Supreme Court Case Summaries

November 4, 5, 6, or 7, 2008

TUESDAY, NOVEMBER 4, 2008, subject to call at 9:00 a.m.

S-07-0678, State v. Christopher Edwards (Appellant)

Douglas County, Judge J. Russell Derr

Attorneys: Denise E. Frost (Johnson & Mock) and Steven J. Lefler (Lefler Law) (Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Criminal: Second degree murder, use of a deadly weapon to commit a felony

Proceedings below: A jury found Appellant guilty of both crimes. He was sentenced 80 years to life imprisonment for second degree murder with a consecutive sentence of 20 years for use of a weapon to commit a felony.

Issues: The trial court erred in (1) finding sufficient evidence to support a conviction; (2) denying Appellant’s motion to dismiss; (3) refusing Appellant’s proffered jury instruction defining “death”; (4) admitting testimony regarding DNA examination and overruling Appellant’s motion to strike the same; (5) overruling Appellant’s motion to continue trial; (6) refusing to permit Appellant to introduce certain evidence in his defense.

S-07-0837 and 07-1026) (Consolidated cases), Aaron Koch, et al. (Appellants) v. Cedar County Freeholder Board and Cedar County Assessor v. Freeholders (Intervenors)

Cedar County, Judge William Binkard

Attorneys: David A. Domina (Appellants) --- Jeffrey L. Hrouda (Freeholders) and George L. Hirschbach (Cedar County Attorney)

Civil:  Petitions seeking transfer of land from one school district to another school district pursuant to the provisions of Neb. Rev. Stat. § 79-458.

Proceedings below: the district court found that the Freeholders were necessary parties to the trial de novo and were permitted to file petitions in the district court and found the Freeholders were entitled to have their land transferred to the Hartington Public School District. Appellants filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The trial court erred in (1) finding there was proper subject matter jurisdiction over the petitions and since the Freeholder Board did not have jurisdiction, neither did the trial court; (2) allowing the Freeholders to intervene and file new petitions before the Board; (3) failing to recognize there were defects in the Freeholder Board petitions which required rulings against every Freeholder in the case; (4) misunderstanding and misreading by misinterpretating “contiguity” as required by Neb. Rev. Stat. § 79-458.

S-07-1089, In re Estate of Dean E. Chrisp

Lincoln County Court, Judge Kent D. Turnbull

Attorneys: Lowell J. Moore, James C. Bocott (McCarthy Pederson & Moore) (Appellant Gail Chrisp, spouse) --- Stephen P. Herman, Royce E. Norman (Norman Paloucek & Herman) (Dean E. Chrisp Living Trust)

Civil: probate

Proceedings below: The county court granted the surviving spouse allowances and exemptions but excluded the assets of the living trust from the augmented estate. The county court also found that Neb. Rev. Stat. § 30-3850 does not require that assets of the revocable trust be included in the augmented estate for purposes of determining the elective share. The county court granted, in part, Appellant’s request for approval and assessment of attorney fees against the trust. The Appellee, Dean E. Chrisp Revocable Trust, filed a Petition for Further Review, which was granted by the Nebraska Supreme Court.

Issues: The county court erred in (1) finding that the assets of the trust are not part of the augmented estate for purposes of calculating the spouse’s elective share because ownership of assets in a revocable trust is the legal equivalent of outright ownership by the settler; (2) making findings inconsistent with Neb. Rev. Stat. § 30-3850; (3) making conclusions inconsistent with analysis from nationally recognized legal scholars and inconsistent with similar elective share statutory schemes in other jurisdictions and common law principles of trust law which have been adopted via the Nebraska Trust Code; (4) finding that the elective share can be defeated by a transfer of assets to a revocable trust; (5) awarding only $6,930.82 in attorney fees as the evidence supports an award significantly grater.

S-07-1117, State v. Jay D. Amaya (Appellant)

Lincoln County, Judge Donald E. Rowlands

Attorneys: Scott H. Trusdale (Trusdale & Trusdale PC LLO) (Appellant) --- George R. Love (Attorney General’s Office)

Civil: Postconviction, life imprisonment

Proceedings below: The trial court found that Appellant was not entitled to postconviction relief.

Issues: The district court erred in (1) denying Appellant’s motion for postconviction relief; (2) failing to determine that Appellant had been ineffectively assisted by trial counsel in failing to conduct proper discovery with regard to statements given by co-defendant Michael E. Long; (3) failing to determine that Appellant received ineffective assistance of counsel when trial counsel failed to file a direct appeal in this case.

S-07-1337, Randy L. Yoder and Cheryl Yoder (Appellants) v. Joel T. Cotton, M.D.

Douglas County, Judge J. Russell Derr

Attorneys: David Domina/Linda Christiansen (Appellants) – David Cripe (Sodoro, Daly, & Sodoro)

Civil: Battery and Negligence: Workers’ compensation claimant in Iowa brought battery and negligence claims against a Nebraska neurologist performing an independent medical examination (IME) for the worker’s Iowa employer after the neurologist allegedly injured the worker by manipulating his shoulder, which had been recently operated on, during the examination.

Proceedings Below: The district court granted Cotton’s motion for summary judgment and dismissed the Yoders’ action.

Issues: Whether the district court erred in (1) concluding that Nebraska law governed the Yoders’ claim instead of Iowa law; (2) treating the Yoders’ complaint as a claim for medical negligence despite concluding that the Nebraska Hospital Medical Liability Act did not apply; (3) concluding that Cotton was not liable for a battery because Yoder consented to the IME; and (4) determining that the Yoders’ medical negligence claim failed because they did not produce expert testimony to show that Cotton deviated from the applicable standard of medical care and that his deviation caused Yoder’s injuries.

S-07-1245, Omaha Police Union Local 101, IUPA, APL-CIO v. City of Omaha, Nebraska, a Municipal Corporation and the Chief of Police, Thomas Warren (Appellants)

Commission of Industrial Relations

Attorneys: Paul D. Kratz and Bernard J. in den Bosch (City Attorney’s Office) (Appellant) --- Thomas F. Dowd (Dowd Howard &Corrigan LLC)

Civil: Discipline of union member

Proceedings below: This case was previously before the Supreme Court. See Omaha Police Union Local 101 v. City of Omaha, 274 Neb. 70 (2007) (affirmed in part, and in part reversed and remanded with directions). On remand, the CIR determined that the conduct of the Union member was protected and ordered the City and Warren to not interfere in any statements made in the union publication which do not violate the standard of “flagrant misconduct.” Further, the City was reordered to place a statement in the next edition of the union newspaper indicating that they will recognize and abide by the rights of union members to conduct union activity without interference, restraint or coercion.

Issues: The CIR erred in its evaluation of whether the speech of an employee of a law enforcement agency in a union newspaper was “flagrant misconduct” and thus exceeded the protections of Neb. Rev. Stat. § 48-824(2)(a) (Reissue 2004).

WEDNESDAY, NOVEMBER 5, 2008, subject to call at 9:00 a.m.

S-08-0203, State v. Ricky Nelson (Appellant)

Lancaster County, Judge John Colborn

Attorneys: Shawn Elliott (Public Defender) (Appellant) --- George R. Love (Attorney General’s Office)

Criminal: Driving during 15 year revocation

Proceedings below: The trial court found Appellant guilty of the above crime. He was sentenced to 300 days jail and his drivers’ license was revoked for 15 years.

Issues: The district court erred in (1) convicting Appellant of driving during a 15 year revocation as there was insufficient evidence; (2) not ordering probation.

S-07-1068, Kent L. Jardine(Appellant) v. William F. McVey, Sr., John N. McVey, Thomas L. McVey, Kerry N. McVey, and Brent S. Thornquist (Appellees)

Douglas County, Judge Thomas A. Otepka

Attorneys: Edward D. Hotz and Michael R. Peterson (Hotz, Weaver, Flood, Breitkreutz & Grant) (for Appellant) – Bryan S. Hatch and Victor C. Padios (Stinson Morrison Hecker LLP)

Civil: breach of fiduciary duty in a closely held corporation

Proceedings Below: Appellant brought suit in March 2006.  In June 2007 Appellees filed a motion for summary judgment, which was granted in September 2007 after a hearing on the motion.  The District Court held that Kent was judicially estopped from asserting his present claims and that Kent failed to establish both as a matter of fact and a matter of law his status as shareholder in the companies.

Issues: (1) Whether the District Court erred by finding the doctrine of judicial estoppel precluded Kent from bringing this action against the Defendants? and (2) Whether the District Court erred by finding Kent failed to establish his status as a shareholder both as a matter if fact and as a matter of law?

S-07-0904, Reyna Guido o/b/o Esteban Perez and Jonas Perez and as personal representative of the Estate of Domingo Martinez (Appellants) v. Sandra Stern
 
Douglas County, Hon. Patricia A. Lamberty

Attorneys: Steven H. Howard (Dowd, Howard & Corrigan) (Appellants)---Robert M. Slovek, Kathryn E. Jones (Kutak Rock)

Civil:     Legal Malpractice

Proceedings below:    District court granted Sandra Stern’s motion for summary judgment on the basis that the statute of limitations had run on the plaintiffs’ legal malpractice action.

Issues: Whether a claim against the tortfeasors in the underlying wrongful death action could only be brought by the estate of Domingo Martinez and whether, for that reason, Stern owed no independent duty to Esteban and Jonas Perez to timely prosecute the claim; whether Esteban and Jonas Perez had independent standing to sue Stern for legal malpractice; and whether the statute of limitations on the legal malpractice action was tolled because Esteban and Jonas Perez were minors.

S-07-1044, Michael Albert v. Heritage Administration Servs. Inc. (Appellant)

Lancaster County, Judge Jodi L. Nelson

Attorneys: Paul E. Galter (Butler, Galter, O’Brien & Boehm) – Tim Engler (Harding & Shultz) (Appellant)

Civil: Contract

Proceedings below:  The district court entered judgment in favor of Michael Albert in the amount of $76,230 for lost commissions.
           
Issue:  Did the district court err (1) in failing to recognize that Heritage provided Albert with verbal notice in May 2004, that Heritage Administrative Services, Inc. (Heritage) was withdrawing the Anderson Ford Engine For Life (EFL) account from him, per Article VIII of the Agency Agreement; and (2) in awarding Albert damages in excess of 30 days worth of commissions as compensation for Heritage’s failure to provide Albert with written notice that Heritage was withdrawing the Anderson Ford EFL account from him, per Article VIII of the Agency Agreement?

THURSDAY, NOVEMBER 6, 2008, subject to call at 9:00 a.m.

S-07-1083, Michael P. Walsh v. State of Nebraska, ex rel. State Board of Public Accountancy

Lancaster County, Hon. Paul D. Merritt, Jr.

Attorneys: John P. Raynor, Raynor, Rensch & Pfeiffer, Omaha (for appellant Walsh); Robert T. Grimit, Baylor Evnen, Lincoln (for appellee the State)

Civil: Disciplinary action

Proceedings Below: The State Board of Public Accountancy found that Michael P. Walsh had violated two distinct board rules and regulations. The Board placed Walsh on probation for three years for the first charge (the advertising charge) and three months on the second (the discreditable acts charge), with the discipline to be served concurrently. The district court affirmed. Walsh appeals.

Issues on Appeal: Walsh assigns that the district court erred in affirming the Board’s findings and imposition of discipline.

S-07-1036, State v. Marvin Wenke (Appellant)

Holt County, Judge Mark D. Kozisek

Attorneys: Ronald E. Temple (Fitzgerald Vetter & Temple) (Appellant) --- Erin E. Leuenberger (Attorney General’s Office)

Criminal: Possession of a controlled substance

Proceedings below: Appellant was found guilty by the trial court and sentenced 60 days in jail and assessed a $250 fine.

Issues: The trial court erred in overruling Appellant’s motion to suppress.

S-07-1121, Mary M. Van Ert, Personal Representative of the Estate of Leonard Van Ert, Deceased
(Cross-Appellant) v. State Farm Mutual Automobile Insurance Co. (Appellant)

Lincoln County, Judge John P. Murphy

Attorneys: Stephanie F. Stacy, John J. Heieck (Baylor Evnen Curtiss Grimit & Witt LLP) (Appellant) --- Keith A. Harvat, Amy L. Patras (Waite McWha & Harvat)

Civil: Determination of benefits under automobile policy

Proceedings below: The district court found that the noncovered automobile exclusion was clear and unambiguous; State Farm did not waive the noncovered automobile exclusion and that the noncovered automobile exclusion violated Neb. Rev. Stat. § 44-6413. The district court granted the Appellee’s motion for summary judgment, awarded $75,000 and attorney fees and costs in the amount of $32,209.25. The Appellee filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred (1) when it held the noncovered automobile exclusion in the underinsured motorist endorsement of the subject policy violated Neb. Rev. Stat. § 44-6413; (2) when it denied State Farm’s motion for summary judgment and awarded plaintiff underinsured motorist benefits under the policy and (3) in entering a final judgment in favor of the plaintiff.

Cross-Appeal: The district court erred in (1) determining that State Farm’s contract of insurance is not ambiguous as State Farm apparently “altered” or “changed” the terms of the insurance policy by issuing an endorsement in “consideration of the premium charged”; (2) failing to award the plaintiff pre-judgment interest on the unpaid balance of the unliquidated claim from the date of the plaintiff’s first offer of settlement which was exceeded by the judgment until the entry of the judgment pursuant to Neb. Rev. Stat. § 45-103.02(1).

S-08-0108, Fort Calhoun Baptist Church (Appellant) v. Washington County Board of Equalization

Nebraska Tax Equalization and Review Commission

Attorneys: Steven M. Virgil (Abrahams Legal Clinic) (Appellant) --- Edmond E. Talbot, III

Civil: Denial of tax exemption

Proceedings below: The Board denied 20% of the tax exemption of the property owned and operated by the Appellant (Church). TERC affirmed the decision of the Board denying the 100% exemption, reducing it down to 80 percent.

Issues: (1) The Board erred in denying the exemption as the exclusive use of the property was used for exempt purposes. (2) TERC erred by failing to recognize the legal interpretation of dominant use to determine exempt status.

FRIDAY, NOVEMBER 7, 2008, subject to call at 9:00 a.m.

S-07-1340, In re Estate of Donald H. Lienemann;  Jean L. Hillyer (Appellant), Ruth L. Lienemann (Appellee)

Sarpy County, Judge William B. Zastera

Attorneys: Roger R. Holthaus (Holthaus Law Offices, P.C., L.L.O.) for appellant; Robert C. McGowan, Jr. (McGowan & McGowan) for appellee.

Civil:  denial of claim against decedent's estate

Proceedings Below:  The district court dismissed Hillyer's petition for allowance of claims against decedent's estate.

Issues:  Whether the 3-day extension in Neb. Rev. Stat. § 25-534 (Reissue 1995) applies to the 60-day limit for filing a petition for allowance under Neb. Rev. Stat. § 30-2488(a) (Cum. Supp. 2006).

S-07-1313, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. Mary C. Wickenkamp (Respondent)

Original Action

Attorneys: John W. Steele (Assistant Counsel for Discipline) --- no brief filed on behalf of Respondent

Civil: Attorney Discipline action

Proceedings below: Formal charges were filed but no personal service was obtained within the six-month time frame after the filing of the formal charges. Service was eventually obtained by publication on the Respondent. No answer was filed and Relator moved for judgment on the pleadings. The Nebraska Supreme Court entered judgment on the facts but reserved ruling on the appropriate sanction until after briefing and argument.

Issues: No exceptions have been filed.

S-07-1314, James D. Vokal (Cross-Appellant) v. Nebraska Accountability and Disclosure Commission (Appellant)

Lancaster County, Judge Karen B. Flowers

Attorneys: Lyn A. Melson (Assistant Attorney General) (Appellant) ---  L. Steven Grasz,  Henry L. Wiedrich (Husch Blackwell Sanders LLP)

Civil: Violation of campaign statutes

Proceedings below: The Commission found that Vokal violated Neb. Rev. Stat. § 49-14,101.02(1) by using property under his official care and control as a city council member of the purpose of campaigning for re-election and assessed a civil penalty of $100. Vokal filed a petition for review with the district court. The district court reversed the Commission finding that the use of Vokal’s city council office did not constitute use of city property under his official care and control in violation of Neb. Rev. Stat. § 49-14,101.02.

Issues: The district court erred in (1) determining that Vokal’s use of city property in his campaign commercial did not violate Neb. Rev. Stat. § 49-14,101.02; (2) finding that § 49-14,101.02 includes implicit requirements that the prohibited conduct result in a measurable cost to the political subdivision or its taxpayers and that the prohibited conduct result in financial gain to the public official; (3) in rejected the Commission’s interpretation of § 49-14,101.02 based upon a finding that any interpretation of that statute without these implicit requirements makes the statute of doubtful validity; (4) reversing the Commission’s decision and taxing costs to the Commission.

Cross-Appeal: (1) Neb. Rev. Stat. § 49-14,101.02 violates the Due Process Clause and must be stricken as unconstitutional.

S-07-0533, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. Robert A. Finney (Respondent)

Original Action

Attorneys: Kent L. Frobish (Assistant Counsel for Discipline) --- Robert A. Finney

Civil: Attorney Discipline Action

Proceedings below: The referee found Respondent had violated the Rules of Professional Conduct and his oath of office as an attorney. The Referee recommended suspension retroactively and up to the Supreme Court’s decision and probation for one year. Relator filed exceptions arguing the sanction was too lenient.

Issues: Relator argues that the sanction is too lenient and that Respondent’s license should be suspended for not less than 2 years followed by a one-year term of probation.

S-07-1067, Dorothy M. Loves v. World Insurance Company (Appellant)

Douglas County– Judge John D. Hartigan, Jr.

Attorneys: Howard N. Epstein and Steven J. Riekes (Marks Clare & Richards), for Appellant; Mary Kay O’Connor and Pamela Epp Olsen (Cline Williams), for Appellee

Civil: Breach of Contract

Proceedings Below: Both parties filed motions for summary judgment in June 2007.  After a hearing on both motions the trial court entered an order granting summary judgment to World and denying Loves’ motion, dismissing her complaint with prejudice and at her costs.

Issues: Whether the District Court erred in (1) granting World Insurance Company’s motion for summary judgment and overruling Loves’ motion for summary judgment and (2) holding that the statute of limitations barred Loves’ claim.