S-09-1160, State v. Ivan Henk (Appellant)
Cass County, Judge Max Kelch
Attorneys: Jerry L. Soucie (Nebraska Commission on Public Advocacy) (appellant) --- James D. Smith (Attorney General’s Office)
Proceedings below: The district court denied Appellant’s request for an evidentiary hearing and denied his motion for postconviction relief finding Appellant was procedurally barred from relief by entry of a guilty plea to the charges.
Issues: The district court erred in denying an evidentiary hearing on the allegation that Appellant’s guilty plea was based on the State’s truth and accuracy of the DNA evidence recovered from the scene when David Kofoed, acting in an official capacity, had intentionally and knowingly planted DNA of the victim, Brendan Gonzalez, on filter paper swabs taken from the dumpster debris and falsified official reports in violation of the 14th Amendment to the U.S. Constitution.
S-10-0320, In re Interest of A.M., A.M. (Appellant) v. Mental Health Board of the Eleventh Judicial District
Dawson County, Judge James E. Doyle, IV
Attorneys: Derek L. Mitchell (Public Defender) (Appellant) --- Stephanie Caldwell (Attorney General’s Office)
Civil: Commitment under the Nebraska Sex Offender Commitment Act, Neb. Rev. Stat. § 77-1201 et seq. (SOCA).
Proceedings below: The mental health board found Appellant was a dangerous sex offender and found that there were no less restrictive treatment options than inpatient treatment. The district court affirmed and found Appellant’s constitutional claims of the SOCA and due process claims without merit. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: (1) The district court erred in denying Appellant’s constitutional challenge to Neb. Rev. Stat. § 71-916(1). The district court erred in denying Appellant’s constitutional challenge to Neb. Rev. Stat. § 29-4014 and Neb. Rev. Stat. § 71-1201. (3) The district court erred in denying Appellant’s challenge that Neb. Rev. Stat. § 83-174.01 (1) and (2) contain constitutionally vague language rendering the Board’s decision to be constitutionally infirm. (4) The district court erred in upholding the determination of the Board finding Appellant to be a dangerous sex offender. (5) The district court erred in failing to find that the District Court Clerk, as an elected official seated on Appellant’s mental health board, was unqualified as a “layperson” under Neb. Rev. Stat. § 71-915(2). (6) The district court erred in failing to find that it was plain error that the Board chair lacked authority to direct another Board member to select a replacement Board member which is the exclusive statutory duty of the presiding district court judge under Neb. Rev. Stat. § 71-915(1) and thus the Board was unconstitutionally seated. (7) The district court erred in failing to determine Appellant was denied his First Amendment and due process right to privacy when a private psychologist was allowed to review and testify regarding Appellant’s Department of Correctional Services inmate file. (8) The district court erred in failing to reverse and remand the case with directions that the Board dismiss the case pursuant to Appellant’s motion to dismiss.
S-10-0267, Timothy Meyers (Appellant) v. Nebraska State Penitentiary of the Nebraska Department of Correctional Services, and Commissioner of Labor of the State of Nebraska
Lancaster County, Judge Robert R. Otte
Attorneys: Kevin Ruser (Civil Clinical Law Program) and Clint Cadwallader, Kurt Arganbright (Senior Certified Law Students) (Appellant) --- John H. Albin, Katie Baltensperger (Senior Certified Law Student) (for Appellees)
Civil: Determination of unemployment benefits
Proceedings below: Meyers was granted unemployment benefits. Upon review, the Nebraska Appeal Tribunal reversed. The district court affirmed the decision of the Appeal Tribunal.
Issues: The district court erred in (1) affirming the Appeal Tribunal’s decision that Meyers had been fired from his job for misconduct; (2) determining that Meyers was not entitled to relief under the Servicemembers Civil Relief Act.
S-09-1107, State v. Ronald G. Smith (Appellant)
Otoe County, Judge Randall L. Rehmeier
Attorneys: Jerry L. Soucie (Commission on Public Advocacy) (Appellant) --- James D. Smith (Attorney General’s Office)
Criminal: Second degree murder, second degree forgery and felony theft.
Proceedings below: A jury found Appellant guilty of the above crimes. He was sentenced 40 to 70 years for second degree murder; 5 to 10 years for forgery and 5 to 10 years for theft. All sentences were ordered to run concurrently. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: (1) The district court erred in failing to give the defense tendered instruction that the State must prove that Appellant’s intent to cause the death of the victim was not the result of “a sudden quarrel as a negative element of second degree murder. (2) The district court violated the 6th Amendment and Due Process Clause of the 14th Amendment and the decision in Mullaney v. Wilbur, 421 U.S. 684 (1975) by failing to instruct the jury that the distinction between second degree murder and manslaughter is based on whether the defendant’s specific intent was or was not the result of a “sudden quarrel.”
S-10‑0068, Travelers Indemnity Co. (Appellee) v. Nebraska Department of Insurance and Gridiron Management Group, LLC (Appellant).
Lancaster County, Judge Karen Flowers
Attorneys: Michael Mullen (Burns Law Firm) (Appellant) ‑‑‑CeCelia Ibson (Ibson Law Firm)
Civil: Administrative Law
Proceedings below: The district court reversed the determination based on the finding that the insurer had not received notice of the administrative hearing.
Issues: The appellant insured assigns that the district court erred in (1) finding nothing in the record indicating the insurer had notice of the hearing, or in the alternative, (2) by remanding the cause for a new hearing on all issues instead of a new hearing limited to notice.
S-10-0194 and S-10-0195, State v. Juan Juis Leonor (Appellant)
Douglas County, Judge Gerald E. Moran
Attorneys: Pro Se Appellant --- Erin E. Tangeman (Attorney General’s Office)
Civil: Reimbursement for costs under Neb. Rev. Stat. § 25-2307
Proceedings below: The district court granted in part and in part denied Appellant’s motions for reimbursement. The district court ordered the county to pay Appellant a total of $243.15 in 149-834 and a total of $91.80 in case 149-835. All other amounts requested were denied.
Issues: The district court erred in denying Appellant’s request for reimbursement finding he was out of time to recover expenses related to his appeal in cases S-03-1153 and S-03-1154.
Cross-Appeal: The State argues the district court erred in granting Appellant reimbursement for photocopying costs of $260.90 without either conducting a hearing or receiving evidence of the actual costs incurred and in granting $74.05 for mailing costs.
S-10-0231, State v. Leopoldo J. Garcia (Appellant)
Lancaster County, Judge Robert Otte
Attorneys: John Jorgensen (Public Defender) --- Nathan A. Liss (Attorney General’s Office)
Criminal: DUI, 3rd offense, BAC greater than .15, a Class IIIA Felony
Proceedings below: A stipulated trial was held and Appellant was found guilty of DUI, BAC greater than .15. An enhancement hearing was held and Appellant’s conviction was enhanced to 3rd offense. He was sentenced to 2 years probation which included a $1000 fine and 180 days in jail. He was also given a 10 year license revocation.
Issues: The district court erred in (1) overruling Appellant’s motion to suppress; (2) admitting Appellant’s prior convictions under California law for purposes of enhancement; (3) imposing an excessive sentence.
S-10-0302, Willie Banks, Jr. (Appellant) v. Housing Authority of the City of Omaha, et al.
Douglas County, Hon. Thomas A. Otepka
Attorneys: Liliana E. Shannon, Scott M. Mertz (Legal Aid) (Appellant) ---
George B. Achola, Natalie Baumgarten
Civil: Administrative Appeal – Termination of Section 8 Benefits
Proceedings below: District court affirmed the Omaha Housing Authority’s decision to uphold the termination of Banks’ Section 8 benefits.
Issues: Whether Banks’ Section 8 benefits were properly terminated; whether Banks was “evicted” from public housing when he vacated the apartment after OHA filed a complaint in court but before an order of eviction was issued; and whether the district court improperly made findings of fact in its review of the OHA decision.
S-10-192, In the Matter of the Trust of Leo A. Hrnicek, a/k/a/ L.A. Hrnicek, M.D., deceased, Adrienne H. Brietzke [beneficiary/appellant] v. First National Bank North Platte, Successor Trustee
County Court for Morrill County, Honorable Randin R. Roland
Attorneys: Paul E. Hofmeister (Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka) for appellant Brietzke ---John K. Sorensen (Sorensen Mickey & Hahn) for appellee First National.
Probate: First National, as Trustee, filed an action to find Brietzke, as a beneficiary, in contempt and to retain trust distributions in order to satisfy a debt Brietzke owed to the trust.
Proceedings below: County court found Brietzke in contempt and allowed First National to retain trust distributions in order to pay off a debt Brietzke owed the trust.
Issues: Did the county court err in 1) ordering Brietzke to pay the principal and interest due on the promissory note and authorizing the Trustee to retain that amount from the distribution, and 2) in determining the amount due since all or a portion of the amount due on the debt to the trust was barred by the statute of limitations?
S-10-0296, Tom Kiplinger, et al. (Appellants) v. Nebraska Department of Natural Resources; Brian Dunnigan, in his official capacity as Director; Upper Republican Natural Resources District; Middle Republican Natural Resources District; Lower Republican Natural Resources District
Lancaster County, Judge Robert R. Otte
Attorneys: Jeanelle R. Lust, Katherine S. Vogel (Knudsen Berkheimer Richardson & Endacott LLP) (Appellants) --- Justin D. Lavene, Marcus A. Powers (Attorney General’s Office) (for State Appellees) --- Donald G. Blankenau, Thomas R. Wilmoth (Blankenau Wilmoth LLP (for NRD Appellees)
Civil: Declaratory judgment; constitutional challenge to occupation tax levy pursuant to L.B. 701 (2007)
Proceedings below: The district court found in favor of defendants/Appellees and found L.B. 701 constitutional.
Issues: The district court erred in (1) finding respondents were not collaterally estopped from re-litigating whether the occupation tax permitted under Neb. Rev. Stat. § 2-3226.05 and classification found in Neb. Rev. Stat. § 2-3226.01(1) was special legislation and unconstitutional under Neb. Const. art. 333, section 18; (2) failing to determine that the occupation tax permitted under Neb. Rev. Stat. § 2-3226.05 is in fact a “property tax for state purposes” in violation of Article VIII, section IA of the Nebraska Constitution; (3) failing to conclude that the occupation tax permitted under Neb. Rev. Stat. § 2-3226. 05 is a commutation of taxes as owners of irrigated property in the three defendant natural resources districts pay a disproportionate share of taxes in violation of Neb. Const. art. VIII, section 4; (4) failing to conclude that the occupation tax permitted under Neb. Rev. Stat. § 2-3226.05 and the classification found in Neb. Rev. Stat. § 2-3226.01(1) creates a closed class and is thus special legislation in violation of Neb. Const. article III, section 18.
Cross-Appeal: The district court erred in (1) finding Appellants were not barred by the doctrine of res judicata or claim preclusion by failing to raise their constitutional claims targeting the occupation tax at the earliest practical opportunity in Garey v. Neb. Dept. of Nat. Res., 277 Neb. 149 (2009); (2) finding the general, catch-all provision for special legislation under Neb. Const. Art. III, section 18 applies to natural resources districts.
S-10-0270, State v. John J. Chavez (Appellant)
Scotts Bluff County, Judge Randall L. Lippstreu
Attorneys: Richard L. DeForge (Public Defender) (Appellant) --- George R. Love (Attorney General’s Office)
Criminal: Count I: Child abuse resulting in death; Count II: Possession of a controlled substance; to-wit: Methamphetamine
Proceedings below: A trial to the court was held on Count II and Appellant was found guilty. A jury trial was held on Count I and Appellant was found guilty of that charge. He was sentenced 40 years to Life on Count I and 12 to 24 months on Count II. The sentences were ordered to be served concurrently.
Issues: The district court erred in (1) admitting evidence of prior injury; (2) finding sufficient evidence to support a conviction of child abuse resulting in death; (3) overruling Appellant’s motion for new trial.
S-10-0307, In re Interest of C.R., a person alleged to be developmentally disabled and a threat of harm to others
Lancaster County, Judge Paul D. Merritt, Jr.
Attorneys: Jessica L. Milburn (Appellant) --- J. Kirk Brown, Solicitor General (Attorney General’s Office)
Civil: Developmental Disabilities Court-Ordered Custody Act (DDCCA), Neb. Rev. Stat. § 71-1101 et seq. (Reissue 2008).
Proceedings below: The district court found C.R. to be a person with developmental disabilities and a threat of harm to others. The district court found C.R.’s constitutional challenged to the Developmental Disabilities Court-Ordered Custody Act were without merit.
Issues: Whether the district court erred in (1) ruling that the DDCCA is not unconstitutional pursuant to substantive due process when the sstate is not required to prove a person with developmental disabilities poses a risk of future harm to others before the court imposed involuntary custody or treatment; (2) ruling that the DDCCA is not unconstitutional pursuant to substantive due process when the state is not required to prove a nexus between a person’s developmental disability and his actions subjecting him to involuntary treatment.
S-09-1252, Colfax County Board of Equalization (Appellant) v. Cargill Meat Solutions Corp.
Tax Equalization and Review Commission
Attorneys: Edmond E. Talbot III (Talbot & Truhlsen LLP) (Appellant) --- Edward E. Embree II, (Neill Terrill & Embree)
Civil: Valuation protest
Proceedings below: The Board valued the subject property at $26,191,370.00 for 2008. Cargill appealed to TERC which reversed the Board’s decision and found the valuation should be $14,809,190.00. On appeal, the issue of jurisdiction was raised in appellee’s motion for summary dismissal. The Court of Appeals ordered the parties to address the issue of service of process in the briefs.
Issues: TERC erred in (1) finding that Cargill presented clear and convincing evidence that Appellant’s valuation was unreasonable or arbitrary; (2) failing to establish that the value set by Appellant was unauthorized by or contrary to constitutional or statutory provisions governing taxation; (3) finding service was perfected in order to confer jurisdiction.
S‑10-0048, Felicia Wright (Appellant) v. Omaha Public School District (Appellee)
S-10-0067, Portia Denay Loyd (Appellant) v. Omaha Public School District (Appellee)
Douglas County, Judge Sandra L. Dougherty and Judge Gerald Moran
Attorneys: Melany S. Lanagan-O’Brien (Welsh & Welsh) (Appellant Wright), Christopher P. Welsh (Welsh & Welsh) (Appellant Loyd) ‑‑‑ Patrick B. Donahue (Cassem, Tierney, Adams, Gotch & Douglas)
Civil: Negligence (Personal injury)
Proceedings below: District court granted summary judgment in favor of OPS. Plaintiffs filed notices of appeal; the cases were consolidated for briefing, oral argument, and disposition. The Court of Appeals dismissed for lack of jurisdiction. Appellants filed a Motion for Rehearing, which was sustained in part; appeal was reinstated and jurisdictional issue was reversed pending final submission of appeal.
Issues: Appellants assign: the district court erred (1) in finding as a matter of law OPS had no duty to supervise and protect Appellants; (2) in finding that the assault on Appellants and resulting injuries were not foreseeable as a matter of law; and (3) in sustaining Appellee’s Motion in Limine regarding the admissibility of police reports. Appellee asserts that the Court of Appeals lacks jurisdiction over the appeal.
S-10-0523, State v. James L. Branch (Appellant)
Douglas County, Judge W. Mark Ashford
Attorneys: Mary C. Gryva (Frank and Gryva PC LLO) (Appellant) --- George R. Love (Attorney General’s Office)
Civil: Postconviction/motion for new trial
Proceedings below: The trial court denied Appellant’s motion for new trial based on newly discovered evidence.
Issues: The district court erred in (1) overruling Appellant’s motion for new trial based upon newly discovered evidence; (2) excluding exhibit 100 on the basis of hearsay.
S-10-0115 , Manuela Domingo Gaspar Gonzalez, Personal Representative of the Estate of Efrain Ramos-Domingo, deceased (Appellant) v. Union Pacific Railroad Company
Colfax County, Judge Mary C. Gilbride
Attorneys: Maren Lynn Chaloupka (Chaloupka Holyoke Hofmeister Snyder & Chaloupka) and Horacio J. Wheelock (Appellant) --- Mark E. Novotny (Lamson Dugan & Murray LLP)
Civil: Breach of fiduciary duty
Proceedings below: The trial court granted Union Pacific Railroad’s (UPRR) motion to dismiss as to the first cause of action, wrongful death, based on plaintiff’s signed release of liability and settlement. The trial court overruled UPRR’s motion to dismiss as to the second cause of action, breach of fiduciary duty but granted UPRR’s motion for summary judgment as to the second cause of action. 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) sustaining UPRR’s motion to dismiss the first cause of action and for summary judgment on the second cause of action; (2) overruling the motions to compel; (3) sustaining UPRR’s motion for protective order; (4) is award of attorney fees to Appellant.
S-10-0122, Gary’s Implement, Inc. (Appellant) v. Bridgeport Tractor Parts, Inc.
Scotts Bluff County, Judge Leo Dobrovolny
Attorneys: Howard P. Olsen, Jr., John F. simmons (Simmons Olsen Law Firm PC) (Appellants) --- David A. Domina (Domina Law Group pc llo)
Civil: Breach of contract
Proceedings below: This case was previously before this Court. See Gary’s Implement, Inc. v. Bridgeport Tractor Parts, Inc., 270 Neb. 286 (2005) (reversed and remanded). Upon remand, the jury returned a verdict in Appellee’s favor in the amount of $1,250,000.
Issues: The trial court erred in (1) giving instruction No. 7; (2) receiving the opinion testimony of John Wenande.
Cross-Appeal: The trial court erred in (1) denying Bridgeport’s motion for restitution and allowed Appellant to collect or retain collection proceeds of a Trustee’s Sale of Real Estate to collect an invalid promissory note; (2) failing to award interest on the amount for which restitution is proper.
S-09-1118, David Dobrovolny (Appellant) v. The Ford Motor Company
Brown County, Judge Mark D. Kozisek
Attorneys: Thomas J. Walsh, Jr. (Walsh Law PC) (Appellant) --- John A. Svoboda (Gross & Welch PC LLO)
Civil: Strict Liability
Proceedings below: The trial court granted defendant’s motion to dismiss. The Court of Appeals reversed and remanded for further proceedings. See Dobrovolny v. The Ford Motor Company, 18 Neb. App. 483 (2010). Ford Motor Company filed a Petition for Further Review which was granted by the Nebraska Supreme Court.
Issues on Review: The Court of Appeals incorrectly held that economic loss doctrine does not apply where a product self-destructs without causing damage to persons or other property.
S-10-0323, Thomas and Angeline Lesiak, Timothy Lesiak, and Ronald Lesiak (Appellants) v. Central Valley Ag Cooperative, Inc.
Merrick County, Judge Michael Owens.
Attorneys: David Domina, Brian E. Jorde (Appellants) -- Jordan Adam, D. Steven Leininger (Leininger, Smith, Johnson, Baack, Placzek & Allen)
Civil: Negligence, implied warranty, and breach of contract.
Proceedings below: The trial court granted summary judgment on the negligence and workmanship warranty claims prior to trial. After the plaintiffs’ evidence, the trial court directed verdicts for Central Valley Ag Cooperative, Inc. (CVA)
Issues: The trial court erred in (1) sustaining CVA’s motion for partial summary judgment on negligence theories; (2) granting partial summary judgment on economic loss doctrine grounds; (3) granting partial summary judgment on Lesiaks’ breach of warranty of workmanship theory; (4) rendering a directed verdict for CVA on the crop loss claim; (5) finding Appellant’s proof of damages was not sufficiently definite for submission to the jury and directed a verdict against the Lesiaks.
Cross-Appeal: The trial court erred in failing to grant CVA a summary judgment on the Lesiaks’ claims involving CVA’s sale and application of Guardsman Max because there was no genuine issue of fact as to whether the amount of costs that the Lesiaks saved in not having to harvest and transport to market those crops that the allegedly lost due to CVA’s application was pure speculation.