This is our old site, has been decommissioned, and has not been updated since December 31, 2012.
Navigation has been disabled. The content on this page is most likely not current. Go to our new site »

Court Community

Supreme Court Case Summaries

February 3, 4, 5 or 6, 2009

TUESDAY, FEBRUARY 3, 2009, subject to call at 9:00 a.m.

S-07-1271, Hauptman, O’Brien, Wolf & Lathrop v. Louis J. Turco, Jr., and Lucia Turco (Appellants)

Douglas County, Judge J. Michael Coffey

Attorneys: Jeff T. Courtney (Appellants) --- Terry M. Anderson (Hauptman, O’Brien, Wolf & Lathrop) --- Matthew A. Lathrop, Kate E. Placzek (for Amicus Curiae Nebraska Association of Trial Attorneys)

Civil: attorney fee

Proceedings below: This case was previously before this Court. See, Hauptman, O’Brien, Wolf & Lathrop v. Truco, 273 Neb. 924 (2007). On remand, the Appellee filed a motion for summary judgment which was granted by the district court.

Issues: The district court erred in (1) granting the motion for summary judgment as there were genuine issues as to material facts as to the claimed fee; (2) granting the motion for summary judgment as there existed a genuine issue of material fact as to whether the law firm made fraudulent representations to the Appellants and Appellants relied upon those representations to their detriment.

S-08-0841, State (Appellant) v. James A. Lasu

Hall County, Judge William T. Wright

Attorneys: Gail VerMaas, Lynelle Homolka (County Attorney’s Office) (Appellant) --- Gerard A. Piccolo (Public Defender)

Criminal: Count I: Tampering with physical evidence; Count II: Possession of Marijuana, more than an ounce but less than a pound.

Proceedings below: The trial court sustained Lasu’s plea in abatement. The State filed leave to docket an appeal which as granted.

Issues: The district court erred in sustaining the defendant’s plea in abatement and discharging the defendant on Count I of the information.

S-08-183, William McKenna v. Jason Julian and City of Omaha

Douglas County, Judge Thomas Otepka

Attorneys: Daniel W. Ryberg for appellant; Thomas O. Mumgaard, Omaha City Attorney

Civil: Political Subdivision Tort Claims Act; alleged constitutional violations

Proceedings Below: McKenna filed a claim under the Act against Julian, an Omaha police officer, and the City. The claim was denied and withdrawn, and McKenna filed suit. Two separate motions to dismiss for failure to state a claim were filed and granted. McKenna appeals.

Issue on Appeal: Whether constitutional protections of Neb. Const. Art. 1, § 3 and § 7 are self-executing.

S-08-0405, In re Interest of O.S. (Appellant)

Douglas County, Judge J. Russell Derr

Attorneys: Sean M. Conway (Assistant Public Defender) (Appellant) --- Michael W. Jensen (Deputy County Attorney) (for Mental Health Board of the 4th Judicial District)

Civil: Commitment

Proceedings below: The Board found that Appellant was a dangerous sex offender and committed him to secure inpatient treatment. The district court affirmed. Appellant O.S. filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: (1) The Sex Offender Commitment Act, Neb. Rev. Stat. §§ 71-1201 to 71-1226 (LB 1199 (Laws 2006)), (“the Act”), is punitive in nature and retroactive in its application and therefore is an ex post facto law in violation of Article I, section X of the U.S. Constitution and Article I, section 16 of the Nebraska Constitution. (2) The Act is punitive in nature and places Appellant twice in jeopardy for the same offense in violation of Amendment V of the U.S. Constitution and Article I, section 12 of the Nebraska Constitution. (3) The Act allows an alleged dangerous sex offender to be committed following a diagnosis of a personality disorder upon a showing of two or more prior convictions for sex offenses. This is a lower standard than the Nebraska Mental Health Commitment Act, Neb. Rev. Stat. § 71-907 and violates Appellant’s right to equal protection under Amendment XIV, section 1 of the U.S. Constitution, and Article I, section 3 of the Nebraska Constitution. (4) The Act requires that an alleged dangerous sex offender admitted to emergency protective custody be held in a jail or correctional facility. Neb. Rev. Stat. § 71-919 requires an emergency protective custody admittee to be taken to an appropriate medical facility and prohibits placement in a jail. This distinction violates Appellant’s right to equal protection under Amendment XIV, section 1 of the U.S. Constitution and Article I, section 3 of the Nebraska Constitution. (5) The Board erred in finding that Appellant is a dangerous sex offender as defined by Neb. Rev. Stat. § 83-174.01 (LB 1199, § 87). (6) The Board erred in finding that neither voluntary hospitalization nor other treatment alternatives less restrictive of Appellant’s liberty were available or would suffice as required by Neb. Rev. Stat. § 71-1209 (LB 1199 § 65).

S-08-0446, In re Interest of D.V.

Douglas County, Gary B. Randall

Attorneys: Thomas C. Riley, Sean M. Conway (Public Defender’s Office) (Appellant D.V.) --- Michael W. Jensen (Douglas County Attorney’s Office) (for the Mental Health Board of the Fourth Judicial District)

Civil: Commitment

Proceedings below: The Board found that Appellant was a dangerous sex offender and committed him to secure inpatient treatment. The district court affirmed. Appellant D.V. filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Lancaster County, Judge Jeffre Cheuvront

Attorneys: William G. Dittrick, Jennifer D. Tricker (Baird Holm LLP) (Appellants) --- Frederick J. Coffman (Attorney General’s Office)

Civil: Declaratory judgment

Proceedings below: The trial court granted the State’s motion for summary judgment.

Issues: The district court erred in (1) sustaining the State’s motion for summary judgment; (2) finding that the Board visits do not constitute “warrantless administrative searches”; (3) in applying the special needs exception balancing test; (4) finding that the contract between Omni and DHHS somehow diminished constitutional rights; (5) finding that Omni was attempting to collaterally challenge the jurisdiction of certain Nebraska juvenile court judges; (6) dismissing Appellants’ claims against Stitt in her individual capacity; (7) determining that Omni does not have standing to bring this action on behalf of the children in its care.

WEDNESDAY, FEBRUARY 4, 2009, subject to call at 9:00 a.m.

S-07-1205, State of Nebraska ex rel., Counsel for Discipline of the Nebraska Supreme Court (Relator) v. David A. Fournier (Respondent)

Original Action

Attorneys: Kent L. Frobish (Assistant Counsel for Discipline) --- no brief filed on behalf of Respondent

Civil: Attorney discipline

Proceedings below: Respondent failed to file an answer to the formal charges and the court granted the Relator’s motion for judgment on the pleadings.

Issues: What is an appropriate sanction?

S-08-0461, Katherine Leach (Appellant) v. John Dahm et al. (Appellees)

York County --Judge Alan G. Gless

Attorneys: Stacey L. Parr, Svehla, Thomas, Rauert & Grafton, P.C. (Appellant)
Jon Bruning, George R. Love, Nebraska Attorney General's Office (Appellees)

Civil: Habeas Corpus

Proceedings Below: The district court granted the Attorney General's motion to dismiss pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(1). The court found it lacked jurisdiction over the matter, and it declined to rule on the appellant's motion for leave to amend the petition.

Issues: Whether the district court erred (1) in concluding it did not have jurisdiction over Katherine Leach and all questions relating to her incarceration; and (2) in dismissing Leach's petition with prejudice.

A-07-0138 State v. Erick Fernando Vela (Appellant)

Madison County, Judge Patrick G. Rogers

Attorneys: James R.Mowbray, Jeffery A. Pickens, Jerry L. Soucie (Nebraska Commission on Public Advocacy) and Mark D. Albin (for Appellant) --- J. Kirk Brown (Attorney General’s Office)

Criminal: Five counts of first degree murder, five counts of use of a firearm to commit a felony, death penalty imposed.

Proceedings below: A jury found Appellant guilty of all charges and found that five aggravating circumstances existed for each of the murder counts. Following a sentencing hearing, Appellant was sentenced to death for each of the five murder counts.

Issues: (1) The district court erred by denying Mr. Vela's motion to prohibit any jury aggravation proceedings in pursuit of death penalty under authority of LS 1 as being ex post facto legislation in violation of art. I, § 10 of the United States Constitution and art. I, § 16 of the Nebraska Constitution. (2) With regard to aggravating circumstance 1(a), Mr. Vela's right to notice under the Sixth and Fourteenth Amendments to the United States Constitution and art. I, § 11 of the Nebraska Constitution was violated because of the following errors committed by the district court: (a) The denial of Mr. Vela's pre-aggravation trial motion to prohibit submission of specific aggravating circumstances to a jury; (b) The receipt of evidence at the aggravation trial concerning the Lundell homicide; (c) The submission of the aggravating circumstance to the jury; and (d) The denial of Mr. Vela's motion for a new trial. (3) With regard to aggravating circumstance 1(a), the district court erred by failing to define "malice," an essential element of premeditated murder, in violation of the Due Process Clauses of Fourteenth Amendment to the United States Constitution and art I, § 3 of the Nebraska Constitution. (4) With regard to aggravating circumstance 1(a), the district court erred by failing to instruct the jury on the lesser included offenses of premeditated murder, in violation of Neb. Rev. Stat. § 29-2027, the Eighth and Fourteenth Amendments to the United States Constitution, and art. I, §§ 3 and 9 of the Nebraska Constitution. (5) With regard to aggravating circumstance 1(b), the district court erred by failing to identify and define a "crime," for which Mr. Vela was allegedly trying to conceal the identity of the perpetrator and by providing the jury with an instruction that was ambiguous and confusing, in violation of the Due Process Clauses of Fourteenth Amendment to the United States Constitution and art. I, § 3 of the Nebraska Constitution. (6) The district court erred by receiving evidence concerning the actions of Mr. Vela's co‑defendants and by instructing the jury that the alleged aggravating circumstances could be based upon liability as an alder and abettor, in violation of the Eighth and Fourteenth Amendments to the United States Constitution and art. I, § 9 of the Nebraska Constitution and the plain, direct, and unambiguous language of Neb. Rev. Stat. § 29-2523. (7) The district court erred by denying Mr. Vela's amended motion to declare electrocution as method of death unconstitutional, in violation of the Eighth and Fourteenth Amendments to the United States Constitution and art. I, § 9 of the Nebraska Constitution. (8) The district court erred by granting the State's motion to obtain Mr. Vela's medical and psychological records maintained by the Nebraska. Department of Correctional Services and by allowing testimony based upon such records. (9) The district court erred by granting the State's motion for independent evaluation and testing and by receiving testimony and evidence derived from such evaluation and testing, in violation of Fifth and Fourteenth Amendments to the United States Constitution and art. I, § 12 of the Nebraska Constitution. (9) The district court erred by finding that Mr. Vela failed by a preponderance of the evidence to establish that the full scale IQ score of 66 obtained on the Stanford-Binet 5th Edition test administered by Dr. Piersel was a reliably administered intelligence quotient test and that Mr. Vela therefore was not entitled to the statutory presumption of mental retardation. (10) With regard to the order concerning the mental retardation issue, the district court erred in the following respects:(a) By not basing its finding that Mr. Vela had significant subaverage general intellectual functioning, at least in part, on the results of the Stanford-Binet test administered by Dr. Piersel. (b) By requiring Mr. Vela to prove he had "signcant limitations in adaptive functioning" rather than "deficits in adaptive behavior," in violation of Neb. Rev. Stat. § 28-105.01(3) and the distribution of powers provision of art. II, § 1 of the Nebraska Constitution. (c) By failing to find that Mr. Vela had deficits in adaptive behavior. (d)By finding that the imposition of the death penalty is not precluded because of mental retardation, in violation of Neb. Rev. Stat. § 28-105M1(2), the Eighth Amendment to the United States Constitution, and art. I, § 9 of the Nebraska Constitution. (11) The district court erred by failing to grant Mr. Vela's motion to take additional depositions and recuse Madison County Attorney Joe Smith during the depositions, in violation of Neb. Rev. Stat. §§ 29-1917 and 25-1233 and the Sixth and Fourteenth Amendments to the United States Constitution. (12) The district court erred by allowing victim impact testimony at the sentencing determination proceeding, in violation of Neb. Rev. Stat. §§ 29-2521(3) and 29-2261(1). (13) The sentencing panel erred by finding that mitigating circumstance 2(b) did not apply to Mr. Vela, in violation of the Eighth Amendment to the United States Constitution and art. § 9 of the Nebraska Constitution. (14) The sentencing panel erred by finding that mitigating circumstance 2(e) did not apply to Mr. Vela, in violation of the Eighth Amendment to the United States Constitution and art. § 9 of the Nebraska Constitution. (15) The district court erred by refusing Mr. Vela's offer of cases for proportionality review.

S-08-0110, State of Nebraska, ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. Harold Titus Swan (Respondent)

Original Action

Attorneys: Robert B. Creager (Anderson Creager & Wittstruck PC) (Respondent) --- John W. Steele (Assistant Counsel for Discipline)

Civil: Attorney Discipline

Proceedings below: The referee recommended a public reprimand as appropriate discipline for Respondent’s conviction for violating 18 U.S.C. § 1018.

Issues: Whether the conviction is sufficient, in and of itself, to impose discipline under the Code of Professional Conduct?

THURSDAY, FEBRUARY 5, 2009, subject to call at 9:00 a.m.

FEBRUARY 5H ARGUMENTS ONLY TO BE HELD
IN THE UNL COLLEGE OF LAW AUDITORIUM
(Sign-in at UNL prior to arguments)

S-08-0018, State v. William C. Floyd (Appellant)

Douglas County, Judge Thomas A. Otepka

Attorneys: Thomas C. Riley (Public Defender’s Office) --- James D. Smith (Attorney General’s Office)

Criminal: First degree murder and manslaughter of an unborn child

Proceedings below: Appellant was found guilty of both counts by a jury. He was sentenced to life imprisonment on the murder charge and 20 to 20 years, consecutively served, on the manslaughter charge.

Issues: The trial court erred in (1) overruling the Appellant’s objections and evidence of specific events of previous altercations between Appellnat and Shantelle Vickers in violation of Neb. Rev. Stat. §§ 27-403 and 27-404; (2) basing its ruling on the admissibility of the 404 evidence in part on testimony from a previous hearing that was not admitted into evidence at the 404 hearing; (3) using an incorrect definition of the term “clear and convincing evidence” thereby lowering the State’s burden of proving the existence of the facts concerning the allegation of the Appellant’s previous assaultive behavior proffered under Neb. Rev. Stat. § 27-404; (4) refusing to allow Appellant to present evidence of specific acts of violence committed by Vickers; (5) denying Appellant’s motion for mistrial or alternatively denying his motion to strike several prospective jurors for cause on the grounds that a number of prospective jurors had read a highly prejudicial news article in contravention to the court’s admonition against reading news accounts pertaining to the instant trial.

S-08-00166, The City of Papillion, Nebraska (Appellant) v. The County of Sarpy, Nebraska (Cross-Appellant)

Sarpy County, Judge William B. Zastera

Attorneys: Michael N. Schirber, Schirber & Wagner (Appellant); Michael Smith and Kerry A. Schmid, Sarpy County Attorney’s Office

Civil: Annexation

Proceedings Below: The district court granted the county’s application for a temporary restraining order and motion for temporary injunction restraining the city from enforcing city ordinances #1526 (only paragraph 2 of section 1), # 1527, and # 1529.

Issues on Appeal: The city (appellant) asserts that the district court erred (1) in finding that the tracts annexed by Ordinances # 1526 and #1527 were not contiguous or adjacent to the city’s existing city limits pursuant to Neb. Rev. Stat. § 16-117, (2) in permanently enjoining the city from enforcing Ordinances # 1527 and # 1529, and paragraph 2 of section 1 of # 1526, and (3) in entering judgment in favor of the county. The county (appellee) has cross-appealed asserting that the district court erred (1) in failing to enter an order declaring Ordinances # 1526, 1527, and 1529 null and void and (2) in not enjoining the entirety of Ordinance # 1526.

S-08-0281, Estate of Dennis Powell, Douglas Powell and Tracey Powell (Plaintiffs) v. Scott A. Montange, Jerry Sand and Liz Sand (Appellants) v. Sharon Klein (Appellee)

Cass County, Honorable Randall L. Rehmeier

Attorneys: Thomas A. Grennan & Elizabeth M. Callaghan, Gross and Welch (Appellants)—Briand D. Nolan, (Nolan Olan Hansen Lautenbaugh & Buckley, LLP) (Third-Party Defendant/Appellee Sharon Klein)

Civil: Tort—contribution

Proceedings below: The district court granted summary judgment in favor of Klein as to the theory of contribution. The district court overruled Klein’s motion for summary judgment as to the theory of equitable subrogation. Montange/Sands made an oral motion to withdraw their claim for equitable subrogation and the district court entered summary judgment in favor of Klein.

Issues: Did the district court err in (1) granting summary judgment in favor of Klein as to Montange/Sands’ theory of recovery against Klein for contribution; and (2) determining that no genuine issue of material fact existed with regard to Montange/Sands’ claims against Klein on the theory of contribution?

S-07-1338, Roxana Recio (Appellant) v. Michelle Evers

Douglas County, Judge J. Michael Coffey

Attorneys: Kevin J. McCoy (Smith, Gardner, Slusky, Lazer, Pohren & Rogers) (appellant)--Thomas Hoarty (Byam & Hoarty)

Civil: Tortious interference with a business relationship

Proceedings Below: The trial court granted Defendant’s motion for summary judgment.

Issues on Appeal: Whether the court erred (1) in finding that Evers’s sexual harassment complaint was privileged as a matter of law; (2) in finding that there were no disputed material facts or inferences deducible from those facts as to whether Evers acted in bad faith or with malice in charging Recio with sexual harassment; (3) in finding that no issue of material fact precluded summary judgment; and (4) in claiming there was no evidence that Evers interfered with Recio’s employment or caused her harm.

S-07-1072, Grace Marguerite Sears (Appellant) v. Thomas Delbert Sears

Douglas County, Judge James T. Gleason

Attorneys: Edith T. Peebles, Anthony W. Liakos (Brodkey Cuddigan Peebles & Belmont LLP) (Appellant) --- Jerome J. Ortman

Civil: Dissolution of marriage

Proceedings below: The district court ruled on all disputed issues relative to the dissolution and dissolved the marriage of the parties. The Court of Appeals affirmed. See Sears v. Sears, A-07-1072, memorandum opinion issued August 21, 2008. 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) affirming the district court’s insufficient award of alimony; (2) affirming the district court’s finding that each party should pay their own fees and costs.

FRIDAY, FEBRUARY 6, 2009, subject to call at 9:00 a.m.

S-08-0433, State v. Andre D. Robinson (Appellant)

Douglas County, Judge Gregory M. Schatz

Attorneys: Thomas J. Garvey (Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Criminal: Knowing or intentional child abuse resulting in death.

Proceedings below: A jury trial found Appellant guilty of the above crime. He was sentenced to a term of not less than his natural life nor more than his natural life in prison.

Issues: (1) There was insufficient evidence presented by the State to find Appellant guilty. (2) Appellant received ineffective assistance of trial counsel. (3) The trial court incorrectly tendered a supplemental instruction to the jury. (4) The trial court abused its discretion in imposing sentences disproportionate to the crimes. (5) The trial court abused its discretion in imposing sentences that were cruel and unusual. (6) The trial court abused its discretion in imposing excessive sentences. (7) The trial court erred in failing to consider case law factors in imposing a sentence.

S-08-0408, Francisco Dominguez v. Eppley Transportation Servs., Inc., Michael J. Abbott f/k/a/ Michael J. Schmid, and Andi Abbott f/k/a/ Zorica Schmid (Appellants)

Douglas County, Judge Gerald E. Moran

Attorneys: W. Patrick Betterman -- David Domina / Linda Christensen (Domina law group pcllo) (Appellants)

Civil: successor liability, fraudulent conveyance, and piercing the corporate veil.

Proceedings Below: The district court granted Dominguez’ motion for summary judgment concluding that (1) Eppley Transportation was liable for the judgment as the successor corporation of Abbott Transportation, and (2) a transfer of money owed to Abbott Transportation to the Abbotts was void as a fraudulent transfer to the extent necessary to satisfy Dominguez’ judgment. But it concluded there were genuine issues of material fact whether Abbott Transportation was a mere facade for the personal dealings of the Abbotts, the sole shareholders. Dominguez moved the court for an order to dismiss his remaining claims without prejudice and to enter a final judgment under § 25-1315. The final order holding Eppley Transportation and the Abbotts jointly and severally liable for the judgment was entered by the district court.

Issues: Whether the district court erred in (1) concluding that the transfer of money owed to the Abbott Transportation to the Abbotts was a fraudulent transfer, (2) concluding that Eppley Transportation was a mere continuation of Abbott Transportation, and (3) sustaining Dominguez’ motion for summary judgment against the Abbotts and Eppley Transportation.

S-08-0437, Skyline Woods Homeowners Association, Inc., et al. v. David A. Broekemeier, Robin Broekemeier and Liberty Building Corporation (Appellants)

S-08-0438, Paisley, LLC v. Liberty Building Corporation (Appellant)

Cases consolidated on appeal

Douglas County, Judge Peter C. Bataillon

Attorneys: David A. Domina, Brian E. Jorde (DominaLaw Group pc llo) (for Broekemeiers and Liberty Building Corporation) --- James D. Sherrets, Diana J. Vogt (Sherrets & Boecker LLC) (for Skyline Woods Homeowners Association, Inc.; The Villas at Skyline Woods Homeowner’s Association; Reed Emsick, Susan W. Hull, Gary Stoneburg, Jim Baird, Steve Alloway, Larry Pence, Wayne Harty, James Paben) --- James E. Lang, Kathleen M. Foster (Laughlin Peterson & Lang) (for Paisley, LLC)

Civil: Civil Contempt

Proceedings below: David A. Broekemeier was found in contempt of the parties June 13, 2006 joint stipulation which was approved by the court. The trial court awarded attorney fees that related to the contempt proceeding to the Association and Paisley, LLC.

Issues: The district court erred in (1) proceeding without an affidavit of contempt as required by Neb. Rev. Stat. § 25-2121; (2) proceeding without an affidavit of contempt in a second proceeding and without an application for an order to show cause and no order directing compliance; (3) ordering Liberty Building Corp. to be responsible for sanctions for contempt but did not find Liberty Building Corp. to have committed contempt; (4) finding David Broekemeier guilty of contempt for violating a temporary order superseded by the court’s order on the merits; (5) finding elements of contempt were proven beyond a reasonable doubt.

Cross-Appeal by Paisley, LLC: The district court erred in (1) not finding Liberty in contempt of the court along with David A. Broekemeier; (2) stating its March 27, 2008 order that here can be a golf course without the necessity of a large structure for a clubhouse in direct conflict with its final order of August 10, 2007 in which it found the property consisted of a golf course and clubhouse.

S-08-0386, Colleen Cingle, Special Administrator of the Estate of Daniel Luethke (Appellant) v. State of Nebraska (Appellee)

Lancaster County, Judge John A. Colborn

Attorneys: Michael A. Nelsen, Ryan P. Bailey (Hillman, Forman, Nelsen, Childers & McCormack) --- Jon Bruning, Linda L. Willard H. Olson (Attorney General’s Office)

Civil: negligence

Proceedings Below: After a bench trial, the district court found that the State of Nebraska was not negligent in its care of Daniel Luethke.

Issues: Appellant assigns that the district court erred in finding that State of Nebraska employees were not negligent in their handling of Daniel Leuthke while he was in the custody of the Diagnostic and Evaluation Center (D&E) in Lincoln, Nebraska.

S-08‑406, Mary Burnison (Appellant) v. Kathleen Johnston

Sarpy County, Judge William Zastera

Attorneys: William M. Lamson, Jr., Craig F. Martin (Lamson, Dugan and Murray, LLP) (Appellant) ‑‑‑Ronald E. Reagan (Reagan Law Offices, P.C., L.L.O.)

Civil: Contract, unpaid legal fees

Proceedings below: The court held the claims were not assignable, and dismissed the complaint.

Issues: The plaintiff assigns that the court erred in holding that an assignment of a claim for the collection of legal fees was impermissible.

This file last modified Tuesday February 10, 2009 12:55:44