Supreme Court Case Summaries

TUESDAY, NOVEMBER 30, 2010, subject to call at 9:00 a.m.

S-10-0120, State of Nebraska v. Kenneth C. Fleming (Appellant)

Buffalo County, Judge John P. Icenogle

Attorneys:  D. Brandon Brinegar (Appellant); Kimberly A. Klein (Attorney General’s Office)

Criminal:  First degree sexual assault of a child

Proceedings Below:  After a jury trial, Fleming was found guilty of two counts of first degree sexual assault of a child, and was sentenced to 20 to 40 years on each count, with the sentences to run consecutively.

Issues:  Whether Fleming received ineffective assistance of trial counsel; whether the State’s information was insufficient to the point that Fleming’s due process right was violated; whether the trial court erred in (1) overruling Fleming’s motion for mistrial; (2) overruling Fleming’s objections to the State’s use of leading questions and photos; (3) conducting its examination of the victims to determine their competency; (4) overruling Fleming’s motion for an order of recusal; (5) failing to grant Fleming’s motion for a directed verdict; (6) finding there was sufficient evidence to support a conviction; sentencing Fleming to 20 to 40 years imprisonment on both counts and ordering the sentences to run consecutively.
                                                                                                                    

S-10-0157, Jocelyn Shepherd (Appellant) v. Phyliss Chambers, Director of the Nebraska Public Employees Retirement System, and Denis Blank, Chairperson of the Nebraska Public Employees Retirement Board 

Lancaster County, Honorable Karen B. Flowers

Attorneys:  Timothy Cuddigan, Sean Cuddigan, and Jessica Levine Finkle (Brodkey, Cuddigan, Peebles & Belmont) for appellant; Jon Bruning and Lynn A. Melson (AG) for appellees

Administrative:  Request of disability benefits from the Nebraska Public Employees Retirement Board

Proceedings below:  The Nebraska Public Employees Retirement Board denied Shepherd’s request for retirement benefits on account of disability.  A hearing officer then conducted an evidentiary hearing and affirmed the Board’s decision.  The district court then affirmed the hearing officer’s decision.

Issues:  Did the district court 1) erroneously interpret the law or 2) err in finding that Shepherd is not disabled as its decision was not supported by competent evidence?

S-10-0393, In re Estate of Darleen F. Craven, County of Lancaster (Appellant) v. Union Bank & Trust Company
 
County Court for Lancaster County, Hon. Gerald E. Rouse

Attorneys:       Gary E. Lacey, Lancaster County Attorney, Michael E. Thew, Deputy County Attorney; Andrew M. Loudon (Baylor Evnen)

Civil:  Probate

Proceedings below:  County court determined that actual value of house for purposes of calculating inheritance taxes was $113,000, the amount for which the house was sold at public auction.

Issues:  Whether county court erred by citing Neb. Rev. Stat. § 77-2018.05 as its authority to decide this matter and whether court erred by concluding that the actual value of the house was $113,000, the amount for which it sold at public auction, rather than the appraised fair market value of the house, which was $135,000 to $140,000.

S-10-0315, State v. David Kass (Appellant)

Sarpy County, Judge Max Kelch

Attorneys:  Alan G. Stoler (Appellant) --- Nathan A. Liss (Attorney General’s Office)

Criminal:  Enticement by an electronic communication device, a Class IV felony

Proceedings below:  A jury found Appellant guilty of the above crime.  He was sentenced to a term of one year imprisonment.

Issues:  The district court erred in (1) overruling Kass’ motion to quash and demurrer where Neb. Rev. Stat. § 28-833 (Reissue 2008) is overbroad; (2) failing to instruct the jury on how to determine whether the content communicated was indecent, lewd, lascivious, or obscene; (3) failing to give an entrapment instruction to the jury; (4) failing to consider all salient factors and follow statutory directives when it imposed an excessive sentence.

WEDNESDAY, DECEMBER 1, 2010, subject to call at 9:00 a.m.

S-09-1175, Joseph Mandolfo (Appellant) v. Mario Mandolfo & American National Bank (Appellees).

Sarpy County, Judge William B. Zastera

Attorneys:  Theodore R. Boecker, Jr., (Appellant); James B. Cavanaugh & Brittney J. Krause (Appellees)
 
Civil:  Conversion; Negligence

Proceedings Below:  The district court dismissed Joseph Mandolfo’s claims against American National Bank (ANB).  Mandolfo sought an accounting and monetary damages against ANB for what he claims was negligence in allowing Mario Mandolfo to cash and convert checks made payable to Mandolfo or his related entities. 

Issues:  Whether the district court erred in (1) granting ANB’s motion for summary judgment because it determined that the statute of limitations had run; (2) finding that Mandolfo lacked standing; (3) failing to sustain Mandolfo’s motion for new trial or to alter or amend the judgment; (4) not striking ANB’s motion for summary judgment due to its non-compliance with discovery orders.
                                                                                                                    

S-09-0581, Lavah Arlene Maciejewski (Appellant) v. Harold Edward Maciejewski

Wayne County, Judge Robert B. Ensz

Attorneys:  Tom D. Hockabout (Egley Fullner Montag & Hockabout) (Appellant) --- Mark A. Johnson (Johnson Morland Easland & Lohrberg PC)

Civil:  Dissolution of marriage

Proceedings below:  The district court dissolved the marriage, divided the marital estate and denied Appellant’s request for alimony.

Issues:  The trial court erred in (1) dividing the marital estate; (2) receiving evidence of the postnuptial agreement; (3) failing to award spousal support.

S-09-1021, State v. Arthur P. Perina (Appellant)

Sarpy County, Judge David Arterburn

Attorneys:  Andrew J. Wilson (Walentine O’Toole, McQuillan & Gordon) (Appellant) --- Nathan A. Liss (Attorney General’s Office)

Criminal:   Count I:  Motor vehicle homicide; Count II:  Violation of a traffic control device

Proceedings below:  After a trial to the court, Appellant was found guilty of the above crimes.  He was sentenced to 24 months probation.  Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues:  The district court erred in affirming the county court’s denial of Appellant’s motion to quash the state’s charge of motor vehicle homicide based on the unconstitutionality of Neb. Rev. Stat. § 28-306.

THURSDAY, DECEMBER 2, 2010, subject to call at 9:00 a.m.

S-10‑0431and S-10‑0432,  In the Matters of the Margaret Mastny Revocable Trust and the Emil Mastny Revocable Trust, Lynette Schellpepper, Merrily Van Buren and Lori Suchan (Appellants/ Interested Parties) v. Ernie Mastny and Elkhorn Valley Bank & Trust Co., Trustee

Madison County Court, Judge Richard W. Krepela

Attorneys:  David A. Domina (Domina Law Group) (Appellant) ‑‑‑ Cassidy V. Chapman

Civil: Trusts and Estates (Challenge to trustee’s accounting)

Proceedings below:    The trial court ordered the trustee to administer the trust without collecting an alleged debt from beneficiary/Appellee Ernie Mastny.

Issues:            Whether the district court erred in ordering the trustee to administer the trust without collecting an alleged debt from Ernie to be paid to the trusts and distributed among all the heirs upon collection.

Cross-appeal: Appellee asserts the parties were barred from litigating the issue in the proceedings below under the doctrine of collateral estoppel.

S-09-1313, State v. Millard W. Landis (Appellant)

Lancaster County, Judge Steven D. Burns

Attorneys:  John S. Berry (Appellant) --- Nathan A. Liss, James D. Smith (Attorney General’s Office)

Criminal:  Possession of a controlled substance with intent to deliver: marijuana

Proceedings below:  The trial court overruled Appellant’s motion to suppress.  The trial court found Appellant guilty.  He was sentenced 2 to 4 years in prison.  The Court of Appeals reversed and remanded for further proceedings via a memorandum opinion.  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) finding Appellant was “in custody” for purposes of Miranda; (2) applying the exclusionary rule to suppress the marijuana physical evidence which was seized as the fruit of Appellant’s voluntary statement; (3) reversing Appellant’s conviction.

S-10- 0342, Bryan Behrens, an Individual, Bryan Behrens Co., Inc., National Investments, Inc., and Thomas Stalnaker, as Receiver (Appellants) v. Christian R. Blunk, an Individual and Abrahams, Kaslow, & Cassman, L.L.P.

Douglas County, Hon. J. Patrick Mullen

Attorneys:  David Domina -- Mark Laughlin (Fraser, Stryker) & William Johnson (Lamson, Dugan & Murray)

Civil:  Legal Malpractice Action

Issue:  Whether dismissal is an appropriate sanction against the plaintiff receivership when non-compliance is a result of individual plaintiff’s invocation of his 5th Amendment right against self-incrimination.

                       
S-10‑0158, Ziad Zawaideh, M.D. (Appellant) v. Nebraska Dept. of Health and Human Services Regulation and Licensure and State of Nebraska Ex. Rel., Jon Bruning, Attorney General (Appellees)

Lancaster County, Judge John A. Colborn

Attorneys:  William M. Lamson, Jr. and Denise M. Destache, (Appellant) ‑‑‑Michael J. Rumbaugh, Attorney General’s Office (Appellee).

Civil:  Challenge to an “assurance of compliance” on the grounds of constitutionality and fraudulent misrepresentation.

Proceedings below:  The district court granted Appellee’s motion for failure to state a claim.   

Issues:  Appellant Zawaideh assigns that the district court erred in 1) determining that Appellant’s complaint failed to state a claim with regard to the constitutionality of the Uniform Credentialing Act (Act) on its face and as applied; 2) determining that the Attorney General’s office (AG) did not act in an arbitrary and capricious manner in carrying out its statutory duties; 3) determining that the Assistant Attorney General’s conduct in negotiating an “assurance of compliance” (AOC) did not constitute fraudulent misrepresentation.

FRIDAY, DECEMBER 3, 2010, subject to call at 9:00 a.m.

S-09-1084, State v. Jay V. Borst (Appellant)

Sarpy County, Judge William Zastera

Attorneys:  Patrick Boylan (Public Defender’s Office) --- Kimberly A. Klein (Attorney General’s Office)

Criminal:  Count I: Manufacture of a Controlled Substance (Marijuana); Count II: Possession of a Controlled Substance (methamphetamine)

Proceedings below:  The court overruled Appellant’s motion to suppress evidence.  After a trial to the court, Appellant was found guilty of both crimes.  He was sentenced 20 months to 4 years on each count, to be served concurrently.  The Court of Appeals affirmed in a memorandum opinion.  Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review:  The Court of Appeals erred in not following State v. Wenke, 276 Neb. 907 (2008) as the State never offered the arrest warrants used to justify Appellant’s arrest.

S-10-0474, Jesus Tapia Reyes v. Excel Corporation (Appellant)

Nebraska Workers’ Compensation Court

Attorneys:  James D. Hamilton, Amanda A. Dutton (Baylor Evnen LLP) (Appellant) --- Pro Se Appellee

Civil:  Benefits awarded for injured employee

Proceedings below:  The trial court found Reyes sustained an accident and injuries arising out of and in the course of his employment and awarded benefits accordingly.  The review panel reversed and remanded for a new trial with a new trial court judge finding that the interpreter used in the trial court had explained or added to witnesses’ testimony while interpreting.  The review panel found this was not harmless error.

Issues:  Appellant argues:  (1) The review panel erred in finding the interpreter had acted improperly in his translation of the trial testimony.  (2) The review panel erred in remanding the matter for a new trial and ordering the case assigned to a different judge.  (3) The review panel erred in overruling the motion to dismiss the July 30, 2009 application for review filed by Reyes former counsel and in consolidating the two appeals and permitting the former attorney to amend his application for review.  (4) The review panel erred in failing to affirm the trial court.

 
S-10-0459, Kenneth Riggs and Leann Riggs (appellants) v. Gary Nickel

 Lancaster County, Judge Jeffre Cheuvront

Attorneys:  John C. Fowles (The Fowles Law Office) and John Lefler (appellants) --- Stefanie F. Stacy and Andrea Snowden (Baylor, Evnen, Curtiss, Grimit & Witt LLP)

Civil:  Negligence

Proceedings Below:  Appellants Kenneth and Leann Riggs brought a claim against appellee Nickel for negligence/personal injury arising out of an accident that occurred on Nickel’s residential property.  The district court granted Nickel’s motion for summary judgment entering an order and judgment in his favor and dismissing appellants’ complaint concluding that there were no genuine issues of material fact in dispute, that Nickel did not owe appellant Kenneth Riggs a duty of care, and that the accident was not forseeable.

Issues:  Whether the district court erred in 1) finding that there were no genuine issues of material fact in dispute; 2) finding that the defendant did not owe Riggs a duty of care; and 3) finding as a matter of law that the alleged accident was not forseeable.