Supreme Court Case Summaries

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

S-10-0748, Joni Mueller v. Lincoln Public Schools (Appellant)

Nebraska Workers’ Compensation Court

Attorneys:  Jon Rehm (Rehn Bennett & Moore PC LLO) --- Riko E. Bishop (Perry Guthery Haase & Gessford PC LLO) (Appellant)

Civil:  Contested calculation of average weekly wage

Proceedings below:  The parties stipulated to the work-related injury and to her hourly wage of $15.27 per hour and that LPS had paid all medical bills. The trial court determined her average weekly wage and determined TTD and awarded future medical care and treatment.  The trial court declined to award vocational rehabilitation due to her termination being for job performance rather than related to her injury.  The review panel affirmed.

Issues:  The trial court erred in (1) its calculation of average weekly wage of a school employee who is paid over 12 months for work performed for a 9 month school year; (2) declining to adopt the court-appointed vocational rehabilitation counselor’s opinion that Appellee’s loss of earning power was 20% using an average weekly wage of $411.49 or 25% based on an annualized average weekly wage of $458.10.

 
S-10-0653, Nebraska Heart Hospital (Appellant) v. Jennifer Bassinger

Nebraska Workers’ Compensation Court

Attorneys:  Tiernan T. Siems (Erickson Sederstrom PCLLO) (Appellant) --- Brody J. Ockander (Rehm Bennett & Moore PC LLO)

Civil:  Determination of benefits for injured employee

Proceedings below:  The trial court dismissed the action.  Upon review, the review panel entered an order of remand.

Issues:  The review panel erred in (1) holding the  trial court applied the incorrect causation standard; (2) holding the trial court erred in finding that there was a causal relationship between her misrepresentations on her pre-employment questionnaire and her latest alleged injury; (3) remanding the matter for further findings on the issue of causation.

Cross-Appeal:  The review panel erred in (1) using a misrepresentation defense that is not in accordance with the worker compensation statutes of Nebraska; (2) remanding this case back to the trial judge.

 
S-10-0537 and S-10-0902, In re Matter of the Trust Created by Henry S. Hansen, Estate of Ruth Elaine Mansfield (Appellant) v. Paula Sue Baird Kaminski and Stephen H. Scholder and Wells Fargo Bank, N.A.

Douglas County Court, Judge Edna R. Atkins

Attorneys: Michael D. McClellan, William E. Gast (Gast & McClellan) (For Appellant) --- M.H. Weinberg (for Remainder persons) ---William R. Johnson (Lamson Dugan & Murray LLP) and Raymond E. Walden (for Wells Fargo Bank, N.A.)

Civil: Trust, declaration of rights under trust; distribution

Proceedings below: This case was previously before this Court.  See In re Trust of Hansen, 274 Neb. 199 (2007) (reversed and remanded with directions).  The trial court made a determination of the rights of the parties under the trust and ordered the Trustee, Wells Fargo Bank, N.A., to distribute the assets.

Issues:  The county court erred in (1) granting summary judgment to Wells Fargo and the Remainder Beneficiaries and dismissing the Estate’s amended petition; (2) misconstruing both the Trust instrument itself and the nature of the Trustee’s duties when it granted relief; (3) finding the Trustee had not breached a fiduciary duty or abused its discretion in refusing to pay the Mansfield Estate’s pre-morbid healthcare expenses from the Trust; (4) construing the language of the Henry S. Hansen Trust to include two separate and distinct “divisions” one for each beneficiary daughters and finding the Estate had no right to invade the principal in the Bonacci Trust; (5) construing the language of the Henry S. Hansen Trust to permit the Trustee the discretion to determine whether or not to support Ruth Mansfield, nothwithstanding the opinion in In re Trust of Hansen, 274 Neb. 199 (2007); (6) concluding that no undue delay was committed by the Trustee in responding the claim made by Mansfield; (7) construing the language of the Henry S. Hansen Trust in such a manner that the Trustee was allowed to take into consideration other assets available to the Ruth Mansfield Estate.

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

S-10-0582, State v. Daniel C. Miller (Appellant)

Douglas County, Judge John D. Hartigan, Jr.

Attorneys:  Michael Bianchi, Gregg Abboud (Appellant) --- James D. Smith (Attorney General’s Office)

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

Proceedings below:  A jury found Appellant guilty of the above crimes.  He was sentenced to life imprisonment with a consecutive ten year sentence for the weapon charge. 

Issues:  The trial court erred in (1) giving a self-defense instruction that misstated the law and confused the jury; (2) admitting improper testimony from Appellant about his involvement in other crimes, specifically selling drugs; (3) not granting a mistrial due to prosecutorial misconduct during closing argument; (4) allowing questioning of Officer Reisbig concerning Appellant’s silence in giving a statement to police; (5) reseating Juror #32 when the defense stated a valid, race-neutral reason.

S-10‑0348, Frederick Skaggs (Appellant) v. Nebraska State Patrol 

Lancaster County, Judge Steven D. Burns

Attorneys:  D.C. Bradford (Bradford & Coenen) (Appellant) ‑‑‑ Stacey M. Foust (Assistant Attorney General) (Appellee)

Civil:  Administrative Procedures Act (Sex Offender Classification)

Proceedings below:  The Lancaster County District Court affirmed the order of the Nebraska State Patrol (NSP) that the Nebraska Sex Offender Registration Act (SORA) was applicable to Frederick Skaggs.  The district court declined to address Skaggs’ constitutional challenge because he did not raise it in his petition for review to the court.

Issues:  Appellant Skaggs assigns that (1) the district court erred in applying the Act to Skaggs, (2) application of the Act to Skaggs is unconstitutional, and (3) the district court erred in refusing to consider the constitutional challenge raised by Skaggs.

S-10-0568, R and B Farms, Inc. v. Cedar Valley Acres, Inc. (Appellant)
 
Boone County, Hon. Michael J. Owens

Attorneys:  John B. McDermott---John C. Hahn, Brent C. Stephenson

Civil:  Contract - Declaratory Judgment - Quiet Title

Proceedings below:  District court found that a mutual mistake had occurred and ordered that land be divided in the manner intended by the parties rather than in the manner provided in the parties’ written agreement.

Issues:  Whether court erred when it admitted evidence related to an alleged mutual mistake, specifically evidence of negotiations and agreements made prior to the written agreement; whether court erred when it found that such evidence was sufficient to prove that a mutual mistake had occurred and required reformation of the written agreement.

S-10-0406, Village of Hallam, a political subdivision of the State of Nebraska v. L.G. Barcus & Sons, Inc., a Kansas corporation (Appellant)

Lancaster County, Judge Robert R. Otte

Attorneys:  William H. Selde (Sodoro Daly &Sodoro PC) (Appellant) --- Neal E. Stenberg and Steven J. Reisdorff

Civil:  Negligence; strict liability

Proceedings below:  The trial court entered summary judgment in favor of the Village in the amount of $66,007.74.  The Appellee/Village filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues:  The district court erred in (1) applying and interpreting Neb. Rev. Stat. § 76-2301 et seq.; (2) granting a remedy to the Village which by its own admission violated Neb. Rev. Stat. § 2318 and 76-2320 and failing to find the Village was barred from seeking relief under the statute; (3) allowing the affidavit of the Village’s expert without proper foundation to establish the actions of Appellant was the sole proximate cause of the damage; (4) finding there was sufficient evidence in the record, when considered in the light most favorable to the Appellant, to contradict any assertion by Village that Appellant was the sole and proximate cause of the damage.

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

FEBRUARY 3rd ARGUMENTS ONLY TO BE HELD
IN THE UNL COLLEGE OF LAW AUDITORIUM
(Sign-in at UNL prior to arguments)

S-09-1151, State v. Thunder Collins (Appellant)

Douglas County, Judge Gary B. Randall

Attorneys:  Steve Lefler (Appellant) --- Erin E. Tangeman (Attorney General’s Office)

Criminal:  Count I:  First degree murder; Count II: Use of a deadly weapon; Count III:  Attempted second degree murder; Count IV:  Use of a deadly weapon; Count V: Assault in the first degree.

Proceedings below:  A jury found Appellant guilty of the above crimes.  He was sentenced on Count I:  Life imprisonment; Count II:  20 to 20 years; Count III:  30 to 50 years; Count IV:  20 to 20 years; Count V:  20 to 20 years.  All sentences were ordered to be served consecutively.

Issues:  The trial court erred in (1) denying Appellant’s motion for directed verdict; (2) sustaining the State’s 404 motion to adduce evidence of a prior relationship between Appellant and the victims; (3) allowing a second amended information to be filed 20 days prior to trial; (4) denying Appellant’s motion for a new trial based on newly discovered evidence; (5) denying his motion for new trial based on failure to sequester witnesses without permission of Appellant; (6) submitting the felony murder charge to the jury.

S-10-0617, In re Interest of D.H., alleged to be a dangerous sex offender

Lancaster County, Judge John Colburn

Attorneys:  Todd Molvar (Public Defender’s Office) --- Bruce J. Prenda (County Attorney’s Office)

Civil:  Commitment, Sex Offender Commitment Act (SOCA)

Proceedings below:  The Mental Health Board determined Appellant was a dangerous sex offender and ordered him committed to inpatient sex offender treatment.  The district court affirmed and found that the SOCA was not unconstitutional.

Issues:  (1) There was insufficient evidence to deem Appellant a dangerous sex offender and commit him to inpatient treatment.  (2) The board erred in overruling Appellant’s motion to dismiss petition pursuant to res judicata.  (3) The Board erred in overruling Appellant’s motion to dismiss for failure to comply with Neb. Rev. Stat. § 83-174.02.  (4) The board erred in overruling Appellant’s motion to dismiss based on ex post facto and double jeopardy.

S-10-0707, In re Application of Nebraska Public Power District, James Choquette, Betty Choquette,  Steven L’Heureux, Stephanie L’Heureux, Eric Boudreau, Brandy Boudreau, Donna Boudreau and Laverne Boudreau, Shirley L’Heureux, Les Gunnare, and Kelly Gunnare (Appellants) v. Nebraska Public Power District; Ron Asche, President and CEO of Nebraska Public Power District
Nebraska Power Review Board

Attorneys:  Adam D. Pavelka (Sullivan Shoemaker Witt & Burns PC LLO) (Appellants) ---John C. McClure, Bonnie J. Hostetler (NPPD) and Kile W. Johnson, Cameron E. Guenzel (Johnson Flodman Guenzel & Widger)

Civil:  Application for proposed electric transmission line

Proceedings below:  The Power Review Board (PRB) decided in favor of the applicant. The Appellee, NPPD, filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues:  The PRB erred in (1) finding NPPD can most economically and feasibly supply the electric service resulting from the proposed construction or acquisition; (2) not conducting its own independent analysis; (3) prematurely making findings in favor of the NPPD before the conclusion of the presentation of evidence and testimony.

S-10-0361, Schropp Industries, Inc., d/b/a PK Manufacturing Corp. and R&C Properties v. Washington County Attorney’s Office (Appellant)

S-10-0831, State of Nebraska ex rel. Washing County Attorney’s Office (Relator) v. Honorable Mary C. Gilbride, Judge , District Court of Washington County, Nebraska, Schropp Industries, Inc., d/b/a PK Manufacturing  Corp. and R&C Properties, a Nebraska LLC, Respondents

Washington County, Judge Mary C. Gilbride

Civil:  Discovery; motion to compel (S-10-0631)

Original Mandamus Action (S-10-0831)

Attorneys:  Shurie R. Graeve (Washington County Attorney) for Appellant/Relator --- Michael F. Coyle, Paul M. Shotkoski, Elizabeth A. Culhane (Fraser Stryker PC LLO) for Appellees/ Respondents

Proceedings below:  Appellee filed a motion for an order to compel compliance with a subpoena issued in the District Court of Washington County.  The subpoena sought Appellant’s investigatory files.  Appellant filed a mandamus action to address whether the investigatory file was protected from discovery.  The trial court found the documents sought by Appellee were not protected and were provided to Appellee.  The Court of Appeals dismissed Appellant’s appeal for lack of jurisdiction under Neb. Ct. R. 2-107(A)(2).  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 decision of the trial court was not a final order for purposes of appeal; (2) finding Appellant’s remedy lies in filing a mandamus action with the Supreme Court.

FRIDAY, FEBRUARY 4, 2011, subject to call at 9:00 a.m.

S-10-0278, State v. Donald L. Sidzyik (Appellant)

Douglas County, Judge Patricia A. Lamberty

Attorneys:  Chad M. Brown/ J. Jorgensen (Appellant) --- George R. Love (Attorney General’s Office)

Criminal:  Plea; second degree sexual assault

Proceedings below:  Appellant entered a no contest plea to the charge of second degree sexual assault.  He was sentenced 18 to 20 years in prison.  The Court of Appeals sustained the State’s motion for Summary Affirmance.  Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.  Case ordered to proceed to oral argument.

Issues on Review: The court of Appeals erred in summarily affirming the sentence imposed by the trial court.

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

Sarpy County District Court, Judge William B. Zastera

Attorneys:  Theodore R. Boecker, Jr., (Appellant); James B. Cavanaugh & Brittney J. Krause 
 
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-09-0567 and S-09-0820 and S-10-0380 (consolidated), State of Nebraska, ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. Peter T. Thew (Respondent)

Original Action

Attorneys:  Robert Wm. Chapin, Jr. (Respondent) --- Kent L. Frobish (Assistant Counsel for Discipline)

Civil:  Attorney discipline

Proceedings below:  The parties stipulated that the attorney violated his oath of office and each the corresponding provisions of the Nebraska Rules of Professional Conduct.

Issue:  The relator contends that the referee’s recommended period of suspension is too lenient for the admitted misconduct.

S-10-0556, State v. Samantha A. Shambley (Appellant)

Madison County, Judge Robert B. Ensz

Attorneys:  Melissa A. Wentling (Public Defender) --- George R. Love (Attorney General)

Criminal:  Possession of a controlled substance—morphine

Proceedings below:  The trial court terminated Appellant from drug court and sentenced Appellant to a term of 90 days.  Appellee filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues:  The lower court erred in (1) terminating Appellant from drug court without affording her due process of law in violation of the 14th Amendment to the United States Constitution and Nebraska Constitution; (2) placing the burden of proof on Appellant to show why she should not be terminated from drug court thereby violating her rights to due process of the 14th Amendment to the United States Constitution and Nebraska Constitution.

S-10-0043, Brook Valley Limited Partnership, a Nebraska Limited Partnership, and Brook Valley II Limited Partnership, a Nebraska Limited Partnership (Appellants) v. Mutual of Omaha Bank, f/k/a/ Nebraska State Bank of Omaha, a state banking institution, Omaha Financial Holdings, Inc., a Nebraska Corporation, Successor to Midlands Financial Services, Inc., a Nebraska Corporation and Omaha Financial Holdings, Inc., a Nebraska Corporation (Appellees)

Sarpy County, Judge David K. Arterburn

Attorneys:  Michael J. Mooney, Francie C. Riedmann (Gross & Welch P.C., L.L.O.) (Appellants) --- James B. Cavanagh (Lieben Whitted Houghton Slowiaczek & Cavanagh P.C., L.L.O.)

Civil:  Conversion, breach of fiduciary duty, collusion, failure to comply with commercially reasonable standards

Proceedings below:  The trial court found the Limited Partners failed to comply with the requirements of the Limited Partnership Agreements in removing the General Partner and therefore, the Partnerships did not have standing to bring the action.  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) dismissing plaintiffs’ complaint based on defendants’ argument that the Limited Partners failed to comply with the removal requirements of the Limited Partnership Agreements because the defendants were not signators to those agreements and therefore lacking standing to raise the issue of compliance; (2) not finding that the General Partner involuntarily withdrew, either when it filed bankruptcy or when it unlawfully dissociated from the Limited Partnerships; (3) finding the General Partner was not properly removed.