Supreme Court Case Summaries

February 7, 8, 9, or 10, 2012

TUESDAY, February 7, 2012, subject to call at 9:00 a.m.

S-11-0614, In re Estate of Virginia Lee Cushing; Lawrence Cushing, Jr., personal representative (Appellant) v. Nebraska Department of Health and Human Services
 
Douglas County Court, Hon. Craig Q. McDermott

Attorneys:  Hugh I. Abrahamson (Appellant) ---Ronald L. Sanchez, Special Asst. Attorney General

Civil:  Probate; repayment of medical benefits

Proceedings below:     County court granted DHHS’ motion for summary judgment after determining that DHHS timely filed its claim against the Estate for repayment of Medicaid benefits. County court ordered interest on the claim commencing November 1, 2010.

Issues: Whether DHHS timely filed its claim against the Estate for repayment of medical benefits; whether claim for repayment of Medicaid benefits arises “before” or “at or after” the date of death; whether court erred when it awarded interest to commence November 1, 2010, rather than 60 days after DHHS presented its claim on January 18, 2011.

S-11-0616, In re Interest of Noah B. and Karlie D.

Separate Juvenile Court for Douglas County, Judge Vernon Daniels

Attorneys: Christine P. Costantakos (Appellee Martha D., grandmother) --- Amy Schuchman (County Attorney’s Office) (Appellant)

Civil: Guardianship

Proceedings below: The case was previously before the Court of Appeals. See In re Interest of Karlie D., 19 Neb. App. 135 (2011) (appeal dismissed). In the previous appeal, the State attempted to appeal the finding of the juvenile court that the grandmother was a reputable citizen of good moral character but without an order removing the State from the proceedings or appointing the grandmother as guardian.

In the instant appeal, the juvenile court ruled on the motion for guardianship through alternative disposition finding that the grandmother Martha D. was a citizen of good moral character, that permanency placement with Martha D. would not be inconsistent with the best interest, safety and welfare of Karlie and found that the transition plan prepared by NDHHS was consistent with the best interest, safety and welfare of the minor child.

Issues: The separate juvenile court erred in finding by a preponderance of the evidence that it would be consistent with the best interests, safety and welfare of Karlie if permanency occurred with Martha D.
 

S-11-0516, Valara Mamot (appellant) v. Kevin Mamot (appellee/cross-appellant)

Howard County District Court—Judge Mark D. Kozisek

Attorneys: Sam Grimminger (appellant)—Barry D. Geweke of Stowell, Kruml & Geweke, P.C., L.L.O. (appellee)

Civil: Dissolution; premarital agreement

Proceedings Below: As part of the dissolution, the court concluded that the parties’ premarital agreement was valid and enforceable.

Issues: Valara assigns as error:
1) the court erred in failing to find that the premarital agreement was not a valid enforceable contract; 2) the court erred in failing to find that Valara voluntarily executed the premarital agreement; 3) the court erred in failing to find that Valara was provided a fair and reasonable disclosure of the property or financial obligations of Kevin; 4) the court erred in finding that Valara had adequate knowledge of the property or financial obligations of Kevin;  5) the court erred in finding that Kevin did not refuse to provide information regarding his property and financial obligations to Valara; 6) the court erred in finding that Kevin did not hide from Valara information regarding his property and financial obligations; 7) the court erred in failing to find that Valara was surprised in the presentation of the premarital agreement; 8) the court erred in failing to find that Valara did not have adequate opportunity to consult legal counsel concerning the premarital agreement draft prior to execution; 9) the court erred in failing to find that property and values accumulated during the course of the marriage constituted marital property and award the same to the parties in a fair and equitable manner.

Cross-appeal, Kevin assigns: 1) the trial court erred in finding the premarital agreement defied the basic underpinnings of the marital relationship and as written made Valara an “indentured servant”; 2) the trial court erred in finding that the premarital agreement was unconscionable;
3) the trial court erred in not using a five year average of income with commodity trading gains and losses accounted for in calculating Kevin’s monthly income for child support purposes; 4) the trial court erred in determining that Kevin’s monthly income for child support purposes was $ 19,357.00; 5) the trial court erred in the percentage allocations of child-care expenses and unreimbursed health care expenses.

S-11-0373, Southwind Homeowners Association (Appellee) v. David Burden and Wilai Burden (Appellants)

Sarpy County, Judge Max J. Kelch

Attorneys:       Marion F. Pruss (Appellants) --- Larry R. Forman (Hillman, Forman, Childers & McCormack) (Appellee)

Civil:   Construction and Enforcement of a Restrictive Covenant

Proceedings Below:    The district court granted the Association’s motion for summary judgment, finding that the Burdens were operating a child care business out of their home in violation of the applicable restrictive covenant.

Issues on Appeal: The Burdens assigned as error the granting of the Association’s motion for summary judgment. 
 

WEDNESDAY, February 8, 2012, subject to call at 9:00 a.m.

S-11-0533, Republic Bank, Inc. (Appellant) v. Lincoln County Board of Equalization

Tax Equalization and Review Commission

Attorneys: Tim W. Thompson, Angela R. Shute (Kelley Scritsmier & Byrne PCLLO) (Appellant) --- Joe W. Wright (County Attorney’s Office)

Civil: Civil: Taxable value of personal property

Proceedings below: Proceedings below: TERC ruled that it did not have subject matter jurisdiction to hear the appeal because Prime Alliance’s appeal was not timely filed.

Issues: TERC erred in (1) dismissing Appellant’s appeal for lack of jurisdiction; (2) determining the appeal was not timely filed; (3) not determining the merits of Appellant’s appeal.

S-11-0526, Prime Alliance Bank, Inc. a Utah Corporation (Appellant) v. Lincoln County Board of Equalization

Tax Equalization and Review Commission

Attorneys: Nicholas K. Niemann, Matthew R. Ottemann (McGrath North PCLLO) (appellant) --- Joe W. Wright (County Attorney’s Office)

Civil: Taxable value of personal property

Proceedings below: TERC ruled that it did not have subject matter jurisdiction to hear the appeal because Prime Alliance’s appeal was not timely filed.

Issues: TERC erred in (1) failing to find Appellant’s protest to the Board was filed pursuant to Neb. Rev. Stat. § 77-1502 so the appeal of that decision would be governed under § 77-1510; (2) failing to rule Appellant timely filed its appeal with TERC; (3) finding that § 77-1233.06 applied; (4) failing to find that the valuation change to the Alaqua Columns for tax year 2010 as unilaterally imposed by the Assessor and affirmed by the Board contradicted 350 Neb. Admin. Code 20-006; (5) failing to reverse the decision of the Board and ruling the 2010 taxable value of the Alaqua Columns is $0.

S-10-0973, Jennifer L. Dalby (Appellant) v. Matthew D. Bock (Appellee)

Douglas County, Judge John Hartigan

Attorneys: Amy Sherman Geren (for Appellant) --- Brent M. Kuhn (Harris Kuhn LLP)

Civil: Dissolution

Proceedings below: The district court issued a decree dissolving the marriage of the parties. The Court of Appeals affirmed. See Dalby v. Bock, 19 Neb. App. 210 (2011). Appellant Dalby 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 order of the trial court ordering Appellant to file a joint tax return with Appellee; (2) affirming the ruling of the trial court in calculating the equity in the marital home that was subject to division; or in the alternative affirming the trial court’s decision that the parties’ homes owned prior to the marriage constitute their separate property.

S-11-0575, Timothy E. Meyers (Appellant) v. LSI Temporary Services of Omaha, LLC, and the Nebraska Commissioner of Labor

Lancaster County, Judge Robert R. Otte

Attorneys: Patricia A. Knapp (Civil Clinical Law Program, UNL College of Law) and Adam Morfeld and Nicholas Theielen (Senior Certified Law Students) (Appellant) --- John H. Albin, Thomas A. Ukinski (for Commissioner of Labor)

Civil: Denial of unemployment benefits

Proceedings below: The Nebraska Appeal Tribunal found Appellant was disqualified from unemployment benefits for voluntarily leaving his job without good cause under Neb. Rev. Stat. § 48-628(1)(a). The district court affirmed.

Issues: Appellant argues the following in the argument section: (1) Being called to active duty by the U.S. Military constitutes “good cause” for leaving employment; (2) Appellant left his employment under legal compulsion and therefore left involuntarily; (3) Appellant’s resignation three weeks prior to his deployment should not disqualify him from receiving benefits.

THURSDAY, February 9, 2012, subject to call at 9:00 a.m.

FEBRUARY 9th ARGUMENTS ONLY TO BE HELD
IN THE UNL COLLEGE OF LAW AUDITORIUM
(Sign-in at UNL prior to arguments)

S-11-0464, State v. Brandon D. Reinhart (Appellant)

Boone County, Judge Michael J. Owens

Attorneys: Jerrod P. Jaeger (Appellant) --- Carrie A. Thober (Attorney General’s Office)

Criminal: Count I: Use of a Minor to Distribute a Controlled Substance, and Count II: conspiracy to commit the same.

Proceedings below: A jury found Appellant guilty on both counts. He was sentenced 3 to 5 years on each count, to be served concurrently.

Issues: The trial court erred in (1) convicting and punishing Appellant to multiple punishments for the same offense in violation of Double Jeopardy; (2) finding sufficient evidence to sustain the convictions; (3) overruling Appellant’s objection to hearsay evidence. Appellant also assigns as error he received ineffective assistance of counsel.

 
S-10-1015, In re Interest of Jesse M., Christian M., and Haley M.

Separate Juvenile Court for Douglas County, Judge Vernon Daniels

Attorneys: Nicholas E. Wurth (Public Defender’s Office for Appellant, Evette M., natural mother) --- Paulette Merrell (County Attorney’s Office) --- Martin A. Cannon (Guardian ad Litem)

Civil: Placement of minor children

Proceedings below: The trial court did not order placement of the children in the mother’s home. The trial court modified the rehabilitation plan to include the goal of addressing the injuries to Jesse M. The Court of Appeals affirmed. See In re Interest of Jesse M. (Memorandum Opinion issued September 27, 2011). Appellant Evette M. filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: (1) The Court of Appeals erred in finding the placement of the minor children in the home of Appellant was not in the best interests of the children. (2) The Court of Appeals erred in finding that the presumption that the Department’s case plan was in the best interests of the children was overcome by a preponderance of the evidence. (3) The Court of Appeals erred in applying an abuse of discretion standard to the trial court’s order rather than de novo review.

S-11-0553 and 11-0532, In re Interest of Shaleia M. (consolidated)

Separate Juvenile Court for Douglas County, Judge Elizabeth G Crnkovich

Attorneys: Carla Heathershaw Risko (Special Assistant Attorney General for NDHHS) (Appellant) --- Allyson A. Mendoza (Public Defender’s Office for Shaleia M.)

Criminal: continued disposition

Proceedings below: The trial court committed the youth to the Office of Juvenile Services (OJS) for placement Youth Treatment and Rehabilitation Center (YRTC) in Geneva. DHHS argued that this terminated the court’s jurisdiction and thus, the court was without jurisdiction when it entered a subsequent order purporting to vacate the previous order of commitment.

Issues: (1) The separate juvenile court erred in entering a subsequent order after terminating its jurisdiction over the case. (2) The matter is now moot by virtue of the youth’s discharge from OJS.

S-11-0422, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court v. David M. Walocha (Respondent)

Original Action

Attorneys: Kent L. Frobish (Assistant Counsel for Discipline) --- Robb N. Gage (for Respondent)

Civil: Attorney discipline

Proceedings below: Respondent was charged with practicing law during the time his license was suspended for nonpayment of membership dues with the Nebraska State Bar Association. Respondent admitted all allegations against him.

Issue: What is the appropriate sanction?

FRIDAY, February 10, 2012, subject to call at 9:00 a.m.

S-11-0558, State v. William D. Kinser, Jr. (Appellant)

Scotts Bluff County, Judge Randall L. Lippstreu

Attorneys: Brian J. Lockwood (Public Defender) --- Kimberly A. Klein (Attorney General)

Criminal: Count I: Operating a motor vehicle to avoid arrest; Count II: Driving Under Revocation; Habitual Criminal

Proceedings below: A jury found Appellant guilty of Counts I and II. He was found to be a habitual criminal and sentenced 18 to 30 years in prison with a concurrent term of 6 months for driving under revocation. His license was revoked for 3 years.

Issues: The trial court erred in (1) finding Appellant is a habitual criminal; (2) erroneously sentencing the Appellant in a manner in which the intent of the trial court is frustrated by the habitual criminal statute.

S-11-0561, Jeffrey P. Bulduc v. Amy E. Long (Appellant) v. Todd J. Withrow (Cross-Appellant)

Sarpy County, Judge Max Kelch

Attorneys: Anthony W. Liakos (Govier & Milone LLP) (Appellant) --- Phillip G. Wright (for Appellee/Cross-Appellant Todd J. Withrow)

Civil: Application to modify custody order

Proceedings below: The trial court granted Withrow’s motion to intervene. After a trial, the court awarded custody of the minor child to Withrow and granted specific visitation to Appellant and to Appellee Bulduc and changed the minor child’s last name. However, the trial court did grant Bulduc’s motion to stay enforcement of custody during pendency of the appeal and awarded specific visitation to Appellant and Appellee Withrow.

Issues: The district court erred in (1) granting Withrow’s amended motion to intervene; (2) determining that Neb. Rev. Stat.§ 25-2002 governed Withrow’s complaint to set aside decree of paternity; (3) setting aside the decree of paternity entered on October 26, 2001; the Order of Modification entered on July3, 2002; and the Order of Modification entered on January 12, 2006; (4) determining Withrow’s Complaint was timely filed under Neb. Rev. Stat. § 25-2008; (5) awarding custody of the minor child to Withrow; (6) failing to give sufficient consideration to the testimony of the minor child; (7) changing the minor child’s surname.

S-10-1246, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court v. Joseph Lopez-Wilson (Respondent)

Original Action

Attorneys: John W. Steele (Assistant Counsel for Discipline) --- Joseph Lopez-Wilson

Civil: Attorney Discipline

Proceedings below: The Referee found that the respondent’s conduct violated Neb. Ct. R. of Prof. Cond. § 3-501.1. The Referee recommended a public reprimand. No exceptions were taken.

Issues: What is the appropriate sanction?