant Nebraska Municipal Power Pool (NMPP) and cross-appellants Stauffer, Harms and Ward breached their fiduciary duties and conspired with their employer NMPP to breach those fiduciary duties.  The court determined that National Public Gas Agency (NPGA) was damaged in the amount of $3,567,037 due to NPGA’s failure to participate in two prepays of gas distribution with American Public Energy Agency (APEA) and that as a member of NPGA Fall City was entitled to receive 15.988% of NPGA’s damages.  Prior to trial, the district court granted partial summary judgment in favor of Central Plains Energy Project (CPEP) concluding they were immune from suit. 

Issues on Appeal and Cross-Appeal by the individual officers: (1) Does Fall City have legal standing to sue on behalf of NPGA; (2) did the actions of NMPP, Stauffer, Harms, and Ward harm NPGA; (3) are Stauffer, Harms, Ward and NMPP immune pursuant to the Political Subdivision Tort Claims Act; and (4) did Stauffer, Harms, Ward and NMPP engage in a conspiracy.

Issues on Cross-Appeal raised by Fall City: (1)  did the district court err in granting partial summary judgment in favor of CPEP; (2) did the district court err in concluding that Fall City did not have standing to pursue the claims of NPGA.

THURSDAY, NOVEMBER 5, 2009, subject to call at 9:00 a.m.

S-09-0289, R&D Properties, LLC (Appellant) v. Altech Construction Co.

Douglas County, Judge J. Russell Derr

Attorneys: Gregory C. Scaglione, Brenda George (Koley Jessen PC LLO) (Appellants) --- Michael W. Pirtle, Francie C. Riedmann (Gross & Welch PC LLO)

Civil: negligent construction

Proceedings below: A jury returned a general verdict awarding Appellant $520,303.32 of the $561,135.71 claimed by Appellant. The trial court, post-trial, granted Altech’s motion for new trial and vacated the award of prejudgment interest finding it erroneously submitted construction loan interest as an element of damages and ordered a new trial on all issues. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The trial court erred in (1) granting Altech’s motion for new trial and in vacting the judgment; (2) overruling R&D’s application for ward of prejudgment statutory interest and costs and in vacating such requested award; (3) in the alternative and without waiving the other assignments of error, Appellant argues the trial court should have granted Altech’s remitter, reduced the judgment to $425,907.35, overruled Altech’s motion for new trial and awarded Appellant costs and prejudgment interest on the reduced judgment and /or should have granted a new trial solely on the issue of damages and not on all issues.

S-09-0458, State v. Derek Scheffert (Appellant)

Lancaster County, Judge Steven D. Burns

Attorneys: Mark E. Rappl (Appellant) --- George R. Love (Attorney General’s Office)

Criminal: DUI, 4th offense

Proceedings below: The trial court overruled Appellant’s motion to suppress. After a stipulated trial, the trial court found Appellant guilty. He was sentenced to 4 years probation which included a 90 day jail term and a 15 year license revocation.

Issues: The district court erred in (1) overruling Appellant’s motion to suppress evidence; (2) overruling Appellant’s objections to 2 prior DWI convictions introduced by the State at the enhancement hearing.

S-08-1281, State v. Kyle J. Bormann (Appellant)

Douglas County, Judge Gerald E. Moran

Attorneys: Thomas C. Riley (Public Defender) (Appellant) --- James D. Smith (Attorney General’s Office)

Criminal: Murder in the Second Degree; Use of a Firearm to Commit a Felony

Proceedings below: A jury found Appellant guilty of Second Degree Murder and Use of a Firearm. He was sentenced 60 years to life on the murder charge with a consecutive 20 to 30 year sentence for the weapons charge.

Issues: The trial court erred in (1) admitting into evidence statements Appellant made to police at the scene of his arrest as they constituted custodial interrogation and made without Miranda warnings; (2) admitting into evidence Appellant’s statement to police made at the station as it was a continuation of the non-Mirandized  statements given at the scene of arrest; (3) admitting into evidence Appellant’s recorded station house statement because it was obtained without first obtaining a knowing, voluntary, and intelligent waiver of his right to counsel and right against self-incrimination as the questions exceeded the “routine booking questions” exception to the Miranda rights advisory requirement; (4) admitting into evidence Appellant’s statement to police made at the station as it was not voluntary and the product of threats and coercion, inducement of leniency and a violation of due process; (5)  giving the so-called step jury instruction which deprived Appellant of his due process right to have the jury consider his defense to the charges.

S 09-000166, Maria Ofelia Corona de Camargo, as personal representative of the estate of Joaquin Camargo-Martinez, Sr. (Appellant) v. Arthur J. Schon, Mary E. Schon, Schon Enterprises, Inc., Multi-Vest Realty Co., Sara Gonzalez, and General Fire & Safety Equipment Company of Omaha

S 09-000167, Maria Ofelia Corona de Camargo, as personal representative of the estate of Cristobal Camargo-Corona (Appellant) v. Arthur J. Schon, Mary E. Schon, Schon Enterprises, Inc., Multi-Vest Realty Co., Sara Gonzalez, and General Fire & Safety Equipment Company of Omaha

Cases consolidated for appellate review

Douglas County, Judge Joseph S. Troia

Attorneys: Maria: Jason M. Finch (Smith, Gardner, Slusky, Lazer, Pohren, & Rogers)---Multi-Vest Realty: Gregory G. Barntsen & Marvin O. Kieckhafer (Smith Peterson Law Firm); The Schons, Sara Gonzalez: Thomas A. Grennan & Elizabeth M. Callaghan (Gross & Welch); General Fire & Safety Equipment: Lawrence E. Welch, Jr. (Welch Law Firm)

Civil: Wrongful Death & Personal Injury

Proceedings Below:  The District Court sustained the defendants’ motions to dismiss.

Issues:  Whether the District Court erred in applying the 2-year wrongful death statute of limitations set forth in Neb. Rev. Stat. § 30-810 to the personal injury claim rather than applying the 4-year personal injury statute of limitations of § 25-212.

S-09-0256, John Doe (Appellant) v. Board of Regents of the University of Nebraska, University of Nebraska Medical Center, John Gollan, M.D., Ph.D., Carl Smith, M.D., Sonja Kinney, M.D., Jeffery Hill, M.D., David O’Dell, M.D., Wendy Grant, M.D., Sharon Stoolman, M.D., Michael Spann, M.D., in those individuals’ official and individual capacity

Douglas County, Judge J. Patrick Mullen

Attorneys: John Doe (Pro Se Appellant) --- Amy L. Longo, George T. Blazek (Ellick Jones Buelt Blazek & Longo)

Civil: fraudulent concealment, disability discrimination, due process, breach of contract

Proceedings below: The district court granted Appellees’ motion to dismiss the complaint.

Issues: The district court erred in (1) not applying Neb. Civ. R. 7.0.1(a)(1)(A) to the pleadings; (2) not applying Neb. Civ. R. Pldg. § 6-1115(a) to the pleadings; (3) determining that service upon the Appellees in the individual capacities was not effected and not effected within 6 months of the filing of the complaint; (4) failing to hold that Appellees waived the operation of Neb. Rev. Stat. § 25-217 by making a voluntary appearance; (5) failing to apply Neb. Rev. Stat. § 25-516.01 in determining whether service had been effected; (6) considering matters outside the pleadings; (7) not holding that actions by Appellees were retaliatory, arbitrary, capricious or in bad faith; (8) relying on interpretations in Appellees’ pleadings and testimony on the record that misconstrued Appellant’s alleged facts relating to the OB/GYN clerkship and incorrectly applying Neb. Rev. Stat. § 81-8-219(1)(4); (9) not considering all of the circumstances where the Appellant was entitled to substantive due process and procedural due process; (10) dismissing Appellant’s claims for relief without analysis or explanation; (11) not abrogating the Appellees’ immunity for claims for equitable or injunctive relief; (12) not determining that Title II of the Americans with Disabilities Act of 1990 validly abrogated the State’s sovereign immunity in the context of public education ; (13) not considering that Title II of the Americans with Disabilities Act of 1990 validly abrogates sovereign immunity as to State conduct which does not facially violate the Constitution but is prohibited by Title II; (14) not abrogating the sovereign immunity of state agencies with respect to Section 504 of the Rehabilitation Act of 1973; (15) not considering that a liberal construction should be given to a complaint to avoid dismissal, especially a complaint by a pro se plaintiff; (16) concluding that Appellant failed to state a breach of contract and fraudulent concealment claim against any of the Appellees in their official capacities; (17) determining that Appellant has alleged facts sufficient to claim a violation of any liberty or property interest; (18) granting qualified immunity to the Appellees; (19) determining the facts alleged by Appellant did not rise to the level of a fundamental right abrogating sovereign immunity under the context of the Equal Protection Clause of the 14th amendment; (20) not applying the “congruence and proportionality test” in determining valid abrogation of the State’s Eleventh Amendment sovereign immunity.

FRIDAY, NOVEMBER 6, 2009, subject to call at 9:00 a.m.

S-08-1255, State v. Philip P. Gibilisco (Appellant)

Douglas County, Honorable Russell Bowie

Attorneys:  Gregory A. Pivovar for appellant; James D. Smith (Attorney General) for appellee

Civil:  Action for post-conviction relief

Proceedings below:  District court found that Gibilisco’s speedy trial rights had been violated and dismissed one count of the information, but refused to find a speedy trial violation with respect to the remaining 4 counts of the information

Issues:  Gibilisco assigns that the district court erred in 1) dismissing his motion for postconviction relief, 2) finding that the charges added by an amended information were not subject to dismissal on speedy trial grounds, 3) reversing its dismissal of all charges without proper proceedings, 4) allowing the State to proceed on a motion to reconsider, 5) not finding trial counsel ineffective for failing to properly explain the plea bargain and for failing to challenge plea negotiations, and 6) not finding trial counsel ineffective for failing to move to quash or for a discharge after the filing of the amended charges.

S-09-0286, State v. Herchel Harold Huff (Appellant)

Furnas County, Judge James E. Doyle, IV

Attorneys: Charles D. Brewster, Jonathan R. Brandt (Anderson Klein Swan & Brewster) and Richard Calkins (Appellant) --- Erin E. Tangeman (Attorney General’s Office)

Criminal: Motor vehicle homicide/ double jeopardy

Proceedings below: The district court found that motor vehicle homicide is not a lesser included offense to manslaughter and overruled Appellant’s plea in bar.

Issues: The district court failed to provide double jeopardy protection to Appellant by allowing continued prosecution for motor vehicle homicide after a previous conviction for manslaughter.

S-08-0146, Kelly Russell v. Kerry Inc., and Liberty Mutual Fire Insurance (Appellants)

Nebraska Workers’ Compensation Court

Attorneys: Scott A. Lautenbaugh (Nolan Olson Hansen Lautenbaugh & Buckley LLP) (Appellants) --- Rolf Edward Shasteen (Appellee)

Civil: Award for benefits for injured employee

Proceedings below: The trial court entered an award for Appellee. The review panel affirmed the 50% penalty award but revised the interest award. The court of Appeals affirmed. See A-08-0146, Russell v. Kerry Inc., Memorandum Opinion, June 16, 2009.  Kelly Russell 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 review panel’s holding that the trial court’s order of January 19, 2007 was void for lack of jurisdiction; (2) affirming the review panel’s holding that the trial court had improperly calculated the award of interest.

S-09-0235, Lonnie Kocontes (Appellant) v. Sean K. McQuaid and Edward Bujanowski

Lancaster County, Judge John A. Colborn

Attorneys: James L. Beckmann (Appellant) --- William R. Johnson (Lamson Dugan & Murray LLP) and Raymond E. Walden

Civil: Defamation

Proceedings below: The trial court dismissed Appellant’s complaint without opportunity to amend and overruled his motion to compel discovery.

Issues: The trial court erred in (1) granting the Appellees’ motion to dismiss Appellant’s complaint finding absolute litigation privilege does not apply to the factual circumstances alleged in the complaint; (2) overruling Appellant’s motion to compel discovery.

S-09-0360, State v. Todd L. Cook (Appellant)

Madison County, Judges Patrick G. Rogers and Robert B. Ensz

Attorneys: Pro Se Appellant --- James D. Smith (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The district court denying postconviction relief without an evidentiary hearing and denied Appellant’s complaint to vacate motion and correct the record along with denying Appellant’s motion to reconsider.

Issues: The district court erred in (1) denying the motion for postconviction relief without an evidentiary hearing; (2) failing to adjudicate Appellant’s motion for clarification of the record; (3) failing to enter default judgment; (4) denying discovery; (5) failing to grant a hearing on his statute of limitations issue; (6) overruling Appellant’s objection to the State’s affirmative defenses presented during the February 2009 hearing; (7) denying Appellant the right to call a witness; (8) failing to rule on and grant Appellant’s motion to strike; (9) denying Appellant’s motion to dismiss and motion to correct the record; (10) denying Appellant the opportunity to be heard with respect to his motion to alter or amend; (11) denying his Rule 201 hearing request.