Supreme Court Case Summaries

April 3, 4, 5 or 6, 2012

TUESDAY, APRIL 3, 2012, subject to call at 9:00 a.m.

S-11-0597, State v. Chad N. Sorensen (Appellant)

Box Butte County, Judge Leo Dobrovolny

Attorneys: Bell Island (Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Criminal: DUI, 2nd offense, over .15 BAC

Proceedings below: Appellant was found guilty and sentenced to 24 months probation with revocation of his license for one year. The district court affirmed.

Issues: The county court erred in admitting the Certificate of Blood Sample Drawn rather than requiring the
state to call as a witness the nurse who drew the blood as it violated Appellant’s right to confront witnesses.

S-10-1228, State v. Jeremy D. Foster (Appellant)

Douglas County, Judge Peter C. Batillon

Attorneys: Michael J. Wilson, Glenn Shapiro (Schaefer Shapiro, LLP) (for Appellant) --- Stacy M. Foust (Attorney General’s Office)

Criminal: Count I: First degree murder; Count II: Use of a firearm to commit a felony; Count III: Second degree assault; Count IV: Use of a firearm to commit a felony; Count V: Second degree assault; Count VI: Use of a firearm to commit a felony; Count VII: Second degree assault; Count VIII: Use of a firearm to commit a felony; Count IX: Second degree assault; Count X: Use of a firearm to commit a felony

Proceedings below: A jury found Appellant guilty of the above crimes. He was sentenced as follows: Count I: Life in prison; Count II: 40-50 years; Counts III, V, VII, and IX: 4 to 5 years each; Counts IV, VI, VIII, and X: 10 to 20 years each. Each sentence was ordered to be served consecutively to each other. Credit was given for time served.

Issues: The district court erred in (1) failing to sever Appellant’s trial from that of co-defendant Smith because their irreconcilable and mutually antagonistic defenses reduced their trial to a contest between them and erred in admitting multiple hearsay statements against him; (2) permitting the jurors to separate after submission of Appellant’s case without first obtaining Appellant’s voluntary, knowing and intelligent waiver of his right to sequestration of the jury.

S-10-1232, State v. Darrin Smith (Appellant)

Douglas County, Judge Peter C. Bataillon

Attorneys: Peder Bartling (Appellant) --- Stacy M. Foust (Attorney General’s Office)

Criminal: Count I: First degree murder; Count II: Use of a deadly weapon to commit a felony; Count III: Second degree assault; Count IV: Use of a deadly weapon to commit a felony; Count V: Second degree assault; Count VI: Use of a deadly weapon to commit a felony; Count VII: Second degree assault; Count VIII: Use of a deadly weapon to commit a felony; Count IX: Second degree assault; Count X: Use of a deadly weapon to commit a felony

Proceedings below: A jury found Appellant guilty of all the charges. He was sentenced as follows: Count I: Life in prison; Count II: 40-50 years; Counts III, V, VII, and IX: 4 to 5 years each; Counts IV, VI, VIII, and X: 10 to 20 years each. Each sentence was ordered to be served consecutively to each other. Credit was given for time served.

Issues: The district court erred in (1) failing to sever Smith’s trial from that of his co-defendant; (2) allowing the State to introduce evidence that Smith (a) allegedly was a member of a street gang; and (b) engaged in prior bad acts without holding a Rule 404(3) hearing; (3) allowing the State to (a) introduce inadmissible excited utterance testimony that (b) violated Smith’s right to confront his accusers; (4) failing to sustain Smith’s motion to suppress statements to law enforcement; (5) failing to sustain Smith’s motions for mistrial; (6) allowing the State to introduce unfairly prejudicial autopsy photograph into evidence; (7) finding sufficient evidence to support the verdicts. He also alleges that the accumulation of errors are such that if any one error does not require reversal, the aggregation of errors requires reversal and remand for new trial.

S-10-0945, Ronald Sherman (Appellant) v. Beverly Neth, Director, Nebraska Department of Motor Vehicles

Cheyenne County, Judge Derek C. Weimer

Attorneys: Bell T. Island (Appellant) --- Gregory Walkin (Attorney General’s Office)

Civil: Administrative revocation of license

Proceedings below: The trial court affirmed the Director’s decision to revoke Sherman’s license for one year under the Administrative License Revocation Act. The Court of Appeals reversed and remanded. See Sherman v. Neth, 19 Neb. App. 435 (2011). The State filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred in determining the arresting officer’s sworn report lacked the recitations by Neb. Rev. Stat. § 60-498.01(2) and was thus insufficient to vest the Director with jurisdiction to revoke Sherman’s license.

WEDNESDAY, APRIL 4, 2012, subject to call at 9:00 a.m.

S-11-0182, Dave Engler, Nebraska Professional Firefighters Association, & Muscular Dystrophy Association (Appellants) v. State of Nebraska Accountability & Disclosure Commission

Lancaster County, Judge Robert R. Otte

Attorneys: Edward F. Fogarty (Fogarty Lund & Gross) (for Appellants) --- Lynn A. Melson (Attorney General’s Office)

Civil: Nebraska Accountability & Disclosure Act; jurisdiction

Proceedings below: The district court dismissed the petition finding it did not have jurisdiction to hear the matter. Appellants appealed to the Court of Appeals which dismissed the appeal for lack of jurisdiction. Appellant’s motion for rehearing was overruled. Appellant’s filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: Did the Court of Appeals and the district court err in dismissing the appeal for lack of jurisdiction?

S-11-0695, In re Interest of Kendra M., Matthew G., Katrina G.

Merrick County Court, Judge Linda Caster Senff

Attorneys: Rachel A. Daugherty (Myers & Daugherty PC) (for Appellant Lisa G., natural mother) --- Jerom E. Janulewicz (GAL for minor children) --- Lynelle Homolka (County Attorney’s Office) --- Matthew C. Boyle (GAL of Lisa G.)

Civil: Termination of parental rights and motion to terminate guardianship

Proceedings below: The trial court terminated Lisa G.’s parental rights finding such termination was in the best interests of the minor children. The trial court overruled the petition to terminate the guardianship.

Issues: The county court erred in (1) finding Lisa G. substantially and continuously or repeatedly neglected and refused to give the minor children parental care and protection; (2) finding the minor children had been in out of home placement for 15 or more of the most recent 22 months; (3) finding Lisa G. was unable to discharge her parental duties because of mental illness or mental deficiency and reasonable grounds to believe such condition would continue for a prolonged and indeterminate period; (4) finding reasonable efforts to preserve and reunify the family failed to correct the conditions leading to the adjudication under Neb. Rev. Stat. § 43-247(3)(a); (5) finding termination was in the best interests of the minor children; (6) finding the guardianship over the children should not be terminated; (7) failing to recuse as judge when the trial judge had participated as prosecutor on a previous case involving the children as victims of a crime.

S-11-0762, Fonda Holliday (Appellant) v. Plainview Area Health System

Nebraska Workers’ Compensation Court

Attorneys: Jeffrey F. Putnam (Appellant) --- Anne E. Winner (Keating O’Gara Nedved & Peter PCLLO)

Civil: Order of dismissal of petition

Proceedings below: The trial court dismissed Appellant’s petition finding she did not suffer an injury in the course and scope of employment. The review panel affirmed.

Issues: The trial court erred in dismissing the petition finding Appellant did not suffer a work-related compensable injury. The review panel erred in affirming the trial court.

 
S-11-0919, In re Interest of Erick M.

Separate Juvenile Court for Lancaster County, Judge Linda S. Porter

Attorneys: Kevin Ruser (Civil Clinical Law Program) and Amanda M. Civic (Senior Certified Law Student) (for Appellant Erick M.) --- John C. McQuinn (City Attorney’s Office)

Juvenile: Determination for eligibility for Special Immigrant Juvenile Status pursuant to 8 U.S.C. § 1101(a)(27)(J).

Proceedings below: The juvenile court denied Appellant’s Motion for Order Regarding Edibility for Special Immigrant Status.

Issues: Whether the juvenile court erred in denying Appellant’s Motion for Order Regarding Eligibility for Special Immigrant Status.

APRIL 5th ARGUMENTS ONLY TO BE HELD
AT CREIGHTON UNIVERSITY
(Sign in at Creighton prior to arguments)

THURSDAY, APRIL 5, 2012, subject to call at 9:30 a.m.

S-11-0891, State v. Thunder Collins (Appellant)

Douglas County, Judge Gary B. Randall

Attorneys: Steve Lefler (Lefler and Kuehl Law) for Appellant ---Erin E. Tangeman (Attorney General’s Office)

Criminal: First degree murder, attempted second degree murder, first degree assault and two counts of use of a deadly weapon to commit a felony.

Proceedings below: This case was previously before this Court. See State v. Collins, 281 Neb. 927 (2011) (remanded for further proceedings). Upon remand, the district court denied Appellant’s motion for recusal; denied his motion to take depositions and denied Appellant’s motion for new trial finding the State met its burden of rebutting the presumption of prejudice resulting from the jury’s separation beyond a reasonable doubt.

Issues: The trial court erred in (1) denying Collins’ motion for recusal; (2) denying Appellant’s motion to take depositions of the jurors to determine whether or not the jurors accessed prohibited sources during deliberations; (3) overruling Appellant’s motion for a new trial based on the failure of the court to sequester the jury, and determining the State had met its burden that the Appellant was not prejudiced.

S-11-0879, Michael P. Feloney (Appellant) v. Robert W. Baye
 
Douglas County, Hon. Gary B. Randall

Attorneys:  Russell S. Daub and W. Eric Wood (Appellant) ---David V. Drew

Civil:  Prescriptive Easement

Proceedings below:    District court sustained Baye’s motion for summary judgment after determining that Feloney’s claimed use was over unenclosed land and that Feloney failed to present evidence to overcome the presumption that his use of the land was permissive.

Issues: Whether the court erred when it concluded that the area over which Feloney claimed a prescriptive easement was unenclosed land subject to a presumption that use of the land was permissive; and whether the court erred when it resolved a genuine issue of material fact in favor of Baye rather than acknowledging that such issue prevented summary judgment.

S-11-0548, Carlos H. (Appellant) v. Lindsay M.

Sarpy County Court, Judge Robert C. Wester

Attorneys: Hugh I. Abrahamson (Appellant) --- Kelly N. Tollefsen

Civil: Adoption/Objection

Proceedings below: The trial court denied Appellant’s motion for summary judgment finding since he was a minor, he could not bring an action in his own name and Appellant filed the action more than 30 days after the Notice of Objection to Adoption and Intent to Obtain Custody was filed with DHHS.

Issues: The trial court erred in (1) finding Neb. Rev. Stat. § 43-104.05 applied to him as it is against public policy; (2) failing to find the mother filed her paperwork out of time and thus failing to invalidate the adoption; (3) overruling Appellant’s motion for summary judgment; (4) unfairly allowing the mother’s minority to not be an issue when consenting to adoption but not allowing Appellant’s minority to invoke his parental rights; (5) failing to find that the statute is tolled until Appellant reaches majority; (6) finding that due to Appellant’s minority, his parental rights are diminished in his minority capacity.

 
S-10-0879 and S-10-0880 (consolidated appeals), Rachel Connelly and Chelsea Connelly, minors, individually and by and through their next friends and natural parents, Timothy James Connelly and Kelly Jean Connelly v. City of Omaha (Appellant)

Douglas County, Judge Patricia Lamberty

Attorneys: Timothy Michael Morrison, Thomas M. Locher, Alexandra R. Tinkham (Locher Pavelka) (for Appellees) --- Thomas O. Mumgaard, Jo A. Cavel, Timothy G. Himes, Sr. (City Attorney’s Office) (Appellant)

Civil: Re-argument of appeal

Proceedings below: This case was argued and submitted on September 7, 2011. On February 15, 2012, the Nebraska Supreme Court ordered the matter to be placed on the April 2012 Call for re-argument and ordered simultaneous supplemental briefing. Because a constitutional issue is presented by the cross-appeal in S-10-0879, the Supreme Court determined that the appeals cannot be resolved by the remaining six members of the panel and that re-argument before a new seven-member panel is necessary.

Issues for Supplemental Briefing: With respect to the seventh assignment of error in S-10-0880, the parties are directed to brief the following issue:

If Neb. Rev. Stat. § 13-926 is determined to be constitutional, and Timothy and Kelly Connelly are not considered to be the same “person” as Rachel Connelly or Chelsea Connolly under subdivision (1) of Neb. Rev. Stat. § 13-926, are Timothy  and Kelly Connelly each a “person” for purposes of their claims resulting from their daughters’ injuries, permitting each to recover up to $1,000,000; or are Timothy and Kelly Connelly a single “person” for purposes of those claims, permitting them to jointly recover up to $1,000,000?

FRIDAY, APRIL 6, 2012, subject to call at 9:00 a.m.

S-10-0968, In re Interest of David M., Miguel H., Edwin G., Rogelio M.

Madison County Court, Judge Donna Farrell Taylor

Attorneys: Joseph M. Smith (County Attorney’s Office)(Appellant) --- Harry A. Moore (for Appellee Kate M. Jorgensen, GAL for minor children)

Civil: GAL application for fees

Proceedings below: The trial court overruled the objection to the GAL’s application for fees. The Court of Appeals reversed and remanded for further proceedings. See In re Interest of David M., 19 Neb. App. 399 (2011). The Appellee filed a petition for further review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred in (1) creating and substituting parties to the appeal in disregard of In re Claim of Rehm and Faesser, 226 Neb. 107 (1987) and therefore had no jurisdiction in this appeal; (2) using In re Interest of Moore, 186 Neb. 67 (1970) as support to authorize a county attorney to ignore and prevent a GAL from performing her required duties; (3) granting a county attorney summary authority to ignore and override, by dismissing the petition in a case pursuant to Neb. Rev. Stat. § 43-247(3)(a), the findings of a judge concerning best interests of children and compensation of court-appointed counsel.

S-11-0352, 11-0353, 11-0354, 11-0355) (consolidated appeals) Randy and Helen Strode v. Saunders County Board of Equalization

Tax Equalization and Review Commission

Attorneys: Terry K. Barber (Barber & Barber PCLLO) (for Petitioners) --- Scott Tingelhoff (County Attorney)

Civil: Tax protest

Proceedings below: The Board of Equalization affirmed the determinations of value made by the Saunders County Assessor on the various parcels of property. TERC affirmed the Board’s decision. The Petitioners appealed. The Court of Appeals dismissed the appeal under Neb. Ct. R. App. P. § 2-107(A)(2) for lack of jurisdiction. Petitioners filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred in dismissing Petitioners’ appeal for lack of jurisdiction.


S-11-0712, Employees United Labor Association (cross-appellant) v. Douglas County (appellant)

Commission of Industrial Relations

Attorneys: Donald W. Kleine and Diane M. Carlson (Douglas County Attorney) for appellant; Raymond Aranza (Scheldrup Blades Schrock Smith Aranza) for appellee/cross-appellant

Proceedings below: CIR found the County committed an unfair labor practice when it passed on the annual increase in health insurance premiums to bargaining unit employees.

Issues: Did the CIR err in 1) finding the county committed an unfair labor practice when it passed on to the employees a portion of the increased cost of health insurance, 2) not giving full force and effect to the plain language of a Collective Bargaining Agreement that defined how health insurance premium costs were to be shared, or 3) in concluding that the health insurance contribution percentages expired when the CBA expired?

S-11-0664, D&S Realty, Inc., a Corporation v. Markel Insurance Company, a Corporation (Appellant)
S-11-0764, D&S Realty, Inc., a Corporation v. Markel Insurance Company, a Corporation (Appellant) Consolidated Appeals

Douglas County, Judge Joseph S. Troia

Attorneys: Richard J. Gilloon, Healther Veik (Erickson Sederstrom PCLLO) and Tory M. Bishop, Angela Probasco (Kutak Rock LLP) (for Appellant) --- Chalres F. Gotch, James D. Garriott, David A. Blagg (Cassem Tierney Adams Gotch & Douglas)

Civil: Denial of coverage under a commercial insurance policy

Proceedings below: This case was previously in the Supreme Court. See D&S Realty, Inc. v. Markel Insurance Company, 280 Neb. 567 (2010) (affirmed in part, and in part reversed and remanded for further proceedings). Upon remand, the jury found for D&S and awarded damages in the amount of $784,421.89 and awarded D&S attorney fees of $385,471.50 and costs of $3,598.49.

Issues: The district court erred in (1) overruling Appellant’s motions for directed verdict; (2) refusing Appellant’s jury instruction on the measure of damages which resulted in prejudice to Appellant as the requested instruction was a correct statement of the law and warranted by the evidence; (3) overruling Appellant’s motion for judgment notwithstanding the verdict or in the alternative, motion for new trial as its rulings were clearly untenable and unfairly deprived Appellant of a substantial right and just result; (4) awarding attorney fees and costs to D&S.