S-08-0781, State v. James L. Branch (Appellant)
Douglas County, Judge W. Mark Ashford
Attorneys: Mary C. Gryva (Frank & Gryva PC LLO) (Appellant) --- George R. Love (Attorney General’s Office)
Criminal: Robbery and kidnapping
Proceedings below: A jury trial found Appellant guilty of the above crimes. He was sentenced 40 to 50 years for robbery and a sentence of not less than life nor more than life for kidnapping.
Issues: (1) The evidence adduced at trial was insufficient to sustain verdicts to kidnapping and robbery. (2) The district court erred in overruling Appellant’s motion for a directed verdict thereby allowing trial to proceed to submission to the jury. (3) The sentence of 40 to 50 years ordered by the court for Count I, robbery, was excessive.
S-08‑0303, Robert E. Taylor (Appellee) v. Leatha L. Taylor and Shirley J. Little
Wheeler County, Judge Karin Noakes
Attorneys: Galen E. Stehlik (Lauritsen, Brownell, Brostrom, Stehlik, Myers & Daugherty, P.C.) (Appellants) ‑‑‑Forrest F. Peetz (Peetz Law P.C., L.L.O.)
Proceedings below: The district court confirmed the sale and apportioned the proceeds, without considering the defendant’s “construction lien,” and awarded attorney fees to plaintiff’s counsel.
Issues: The defendant assigns that the trial court erred in (1) determining that the defendant’s lien was not an encumbrance on the real estate and not proper under the Nebraska Construction Lien Act, and (2) awarding to the plaintiff’s attorney the entire amount of his bill for services provided to plaintiff during his representation.
S-08‑0339, State of Nebraska, ex. Re. Adams County Historical Society (Appellant) v. Nancy Kinyoun (Appellee/Cross-Appellant)
Adams County, Judge Terri S. Harder
Attorneys: Thomas R. Burke, Pro Hac Vice (Davis Wright Tremaine L.L.P.) and Shawn D. Renner (Cline, Williams, Write, Johnson & Oldfather, L.L.P.) (Appellant) ‑‑‑Paul M. Kaufmann (Nebraska Department of Health and Human Services Operations, Legal and Regulatory Services) (Appellee)
Civil: Writ of Mandamus: Disclosure of Public Records
Proceedings below: A trial was had regarding whether the court should issue a Writ of Mandamus compelling Kinyoun to reveal the names of persons buried in the Hastings Regional Center (HRC) cemetery between 1889 and 1957. The court denied ACHS’s request for Mandamus concluding that the information sought was protected by HIPAA and excluded certain evidence but made no determination as to whether Mandamus is the proper remedy in this case. ACHS appealed and Kinyoun cross-appealed.
Issues: Did the court err in (1) determining that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) justified Kinyoun’s decision to withhold burial records from the public notwithstanding HIPAA’s express exemption for public records that must be disclosed under Nebraska’s public records statutes; (2) failing to analyze whether the requested burial records from HRC are exempt from disclosure under Nebraska’s public records statutes; (3) sustaining hearsay and relevancy objections to the admission of a declaration pursuant to § 82-108; and (4) in sustaining hearsay and relevancy objections to burial records from a similarly situation cemetery in Hastings, Nebraska?
On cross appeal, Kinyoun assigns as error the court’s failure to address the jurisdictional argument about whether Mandamus is an available remedy.
S-08-0449, S-08-0450, S-08-0451) State v. John L. Lotter (Appellant) (cases consolidated for briefing and disposition)
Richardson County, Judge Daniel E. Bryan
Attorneys: Andre R. Barry (Cline Williams Wright Johnson & Oldfather LLP) (Appellant) --- J. Kirk Brown (Solicitor General, Attorney General’s Office)
Civil: Postconviction, death penalty
Proceedings below: The district court denied Appellant’s motion for postconviction relief without an evidentiary hearing.
Issues: The district court erred in (1) failing to grant Appellant a new trial or, at a minimum, to hold an evidentiary hearing to determine whether Marvin Thomas Nissen gave perjured testimony at Appellant’s trial; (2) failing to grant Appellant a new trial, or at a minimum, to hold an evidentiary hearing to determine whether the prosecution knew or should have known about Nissen’s perjury at the time of trial; (3) denying Appellant’s request for postconviction relief on the grounds that Nissen’s trial testimony was coerced by the threat of cruel and unusual punishment.
S-08-0520, Harvey et al. (Appellants) v. Nebraska Life and Health Insurance Guaranty Association (Appellee)
Lancaster County, Judge Jodi L. Nelson
Attorneys: David D. Begley (Appellants)--- Shawn D. Renner (Cline Williams) (Nebraska Life and Health Ins. Guaranty Assn.) --- Timothy R. Engler (Harding Schultz) (Amicus Curiae National Organization Life/Health Ins. Assn.) --- Steven D. Davidson (Baird Holm) (Amicus Curiae American Council Life Insurers)
Civil: contracts; Nebraska Life and Health Insurance Guaranty Association Act
Proceedings Below: On motion for reconsideration of a summary judgment order, the district court granted Appellee’s motion for partial summary judgment on the issue of liability only and denied the Appellants’ motion for partial summary judgment.
Issues: Appellants assign that the district court erred: (1) in deciding that the contracts and transactions were exempt from coverage by § 44-2703(2)(b)(i) of the Nebraska Life and Health Insurance Guaranty Association Act (NLHIGAA); (2) in granting Appellee’s motion for summary judgment; and (3) in reconsidering and reversing the result which sustained Appellant’s motion for partial summary judgment.
Appellees cross appeal and assign that the district court erred in holding that (1) Future First is a “member insurer” for purposes of the Act; and (2) the PRAs executed by Appellants are “supplemental contracts” for purposes of the Act.
S-08-0598, State v. Abram L. Payan (Appellant)
Lancaster County, Judge Steven D. Burns
Attorneys: Robert G. Hays (Public Defender’s Office for Appellant) --- Kimberly A. Klein (Attorney General’s Office)
Criminal: Count I: first degree sexual assault of a child; Count II: first degree false imprisonment
Proceedings below: A jury found Appellant guilty of both crimes. He was sentenced for 18-25 years on Count I and 5 to 5 years on Count II. The sentences were ordered to be served concurrently with each other but consecutive to sentences imposed in CR04-921 and CR08-288. Both parties filed Petitions to Bypass the Court of Appeals which were granted by the Nebraska Supreme Court.
Issues: The district court erred in (1) finding Appellant is subject to the lifetime sex offender registration; (2) finding that Appellant subject to lifetime supervision by the Office of Parole Administration; (3) imposing an excessive sentence.
S-08-0481, Lucille Kilgore (Appellee/Cross-Appellant) v. Nebraska Department of Health and Human Services and State of Nebraska (Appellants)
Douglas County, Judge Marlon A. Polk
Attorneys: Frederick J. Coffman, Stephanie Caldwell (Attorney General’s Office) (Appellants) --Raymond Aranza, Leanne A. Gifford (Scheldrup Blades Schrock Sand Aranza PC)
Civil: Fair Labor Standards Act, Equal Pay Act, Adult Protective Services Act, breach of a fiduciary relationship, negligence, unjust enrichment, breach of contract, equal protection
Proceedings below: The district court found the Department of Heath and Human Services and the State of Nebraska were liable to Kilgore on all claims except equal protection. The district court found she was entitled to damages in the amount of $447,005.
Issues: The district court erred by (1) concluding that Kilgore was an “employee” within the meaning of the Fair Labor Standards Act; (2) by concluding Kilgore was entitled to relief under the Equal Pay Act; (3) awarding Kilgore relief under the theory of unjust enrichment; (4) awarding damages that violate the Equal Pay Act’s statute of limitations; (5) finding the State and HHS liable while dismissing allegations against Kilgore’s immediate supervisor.
Cross-Appeal: The State and the Department of Health and Human Services are liable under the Adult Protective Services Act and under the theory of negligence.
S-08-0409, In re Interest of Sylena M., a Child Under Eighteen Years of Age, State v. Adam M. (Appellant)
Separate Juvenile Court for Lancaster County, Judge Linda Porter
Attorneys: Steve Williams (Recknor Williams & Wertz) (for Adam M., natural father, Appellant) --- Alicia Henderson (County Attorney’s Office)
Civil: Denial of visitation
Proceedings below: The trial court suspended Appellant’s visitation with the minor child. The Court of Appeals dismissed the appeal for failure to respond to the court’s order to show cause. The case was dismissed for lack of jurisdiction under Neb. Ct. R. App. P. § 2-107(A)(2). Appellant filed a motion for rehearing which was overruled. Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.
Issues on Review: The Court of Appeals erred in dismissing the appeal for lack of jurisdiction.
S-08-0357, Patricia C. Tolliver et al. (Appellants) v. Visiting Nurse Association of the Midlands (Appellee)
Douglas County, Judge Sandra L. Dougherty
Attorneys: David A. Domina, Linda S. Christensen (DominaLaw Group PC LLO); David L. Welch, Lisa M. Meyer (Pansing Hogan Ernst & Bachman LLP)
Proceedings Below: The jury returned a verdict in favor of Appellants on their professional negligence claim and awarded damages in the amount of $12,500.
Issues: Appellants contend that they were entitled to have misrepresentation and concealment claims submitted to the jury and to recover damages for their mother’s suffering, emotional distress, and mental anguish. Appellants also assign that the district court abused its discretion by excluding expert testimony Appellants claim would establish that the decedent suffered cognizable pain because decedent was not medicated according to her medical care plan.
S-08-0745, Richard Bowker (Appellant) v. Double “O” a/k/a L.F.C., LLC and Wausau Insurance Company
Nebraska Workers’ Compensation Court
Attorneys: James J. Paloucek (Norman Paloucek & Herman) (Appellant) --- Matthew E. Thurber
Civil: Workers’ Compensation
Proceedings below: The plaintiff’s second petition sought an award of attorney fees and penalties under Neb. Rev. Stat. § 48-125. The trial court found it lacked jurisdiction to ward the requested attorney fees and penalties. The review panel affirmed. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: The review panel erred in affirming the trial court’s determination that it lacked jurisdiction to award penalties and attorney fees under Neb. Rev. Stat. § 48-125.
THURSDAY, MARCH 5, 2009, subject to call at 9:00 a.m.
S-07-0119, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, Relator, v. Phillip G. Wright, Respondent
Attorneys: Clarence E. Mock, III, Denise E. Frost (Johnson & Mock) ---Kent L. Frobish (Asst. Counsel for Discipline)
Civil: Attorney Discipline
Proceedings below: The referee found violations of the Code of Professional Responsibility, Rules of Professional Conduct and oath of office under Neb. Rev. Stat. § 7-104 (Reissue 1997). The referee recommended that Wright’s license be suspended for one year followed by 2 years of probation. The referee also recommended that Wright be ordered to disgorge and repay total fees of $5675.66 to two of his clients and that he pay the costs and fees associated with this action.
Issues: Wright takes exception to the referee’s findings that (1) testimony concerning paying the law firm’s bills was not credible; (2) Wright committed ethical violations by untimely payments to creditors from when Wright obtained goods or services in certain cases; (3) Wright committed ethical violations by failing to timely refund moneys due to clients; (4) Wright violated disciplinary rules; (5) Wright collected a fee in excess of his contractual relationship in the Bryan case; (6) Wright comingled his own funds with those of his client; (7) Wright received an excessive fee in the Social Security and workers compensation cases for his client; (8) Wright should disgorge and repay the sum of $1035 a client; (9) Wright should disgorge and repay $4640 to a client; (10) Wright committed willful acts of disregarding the impact of his acts on his clients and as such must be accounted for to deter others; (11) Wright has tarnished the reputation of the Bar by his actions and that the public deserves protection from Wright; (12) Wright did not accept responsibility for his conduct; (13) Wright should be suspended from the practice of law for one year and probation for 2 years and pay the costs and expenses of this action.
S-08-0626, Andrea Lacey v. State of Nebraska, Dept. of Correctional Services (appellant)
Lancaster County, Judge Karen Flowers
Attorneys: Kathleen Neary – Ryan Gilbride (Attorney General’s Office for Appellant)
Civil: Sexual harassment, retaliatory firing and failure to rehire claims under the Nebraska Fair Employment Practices Act and Title VII of the Civil Rights Act.
Proceedings Below: During trial, the district court denied the State’s motion for a directed verdict. The jury returned verdict forms showing that it found for the State on both of Lacey’s retaliation claims and found for Lacey on her sexual harassment claim. It awarded her $60,000 in compensatory damages and no damages for lost wages. The district court awarded Lacey attorney fees and denied the State’s motions for a new trial and judgment notwithstanding the verdict.
Issues: Whether the district court erred in (1) overruling the State’s motion for a directed verdict and (2) overruling the State’s motions for a new trial and directed verdict, despite the State’s arguments that the evidence did not support the judgment and the damages were the result of passion and prejudice.
S-08-0836, Jon Obermiller (Appellant) v. Peak Interest LLC, d/b/a Pizza Hut and TIG Insurance Company
Nebraska Workers’ Compensation Court
Attorneys: Nicole M. Mailahn (Jacobsen Orr Helson Lindstrom & Holbrook PC LLO) --- Bill Lamson (Timmermier Gross & Prentiss)
Civil: Dismissal of petition
Proceedings below: The trial court found Appellant failed to file his petition within the time frame allotted under Neb. Rev. Stat. § 48-137. The review panel affirmed.
Issues: The review panel erred in (1) affirming the trial court’s holding that Appellant failed to file his petition within the 2 year limit set by Neb. Rev. Stat. § 48-137; (2) affirming the trial court’s order sustaining Appellees’ motion for summary judgment.
S-07-0942, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, Relator v. David S. Wintroub, Respondent
Attorneys: Melvin C. Hansen, Brian C. Hansen (Nolan Olson Hansen Lautenbaugh & Buckley LLP) (Respondent) --- John W. Steele (Asst. Counsel for Discipline)
Civil: Attorney discipline
Proceedings below: The referee filed his Report and Recommendation recommending that Respondent be suspended for 3 years. Respondent takes exceptions to the recommendation.
Issues: The referee erred in (1) finding that the Respondent failed to follow through in getting a decree entered by the district court regarding Count 1; (2) finding that Respondent did not adequately represent a client and did not refund any portion of the advance fee payment as set out in Count 2; (3) finding that Respondent violated DR6-101 by failing to file a Complaint in a client’s matter for over a year after he had been retained as set forth in Count 3; (4) finding that Respondent violated Rule 1.3 and Rule 1.4 in regard to the allegations concerning a client as set forth in Count 6; (5) asserting that the Respondent accepted fees from a client after he was aware he had been suspended from the practice of law; (6) finding Respondent violated Rule 8.4 in attempting to collect a debt for a client as set forth in Count 7; (7) finding that the Respondent failed to refund fees for work which he did not do regarding 2 clients as set forth in the referee’s recommendations; (8) finding Respondent’s testimony about the need to have a license to collect debts unworthy of credibility as set forth in the referee’s recommendation; (9) citing as a basis for his decision previous disciplinary cases involving Respondent which have either been dismissed or for which a final determination has not been made; (10) stating as a basis for his decision that the Respondent presented no evidence to corroborate his testimony on the work he did in connection with complaints by former clients; (11) recommending an unduly severe sanction.
S-08-0580, Berrington Corporation D/B/A Eldorado Hills Golf Club, [appellant] v. State of Nebraska Department of Revenue, and Douglas E. Ewald, Nebraska State Tax Commissioner
Lancaster County, Honorable Steven D. Burns
Attorneys: David L. Buelt, George T. Blazek, and Carlos E. Noel (Ellick, Jones, Buelt, Blazek & Longo) for appellant; L. Jay Bartel (AG) for appellees
Tax: Assessment of a sales tax deficiency
Proceedings below: The Tax Commissioner of the Nebraska Dept. of Revenue determined that Berrington failed to properly pay sales tax on the sale of its golf memberships.
Issues: Did the district court err in 1) making erroneous factual findings not supported by the record and making errors of law, 2) making it findings and conclusions regarding the application of sales tax to dues for golf memberships without any analysis of Neb. Rev. Stat. § 77-27-1.16(11) (Supp. 2006); 3) concluding that Berrington membership fees are subject to sales tax and making inadequate findings regarding the nature of the memberships; 4) makings its findings without consideration of the arbitrary and capricious nature of the audit process, 5) finding that equitable estoppel does not apply and that Berrington failed to prove the requisite elements; and 6) finding that sales tax on snack food was properly paid by Berrington and refusing to give it a refund.
S-08-0660, State of Nebraska, ex rel., Charles O. Parks, Jr. and Edward Rollerson (Appellants) v. The Counsel of the City of Omaha, Nebraska
Douglas County, Honorable Sandra L. Dougherty
Attorneys: Robert V. Broom (Broom, Johnson, Clarkson, & Lanphier) & Amy A. Miller, ACLU Nebraska Foundation (Appellant) --- Alan Thelen & Michelle Peters (Omaha City Attorney’s Office)
Civil: Action for a writ of mandamus
Proceedings Below: The district court denied the appellants’ petition for writ of mandamus determining that appellants did not have standing and, even if they did, that the Omaha Municipal Code did not impose a clear, legal duty on the City to employ and appropriate funding for a Public Safety Auditor.
Issues on Appeal: The appellants allege that the district court erred (1) in determining that they did not have standing to bring a mandamus action, (2) in concluding that § 25-9 of the City of Omaha Municipal Code did not require the Omaha City Council to employ and appropriate funding for the Public Safety Auditor position, and (3) in receiving certain evidence offered by the appellees to aid in the interpretation of § 25-9.
S-08-221, Joseph D. Gallegos (Appellant) v. Douglas County Sherriff
Douglas County, Judge James Gleason
Attorneys: Jill K. Harker (J.K. Harker PC, LLO) (Appellant) – Donald W. Kleine (Douglas County Attorney), Renee L. Mathias (Deputy County Attorney)
Civil: Firearm Application
Proceedings Below: The trial court found that Gallegos was ineligible to register a gun because he had been committed to a mental institution pursuant to 18 U.S.C. § 922(g)(4). Gallegos appealed to Douglas County District Court. The district dourt determined that the county court judge “did not abuse her authority in determining that [Gallegos] had been committed to a mental institution and was therefore barred from receiving a gun registration under 18 U.S.C. § 922(g)(4).” Gallegos appealed.
Issues: Whether Gallegos was “committed” to a mental institution which barred him from receiving a firearm permit under 18 U.S.C. § 922(g)(4)?
S-07-1346, Kenneth Ross Metcalf (Appellant) v. Rita Jo Metcalf
Lancaster County, Judge Jeffre Cheuvront
Attorneys: Paul E. Galter (Butler Galter O’Brien & Boehm) (Appellant) --- Kristina M. Teague (Bowman & Krieger)
Civil: Complaint for Modification of alimony
Proceedings below: The trial court found there had been no material change in circumstances which would warrant a change in alimony and dismissed Appellant’s complaint to modify. The Court of Appeals affirmed. See Metcalf v. Metcalf, 17 Neb. App. 138 (2008). Appellant filed a Petition for Further for Review which was granted by the Nebraska Supreme Court.
Issues on Review: The Court of Appeals erred in (1) affirming the trial court’s finding of no material change in circumstances; (2) ruling that in an attempt to modify an alimony award, after a previous unsuccessful attempt, there must be a material change in circumstances; (3) holding that the doctrine of collateral estoppel applies when there has been a previous unsuccessful attempt to modify an alimony award; (4) failing to reach an equitable result when there has been a material change in circumstances since the original decree, not withstanding the previous unsuccessful attempt to modify.