Supreme Court Case Summaries

TUESDAY, APRIL 5, 2011, subject to call at 9:00 a.m.

S-10-0819, In re Interest of Thomas M.

Cheyenne County, Judge Randin R. Roland

Attorneys:  Eric M. Stott (Assistant Attorney General for NDHHS) (Appellant) --- Krista Shaul (County Attorney’s Office)

Criminal:  Contempt

Proceedings below:  The trial court issued a contempt citation against DHHS for failure to provide counseling services to the juvenile at the rate of $400 per day until the court is provided with satisfactory written evidence that the juvenile is receiving counseling as ordered in the July 8, 2010 order.  On August 9, 2010, the court found that the Colorado Boys Ranch billing shall be paid by the State in full within 20 days or DHHS would be held in contempt of court and pay $500 per day until proof of payment of the bill has been provided to the court.

Issues:  The juvenile court erred in (1) finding DHHS in contempt without proper notice and opportunity to be heard; (2) finding DHHS in contempt because the court lacked jurisdiction due to sovereign immunity; (3) finding DHHS in contempt where there was no evidence of and no finding of a willful violation of any court order; (4) ordering further review hearings to determine proof of payment for all billings associated with the juvenile’s placement.

S-10-0250, Sylvia Devese, Personal Representative of the Estate of Stephen O’Bryant, Deceased (Appellant) v. Transguard Insurance Company of America, Inc., a Foreign Corporation

Douglas County, Judge Leigh Ann Retelsdorf

Attorneys:  Betty L. Egan (Walentine O’Toole McQuillan & Gordon) (Appellants) --- Walter E. Zink II, Jarrod P. Crouse (Baylor Evnen Curtiss Grimit &Witt LLP)

Civil:   Breach of contract, denial of claim

Proceedings below:  The trial court entered summary judgment for the defendant.  The Court of Appeals affirmed under Neb. Ct. R. 2-107(A)(1).  Appellant 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 district court granting

Appellee’s motion for summary judgment; (2) finding that Omaha Sky Diver’s Parachute Club, Inc. v. Ranger Ins. Co., 189 Neb. 610 (1973) was controlling.

S-10-0974, April Palmer (Appellant) v. Lakeside Wellness Center d/b/a Alegent Health, and Precor, Inc.
 
Douglas County, Hon. Joseph F. Troia

Attorneys:       Heather Voegele-Andersen, Brenda K. George (Koley Jessen) for April Palmer;
David L. Welch, Ashley E. Dieckman (Pansing Hogan Ernst & Bachman) for Alegent Health;
Albert M. Engles, Corey J. Kerger (Engles, Ketcham, Olson & Keith) for Precor, Inc.;

Civil:   Personal Injury – Negligence and Product Liability

Proceedings below:     District court sustained defendants’ motions for summary judgment.

Issues:  The trial court erred in granting summary judgment finding (1) the language in membership agreement and health history questionnaire was clear, understandable, and unambiguous and acted as a valid waiver of liability consistent with public policy (2) Palmer assumed the risk of using the treadmill.

           
S-10-0455, Robert Murray, Special Administrator of the Estate of Mary K. Murray, and Robert Murray, Individually v. UNMC Physicians f/k/a University Medical Associates, a corporation (Appellant)

Douglas County, Judge James T. Gleason

Attorneys:  Thomas J. Shomaker, Jeffrey A. Nix, MaryM. Schott (Sodoro Daly & Sodoro) (Appellant) --- James R. Welsh, Christopher Welsh (Welsh & Welsh PCLLO)

Civil:  Medical negligence/ loss of consortium

Proceedings below:  A jury found in favor of the defendant, UNMC Physicians. Plaintiff filed a motion for new trial which was granted by the trial court. Appellee/Plaintiff filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The trial court erred in granting the motion for new trial.

WEDNESDAY, APRIL 6, 2011, subject to call at 9:00 a.m.

S-10-611, S-10-616)   American National Bank (Appellee) v. Michael Medved, Paul Gardner, Highway Leasing LLC, Get Going LLC, MPG Carriers (Appellants) (consolidated)

Douglas County, Judge Gregory M. Schatz

Sarpy County, Judge William B. Zastera

Attorneys:  Patrick Guinan, Heather Veik (Ericson Sederstrom) (Appellant) --- Aaron Weiner, Nicole Seckman Jilek (Abrahams Kaslow & Cassman) (Appellee)

Civil: Collection (Application for Charging Orders, Garnishment in Aid of Execution)

Proceedings below:     The District court of Douglas County granted three charging orders against Michael Medved’s interest in three Nebraska limited liability companies.  The District Court of Sarpy County granted a garnishment of wages owed to Michael Medved’s by MM Finance.

Issues: Michael Medved assigns that the District Court of Douglas County erred in (1) denying Mr. Medved’s motion to dismiss American National Bank’s applications for charging orders; (2) entering charging orders against Mr. Medved’s interests in MMMM Holdings, MM Finance, and Medved Properties; (3) finding that the property of Mr. and Mrs. Medved that American National Bank sought to charge was not community property under Arizona law and that Arizona’s community property laws did not apply to the issues presented; (4) denying Mrs. Laura Medved’s motion to intervene; and (5) finding that Mrs. Medved had no interest affected by the action, and that Mrs. Medved was not a necessary or indispensable party to the action.  Mr. Medved also assigns that the District Court of Sarpy County erred in (1) sustaining American National Bank’s motion to alter or amend judgment; (2) permitting American National Bank to garnish wages owed to Mr. Medved by MM Finance; (3) failing to apply Arizona’s community property laws to the issues presented; and (4) denying Mrs. Medved’s motion to intervene.

S-10-0208, In re Interest of Jamyia M.

Separate Juvenile Court for Douglas County, Judge Elizabeth Crnkovich

Attorneys:  Christine D. Kellogg (Public Defender’s Office for Appellant, Jamison M., natural father) --- Amy Schuchman (County Attorney’s Office)

Civil:  Termination of parental rights.

Proceedings below:  The trial court terminated the parental rights of Appellant, Jamison M. The Court of Appeals reversed and remanded for further proceedings.  See In re Interest of Jamyia M., 18 Neb. App. 679 (2010).  The Appellee/State filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review:  The Court of Appeals erred in finding that the State was required to provide active efforts to Shania S. and Jamison M. when aggravating circumstances were present to terminate their parental rights.

S-10-0924, Cesar Cano-Lopez (Appellant) v. Alicia Berta Landa (Appellee/Cross-Appellant)

Dawson County, Judge James E. Doyle, IV

Attorneys:  Jeffrey M. Wightman, Jesus A. Tena, Jr. (Appellant) --- Bradley D.  Holbrook (Jacobsen Orr) (Appellee)

Civil:  Paternity

Proceedings below:  The trial court found that Appellant was not the biological father of Jaime Cesar Cano after genetic testing was performed.  He granted custody of the minor child to Appellee based on the parental preference doctrine but found that Appellant was entitled to use equitable estoppel to prevent Appellee from terminating the parental relationship between him and Jaime.  Therefore, Appellant was entitled to visitation rights with Jaime and ordered to pay child support.

Issues:  The district court erred in (1) failing to apply equitable estoppel to Appellee in admitting the results of the genetic test; (2) failing to find Appellee unfit to have custody of the child and in applying the parental preference doctrine; (3) failing to require Appellee to pay a reasonable amount of child support.

Cross-Appeal: The district court erred in finding Appellant successfully demonstrated all the elements of the doctrine of equitable estoppel.

APRIL 7th ARGUMENTS ONLY TO BE HELD
AT CREIGHTON UNIVERSITY
(Sign in at Creighton prior to arguments)

THURSDAY, APRIL 7, 2011, subject to call at 9:30 a.m.

 S-10-0476, State v. Armon M. Dixon (Appellant)

Lancaster County, Judge Jodi Nelson

Attorneys:  Shawn Elliott  (Public Defender’s Office for Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Criminal:  Count I: First degree sexual assault; Count II: Robbery

Proceedings below:  A jury found Appellant guilty of the above crimes. He was sentenced to consecutive terms of 35 to 60 years.

Issues:  The district court erred in (1) failing to sustain Appellant’s request to strike nine jurors for cause; (2) failing to order a change in venue; (3) failing to continue Appellant’s trial when he could not produce a witness to testify during the course of trial; (4) failing to grant Appellant’s motion for mistrial when the State violated the court’s order concerning DNA evidence; (5) overruling Appellant’s motion for mistrial after he suffered a medical problem; (6) not directing a verdict in his favor; (7) finding Appellant was a habitual criminal; (8) applying Neb. Rev. Stat. § 29-2221(1)(a) based upon a purported prior conviction for aiding and abetting first degree assault; (9) imposing excessive sentences.

S-10-0885, State v. Armon M. Dixon (Appellant)

Lancaster County, Judge Jodi Nelson

Attorneys:  Shawn Elliott  (Public Defender’s Office for Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Criminal:  Count III: First degree sexual assault and habitual criminal; Count IV: Use of a weapon to commit a felony and habitual criminal; Count V:  Robbery and habitual criminal; Count VI:  Third degree assault on an officer and habitual criminal

Proceedings below:  The trial court ordered that Counts I and II be severed from the remaining four counts and trial to proceed.  The Appellant objected, stating that the court lacked jurisdiction over the remaining counts given the pending appeal in S-10-0476 on the first two counts.

Issues:  The trial court erred in finding it had jurisdiction to try the remaining counts.

S-10-0742, Teri A. Lathan (Appellant) v. Susan R. Schwerdtfeger

Douglas County, Judge Marlon A. Polk

Attorneys:  Tyler C. Block, Elizabeth Stuht Borchers (Marks Clare & Richards) (Appellant) --- Angela Dunne Tiritilli (Koenig & Tiritilli PCLLO) (Appellee) Kelle Westland (Raynor Rensch & Pfeiffer (Amicus Curiae National Center for Lesbian Rights)

Civil:  Custody and visitation with minor child

Proceedings below:  The trial court, after an extensive hearing, granted Appellee’s motion for summary judgment.  After overruling Appellant’s motion for specific findings, the district court entered its order of dismissal.

Issues: The district court erred in (1) granting Appellee’s motion for summary judgment; (2) holding the doctrine of in loco parentis does not apply to Appellant; (3) holding that Appellant has no standing to seek visitation or parenting time; (4) finding there is no genuine issue of material fact as related to Appellant’s legal standing; (5) using the child’s in camera interview in ruling on the motion for summary judgment.
 

S-10-0710, Professional Firefighters of Omaha, Local 385 (Appellee and Cross-Appellant) v. City of Omaha, (Appellant and Cross-Appellee)

Douglas County, Judge J. Patrick Mullen

Attorneys:  John E. Corrigan (Appellee)--Paul D. Kratz (Appellant).  

Civil:  Alleged violation of a CIR status quo order.  

Proceedings below:  The district court determined that the City of Omaha (City) violated a status quo order entered by the Commission of Industrial Relations (Commission).    

Issues:   Whether the district court erred when it determined: (1) that City violated the status quo order by not retaining a sufficient number of firefighters; (2) that City did not violate the status quo order by not retaining a sufficient number of fire captains.

S-10-0645, Rebecca L. Dresser & Krista A. Rosencrans (plaintiff-appellants) v. Union Pacific Railroad Company & Christine Spencer, as mother and next friend of Chanda McDonald (defendant-appellees)

Lancaster County District Court--Judge Paul D. Merritt, Jr.

Attorneys: Corey L. Stull & Derek A. Aldridge; Perry, Guthery, Haase & Gessford, P.C., L.L.O. (appellants) ---William M. Lamson, Jr., Anne Marie O’Brien, Angela J. Miller; Lamson, Dugan and Murray, LLP (appellees)

Civil--negligence

Proceedings Below:  The district court granted defendant Union Pacific summary judgment.

Issues:  Appellants raise five assignments of error:  1) The district court erred in finding no genuine issue of material fact existed on whether the UPRC locomotive horn was sounded at the railroad crossing.  2) The district court erred in finding no genuine issue of material fact existed on whether the locomotive horn signalization was a proximate cause of the accident.  3) The district court erred in dismissing the claims of negligence identified in paragraphs 8(c), (j), (l), (q), (r), and (t) of the Second Amended Complaint.  4) The district court erred in finding that federal law preempted the Appellants’ claims that UPRC was negligent by failing to maintain a proper lookout and by failing to slow or stop its train.  5) The district court erred in limiting the scope of Plaintiffs’ discovery.

FRIDAY, APRIL 8, 2011, subject to call at 9:00 a.m.

S-10-0753, City of Scottsbluff v. Waste Connections of Nebraska, Inc. (Appellant).

Scotts Bluff County, Judge Leo Dobrovolny

Attorneys:  Howard Olsen & John Simmons (Simmons Olsen Law Firm) – Stephen D. Mossman & Patricia Vannoy (Mattson, Ricketts, Davies, Stewart & Calkins) (Appellant)

Civil:  implied contract or unjust enrichment

Issue:  Did the trial court err in granting judgment in favor of plaintiff for reimbursement of fees paid for waste disposal?

S-10-0600 , John Mockenhaupt, as Guardian and Conservator for his minor child, Casey Mockenhaupt (Appellant) v. Billy L. Hobbs

Lancaster County, Judge Paul Merritt

Attorneys: Victor E. Covalt III, John W. Ballew (Ballew Covalt PCLLO) and Terrence J. Salerno (Appellant) --- Dana M. London

Civil:  Motion for an order in aid of execution under Neb. Rev. Stat. §§ 25-1572 and 25-1573.

Proceedings below:  The district court denied the motion finding that any funds in possession of the judgment debtor were exempt under Neb. Rev. Stat. § 81-2032.  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) finding that Appellee’s pension benefits in his possession are exempt from collection by reason of Neb. Rev. Stat. § 81-2032; (2) denying the motion for an order in aid of execution under Neb. Rev. Stat. § 25-1572; (3) failing to appoint a receiver to take control of Appellee’s property to apply the same to the judgment as requested under Neb. Rev. Stat. § 25-1573.

S-10-0750, State obo Vanessa I. M.(Appellant); Wilberth M. v. Patricia R. M. (Third-party defendant)

Douglas County, Judge Gary B. Randall

Attorneys:  Jessica J. Rasmussen, Julie Hutfless (for Appellant, State of Nebraska) --- no brief filed on behalf of Appellees.  Notice of default sent January 5, 2011.

Civil:  Child support

Proceedings below:  Child support calculation

Issues:  The district court erred in (1) giving Defendant Martinez-Ibarra a $480 annual credit to reduce his cash medical support obligation from $77 a month to $37 per month; (2) not reducing the deduction for cash medical support in the child support calculation from $77 per month to $37 per month if the $37 per month is a correct figure under the Child Support Guidelines.

 
S-10-0783, Betty Vandenberg v. Butler County Board of Equalization (Appellant)

Tax Equalization and Review Commission

Attorneys:  Julie Reiter (Butler County Attorney) --- no brief filed on behalf of Appellee. Notice of default sent.

Civil:  Trade fixture

Proceedings below:  The Commission found that an irrigation pump is a fixture and should be taxed as real property.

Issues:  The Commission erred in (1) finding the irrigation pump is a fixture and therefore real property for the purposes of taxation; (2) finding the irrigation pump is not “machinery or equipment” used directly in commercial, manufacturing, or processing activities” as set forth in Neb. Rev. Stat. § 77-105(2009).