Supreme Court Case Summaries

March 30, 31 and April 1, 2, 2010

TUESDAY, MARCH 30, 2010, subject to call at 9:00 a.m.

S-09-0912, State of Nebraska v. Thoi Vo

District Court for Lancaster County, Judge Jodi Nelson

Attorneys: Thoi Vo (pro se) --- Nathan A. Liss (Assistant Attorney General)

Civil: Postconviction Action

Proceedings Below: Vo was convicted of second degree murder and was sentenced to 50 years to life imprisonment. He filed a motion for postconviction relief, which was denied without an evidentiary hearing. Vo appeals that denial.

Issues:  On appeal, Vo argues that (1) the trial court erred by not sufficiently advising Vo of his rights at trial; (2) his trial counsel was ineffective for not asking for a competency hearing; (3) his appellate counsel was ineffective for not asserting that trial counsel was ineffective in several particulars; (4) the district court by not appointing postconviction counsel; (5) the district court erred by not granting him an evidentiary hearing and by denying his motion for postconviction relief; and (6) the State committed misconduct by not requesting a hearing on Vo’s competency.

S-09-0442, State of Nebraska v. Terrell T. Thorpe

District Court for Douglas County, Judge Peter C. Bataillon

Attorneys: Andrew J. Wilson (Walentine, O’Toole)--George Love (Assistant Attorney General)

Criminal: Two Counts First Degree Murder and Two Counts Use of a Weapon to Commit a Felony

Proceedings Below: Thorpe was convicted by jury of 2 counts of 1st degree murder and 2 counts of use of a weapon to commit a felony. He now appeals those convictions.

Issues:  Peremptory challenges; witness/juror contact; jury instructions.  On appeal, Thorpe assigns that (1) the State exercised its peremptory challenges to exclude black jurors from the jury; (2) the district court erred in overruling Thorpe’s motion for mistrial based upon contact between a witness and a juror; and (3) the district court erred in instructing the jury with regard to witness intimidation and in overruling Thorpe’s motion to strike certain testimony related to that instruction.

S-09-0636, State v. Ira R. Leon (Appellant)

Lincoln County, Judge Donald E. Rowlands

Attorneys: Pro Se Appellant --- Erin E. Tangeman (Attorney General’s Office)

Civil: Postconviction and motion for DNA testing under the DNA Testing Act

Proceedings below: The district court denied Appellant’s motion finding DNA testing would not produce noncumulative, exculpatory evidence relevant to Appellant’s claim that he was wrongfully convicted or sentenced.

Issues: The district court erred in (1) overruling Appellant’s motion for DNA testing based on his entrance of a no contest plea as a failure to timely challenge the information against him; (2) overruling Appellant’s motion for DNA testing based on its opinion that Appellant could not prove he was not guilty of robbery through DNA testing and would therefore still be guilty of felony murder.

S-09-0718)  State of Nebraska v. State Code Agencies Teachers Assoc., NSEA-NEA aka Code Agencies Education Assoc.

S-09-0738)  Board of Trustees of the Nebraska State Colleges v. State College Education Assoc.

Commission on Industrial Relations (en banc)

Attorneys: A. Stevenson Bogue & Jennifer Deitloff (McGrath, North)(Special Assistant Attorneys General for appellant State of Nebraska); Patrick J. Barrett (Fraser Styker) Omaha (for appellant Board of Trustees); Mark D. McGuire(McGuire and Norby) (for all appellees)

Civil: Labor relations-State Employees Collective Bargaining Act

Proceedings Below: After failing to reach an agreement through collective bargaining, the appellees invoked the special master procedure in the State Employees Collective Bargaining Act. The State filed a motion to dismiss, alleging that the appellees failed to comply with certain statutory requirements. The special master denied the motion to dismiss. After a hearing, the special master concluded that the appellees’ offer was more reasonable. That decision was appealed to the CIR. The CIR granted several of the appellees’ motions in limine, and eventually affirmed the special master. The State and the Board of Trustees both appeal.

Issues:  Issue raised in appellant’s Petitions to Bypass: In an appeal before the CIR, does the CIR have authority under the State Employees Collective Bargaining Act to consider additional evidence when reviewing a Special Master’s decision? 

            Appellant State of Nebraska assigns that the CIR erred in (1) determining that the special master had jurisdiction; (2) granting SCATA’s motion in limine; (3) determining that the decision to include both Lincoln and Omaha in the array was “not significantly disparate from Section 48-818”; (4) giving deference to the special master’s prediction of wage increases; and (5) determining that the special master’s conclusion that the Act requires the setting of wages for the second year is “not significantly disparate from the comparable under Section 48-818.”

            Appellant Board of Trustees assigns that the CIR erred in (1) issuing an order that was erroneous and contrary to law in several particulars; (2) ruling that the prevalent rates of pay fell within the final offers of the parties; (3) finding that the award was not “significantly disparate” from the prevalent rate of pay; (4) finding that the Board’s final offer regarding salary increases was not comparable to prevalent rates; (5) “failing to find that the implementation of the Special Master’s Ruling would result in a significant disparity between the pay the Board will be required to implement . . . and the prevalent rates of pay . . . .” and (6) allowing the SCEA to challenge the special master’s award regarding non-economic items.

WEDNESDAY, MARCH 31, 2010, subject to call at 9:00 a.m.

S-09-0618, State of Nebraska v. Tyrus T. Shelly

District Court for Douglas County, Judge Gerald Moran

Attorneys: Brian S. Munnelly -- James D. Smith (Assistant Attorney General)

Civil: Postconviction action

Proceedings Below: Shelly was convicted of second degree murder, attempted second degree murder and two counts of use of a firearm to commit a felony. He pled guilty to the charges and was sentenced to 30 to life for the murder conviction 5 to 10 for each use of weapon conviction, and 25 to 30 for the attempted murder conviction. He filed a motion for postconviction relief, which was denied without a hearing. On appeal from that decision Shelly was granted a hearing. Before that hearing was held, Shelly attempted to amend his original postconviction motion. The district court refused to allow Shelly to amend. Shelly appeals.

Issues: Shelly assigns that the district court erred in (1) finding that it lacked authority to consider the additional issues raised by Shelly’s amended motion and as such refusing to address those issues; and (2) finding that the amended motion was procedurally barred.

S-07-0740, Curt and Susan Schauer (Appellants) v. Alvin “Jeep” Grooms, et. al. (Appellees)

Valley County District Court – Judge Karin L. Noakes

Attorneys:  George G. Vinton – (Appellant) – Justin R. Herrmann, and Daniel L. Lindstrom
(Jacobsen, Orr, Nelson, Wright, & Lindstrom) (Appellees)

Civil: The Schauers filed a complaint seeking a declaration voiding the action of the City of Ord in annexing a tract of land to be used for an ethanol facility.

Proceedings Below: Both parties filed motions for summary judgment.  The district court denied the Schauers’ motion and granted the appellees’ motion. The Schauers appealed.

Issues:  The Schauers assert that the district court erred in (1) ruling that a second class city can declare land substandard and blighted under Neb. Rev. Stat. § 18-2109 that is not within the city limits and then annex the land under § 17-405.01(2); (2) finding that there is “an obvious conflict” between § 17-405.01(2) and § 18-2109; (3) ruling that there is no restriction in the community development law as to where a redevelopment project area can be located; (4) determining there is no issue of material fact regarding whether or not the City of Ord failed to specifically identify the area to be redeveloped under the redevelopment plan as required by § 18-2115; (5) ruling that § 17-405.01 does not require the City to annex all property designated as blighted and substandard in the redevelopment plan; (6) failing to grant the Schauers’ motion for summary judgment; (7) determining that proper notice of the public hearings required under the community development act were given by the City; (8) finding that the Schauers have no standing to contest the annexation of land by the City; (9) determining that the Nebraska Open Meetings Act was complied with; (10) ruling that the City had a designated method of giving notice of the time and place of public meetings as required under § 84-1411; (11) failing to find that the City’s annexation of the real estate was an ultra vires act and was null and void ab initio; and (12) failing to conclude that the Mayor of the City of Ord is required to vote on the ordinance annexing land.

S-09-0989, In re Interest of Dakota M., State v. Dakota M. (Appellant)

Madison County Court, Judge Donna Farell Taylor

Attorneys: Melissa A. Wentling (Public Defender) --- Gail E. Collins (County Attorney)

Criminal: Juvenile adjudication; condition of release

Proceedings Below: The trial court ordered that Appellant serve any “out of school suspensions” at the Northeast Nebraska Juvenile Detention Center (NNJDC).

Issues: The lower court erred in (1) its imposition of a “condition of release” requiring any out of school suspensions be served at NNJDC; (2) relying on Neb. Rev. Stat. § 29-2270(1) (Reissue 2004) as authority to order Appellant to serve his suspension at NNJDC.

S-09-0631, 632, and 633, In Re Interest of Tyler T.

Madison County Court, Judge Donna Farrell Taylor

Attorneys:   Melissa Wentling --  Madison County Attorney

Criminal:   Juvenile proceedings/probation and drug court

Proceedings Below:  Juvenile on probation and participating in drug court program was sanctioned to a one-day “detention” at the Northeast Nebraska Juvenile Detention Center for a violation of drug court program rules.

Issues:  Does a drug court judge have the authority to “sanction” a juvenile for a drug court program violation by imposing a one day detention order on the juvenile. 

S-35-090001, State of Nebraska ex rel. Commission on Judicial Qualifications (Relator) v. Kent E. Florom (Respondent)

Judicial Qualifications Commission, Chief Justice Michael G. Heavican-Chair

Attorneys: Susan L. Kirchman (Respondent) -- Anne E. Winter (Relator)
 
Judicial Qualifications Commission: Judicial disciplinary action

Proceedings Below: The Judicial Qualifications Commission determined that Kent Florom had violated the Nebraska Code of Judicial Conduct, and that he should be removed from office.

Issues: Whether the removal of Florom from the bench was arbitrary and unwarranted, and whether a lesser sanction would be more appropriate.
                                                                                                                    

APRIL 1st ARGUMENTS ONLY TO BE HELD
AT CREIGHTON UNIVERSITY
(Sign in at Creighton prior to arguments)

THURSDAY, APRIL 1, 2010, subject to call at 9:30 a.m.

S-09-0768, State v. John D. Wollom (Appellant)

Saline County, Judge Vicky L. Johnson

Attorneys:  Kirk E. Naylor (Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Criminal:  Refusing preliminary breath test; refusal to submit to chemical test

Proceedings below: After a trial to the court, the court found Appellant guilty of the two refusal charges but not guilty of DUI, 2nd Offense, child abuse and open container. He was fined $500 and placed on a term of probation. The district court affirmed.

Issues: The district court erred in affirming the county court’s order overruling Appellant’s motion to suppress.

S-09-0588, State of Nebraska v. Stephen M. Pullens (Appellant)

Douglas County District Court, Judge Gregory M. Schatz

Attorneys: Thomas C. Riley & Timothy P. Burns (Appellant); James D. Smith (Appellee)
 
Criminal:  Murder in the Second Degree

Proceedings Below: Pullens was found guilty of Second Degree Murder after a jury trial and sentenced to 80 years to life imprisonment. 

Issues: The district court erred (1) in allowing certain testimony from a witness, (2) in allowing emails into evidence that were not properly authenticated, (3) in giving jury instruction number 14,  and (4) in denying Pullens the right to counsel at his sentencing hearing. Pullens also assigns that the district court abused its discretion when sentencing Pullens, and that he was denied effective assistance of counsel.
                                                                                                                    
S-08-1259, Vivika A. Deviney (Appellant) v. Union Pacific Railroad Company, a Delaware Corporation

Douglas County, W. Russell Bowie III

Attorneys:  Richard J. Dinsmore, Jayson D. Nelson (Law Office of Richard J. Dinsmore PC LLO) and Cortney S. LeNeave, Richard L. Carlson (Hunegs LeNeave & Kvas PC of Minnesota) ( for Appellant) --- William M. Lamson, Jr., Anne Marie O’Brien, Angela J. Miller (Lamson Dugan and Murray LLP) (for Union Pacific)

Civil: Federal Employers’ Liability Act (FELA) action

Proceedings Below: The trial court granted Union Pacific’s motion for summary judgment and dismissed Appellant’s FELA action. The Court of Appeals reversed and remanded for further proceedings. See Deviney v. Union Pacific Railroad Company, 18 Neb. App. 134 (2009). The Appellee filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues: The Court of Appeals erred in (1) failing to address whether a common law duty should be imposed upon Appellee; and (2) assuming that Appellee had a duty to inspect and correct unsafe conditions on property owned by third parties.

S-09-0879, In re Amwest Surety Insurance Co. (Debtor): State of Nebraska ex rel. L. Tim Wagner, Director of Insurance of the State of Nebraska (Appellee) v. Gilbane Building Co. (Appellant)

Lancaster County District Court, Judge John A. Colborn

Attorneys: Robert F. Craig & Anna Bednar (Appellant); Michael S. Degan & Robert L. Nefsky (Appellee)
 
Civil:  Action under the Nebraska Insurer’s Supervision Rehabilitation and Liquidation Act by Nebraska’s Director of Insurance to avoid and recover certain preferential transfers

Proceedings Below: The Nebraska Director of Insurance brought suit to avoid and recover four payments made by Amwest to Gilbane Building Co., contending that they were preferential transfers and voidable under Neb. Rev. Stat. § 44-4828. The matter was eventually appealed to the Nebraska Supreme Court, which affirmed summary judgment granted to the Liquidator except as to a single transfer made on January 5, 2001. The Nebraska Supreme Court then remanded the case, and the district court entered an order in accordance with the Supreme Court’s mandate on January 22, 2009. On remand, the sole issue was whether Amwest was insolvent on January 5, 2001. Both parties filed motions for summary judgment, and the district court granted summary judgment to the Liquidator. Gilbane also filed a motion titled “Motion for an Order Determining that the Court’s Judgment of January 22, 2009 is Not Final.”

The district court heard the motions for summary judgment and Gilbane’s motion to determine that the order was not final, granted the Liquidator’s motion for summary judgment, and denied both of Gilbane’s motions. Gilbane appealed.

Issues: The district court erred in (1) granting the Liquidator’s motion for summary judgment regarding the fourth transfer, (2) holding that the value of goods and services provided by Gilbane after the transfer, which value exceeded the amount of the alleged preferential transfer, did not constitute an offset to the alleged preferential transfer contrary to Neb. Rev. Stat. § 44-4828(9), and (3) denying Gilbane’s Motion for an Order Determining that the Court’s Judgment of January 22, 2009, was not final, contrary to Neb. Rev. Stat. §§ 25-1902 and 25-1315.
                                                                                                                    

FRIDAY, APRIL 2, 2010, subject to call at 9:00 a.m.

S-09-0890, State of Nebraska (Appellee) v. Laura Lebeau (Appellant)

Douglas County District Court, Judge Gary B. Randall

Attorneys: Thomas C. Riley & Sean M. Conway (Appellant) --  James D. Smith (Appellee)
 
Criminal:  Motion to Discharge; Speedy Trial

Proceedings Below: Lebeau was charged by complaint with violation of an Omaha ordinance. Lebeau filed a motion to discharge on March 20, 2009, alleging that her case had not been brought to trial within six months of the filing as required by Neb. Rev. Stat. §§ 29-1207 and 29-1208. Lebeau filed a second motion to discharge alleging that if § 29-1207(2) was found to be applicable to her case, the exception was unconstitutional. The Douglas County Court denied both motions to discharge, and the Douglas County District Court affirmed. Lebeau appeals.

Issues: The county court erred in denying both of Lebeau’s motions to discharge.
                                                                                                                    

S-09-0019, Waste Management Co. of Nebraska, Inc. and Nature’s Works, LCC (Appellants) v. Dorothy L. Bauermeister, Individually and Trustee of the Dortohy L. Bauermeister Revocable Living Trust, Ronald Bauermeister, Remainderman, Robert Bauermeister, Remainder, Clara E. Deaver, Individually and as Personal Representative of the Richard Deaver Estate (Appellees)

Douglas County District Court, Judge Gary B. Randall

Attorneys:  Thomas A. Grennan and Francie C. Riedmann (Gross & Welch) and Ronald R. Volkmer (McGill Gotsdiner Workman & Lepp) (Appellant) -- David A. Domina (Domina Law) (Appellee)

Civil:   Action for Specific Performance, Quiet Title and Declaratory Judgment involving real estate – Alleged Breach of Purchase Agreement/Exercise of Seller’s Option to Buy

Proceedings Below: After a trial, the court ruled in favor of Bauermeister and Deaver, concluding that the option to buy did not violate the Rule against Perpetuities or the restraints against alienation doctrine and that Bauermeister and Deaver validly exercised their option to buy.

Issues:  Did the court err in concluding that (1) the option to buy did not violate the Rule against Perpetuities; (2) that the option did not violate the Restraint on Alienation doctrine; and (3) that Bauermeister and Deaver validly exercised their option.

S-09-0644)  Schuyler Apartment Partners, LLC (Appellant) v. Colfax County Board of Equalization

S-09-0645)  Columbus Apartment Partners, LLC (Appellant) v. Platte County Board of Equalization

Nebraska Tax Equalization and Review Commission

Attorneys: Theodore R. Boecker (Boecker Law PC LLO) (both Appellants) --- Carl K. Hart, Jr. (Platte County Attorney’s Office for Platte County Board of Equalization) --- (Edmond E. Talbot, III) (Talbot &Truhlsen LLP) (Colfax County Board of Equalization)

Civil: Valuation of real property

Proceedings below: TERC affirmed the decision of the Board finding Appellant had not produced competent evidence that the Board failed to faithfully perform its official duties and act on sufficient competent evidence to justify its actions and Appellant failed to adduce sufficient evidence that the decision of the Board was unreasonable or arbitrary.

Issues: TERC erred in (1) affirming the decision of the Board and failing to find the valuation was set too high; (2) finding that the decision issued in Town Square Limited Partnership v. Clay County Board of Equalization, 704 N.W. 2d 896 (South Dakota, 2005) was persuasive authority consistent with Nebraska law; (3) failing to find that the Colfax County Board had violated Neb. Rev. Stat. § 77-112; (4) failing to find Appellant’s property had not been valued based upon Neb. Rev. Stat. § 77-1333; (5) substituting its own analysis unsupported by the record in contrary to its authority under Neb. Rev. Stat. § 77-5016.

S-09-0916, Patrick McMillan (Appellant) v. Wanzek Construction

Nebraska Workers’ Compensation Court

Attorneys: Brett McArthur (Appellant) --- Jason A. Kidd (Engles Ketcham Olson & Keith)

Civil:  Determination of benefits for injured employee

Proceedings below: The trial court found Appellant was entitled to TTD but denied permanent benefits finding Appellant had not yet reached MMI. The trial court found Appellant was entitled to future medical benefits, including surgery for a post-accident knee injury. The review panel affirmed in all respects except it reversed the award of surgery for a post-accident knee injury.

Issues: The review panel erred in reversing the trial court’s award of future medical benefits for a post-accident knee injury which the trial court found was necessary in order for Appellant to undergo future medical rehabilitation for his work-related back injury.

Cross-Appeal: The review panel erred in (1) finding TTD was appropriate for Appellant’s alleged back injury and non-compensable knee injury; (2) finding Appellant suffered a compensable back injury; and (3) finding an award of future medical care was appropriate.