Supreme Court Case Summaries

March 31, April 1, 2, or 3, 2009

TUESDAY, MARCH 31, 2009, subject to call at 9:00 a.m.

S-08-0884, State v. Darin C. York (Appellant)

Morrill County, Judge Leo Dobrovolny

Attorneys: Bell Island (Island Huff & Nichols PC LLO) (Appellant) --- James D. Smith (Attorney General’s Office)

Civil: Postconviction

Proceedings below: This case was previously before the Supreme Court. See State v. York, 273 Neb. 660 (2007) (reversed and remanded). Upon remand, the district court held an evidentiary hearing. After the hearing, the district court denied Appellant’s motion for postconviction relief.

Issues: The district court erred in denying Appellant’s motion for postconviction relief.

S-08-0954, David J. Anderson v. Robert Houston, Director, Nebraska Department of Correctional Services (Appellant)

Douglas County, Judge Marlon A. Polk

Attorneys: Ryan C. Gilbride (Attorney General’s Office) (Appellant) --- Michael D. Nelson, Cathy R. Saathoof (Nelson Law LLC)

Civil: Habeas corpus

Proceedings below: This case was previously before the Supreme Court. See, Anderson v. Houston, 274 Neb. 916 (2008) (reversed and remanded). Upon remand, and after further evidentiary hearing, the district court granted the writ and ordered Anderson be given credit toward his sentence for the time he spent at liberty after correctional officials erroneously released him from custody.

Issues: The district court erred in (1) failing to follow the rationale and policies of the Nebraska Supreme Court on remand; (2) imputing errors committed by Douglas County to the Nebraska Department of Correctional Services and the State of Nebraska; (3) awarding attorney fees and costs.

S-08-0583 and 08-0584, In re Interest of Spencer O., State v. Spencer O. (Appellant) (consolidated)

Separate Juvenile Court Lancaster County, Judge Linda S. Porter

Attorneys: Jennifer M. Houlden (Public Defender’s Office) --- Karen Knight (DHHS, appellee)

Criminal: Neb. Rev. Stat. § 43-247(1) adjudication

Proceedings below: After adjudication, Appellant was committed to HHS for in-home placement. After a supplemental petition was filed, the trial court sustained HHS’s motion to move Appellant to a higher level of care and placed him at a residential treatment center. A permanency hearing was held. Appellant filed his appeal from this hearing.

Issues: The juvenile court erred in (1) holding a hearing on permanency under Neb. Rev. Stat. § 43-1312(3) because that statute does not apply to cases adjudicated under Neb. Rev. Stat. § 43-247(1); (2) violating Appellant’s due process rights by holding a permanency hearing.

S-08-0279, State v. Juneal Dale Pratt (Appellant)

Douglas County, Judge W. Russell Bowie, III

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

Civil: Postconviction; DNA Testing Act, Neb. Rev. Stat. § 29-4116 et seq. (2006 Cum. Supp.)

Proceedings below: The trial court denied Appellant’s motion, after DNA testing under the DNA Testing Act, which sought exoneration from his conviction or a new trial. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred in (1) vacating the certification for a subpoena duces teacum for a known sample of DNA from one of the victims after the term of the court in violation of Neb. Rev. Stat. § 25-2001 (2006 Cum. Supp.), the law of the case doctrine, and because the certification for an out-of-state was authorized as a matter of law when the subpoena is related to a motion for new trial filed in a criminal case under Neb. Rev. Stat. § 29-2101 et seq.; (2) refusing to exonerate Appellant and vacate his convictions as provided by the DNA Testing Act; (3) refusing to vacate Appellant’s convictions and order a new trial as provided in Neb. Rev. Stat. § 29-2101 et seq.; (4) speculating that the victim’s garments might have been contaminated while in the possession of law enforcement and/or the court system.

WEDNESDAY, APRIL 1, 2009, subject to call at 9:00 a.m.

S-08-0631, State v. Michael J. Gunther (Appellant)

Sarpy County, Judge William B. Zastera

Attorneys: Donald L. Schense (Appellant) --- George R. Love (Attorney General’s Office)

Civil: Postconviction

Proceedings below: the district court denied Appellant’s motion for postconviction relief and request for an evidentiary hearing.

Issues: (1) Appellant’s right to effective assistance of counsel under Article I, Section 3 and 11 of the Nebraska Constitution and the 6th and 14th Amendments to the U.S. Constitution were violated. (2) The Appellant’s motion for postconviction relief with evidentiary hearing should have been sustained.

S-08-0759, Shari Erickson and George Erickson (Appellants) v. U-Haul International, Inc., d/b/a U-Haul Company, a corporate defendant and U-Haul of Nebraska, d/b/a U-Haul Center of N.W. Omaha

Douglas County, Judge Patricia A. Lamberty

Attorneys: P. Shawn McCann (Sodoro Daly & Sodoro PC) (Appellants) --- Ronald F. Krause (Cassen Tierney Adams Gotch & Douglas) and K. Lee Marshall (pro hac vice) Steven G. Strauss (pro hac vice) (Bryan Cave LLP) (all for Appellees)

Civil: Negligence

Proceedings below: This case was previously before the Supreme Court. See Erickson v. U-Haul International, Inc., 274 Neb. 236 (2007) (reversed and remanded). Upon remand, the trial court granted U-Haul International’s partial motion for summary judgment, dismissing the claim of statutory negligence of U-Haul International as the owner of a truck which was negligently operated. The Trial court denied Appellants’ offer of two photographs depicting the illegible warnings on a U-Haul loading ramp and truck. The trial court dismissed George Erickson’s loss of consortium claim upon motion for directed verdict and the jury entered a unanimous verdict in favor of U-Haul International.

Issues: Whether the trial court erred in (1) denying Appellants’ motion for new trial? (2) granting Appellee’s partial motion for summary judgment, dismissing the statutory liability claim of Appellee as owner of the truck? (3) excluding the photographic evidence of the illegible warning label on the U-Haul loading ramp? (4) dismissing, on directed verdict, Appellant George Erickson’s loss of consortium claim?

S-08-0728, Mortgage Express, Inc. and Jeff Rothlisberger (Appellants) v. Tudor Insurance Co., Cincinnati Insurance Co., and Peterson Brothers Insurance, Inc.

Douglas County, Judge Gregory M. Schatz

Civil: Breach of Insurance Contract

Attorneys: Larry E. Welch Jr. and Damien J. Wright (Welch Law Firm, P.C.) (Appellants) --- Thomas A. Grennan and Francie C. Riedmann (Gross & Welch, P.C., L.L.O.) (Cincinnati Insurance Co.) Gerald L. Friedrichsen and Carla Heathershaw Rictor (Fitzgerald, Schorr, Barmettler and Brennan, P.C., L.L.O.) (Tudor Insurance Co.), and Patrick G. Vipond and John M. Walker (Lamson, Dugan and Murray, LLP) (Peterson Brothers Insurance, Inc.)

Proceedings Below:  Plaintiff -- appellants Mortgage Express, Inc. (Mortgage Express) and Jeff Rothlisberger sued defendant -- appellees arguing that pursuant to appellants’ insurance contracts with appellees, appellees had an obligation to defend appellants in a lawsuit brought against appellants in Kentucky.  Appellees argue that the insurance policies did not require the appellees to defend appellants in the Kentucky suit.  Appellees Tudor Insurance Company (Tudor) and Cincinnati Insurance Company (Cincinnati) and appellants filed cross motions for summary judgment and the district court denied appellants’ motion and sustained appellees’ motions.  Subsequently, appellee Peterson Brothers Insurance, Inc. (Peterson) brought a motion for summary judgment based on the court’s order granting Tudor’s motion for summary judgment.  The court granted Peterson’s motion for summary judgment and dismissed the case. 

Issues: Whether the district court erred in 1) sustaining Tudor’s motion for summary judgment and denying appellant’s motion for summary judgment based on the findings that Tudor’s policy of insurance did not provide an obligation for Tudor to defend appellants in the Kentucky lawsuit; 2) in sustaining Cincinnati’s motion for summary judgment; and 3) in sustaining Peterson’s motion for summary judgment.

S-08-0983, Community Development Agency of the City of McCook (Appellant) v. PRP Holdings, L.L.C.
 
Red Willow County, Hon. David W. Urbom

Attorneys:      Michael L. Bacon, Steven P. Vinton (Appellant)---Trent R. Sidders, Austin L. McKillip (Cline, Williams)

Civil:  Real Estate - Tax Increment Financing

Proceedings below:    District court granted summary judgment in favor of PRP Holdings, L.L.C., and ordered that PRP be paid taxes collected in connection with community redevelopment project to which predecessor owner of property had been a party.

Issues: Whether district court erred in determining that PRP, as purchaser of real property at trust sale, was entitled to benefits of redevelopment contract to which predecessor owner was a party.

APRIL 2nd ARGUMENTS ONLY TO BE HELD
AT CREIGHTON UNIVERSITY
(Sign in at Creighton prior to arguments)

THURSDAY, APRIL 2, 2009, subject to call at 9:30 a.m.

S-08-0590, The Lamar Company, LLC d/b/a The Lamar Companies (Appellant) v. City of Fremont, Nelsen Enterprises d/b/a Victor Outdoor Advertising, Larsen International, Inc., Melvin Schwanke, Fontanelle Hybrid Seed Co., American National Bank of Fremont, Green Key II, Inc., John Larsen, Michelle Larsen and Nebraska Irrigated Seeds, LLC

Dodge County, Judge John E. Samson

Attorneys: Aimee Haley (Fullenkamp, Doyle & Jobeun) and Amy Sherman Geren (Appellant) -- Daniel J. Epstein (Cassem Tierney, Adams) (City of Fremont) --- David C. Mitchell (Yost Schafersman Lamme Hillis Mitchell & Schulz PC LLO) (for Nelsen Enterprises) --- Thomas B. Thomsen (Sidner Svoboda Schilke Thomsen Holtorf Boggy & Nick) (for Larsen International, Melvin Schwanke, Fontanelle Hybrid Seed co, Green Key II, Inc, John Larsen, Michelle Larsen, Nebraska Irrigated Seeds LLC, and The American National Bank of Fremont)

Civil: Zoning ordinance.

Issues: The district court erred in (1) finding that Lamar’s nonconforming rights vested in the land itself. (2) finding that there were no genuine issues of material fact and granting the Appellees judgment as a matter of law; (3) not granting summary judgment in favor of Appellant.

Cross Appeal of City of Fremont: The district court erred in (1) dismissing with prejudice two of the City’s basis for summary judgment; (2) dismissing with prejudice and denying the City’s Motion for Summary Judgment that the City was immune from suit; (3) failing to enter judgment in favor of the City on the issues of immunity under statute and case law.

Cross Appeal of Larsen International et al.: The district court erred in failing to award attorney fees to the Appellees/Landowners pursuant to Neb. Rev. Stat. § 25-824 on the basis that this action was frivolous.

S-08-0747, Brent E. Rasmussen and Kim Rasmussen (Appellants) v. State Farm Mutual Automotive Insurance Company and Krista Lisbon f/k/a Krista Van Wyhe, Regent Financial Group, Inc., and the Hartford Insurance Company

Douglas County, Judge Patrick J. Mullen

Attorneys: Thomas A. Grennan, Bryan J. Roberts (Gross & Welch PC LLO) (Appellants) --- Donald R. Witt, Andrea D. Snowden (Baylor Evnen Curtiss Grimit & Witt LLP) (Appellee Krista Lisbon f/k/a Krista Van Wyhe) --- Russell A. Westerhold (Fraser Stryker PC LLO) (For Appellee State Farm Mutual Automobile Insurance Agency)

Civil: uninsured motorist benefits; rescue doctrine

Proceedings below: The trial court found that an independent cause of action under the rescue doctrine does not exist in this case; Lisbon did not owe a legal duty to Rasmussen; Michigan law applies to the Bosch policy and therefore, the Appellants were not considered insureds under the Bosch policy. The trial court also found that genuine issues of fact existed regarding whether Lisbon was negligent in proximately causing the accident; whether Appellant reasonably believed Lisbon was in peril and whether Appellant’s rescue was reasonable performed or attempted. Appellants filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred in (1) sustaining Lisbon’s motion for summary judgment and finding a cause of action under the “rescue doctrine” does not exist; (2) finding no legal duty was owed to Rasmussen; (3) denying the Rasmussens’ motion for summary judgment and finding that Michigan law was the appropriate choice of law to apply in interpreting the Bosch policy; (4) finding the Rasmussens were not considered insureds under the policy; (5) finding that Rasmussens were not entitled to uninsured benefits under the Bosch policy; (6) finding that State Farm did not act in bad faith in refusing to pay Rasmussens benefits under the Bosch policy.

Cross-Appeal: The district court erred in (1) finding there was a genuine issue of fact regarding whether Lisbon was negligent and proximately caused her vehicle to leave the roadway and slide into the ditch; (2) finding there was a genuine of fact as to whether Rasmussen had a reasonable belief that Lisbon was in imminent peril as the time he was struck by the Anderson vehicle.

S-08-0881, State (Appellant) v. William J. Stafford

Sarpy County, Judge Max Kelch

Attorneys: Jennifer A. Miralles (County Attorney’s Office) (Appellant) --- Patrick J. Boylan (Public Defender’s Office)

Criminal: Excessively lenient sentence appeal; DUI and theft by receiving stolen property

Proceedings below: The defendant entered a plea to theft by receiving stole property and DUI. The information charged 4th offense for the DUI. At the enhancement hearing, the trial court found Exhibit 3 was not valid for enhancement purposes and proceeded to sentence the defendant to DUI, 3rd offense.

Issues: The district court erred in finding Exhibit 3, a certified copy of a DUI conviction from Douglas County, was not valid for enhancement purposes.

S-08-0813, The Metropolitan Community College Area, a Political Subdivision of the State of Nebraska and Body Corporate and Politic (Appellant) v. City of Omaha, a Municipal Corporation, Paula Gallagher, Robert Herink and Daniel Johnson, in their official capacity as a Board of Appraisers, and John Ewing, Jr., Douglas County Treasurer

Douglas County, Judge Peter Bataillon

Attorneys: Robert T. Cannella, Gerald L. Friedrichsen (Fitzgerald Schorr Barmettler & Brennan PC LLO) (Appellant) --- Bernard J. in den Bosch (Assistant City Attorney)

Civil: Condemnation

Proceedings below: The district court found the land in question was a street and not a specific public use as it is used for ingress and egress to the Elkhorn campus. Therefore, the district court found the City was acting within its authority in the condemnation action.

Issues: The trial court erred in (1) finding that Neb. Rev. Stat. § 14-366 (Reissue 2007) is a broad grant of power to the City; (2) failing to strictly construe Neb. Rev. Stat. § 14-366; (3) finding that the College has not devoted its campus ingress/egress to a specific public use; (4) disregarding the plain language of Neb. Rev. Stat. § 14-366; (5) implicitly determining that the City’s taking of the College’s property in question would not materially impair or interfere with the College’s existing use of the property.

S-08-0618, Muriel D. Walton (Appellant) v. Arun-Angelo Patil, M.D. (Appellee)
                       
Douglas County --Judge John D. Hartigan, Jr.

Attorneys:       Marvin O. Kieckhafer and R. Laubenthal, Smith Peterson Law Firm, L.L.P. (Appellant)---Patrick G. Vipond and William R. Settles, Lamson, Dugan and Murray, L.L.P.

Civil:   Medical Malpractice
 
Proceedings Below: Muriel D. Walton sued Arun-Angelo Patil, M.D., for medical malpractice. The district court granted Patil’s motion for directed verdict and overruled Walton’s motion for new trial.

Issues: Whether the district court erred (1) in sustaining Patil’s objection to Walton’s notice of intent to use the discovery deposition of Walton’s expert at trial; (2) in denying Walton’s motions to continue trial and for new trial; and (3) in granting Patil’s motion for directed verdict.

FRIDAY, APRIL 3, 2009, subject to call at 9:00 a.m.

S-08-0227, State v. David Dunster (Appellant)

Lancaster County, Judge Paul D. Merritt, Jr.

Attorneys: Peter K. Blakeslee (Appellant) --- J. Kirk Brown, Solicitor General (Attorney General’s Office)

Civil: Postconviction; Death penalty

Proceedings below: The district court denied Appellant postconviction relief.

Issues: The district court erred in (1) failing to find that Nebraska’s capital sentencing scheme was unconstitutional because it violates Appellant’s rights under the 5th, 6th, 8th and 14th Amendments to the U.S. Constitution and Article I, Sections 3, 9 and 11 of the Nebraska Constitution; (2) determining that the issue of constitutionality of the Nebraska system of judicial electrocution was procedurally barred as to the Appellant, in failing to grant an evidentiary hearing on the issue; (3) failing to grant an evidentiary hearing on the issue of whether Appellant received ineffective assistance of counsel during preparation for trial and at his competency hearing in violation of the 6th and 14th amendments to the U.S. Constitution and Article I, section 11 of the Nebraska Constitution; (4) failing to grant an evidentiary hearing on the issue of whether Appellant received ineffective assistance of counsel on direct appeal in violation of the 6th and 14th amendments to the U.S. Constitution and Article I, section 11 of the Nebraska Constitution and finding the claim to be without merit.

S-08-0524, Bruce Everston and Perry Van Newkirk v. City of Kimball, Greg Robinson, Mayor and Harold Farrar, City Clerk (Appellants)

Kimball County, Judge Kristine Cecava

Attorneys: Rondall L. Goyette, Andrea Snowden (Baylor Evnen) (Appellants) --- Donald J.B. Miller (Matzke, Mattoon & Miller, PC LLO) (Appellees) --- William F. Austin (Erickson & Sederstrom PC LLO) (for amicus curiae League of Nebraska Municipalities)

Civil: Writ of mandamus

Proceedings below: The trial court entered an order finding the report requested by plaintiffs and other field notes prepared by independent contractors but not delivered or controlled by Appellants were public records and said documents were not exempt from disclosure under any of the exceptions found in Neb. Rev. Stat. § 84-712.05. The trial court awarded plaintiffs attorney fees in the amount of $23,192.51 under Neb. Rev. Stat. § 84-712.07.

Issues: Appellants argue: The trial court erred in (1) finding documents sought by plaintiffs were public records of or belonging to the Appellants and were not exempt from disclosure; (2) awarding attorney fees.

S-08-0113, State v. Douglas E. Dragoo (Appellant)

Antelope County, Judge Patrick G. Rogers

Attorneys: Patrick P. Carney and Jonathan R. Brandt (Appellant) --- James D. Smith (Attorney General’s Office)

Criminal: DUI, 4th Offense and DUI causing serious bodily injury

Proceedings below: The jury found Appellant guilty of both charges. His DUI was enhanced to 4th Offense. He was sentenced 24 to 36 months and 12 to 18 months, sentences to be served consecutively. The Court of Appeals affirmed in part, reversed in part and remanded with directions. See State v. Dragoo, 17 Neb. App. 267 (2008). The State filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues: Did the Court of Appeals err in (1) dismissing Dragoo’s conviction and sentence for DUI when that conviction and sentence was found to be a lesser included offense to his conviction and sentence for DUI causing serious bodily injury? (2) in concluding that the Double Jeopardy Clause was violated when Dragoo was convicted and sentenced for both DUI and DUI causing serious bodily injury?

S-08-0703, State of Nebraska v. Louis Obad (Appellant)

Cheyenne County, Judge Kristine Cecava

Civil: Forfeiture

Attorneys: Donald J.B. Miller (Matzke, Mattoon & Miller) (Appellant) --- George R. Love (Nebraska Attorney General)

Proceedings Below: The district court of Cheyenne County vacated its order directing the Nebraska State Patrol to return $43,584 to appellant because the Nebraska State Patrol had turned the money over to the federal government and the U.S. Attorney’s office had initiated federal forfeiture proceedings.

Issue: Whether the district court erred in vacating its order directing the Nebraska State Patrol to return appellant’s money after the money had been turned over to the federal government and the U.S. Attorney’s office initiated federal forfeiture proceedings.