Supreme Court Case Summaries

April 28, 29, or May 1, 2009

TUESDAY, APRIL 28, 2009, subject to call at 9:00 a.m.

S-08-0585, State v. Bart G. Hilding (Appellant)

Lancaster County, Judge Jeffre Cheuvront

Attorneys: Matthew G. Graff (Public Defender’s Office) (Appellant) --- Erin E. Leuenberger (Attorney General’s Office)

Criminal: First degree sexual assault (two counts); stalking

Proceedings below: A jury found Appellant guilty of the above crimes. He was sentenced to a total of 20 to 33 years in prison. The State filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred in (1) overruling Appellant’s motion to suppress; (2) discharging a juror after the jury was sworn and after evidence had been adduced; (3) overruling Appellant’s motion to sever counts 3 from counts 1 and 2; (4) finding sufficient evidence to support the jury’s conviction; (5) ordering Appellant be subject to lifetime registration pursuant to Neb. Rev. Stat. § 29-4005(2); (6) ordering Appellant be subject to lifetime registration pursuant to Neb. Rev. Stat. § 83-174.03(1)(c); (7) imposing excessive sentences.

S-08-0933, Concrete Industries, Inc., a Nebraska Corporation (Appellant) v. Nebraska Department of Revenue, A Nebraska Administrative Agency and Douglas A. Ewald, in his capacity as the State Tax Commissioner, for the State of Nebraska

Lancaster County, Judge John A. Colborn

Attorneys: Shannon L. Doering (Appellant) --- L. Jay Bartel (Attorney General’s Office)

Civil: Determination of tax exemption under Neb. Rev. Stat. § 77-2701.47 (Cum. Supp. 2008)

Proceedings below: The district court held that machinery and equipment used as component parts to install a manufacturing plant are not subject to the exemption provided for in § 77-2701.47. 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) concluding that machinery and equipment purchased as component parts and used to construct another piece of manufacturing machinery and equipment is not exempt from taxation under Neb. Rev. Stat. §§ 77-2704.22(1) (Cum. Supp. 2006) and 77-2701.47(1)(a) (Cum. Supp. 2008); (2) concluding that the Department could appropriately rely upon Revenue Rulings 1-05-01 and 1-06-6 without violating the Nebraska Administrative Procedure Act and the Separation of Powers principles embodied in the Nebraska Constitution; (3) concluding that the Department’s arbitrary construction of §§ 77-2701.47 and 77-2704.22 did not result in a violation of Appellant’s Equal Protection Rights pursuant to the United States and Nebraska Constitution.

S-08-0919, In re Interest of Angelica L. and Daniel L., State v. Maria L. (Appellant)

Hall County Court, Judge Philip Martin

Attorneys: Jeffrey R. Kirkpatrick, Sheri A. Wortman (McHenry Haszard Hansen Roth & Hupp PC LLO) and Brian D. Buckley (pro hac vice), Christopher M. Huck (pro hac vice) and R. Omar Riojas (pro hac vice) (DLA PIPER LLP (US)) (for Appellant Maria L.) --- Robert J. Cashoili (Hall County Attorney’s Office) --- Michael Kneale (Guardian Ad Litem) --- Monika E. Anderson (Special Asst. Attorney General for the Department of Health and Human Services)

Civil: Termination of parental rights

Proceedings below: The trial court terminated Maria L.’s parental rights and denied her request for a new trial. Maria L. filed a petition to bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The county court erred in (1) not deferring to the federal government; (2) determining adequate notice was given to the Guatemalan Consulate; (3) determining Maria’s parental rights should be terminated under Neb. Rev. Stat. § § 43-292 (6) and (7); (4) finding termination was in the best interests of the minor children; (5) (a) exercising jurisdiction; (b) finding reasonable efforts were provided and failed; (c) finding Maria was unfit; (d) fixating on Maria’s immigration status; (6) overruling Maria’s request for a new trial; (7) relying on hearsay evidence to support a finding of termination; (8) allowing Maria’s counsel to deliver ineffective assistance of trial counsel; (9) permitting fundamentally unfair procedures in violation of due process.

S-08-0985, Matthew Wilson and Linda Wilson [appellants] v. Semling-Menke Company, Inc.

Otoe County, Honorable Randall L. Rehmeier

Attorneys:  Brian J. Adams (Cline Williams) for appellants; Gene Summerlin (Ogborn, Summerlin & Ogborn) for appellee

Civil: Warranty claim under federal Magnuson-Moss Act and Neb. UCC § 2-313

Proceedings below:  District court directed a verdict in favor of appellee.

Issues: The district court erred in granting SEMCO’s motion for directed verdict as to Appellants’ Magnuson-Moss Act claim.

WEDNESDAY, APRIL 29, 2009, subject to call at 9:00 a.m.

S-08-0969, State v. Clifford J. Davlin (Appellant)

Lancaster County, Judge Paul D. Merritt, Jr.

Attorneys: Pro Se Appellant --- Kimberly A. Klein (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The trial court denied Appellant’s motion for postconviction relief.

Issues: The district court erred in denying Appellant’s motions for postconviction relief and request for evidentiary hearing. Appellant was denied effective assistance of counsel at trial and on appeal from his second trial.

S-07-1229, State v. Alecia Hausmann (Appellant)

Sarpy County, Judge Max Kelch

Attorneys: Patrick J. Boylan (Public Defender’s Office) (Appellant) ---George R. Love (Attorney General’s Office)

Criminal: Minor in Possession of Alcohol, a Class III Misdemeanor

Proceedings below: The trial court overruled Appellant’s motion to suppress and after a bench trial, she was found guilty by the county court. The district court affirmed. On appeal, the Court of Appeals dismissed the appeal. See State v. Hausmann, 17 Neb. app. 195 (2008). The Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred by failing to follow the reasoning in State v. Painter, 224 Neb. 905 (1987) which permitted the lower court to hear the appeal on the merits.

S-08-0991, Juan A. Alvarez-Meraz (Appellant) v. Nebraska Department of Labor and Commissioner of Labor of the State of Nebraska

Lancaster County, Judge John Colborn

Attorneys: Patricia A. Knapp (Civil Clinical Law Program UNL College of Law) (Appellant) --- John H. Albin (Nebraska Workforce Development)

Civil: Denial of Trade Adjustment Assistance (TAA) benefits

Proceedings below: The Appeal Tribunal denied Appellant federal unemployment benefits authorized by the Trade Act of 1974, 19 U.S.C. § 2271 et seq. The district court affirmed.

Issues: The district court erred in (1) finding that Appellant was not eligible for TAA benefits because he was not college-ready; (2) finding that Appellant was not eligible for TAA benefits because he lacked the mental capabilities to benefit from an ESL or ABE program; (3) finding Appellant was not eligible for TAA benefits because he was not qualified to undertake or complete an ESL or ABE program as it was arbitrary, capricious or unreasonable.

S-08-0823, In re 2007 Appropriation of Niobrara River Waters, Jack Bond and Joe McClaren Ranch, LLC (Appellants) v. Department of Natural Resources and Nebraska Public Power District

Appeal from the Department of Natural Resources

Attorneys: Donald G. Blandenau, Thomas R. Wilmoth (Husch Blackwell Sanders LLP) (Appellants) --- Stephen D. Mossman (Mattson Ricketts Davies Stewart & Calkins) (for Nebraska Public Power District) --- Justin D. Lavene, Marcus A. Powers (Attorney General’s Office) (for Dept. Nat. Resources)

Civil: Determination of appropriation to divert river water

Proceedings below: The DNR issued closing notices to Appellants directing them to cease water diversions from the Niobrara River. Appellants filed a request for hearing with the DNR. The appointed hearing officer granted NPPD and the DNR’s motions to dismiss. The Director of the DNR issued an order concluding the DNR lacked subject matter jurisdiction over the proceeding and dismissed the case. NPPD filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The Director of the DNR erred in determine the DNR lacked subject matter jurisdiction and in dismissing the case.

FRIDAY, MAY 1, 2009, subject to call at 9:00 a.m.

S-08-0888, John Ahmann and Nebraska Association of Public Employees, AFSCME Local 61 v. Nebraska Department of Correctional Services and the State of Nebraska (Appellants)

Attorneys: Dalton W. Tietjen (Tietjen, Simon, and Boyle) ---Ryan C. Gilbride (Assistant Attorney General) (Appellants)

Lancaster County, Judge Jodi L. Nelson

Civil: Arbitration of state employee grievance

Proceedings Below: Pursuant to the Administrative Procedure Act (APA), the district court for Lancaster County reviewed a decision of the Nebraska State Personnel Board and reversed the decision of the personnel board, concluding that appellee’s termination exceeded the nature and severity of the infraction.

Issues:   Whether the district court erred in reversing the decision of the personnel board and concluding that appellee’s termination exceeded the nature and severity of the infraction.

S-08-0996, Sharon H. Allen (Appellant) v. Immanuel Medical Center

Douglas County, Judge Gregory M. Schatz

Attorneys: Jerold V. Fennell, Michael J. Dyer (Dyer Law PC LLO) (Appellant) --- Patrick R. Guinan (Erickson Sederstrom PC LLO)

Civil: Garnishment

Proceedings below: The district court entered an order dismissing Appellant’s Summons and Order of Garnishment in Aid of Execution for the reason that the judgment filed with the District Court was dormant and could not longer be revived because ten years had lapsed from the date the judgment had become dormant. 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) holding the November 1987 award become dormant in 1996 pursuant to Neb. Rev. Stat. § 25-1515; (2) holding the November 1987 award became dormant in 1996 because Appellant did not prove any payments were made to Appellant by Appellee pursuant to the award; (3) holding that the November 1987 award became dormant in 1996 because Appellant did not prove that she suffered any increased incapacity; (4) interpreting Neb. Rev. Stat. § 25-1515; (5) setting forth in its order incorrect amounts and duration of weekly benefits paid by the Appellee to the Appellant.

S-08‑0534, Aaron Ferer and Robin Monsky (Appellants) v. Aaron Ferer & Sons Co., Matthew Ferer, and Whitney Ferer

Douglas County, Judge Peter C. Batallion

Attorneys:  James D. Sherrets, Jason M. Bruno (Sherrets & Boecker, LLC) (Appellants) ‑‑‑Thomas J. Culhane, Heather B. Viek (Erickson | Sederstrom, P.C.), Michael A. Nelsen (Hillman Foreman Nelsen Childers & McCormack)

Civil: Corporate law; breach of fiduciary duty, including dissolution of the corporation

Proceedings below:  The district court dismissed the minority shareholders’ complaint.

Issues:  The appellants assign that the district court erred in (1) failing to grant appellants’ motion for summary judgment and judicially dissolve the company, (2) failing to grant appellants’ motion for summary judgment on the issue of breach of fiduciary duty, (3) failing to consider appellees’ self‑dealing and various breaches of fiduciary duty in determining whether judicial dissolution was appropriate, (4) finding that appellants do not have standing to bring an action for judicial dissolution, (5) determining that appellants do not have standing to maintain a derivative action on behalf of the shareholders, (6) finding that Ferer v. Erickson, Sederstrom bars this lawsuit from proceeding, (7) refusing to grant appellants leave to amend their complaint, (9) refusing to grant appellants’ motion for nunc pro tunc, and (10) granting the appellees’ motion for summary judgment.

S-08-1105, Arleen M. Weber (Appellant) v. Gas N’ Shop, Inc., Milwaukee Insurance Company and Employers Mutual Companies

Douglas County, Judge Marlon A. Polk

Attorneys: Jerold V. Fennell, Michael J. Dyer (Dyer Law PC LLO) (Appellant) --- Jeffrey J. Blumel, Tyler P. McLeod (Abrahams Kaslow & Cassman LLP)

Civil: Garnishment

Proceedings below: The trial court granted the Appellees’ motion to dismiss finding the award entered on September 22, 1993 had become dormant and the district court was without jurisdiction to entertain garnishment proceedings. 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) holding the September 22, 1993 award had become dormant in 2000 pursuant to Neb. Rev. Stat. § 25-1515; (2) holding that the award became dormant because Appellant did not prove any payments were made by Appellees after April of 1995; (3) holding that the revival of the September 22, 1993 award must occur in the Nebraska Workers’ Compensation Court.