Supreme Court Case Summaries

November 1, 2 or 3, 2011

TUESDAY, NOVEMBER 1, 2011, subject to call at 9:00 a.m.

S-11-0045, State v. Matthew A. Fox (Appellant)

Lancaster County, Judge Robert Otte

Attorneys: Jerry L. Soucie, James R. Mowbray (Nebraska Commission on Public Advocacy) (Appellant) --- George R. Love (Attorney General’s Office)

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

Proceedings below: A jury found Appellant guilty of first degree murder and use of a weapon to commit a felony. He was sentenced to life imprisonment for the first degree murder conviction and 10 to 15 years in prison for the weapon conviction. The sentences were ordered to be served consecutively.

Issues: The district court erred in (1) finding Appellant competent to stand trial when the evidence established that he remained incapable of assisting in his own defense; (2) allowing Appellant to absent himself from trial when the decision was based on the concern that the exposure to the forensic evidence and testimony would cause him to decompensate and become suicidal and unable to proceed with trial.

S-11-0151, Edward M. Smalley v. Nebraska Department t of Health and Human Services Appellant)

Cass County, Judge Randall L. Rehmeier

Attorneys:  Michael J. Rumbaugh (Attorney General’s Office) (Appellant) --- William R. Settles (Lamson, Dugan and Murray, LLP); Dean T. Jennings (Jennings Law Firm); G. Michael Fenner (Creighton University School of Law) (all for Appellee/Cross-Appellant)

Civil:  Assignment of tort recovery to Medicaid

Proceedings below:  The trial court found that DHHS’s assignment and subrogation claim was in the amount of $17,420 and found that Nebraska’s third party liability provisions violate the Medicaid Anti-Lien provision and are unenforceable.  The trial court found the purported agreement between Smalley and DHHS was void and unenforceable as it violated the Medicaid Anti-Lien provision as interpreted by Arkansas Dep’t of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006). The trial court found against Smalley on his § 1983 claim and denied his request for attorney fees under 42 U.S.C. § 1988.

Issues:  The district court erred in (1) denying DHHS relief on its counter claim or by failing to grant DHHS declaratory relief of full reimbursement per the agreement of the parties; (2) finding Arkansas Dep’t of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006) is controlling; (3) admitting opinion testimony on the purported value of Smalley’s tort claim.

Cross Appeal:  The district court erred in (1) finding against Smalley on his 42 U.S.C. § 1983 claim; (2) denying Smalley’s request for attorney fees pursuant to 42 U.S.C. § 1988; and (3) finding that unique circumstances existed that would make an award of attorney fees unjust and thus denying Smalley’s motion for new trial.

S-11-0258, AT&T Communications of the Midwest, Inc., and TCG Omaha, Inc. (Appellants) v. Nebraska Public Service Commission, et al.
 
Lancaster County, Hon. Karen B. Flowers

Attorneys:  Loel P. Brooks (Brooks Pansing Brooks) and Leo J. Bub (Appellants)---L. Jay Bartel, Asst. Attorney General (Public Service Commission)---Paul M. Schudel, James A. Overcash (Woods & Aitken)(Rural Independent Companies)---Steven G. Seglin (Crosby Guenzel) (MCI Communication Services)

Civil:  Administrative Procedure Act Appeal of Public Service Commission (PSC) Order. Review of telecommunication carrier access rates.

Proceedings below:  The district court affirmed order in which the PSC found, inter alia, that reviews of telecommunication carrier access rates under Neb. Rev. Stat. § 86-140 could occur only in the event a carrier established its initial access rates or proposed to make a change to its rates; however, district court modified the PSC’s order to provide that a review is permitted when a previous agreement regarding access rates has expired and negotiation for new rates has proved unsuccessful.

Issues:  Whether the district court erred when it limited its modification of the PSC’s order to instances when a previous agreement has expired rather than finding that a review is allowed any time negotiations over rates have proved unsuccessful.

On cross-appeal by the PSC and Rural Independent Companies: Whether the district court erred when it modified the PSC’s order and did not affirm the PSC’s finding that reviews under Neb. Rev. Stat. § 86-140 could occur only when a carrier established its initial access rates or proposed to make a change to its rates.

WEDNESDAY, NOVEMBER 2, 2011, subject to call at 9:00 a.m.

S-11-0186, In re Interest of S.C.

Butler County, Judge Mary C. Gilbride

Attorneys:  Thomas J. Klein (Appellant) --- Stephanie Caldwell (Attorney General’s Office)

Civil:  Civil commitment under the Sex Offender Registration Act.

Proceedings below:  The Mental Health Board found Appellant was a dangerous sex offender under the Sex Offender Registration Act and placed Appellant in the custody of DHHS for inpatient treatment. The district court affirmed.

Issues:  (1) The district court erred in failing to find that Appellant’s due process rights were not violated when the State failed to provide Appellant with sex offender treatment services while incarcerated in the Nebraska Department of Correctional Services. (2) The Board’s findings were not supported by clear and convincing evidence.

S-11-0193, Jan Ginapp v. City of Bellevue (Appellant) and Alegent Health Midlands Hospital

Sarpy County, Judge William B. Zastera

Attorneys:  Robert S. Lannin and Richard C. Grabow (Shively & Lannin) (Appellant—City of Bellevue) --- Patrick R. Guinan (Erickson & Sederstrom) (Appellee—Alegent Health Midlands Hospital) --- Steven M. Lathrop and Terry M. Anderson (Hauptman, O’Brien, Wolf & Lathrop) (Appellee—Jan Ginapp)

Civil:  Negligence. This case involves a determination of who is liable for the plaintiff’s injuries.

Proceedings Below:  Ginapp sued the City of Bellevue for negligence.  Midlands Hospital, Ginapp’s employer, joined the suit to protect its subrogation interest under the Workers’ Compensation Act.  The district court ruled in favor of Ginapp.  The City of Bellevue appeals.

Issues on Appeal:   The lower court erred in (1) finding Bellevue owed a duty to Ginapp; (2) finding Bellevue breached that duty and was liable for Ginapp’s injuries; (3) failing to find Bellevue to be exempt from liability on the basis that its police officers exercised due care in the execution of a statute; (4) failing to find or allocate negligence to Midlands Health and Ginapp; (5) awarding an excessive amount of damages

S-11-0414, State (Appellant) v. Oscar Hernandez

Lancaster County, Judge Robert R. Otte

Attorneys:  Daniel Packard (County Attorney’s Office) (Appellant) --- Heidi M. Hayes (Morrow Poppe Watermeier & Lonowski PCLLO)

Criminal:  Driving During Revocation

Proceedings below:  The trial court found Appellant not guilty of driving during revocation, Neb. Rev. Stat. § 60-6,197.06.  The State filed an Application to Docket Error Proceeding which was granted.

Issues:  The district court erred in (1) finding the State does not have discretion to charge felony driving during revocation under Neb. Rev. Stat. § 60-6,197.06 once a defendant obtains an ignition interlock permit; (2) interpreting § 60-6,197.06.

S-11-0217, State v. Timmy Allen Timmens (Appellant)

Dawson County, Judge James E. Doyle, IV

Attorneys:  Jeffrey M. Wightman (Appellant) --- Nathan A. Liss (Attorney General’s Office)

Civil:  Postconviction

Proceedings below:  Appellant was granted an evidentiary hearing regarding claims of ineffective assistance of counsel.  After the hearing, the district court entered an order denying all claims made by Appellant in his verified motion for postconviction relief.

Issues:  The district court erred in (1) finding appellate counsel was not ineffective in failing to raise the issue of ineffectiveness of trial counsel during Appellant’s direct appeal; (2) finding that trial counsel was not ineffective in failing to vigorously pursue an intoxication defense; (3) failing to grant Appellant’s motion to alter or amend judgment; (4) summarily dismissing all additional claims of ineffective assistance of trial counsel.

THURSDAY, NOVEMBER 3, 2011, subject to call at 9:00 a.m.

S-11-0006, In re Matter of 2007 Administration of Appropriations of the Waters of the Niobrara River, Jack Bond and Joe McClaren Ranch, L.L.C. (Appellants) v. Nebraska Public Power District; and Nebraska Department of Natural Resources

Department of Natural Resources

Attorneys: Donald Blankenau, Thomas R. Wilmoth (Blankenau Wilmoth LLP) (Appellants) --- Stephen D. Mossman, Patricia L. Vannoy (Mattson Ricketts Davies Stewart & Calkins) (for Appellee Nebraska Public Power District) --- Justin D. Lavene, Marcus A. Powers (Attorney General’s Office) (for Appellee Department of Natural Resources)

Civil:  Water appropriation

Proceedings below: This case was previously before this Court. See In re 2007 Administration of Appropriations of the Waters of the Niobrara River, 278 Neb. 137 (2009) (reversed and remanded for further proceedings). Following the remand to the Department for further hearing, the Director issued his order denying Appellant’s all relief.

Issues:  The Director erred in (1) aligning the Department as a party litigant; (2) assigning the burden of proof to Appellants; (3) granting NPPD’s motion in limine precluding evidence that part of the water called for was being wasted; (4) refusing to allow Appellant’s to amend their Request for Hearing and refusing to hear evidence or argument that DNR and NPPD should be estopped from calling for water administration; (5) ejecting certain exhibits from the hearing record after the hearing officer had received them into evidence and the hearing had concluded; (6) ruling that Appellants’ claims directed at NPPD’s rights were precluded because Appellants did not independently initiate a proceeding pursuant to Neb. Rev. Stat. §§ 46-229 to 229.05; (7) ruling that NPPD had not lost a portion of its appropriations allowing it to call for water administration; (8) concluding NPPD could call for the full amount of its appropriations without regard to subordination agreements, stream gage error and explicit limitations contained in A-359R; (9) concluding DNR conducted a proper futile call analysis to determine whether water used by Appellants would reach the NPPD’s Spencer Facility in beneficially usable amounts.

S-11-0157, Project Extra Mile, The Public Health Association of Nebraska, Pride-Omaha, INc., Nebraska Nonprofit Corporations and Mary Doghman v. Nebraska Liquor Control Commission and Hobert Rupe, its Executive Director (Appellants)

Lancaster County, Judge John Colborn

Attorneys:  Milissa Johnson-Wiles (Attorney General’s Office for Appellants) --- Vincent M. Powers (Vincent M. Powers & Associates) and Amanda M. Lightner (Senior Certified Law Student) (For Appellees) --- Marc E. SOrini, Jeffrey W. Mikoni (McDermott Will & Emery LLP) and James P. Fitzgerald (McGrath North Mullin & Kratz PCLLO) (for Flavored Malt Beverages Coalition as Amicus Curiae)

Civil:  Declaratory Judgment.  This case involves a determination of classification of flavored malt beverages.

Proceedings Below:  The district court found that Doghman had standing to bring the declaratory judgment action as a resident taxpayer and that the other appellees had organizational standing to ring the action due to the resident taxpayer status of its members.  The district court found the Nebraska Liquor Control Commission exceeded its statutory authority in creating Rule 1-009 as the effect of Rule 1-009 was to classify flavored malt beverages as “beer” rather than “spirits.”  The trial court declared such products must be classified as “spirits” and taxes as “spirits.”  Appellants filed a petition to bypass which was granted by the Nebraska Supreme Court.

Issues:  The district court erred in (1) overruling Appellants’ motion to dismiss by erroneously finding that Doghman had taxpayer standing to challenge an agency rule under Neb. Rev. Stat. § 84-911; (2) overruling Appellants’ motion to dismiss by finding that the nonprofit Appellees had standing to bring the action under Neb. Rev. Stat § 84-911; (3) declaring Flavored Malt Beverages “spirits” under Nebraska Law and thus erred in finding that the NLCC lacked statutory authority to create Rule 1-009.

S-11-0010, Adams S. Martensen v. Rejda Brothers, Inc. (Appellant)

Custer County, Judge Karin L. Noakes

Attorneys:  Jeffrey H. Jacobsen (Jacobsen Orr Nelson Lindstrom & Holbrook PCLLO) (Appellant) --- Steven H. Howard (Dowd Howard & Corrigan LLC)

Civil:  Negligence.  This case involves a determination of who is liable for the plaintiff’s injuries and the amount of damages.

Proceedings below:  A jury trial was held and the jury returned a verdict for the plaintiff and against the defendant in the amount of $750,000.  The trial court accepted the verdict, awarded prejudgment interest and costs and overruled Appellant’s motion for new trial. Appellee filed a petition to bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues:  The trial court erred in (1) determining there was a legal duty owed by the defendant to the plaintiff upon which recovery for negligence could be based; (2) finding that the defendant was negligent and plaintiff’s injuries or damages were proximately caused by said negligence; (3) finding the verdict of the jury was not contrary to law; (4) finding the verdict of the jury was not contrary to the evidence; (5) overruling the motion for directed verdict at the close of plaintiff’s evidence; (6) finding sufficient evidence to support a finding that defendant breached a legal duty owed to plaintiff; (7) finding sufficient evidence to support a finding that a breach of legal duty owed to plaintiff proximately caused the injuries or damages; (8) overruling the defendant’s motion for judgment notwithstanding the verdict or in the alternative, motion for new trial and (9) committing reversible error in overruling an objection to a question for Mr. Russell Rejda and said error was prejudicial to the defendant and resulted in the denial of a fair and impartial trial.

Cross Appeal:  The trial court erred in (1) incorrectly calculating the prejudgment interest due by only assessing prejudgment interest in its judgment order on that sum which exceeded the Offer of Judgment rather than awarding prejudgment interest on the entire unpaid balance; (2) failing to include in its judgment order most or all of the taxable court costs totaling $3,417.29 and instead only awarding costs filing fees and sheriff’s costs as the taxable costs totaling $168.56.

S-11-0379, State v. Jeffrey Hessler (Appellant)

Scotts Bluff County, Judge Randall. L. Lippstreu

Attorneys:  Brian J. Lockwood (Public Defender’s Office for Appellant) --- J. Kirk Brown, (Solicitor General, Attorney General’s Office)

Civil:  Postconviction; Death Penalty.

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

Issues:  The trial court erred by failing to find that trial counsel was ineffective by failing to raise and preserve the issue of competence.