Supreme Court Case Summaries

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

S-10-0816, State v. Raad Almasaudi (Appellant)

Lancaster County, Judge Jeffre Cheuvront

Attorneys:  Bernard J. Glaser, Jr., (Appellant) --- Stacy M. Foust (Attorney General)

Criminal:  Three counts of theft by receiving stolen property, greater than $1500

Proceedings below:  A jury found Appellant guilty on all three counts. The briefs do not state the sentences imposed.

Issues:  The trial court erred in (1) admitting evidence of prior wrongs; (2) giving the State’s proposed jury instruction on the definition of “knowing”; (3) finding sufficient evidence to support the jury’s verdict; (4) failing to direct a verdict in favor of Appellant.

S-10‑527,  Darline Liddell-Toney (Appellant) v. Nebraska Department of Health and Human Services, Todd L. Reckling, Director, Division of Children and Family Services, Nebraska Department of Health and Human Services, and Kerry T. Winterer, Chief Executive Officer, Nebraska Department of Health and Human Services

Lancaster County, Judge John Colborn

Attorneys:  Scott M. Mertz (Legal Aid of Nebraska) (Appellant) ‑‑‑Michael J. Rumbaugh (Attorney General)

Civil:  Administrative Law; Welfare Reform Act, Neb. Rev. Stat. § 68-1708 et seq. (Reissue 2009)

Proceedings below:  The district court affirmed the decision of the DHHS.

Issues:  Whether the district court erred in finding that the DHHS can deny an exemption from participation in the Employment First (EF) program even if the person requesting the exemption demonstrates that he or she is unable to engage in employment.

S-10-0540, City of North Platte, Nebraska v. William Tilgner, Dallas Dye and Edward Rieker (Appellants)

Lincoln County, Judge John P. Murphy

Attorneys:  V. Gene Summerlin (Ogborn, Summerlin & Ogborn PC) (Appellants) --- Douglas L. Stack (Appellee City) and Steve Grasz (Husch Blackwell LLP)

Civil:  declaratory relief; referendum

Proceedings below:  The district court found that eh referendum sponsored by Appellants violated Neb. Rev. Stat. § 18-2528(1)(a) and enjoined the County Clerk from considering the votes case for or against such referendum and ordered no results be reported or certified.  The City filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues:  The district court erred in (1) holding that Appellants’ referendum did not qualify for inclusion on the May 2010 election ballot; (2) finding that the Appellants’ referendum violated Neb. Rev. Stat. § 18-2528(1)(a).

S-09-1170, State v. Jeffrey Glazebrook (Appellant)

Saunders County, Judge Mary C. Gilbride

Attorneys:  Jerry L. Soucie, James R. Mowbray (Nebraska Commission on Public Advocacy) (Appellant) --- James D. Smith (Attorney General’s Office)

Criminal:  First degree felony murder (sexual assault), Neb. Rev. Stat. § 28-401 (Reissue 1977)

Proceedings below:  A jury found Appellant guilty of the above crime.  He was sentenced to life in prison.

Issues:  The district court erred in (1) admitting Exhibits 40, 42, 45 and the results of the 1999 DNA testing; (2) admitting inadmissible and prejudicial evidence in violation of Neb. Rev. Stat. § 27-404 and 27-403 (Reissue 2008) showing Appellant committed a (a) burglary and first degree assault on February 2, 1978; and (b) a burglary and sexual assault on February 15, 1991; (3) failing to dismiss the charges because of the prejudicial pre-indictment delay in violation of the 6th Amendment and Due Process Clauses of the 14th Amendments to the U.S. Constitution.

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

S-10-0559, Federated Service Ins. Co. (Appellant) v. Sadler Line Construction, Inc., Danny O’Neall, and Alliance Construction, LLC.

Douglas County, Judge John D. Hartigan, Jr.

Attorneys:  Thomas Grennan and Francie Riedmann (Gross & Welch) -- Kurt Maahs & James Morrow (Morrow, Willnauer & Klosterman, LLC)

Civil:  Declaratory Judgment Action; Insurance contract

Issue :  Whether indemnification provision required insurer to indemnify insured for its own negligence.

S-10-0111, State v. Marco Enrique Torres, Jr. (Appellant)

Hall County, Judge James D. Livingston

Attorneys:  Peter K. Blakeslee and Kirk E. Naylor, Jr. (Appellant) --- J. Kirk Brown (Attorney General’s Office

Criminal:  Two counts of first degree murder; one count of robbery; three counts of use of a deadly weapon to commit a felony and one count of unlawful use of a financial transaction device.

Proceedings below:  A jury returned guilty verdicts on the above counts.  A three judge sentencing panel was convened and Appellant was sentenced to death on the first degree murder convictions; 50 to 50 years on the robbery and use of a weapon convictions, to be served consecutively and 20 months to 5 years for the unlawful use of a financial transaction device.

Issues:  The trial court erred in (1) overruling Appellant’s motion to suppress; (2) admitting evidence of the alleged kidnapping of Billy Packer pursuant to Neb. Rev. Stat. § 27-404(2); (3) admitting over objection, the testimony of Jennifer Mattson and Amanda Lane about the Appellant’s efforts to get witnesses to testify falsely.  The sentencing panel erred in (1) receiving the trial bill of exceptions over objection as it contained inadmissible hearsay, denied Appellant’s right to confrontation and violated Appellant’s right to due process; (2) overruling Appellant’s Objection of Defendant to the Three Judge Sentencing Panel Considering the Imposition of the Death Penalty by (a) allowing retroactive application of Neb. Rev. Stat. § 83-964 et seq. which would allow lethal injection in violation of Appellant’s rights as guaranteed by the Ex Post Facto Clauses of Article I, section 10 of the U.S. Constitution and Art. I, section 16 of the Nebraska Constitution; (b) not finding that Neb. Rev. Stat. § 83-964 et seq. unlawfully delegates the legislative function of determining the guidelines, procedures, standards, or policies associated with lethal injection to the Executive Branch of government, in violation of the Distribution of Powers Clause in the Art. II, section 1 of the Nebraska Constitution and the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution and in violation of Lincoln Dairy v. Finigan, 170 Neb. 777 (1960) and Clemens v. Harvey, 247 Neb. 77 (1994) and their progeny; (3) overruling the Appellant’s Motion to Declare Section of the Nebraska Death Penalty as Amended by LB1 Unconstitutional; (4) using the victim’s “mental suffering” and the “victim’s uncertainty as to [his] ultimate fate” to determine that the murder of victim Ed Hall was “especially heinous, atrocious, cruel” in connection with aggravator 1(d) of Neb. Rev. Stat. § 29-2523; (5) finding that the State proved beyond a reasonable doubt the existence of aggravators 1(a), 1(b), and 1(d) of Neb. Rev. Stat. § 29-2325, as alleged in the 4th amended information; (5) determining that statutory mitigating factor 2(c) and (g) (mental disturbance and intoxication, respectively) did not exist and there were no non-statutory mitigators, based upon Appellant’s drug abuse.

S-09-0944, David A. Maycock, as the Special Administrator of the Estate of Marty A. Maycock, deceased (Appellant) v. Steve Hoody, James Frock, Thomas Connolly, James Bowers, Sylvia Rael, Louis Violi, Nicole Liebentritt and Alegent Health d/b/a Bergan Mercy Medical Center

Douglas County, Judge W. Russell Bowie

Attorneys:  Terry K. Barber (Barber & Barber PCLLO) (Appellant) --- Mark E. Novotny, William R. Settles (Lamson Dugan & Murray LLP) (Appellees Frock, Connolly, Bowers, Rael and Violi) ---David L. Welch, Ashley E. Dieckman (Pansing Hogan) (for Appellee Alegent Health) ---Michael F. Kinney, Kathryn J. Cheatle (Cassem Tierney) (for Appellee Liebentritt) ---Michael J. Mooney (Gross Welch) (for Appellee Hoody)

Civil:  Wrongful death; negligence

Proceedings below:  The trial court granted the Appellees’ motion for summary judgment and Appellant’s complaint was dismissed.  The Court of Appeals affirmed in part, and in part reversed and remanded in a memorandum opinion.  Appellees Frock, Connolly, Bowers, Rael and Violi filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on review:  The Court of Appeals erred in (1) applying the tolling provisions of Neb. Rev. Stat. § 25-213 to the claim of Appellant; (2) finding a genuine issue of material fact existed with respect to whether Marty Maycock was under a mental disorder in the absence of any expert evidence; (3) in failing to consider whether the sworn statements of Appellees to the effect that they met the standard of care were provided a separate basis for summary judgment.

S- 10-549, Hastings State Bank (Plaintiff/Appellee) v. Miriam Misle, in her capacity as Trustee of the Julius Misle Revocable Trust (Defendant/Appellant)

Lancaster County, Judge Steven D. Burns

Attorneys:  James B. Cavanagh, Adam Astley (Liebien, Whitted, Houghton, Slowiaczek & Cavanagh) (Appellant) --- Richard Jeffries, Megan Wright (Cline Williams Wright Johnson & Oldfather) (Appellee)

Civil:  Trusts -- (Enforcement of Commercial Guaranty)

Proceedings below:  The district court granted Plaintiff/Appellee Hastings State Bank’s motion for partial summary judgment and denied Defendant/Appellant Miriam Misle’s motion for summary judgment.  The district court issued an order finding that Misle was liable for up to $500,000 in principle on the commercial guaranty, but reserved the issue of the actual amount of liability for trial, capping the potential liability at $500,000.  Following trial, the district court found in favor of the Bank and entered judgment in the amount of $500,000.

Issues:  Appellant assigns that the district court erred in (1) finding that the Bank’s notice to the trust was sufficient under Neb. Rev. Stat. § 30-3850 (Reissue 2008); (2) finding that the Bank’s alleged material alterations of the note did not void the purported guaranty; (3) finding the Bank has no legal duty to make disclosures to Misle concerning the terms of the transaction, the Bank’s history with the borrower, or the circumstances surrounding the note; (4) granting partial summary judgment to the Bank; (5) denying Misle’s motion for summary judgment; (6) finding the outstanding liability on the note subject to the purported guaranty is $500,000; and (7) entering judgment for the Bank in the amount of $500,000.

S-10-0608, In re Water Division I-B, Frenchman Cambridge Irrigation District (Appellant) v. Nebraska Department of Natural Resources (Cross-Appellant)

Appeal from the Nebraska Department of Natural Resources

Attorneys:  Jeanelle R. Lust, Katherine S. Vogel (Knudsen Berkheimer Richardson & Endacott LLP) (Appellant) --- Justin D. Lavene, Marcus A. Powers (Attorney General’s Office)

Civil:  Petition to reevaluate appropriated status of Republican River Basin, Neb. Rev. Stat. § 46-701 et seq., Nebraska Ground Water Management and Protection Act

Proceedings below:  The Department denied Appellant’s petition to reevaluate the Basin without a hearing.  Appellant filed a request for hearing on the Order. After a hearing, the Department affirmed its previous order.

Issues:  The Department erred in denying Appellant’s petition to reevaluate relevant portions of the Republican River Basin to determine if such areas are overappropriated.

Cross-Appeal:  The Department erred in finding Appellant alleged sufficient facts to demonstrate an injury-in-fact for standing purposes.

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

S-10-0143, State v. Karnell D. Burton (Appellant)

Douglas County, Judge Gary B. Randall

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

Criminal:  manslaughter, attempted second degree murder, first degree assault and 2 counts of use of a deadly weapon

Proceedings below:  After a jury trial, Appellant was found guilty of the above crimes.  He was sentenced to a combined term of 80 to 130 years in prison.

Issues:  The trial court erred in (1) violating Appellant’s right to a speedy trial by granting the State’s motion to file an amended information over Appellant’s objection; (2) denying Appellant’s motion for mistrial; (3) refusing to allow Appellant to present evidence that 2 state witnesses were members of a gang; (4) imposing excessive sentences.

 

S-10-0953, In re Interest of Trey H.

Cheyenne County, Judge Randin Roland

Attorneys:  Eric M. Stott (Special Assistant Attorney General for DHHS) (Appellant) --- Paul B. Schaub (Cheyenne County Attorney)---no brief filed by Trey H.

Criminal:  Review hearing for juvenile placed at YRTC-Kearney

Proceedings below:  The court determined that it had the authority to order and conduct review hearings for a child residing at YRTC-Kearney.

Issues:  The juvenile court erred by holding a review hearing for the juvenile while residing at YRTC-Kearney.

S-10-0624, William A. Fitzgerald, Jerome F. Sherman, Norman Veitzer, and Loyal Borman, individually and on behalf of Kellom Heights Associates Limited Partnership, and Cuming Street Corporation v. Community Redevelopment Corporation and Omaha Economic Development Corporation (Appellants)

Douglas County, Judge Peter C. Bataillon

Attorneys:  Donald J. Buresh (Stalnaker Becker & Buresh PC) (for Appellant Community Redevelopment Corporation) and Lyman L. Larsen, Sean W. Colligan, Geoffrey L. Gross (Stinson Morrison Hecker LLP) (for Appellant Omaha Economic Development Corporation) --- Andrew T. Schlosser (Fitzgerald Schorr Barmettler & Brennen PCLLO) and Matthew F. Heffron (Brown & Brown PCLLO) for Appellees

Civil:  (1) action for accounting; (2) injunctive and declaratory relief; (3) unjust enrichment

Proceedings below:  The district court found that Amendment No. 1 was never adopted and was unenforceable; denied all of Appellants’ affirmative defenses including those related to statutes of limitations, estoppel and derivative claims; ordered that OEDC return approximately $88,000 in interest earned from bank accounts held by the Partnership; ordered Appellants to halt the $12,000 yearly increase in fees for CRC’s supervisory services and ordered the fee to be returned to the Partnership; found OEDC was unjustly enriched for receiving interest payments on a $350,000 note and ordered OEDC to return $770,000 to the Partnership; granted Appellees’ demand for an accounting.  The district court denied Appellees’ request for prejudgment interest but granted in part, the request for attorney fees in the amount of $336,614.  The Appellees filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues:  The trial court erred in (1) interpreting Nebraska law to require “super-disclosure” rather than inquiry notice to start limitations period running on the challenges to interest on the $350,000 promissory note and to Amendment No. 1; (2) applying a Nebraska statute concerning ratification to a limitations defense; (3) rejecting Appellants’ estopped defense to the challenge to interest on the promissory note; (4) holding Amendment No. 1 unenforceable and non-binding based on a recital that the court treated as binding; (5) holding Amendment No. 1 unenforceable based on a Partnership Agreement provision that the court misread; (6) rejecting Appellants’ limitations defense concerning Amendment No. 1 based on a finding that 3 notices of the Amendment sent in the early 1980s was insufficient notice; (7) holding that the $12,000 increase for supervisory services was not allowed under the Partnership Agreement; (8) treating a document as if it were part of the Partnership Agreement and misreading a provision as a cap on overall supervisory service fees; (9) failing to uphold the increased fee; (10) rejecting Appellants’ limitations and estoppel defenses to the claim for interest on bank accounts; (11) granting Appellees’ request for an accounting; (12) issuing an advisory opinion; (13) admitting into evidence and crediting the proxy votes and consents obtained by Appellees to add CSC as an additional general partner; (14) dispensing with the requirements of the Partnership Agreement that CSC be approved by an opinion of counsel to the Partnership and accept the provisions of the Partnership Agreement before being qualified to act as an additional general partner; (15) holding Appellees were entitled to costs and attorney fees; (16) not awarding fees for Appellees’ claims on Amendment No. 1, interest on the Note and an additional general partner.

Cross-Appeal:  The trial court erred in failing to award prejudgment interest because (a) the claims set forth in Appellees’ operative complain were liquidated claims; and (b) Neb. Rev. Stat. § 45-104 providing prejudgment interest for money retained without the owner’s consent should be applicable to accounting actions.

S-10-0103, James Tierney and Jeffrey Tierney (Appellants) v. Four H Land Company Limited Partnership; Western Engineering Company, Inc., Frank Aloi, Trustee of the Aloi Living Trust; and Aloi Living Trust

Lincoln County, Judge John P. Murphy

Attorneys:  James J. Paloucek (Norman Paloucek & Herman) (Appellants) --- Jay C. Elliott (Elliott Law Office PCLLO)

Civil:  Contract; Enforce Terms of Conditional Use Permit

Proceedings below:  The trial court sustained Appellees’ motions for summary judgment and dismissed the Appellants’ case.  The Court of Appeals affirmed in a memorandum opinion.  Appellants filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review:  The Court of Appeals erred in (1) concluding that the berm surrounding the lake on subject property, 8 to 10 feet above the elevation of the ground as it existed before the gravel operation and 50 to 100 feet wide…is in compliance with the initial application and the conditional use permit; (2) affirming the trial court’s order; (3) failing to address the assigned error regarding the district court’s failure to recuse itself (4) failing to find that the Appellants’ due process rights required that the district court’s order be overturned and the case remanded for proceedings before an unbiased judge.

S-10-0905, In re Interest of Meridian H.

Separate Juvenile Court for Sarpy County, Judge Linda Porter

Attorneys:  Christine P. Costantakos (for Appellants, Damon H. and Aleeah H., minor children and siblings of Meridian H., by and through their parents Jeffrey H. and Karen H., Intervenors) ---Sandra K. Markley (County Attorney’s Office)

Civil:  Placement

Proceedings below:  The trial court ordered that Meridian H. remain placed in her current foster-adoptive home, where she has resided for over 28 months.  Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues:  The trial court erred in (1) failing to preserve sibling relationships in contravention of laws that mandate a preference for or require a child be placed with siblings unless it is contrary or detrimental to the child’s safety or well-being; (2) overruling the placement motion and by failing to order visitation between Appellants and their sister; (3) finding that Meridian H. will be emotionally harmed if her placement is changed without competent evidence to support such finding; (4) finding that the foster parents stand in loco parentis in relation to Meridian H.

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

S-10-0304, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. Robert J. Pierson (Respondent)

Original Action

Attorneys:  John W. Steele (for Relator) --- no brief filed on behalf of Respondent

Civil:  Attorney Discipline

Proceedings below:  A referee found respondent’s conduct vilated Neb. Ct. R. 3-501.15 and 3-508.4 and recommended a 2 year probation period with a trust account audit.  The relator has taken exception.

Issues:  The relator takes exception to the referee’s recommendation of a sanction as being too lenient.

S-10-0891, State v. Douglas Fruchtl (Appellant)

Lancaster County, Judge Jeffre Cheuvront

Attorneys:  Sarah P. Newell (Public Defender’s Office) --- Nathan A. Liss (Attorney General’s Office)

Criminal:  Driving during revocation, LMC 10.16.063

Proceedings below:  The trial court found Appellant guilty of the crime and sentenced him to seven days in jail and a one year license revocation.  The district court affirmed.

Issues:  The county court erred in overruling Appellant’s motion to dismiss and finding him guilty of the above crime.

 
S-10-0646, American Central City, Inc. (Appellant) v. Joint Antelope Valley Authority and the City of Lincoln, Nebraska
 
Lancaster County, Hon. Robert R. Otte

Attorneys:  Barbara J. Morley---Christopher J. Connolly, Assistant City Attorney

Civil:  Inverse Condemnation and Civil Rights

Proceedings below:  District court granted summary judgment in favor of the defendants on all claims.

Issues:  Whether court erred when it found 1) that American Central City, Inc. (ACC) did not have a property interest in a building permit, 2) that ACC did not have a property interest in a purchase contract, 3) that the defendants’ actions did not constitute inverse condemnation, 4) that the defendants’ action did not constitute a denial of substantive due process, and 5) that ACC was not damaged by the protracted nine-year period from the announcement of the plan until the taking of its property.

S-10-0647, American Central City, Inc. (Appellant) v. Joint Antelope Valley Authority
 
Lancaster County, Hon. Robert R. Otte

Attorneys:  Barbara J. Morley---Christopher J. Connolly, Assistant City Attorney

Civil:  Condemnation Proceeding – Eminent Domain

Proceedings below:  District court granted summary judgment in favor of the defendants on claim that taking of property was for an improper purpose.  Following trial on remaining claims, the court determined that American Central City, Inc. (ACC) failed to establish its claims that there was an inaccurate valuation and that the taking was excessive.

Issues:  Whether court erred when it 1) limited ACC’s cross-examination of the defendants’ appraiser and awarded damages based on a hearsay appraisal, 2) did not allow ACC to present testimony regarding its intended use of the land for development purposes, 3) did not permit ACC to value the property using comparable sales for development purposes, 4) did not allow as evidence aerial photographs of the property obtained from a government website, 5) did not permit ACC to include the value of removable structures on the condemned land as elements of the properties’ fair market value and 6) did not allow evidence of alleged actions by the defendant that depressed the value of the property by stifling development and creating blight.

S-10-0943, County of Webster, Nebraska (Appellant) v. Nathan L. Wigert and State of Nebraska, Commissioner of Labor Catherine D. Lang (Appellees)

Webster County, Judge Stephen R. Illingworth

Attorneys:  Vincent Valentino (Appellant) --- John H. Albin, Thomas A. Ukinski (for Commissioner of Labor)

Civil:  Unemployment decision

Proceedings below:  The Commissioner found that Wigert had voluntarily quit his job without good cause, resulting in a period of disqualification from unemployment benefits.  The Labor Appeal Tribunal reversed, finding Wigert had been terminated and did not engage in misconduct related to his work.  The district court affirmed.

Issues:  The district court erred in (1) failing to conduct a full de novo review; (2) affirming the Appeal Tribunal’s finding that Wigert was terminated; (3) affirming the Appeal Tribunal’s finding that Wigert did not engage in misconduct; (4) failing to reverse the Appeal Tribunal.