Supreme Court Case Summaries

December 1 and 2, 2009

TUESDAY, DECEMBER 1, 2009, subject to call at 9:00 a.m.

S-09-0020, State v. Jacob Ford (Appellant)

Lancaster County, Judge John A. Colborn

Attorneys: James Martin Davis (Appellant) --- George R. Love (Attorney General’s Office)

Criminal: First degree sexual assault

Proceedings below: A jury found Appellant guilty of the above crime. The district court sentenced him to 4 to 6 years in prison.

Issues: The trial court erred in (1) excluding evidence of the victim’s previous sexual conduct which was relevant to the issue of consent; (2) sustaining the State’s objections to the responsiveness of the defense witnesses’ answers during defense examination; (3) allowing testimony of the Appellant’s sexual activity with another female subsequent to the alleged assault which was prejudicial; (4) allowing into evidence a blown up photograph of a cell phone text message from the victim to her roommate the next morning stating she had been raped.

S-34-090002, Anthony Ybarra (Petitioner) v. Nebraska State Bar Commission (Respondent)

Original Action

Attorneys: Robert B. Creager (Anderson Creager & Wittstruck PC) (Petitioner) --- Brad Roth, Chris Blomenberg (McHenry Haszard Hansen Roth & Hupp PC) (Respondent)

Civil: Denial of application to sit for bar examination

Proceedings below: The Commission denied Appellant’s application to sit for the bar examination after holding a hearing finding he did not establish his character and fitness to sit for the bar examination.

Issues: The Commission erred in not finding that the record evidence established that Ybarra met the standard of character and fitness to sit for the state bar examination.

S-09-0350, State v. Thomas Edward Nesbitt (Appellant)

Douglas County, Judge Joseph S. Troia

Attorneys: Clarence E. Mock, Matthew M. Munderloh (Johnson & Mock) (Appellant) --- James D. Smith (Attorney General’s Office)

Civil: Postconviction, life sentence

Proceedings below: The trial court denied Appellant’s motion for postconviction relief and overruled his motion for new trial.

Issues: The district court erred in finding Appellant did not receive ineffective assistance of counsel when trial counsel did not assert objections or take other efforts to prohibit the State from exploiting Appellant’s post-arrest and post-Miranda silence to infer guilt to first degree murder.

S-09-0521, Central City Education Association v. Merrick County School District No. 61-0004, also known as Central City Public Schools (Appellant)

Commission of Industrial Relations

Attorneys: Steve Williams, Kelley Baker (Harding & Schultz PC LLO) (Appellant) --- Mark D. McGuire (McGuire & Norby)

Civil: Wage dispute

Proceedings below: The CIR ordered the district to add specific contract continuation language to the negotiated agreement and ordered the district to not remove the provision requiring payment for unused sick and personal leave.

Issues: The CIR erred in (1) issuing an order that exceeded its statutory authority, is contrary to law, not supported by the facts and evidence; (2) issuing a decision that exceeded the contract year in dispute and affects only future contract years; (3) ordering the School District to enter into a contract in contravention of Neb. Rev. Stat. § 48-810.01; (4) issuing a declaratory judgment or advisory opinion without authority to do so; (5) issuing an order that prevents the district from exercising its lawful authority to implement a final offer after reaching an impasse in negotiations; (6) issuing an order that found payment for unused sick and personal leave to be a prevalent practice; (7) failing to compute unused sick and personal leave according to prevalence.

S-08-1274, Matthew L. Ashby, Individually and M.A., A Minor, By and Through Matthew L. Ashby, his father and next friend (Appellants) v. State of Nebraska, a Political Subdivision and Mary Dyer, in her official capacity, Monica Taylor Kilmer; Douglas Eric Black and Tammy Norris Black, husband and wife; Estate of Michael Washburn, Deceased; Erickson and Sederstrom PC, A Nebraska Corporation; and Bryant A. Whitmire (Appellees)

Lancaster County, Judge Karen Flowers

Attorneys: Herbert J. Friedman, Daniel H. Friedman (Appellant Matthew Ashby) ---Melvin Katskee & Jerry Katskee (Katskee Henatsch & Suing) (for Appellees Estate of Washburn and Erickson & Sederstrom PC) --- Michael Rumbaugh (Attorney General’s Office for Appellees Mary Dyer and State of Nebraska) --- Susan Sapp & Stanton Beeder (Cline Williams Wright Johnson & Oldfather LLP) (for Appellees Monica Kilmer and Tammy and Douglas Black)

Civil: Negligence, fraud, civil conspiracy, false imprisonment, constructive fraud, due process violations and civil rights under Neb. Rev. Stat. § 20-148.

Proceedings below: The trial court granted the State’s motion for summary judgment and dismissed the remaining parties. 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 summary judgment to the State and Dyer after finding Dyer had no duty under Nebraska’s enactment of the Interstate Compace for the Placement of Children or “ICPC” to determine whether or not Appellant had consented to the adoption of his minor son before placing the infant out of state and in the custody of the potential adoptive parents; (2) denying Appellant’s motion to compel Whitmire, the potential adoptive parents’ attorney to answer discovery questions that would have proved conspiracy to deprive Appellant of his rights to his son; (3) granting summary judgment for Washburn; Erickson & Sederstrom; Whitmire; Kilmer and for the Blacks because genuine issues of material fact existed; (4) determining that res judicata barred Appellant’s 42 U.S.C. § 1983 claims against the State and Dyer.

WEDNESDAY, DECEMBER 2, 2009, subject to call at 9:00 a.m.

S-09-0494, State v. Lance Fuller (Appellant)

Adams County, Judge Stephen R. Illingworth

Attorneys: Arthur C. Toogood (Appellant) --- Nathan A. Liss (Attorney General’s Office)

Criminal: Third degree sexual assault

Proceedings below: A jury found Appellant guilty of the crime. He was sentenced to 90 days in jail. He appealed to the district court which affirmed the conviction and sentence.

Issues: The district court erred in (1) finding sufficient evidence to support a conviction; (2) there was evidence to support the language found in Neb. Rev. Stat. § 28-318 (Reissue 2008). The county court erred in (1) not granting Appellant’s motion to dismiss; and (2) failing to grant Appellant a new trial.

S-09-372, McCully, Inc., d/b/a McCully Ranch Company (Appellant) v. Baccaro Ranch

Hooker County District Court, Judge John P. Murphy

Attorneys: Ward F. Hoppe, Tonia M. Novak (Hoppe, Vogt, & Barrows, LLP (Appellant) – George G. Vinton

Civil: contract / statute of frauds

Proceedings Below: McCully Ranch Company (“McCully”), a real estate broker, filed a complaint seeking damages from Baccaro Ranch (“Bacarro”) based on allegations that Baccaro failed pay a commission to McCully. The district court granted Bacarro’s motion to dismiss finding that the listing agreement entered into by Bacarro and McCully failed to set out the terms of compensation required by statute. After McCully filed an amended complaint, the district court again granted Baccaro’s motion to dismiss. The district court also overruled McCully’s motion to disqualify Baccaro’s counsel. McCully appeals.

Issue: (1) Whether the complaint and/or amended complaint states a cause of action upon which relief could be granted; (2) whether there exists a current or previous attorney-client relationship between Vinton and McCully sufficient to disqualify Vinton from representing Bacarro in the action; and (3) whether McCully could recover on a quantum meruit claim in the alternative.

S-08-0628, State v. Darren J. Drahota (Appellant)

Lancaster County, Judge John A. Colborn

Attorneys: Engene Volokh (Pro Hac Vice) and Gene Summerlin (Ogborn Summerlin & Ogborn) (Appellant) --- George R. Love (Attorney General’s Office)

Criminal: Breach of the peace

Proceedings below: Appellant was found guilty of the above crime. The Court of Appeals affirmed. See State v. Drahota, 17 Neb. 678 (2009). 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) finding the First Amendment did not protect Appellant’s two political emails to a candidate for the state legislature; (2) finding Appellant’s emails constituted a breach of the peace.

S-09-0387, Davenport Limited Partnership v. 75th & Dodge I, L.P., Dodge II, L.P., and Dodge Mortgage, L.L.C. (Appellants)

Douglas County, Judge Thomas A. Otepka

Attorneys: Heather Voegele-Andersen, Elisa Davies (Koley Jessen) (Appellants) ---Joseph Jones, Rebecca Zawisky, Todd C. Kinney (Fraser Stryker)

Civil: Termination of Lease Agreement

Proceedings Below:  After a bench trial, the district court entered judgment for Davenport, finding the Dodge entities had no continuing rights to the lease property.  Dodge I, Dodge II, and Dodge Mortgage appeal the judgment.

Issues: Whether the trial court erred in finding(1) a ten-year renewal period existed in the lease; (2) Davenport’s acceptance of rent constituted a ten-year extension of lease; (3) the written notice requirement in the least had not been waived; (4)Dodge I did not provide proper notice of its intent to renew the lease; (5) Dodge II and Dodge Mortgage’s leasehold mortgagee interests ended upon expiration of the lease; and whether the trial court applied an improper legal standard in determining that Davenport did not waive the written notice requirement. 

S-09-0230)      Troy Stonacek and Shari Stonack v. City of Lincoln (Appellant)
S-09-0231)      Bradley E. Sheaff and Jennifer K. Shaeff v. City of Lincoln (Appellant)
S-09-0232)      George Bristol and Lori Bristol v. City of Lincoln (Appellant)
(consolidated cases)

Lancaster County District Court, Hon. Steven D. Burns

Attorneys:         Gary J. Nedved, Keating, O’Gara, Nedved, & Peter  --- Steven Huggenberger, Assistant City Attorney (Appellant)

Civil: Political Subdivisions Tort Claims Act –recover damages for the diminution in value of their homes.

Proceedings Below: The district court determined (1) that the City was negligent in failing to provide the Plaintiffs with the information from the Department of Natural Resources and that such negligence was a proximate cause of the damages to the plaintiffs; (2) that Neb. Rev. Stat. § 31-1001 and Lincoln Municipal Code § 27.55.040 created a private right as well as a general right and thereby the City owes a duty to Plaintiffs to reasonably utilize date from the Department of Natural Resources in a manner which would assure the statutory purposes were fulfilled; (3) that the tort claim exemptions of Neb. Rev. Stat. § 13-910(1), (2) and (7) are not applicable to the facts of this case; (4) that § 13-910(4) does apply to this case but only has application to select negligence claims; (5) that the Plaintiffs’ claims are not barred by the statute of limitations; (6) that the proper measure of damages is the difference between the undamaged versus the damaged value of the property; (7) that there were three elements of damage to the Plaintiffs’ property: (a) that each Plaintiff was denied the use of their basement and was thereby damages; (b) that the location of the property in a flood plain diminishes the value; and (c) the frequency of flooding causes a separate damage; (8) that the damages sustained by each Plaintiff were as follows: Stonacek - $165,000, Bristol - $100,000, and Sheaff - $140,000; and (9) that subsequent to the judgments were proportionately reduced based on an offset of $40,000 settlement from other defendants.

Issues on Appeal: The City alleges that the district court erred in (1) determining that Neb. Rev. Stat. § 13-910(4) did not dispose of all of Plaintiffs’ claims of negligence; (2) determining that exemptions of § 13-910(1), (2) and (7) had no application to the Plaintiffs’ claims of negligence; (3) determining that Neb. Rev. Stat. § 31-1001, et. seq., and Lincoln Municipal Code § 27.55.040 created a private duty to Plaintiffs;  allowing the Plaintiffs’ appraiser’s opinion into evidence, or in the alternative, failing to grant the motion to strike the testimony; (5) entering a damage decision that was alleged speculative and conjectural; (6) calculating the Plaintiffs’ damages because the damages awarded were allegedly in conflict with the evidence and not supported by the evidence; and (7) failing to grant the City’s motion for a new trial. 

S-09-0485, A.W., mother and next friend of C.B. (Appellant) v. Lancaster County School Dist. a/k/a Lincoln Public Schools

Lancaster County District Court, Judge Paul D. Merritt

Attorneys: Vincent Powers (Appellant) -- John Guthery/Derek Aldridge (Perry Guthery)

Civil: Negligence action against LPS for failing to protect 5-year-old C.B. from a sexual assault at school

Proceedings Below: The district court sustained LPS’ motion for summary judgment.

Issues: Whether the district court erred in granting summary judgment to LPS and concluding that (1) LPS did not have a duty to protect C.B. from a sexual assault,  (2) the sexual assault was not reasonably foreseeable, (3) the school district took reasonable steps to protect against foreseeable acts of violence on its premises, (4) Arnold Elementary School had a safety and security plan in effect that complied with state statutes and regulations, and (5) the school’s safety plan was discretionary.