S-10‑1020, RSUI Indemnity Company and Liberty Mutual Insurance Group, as subrogees of Kiewit Construction Company v. Ronald “Tim” Bacon, Harris Kuhn Law Firm, LLP., and James E. Harris (Appellants)
Douglas County, Judge James T. Gleason
Attorneys: James Harris, Britany Shotkoski (Harris Kuhn Law Firm, LLP.) (Appellant) ‑‑‑Matthew Hammes, Michelle Epstein (Locher Pavelka Dostal Braddy & Hammes, L.L.C.)
Proceedings below: The district court granted summary judgment for the former defendant.
Issues: The trial court erred in (1) failing to give the defendants the benefit of all reasonable inference deducible from the evidence; (2) failing to apply the correct standard for summary judgment; (3) finding the attorney and law firm, who are not parties to the contract, liable on their client’s underlying contract; (4) failing to apply Nebraska law of agent and principal; (5) failing to recognize there were mixed questions of law and fact; (6) failing to recognize certain questions of fact; (7) granting plaintiffs’ summary judgment motion against Bacon; (8) granting plaintiffs’ summary judgment motion against Harris and Harris Kuhn Law Firm; (9) granting summary judgment on the issue of anticipatory repudiation; (10) granting summary judgment on the issue of failure of consideration, frustration of contract and impossibility of performance; (11) requiring Bacon to indemnify Liberty Mutual against its own intentional acts in the absence of language that that was the intention of the parties; (12) calculating the amount which is owed under the Settlement Agreement; (13) finding the amount owed under the Settlement Agreement was a liquidated amount; (14) awarding pre-judgment interest pursuant to Neb. Rev. Stat. § 45-103.02(2) on the principal sum of $437,500.
S-10-1073, In re Guardianship and Conservatorship of Larry R. Haneborg
Lincoln County, Judge Kent Turnbull
Attorneys: William J. Erickson and George E. Clough (Appellant Kathy Schreiber) --- Allen L. Fugate and Wayne Griffin (Appellee Edward Joel, Guardian and Conservator)
Civil: Motion to approve fees
Proceedings below: The court granted the motion and approved the fees of the Guardian and Conservator.
Issues: The county court erred in (1) approving fees for the guardian/conservator and for his attorneys as the court lacked jurisdiction because the ward had died; (2) finding that any fees remained unpaid at the time the conservatorship was closed.
S-10-0018, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. Julianne Dunn Herzog (Respondent)
Attorneys: Julianne Dunn Herzog --- Jeffry D. Patterson (Bartle & Geier) for Respondent
Civil: Attorney Discipline Action
Proceedings below: The referee found that Respondents conduct violated various provisions of the Nebraska Rules of Professional Conduct, Neb. Ct. R. Prof. Cond. 3-501.0 to 3-508.5 and recommended disbarment. Respondent takes exceptions to the referee’s report.
Issues: The referee (1) incorrectly considered evidence of conduct not charged in the Amended Formal Charges and which was resolved prior to the disciplinary proceedings; (2) incorrectly concluded that clear and convincing evidence proved Respondent had filed documents in Minnesota solely for the purpose of harassing or maliciously injuring another; (3) incorrectly concluded that clear and convincing evidence proved Respondent had filed documents in Minnesota with the intent to embarrass or burden a third person; (4) incorrectly concluded that clear and convincing evidence proved that Respondent’s conversation with a trial judge rose to the level of misconduct that is prejudicial to the administration of justice.
S-10-743, Michaela C. Munger (appellant) v. Jonathan L. Garringer
Sarpy County, Max Kelch
Attorneys: Karen S. Nelson (Schirber & Wagner, LLP) (appellant)--- Hugh I. Abrahamson (Abrahamson Law Office)
Proceedings Below: Defendant-appellee Jonathan Garringer sought to modify the original decree of paternity, which was entered by default and did not order specific parenting time. Garringer requested that the court modify the original decree to provide for specific parenting time. The district court determined that because the parties were unable to agree on parenting time, Garringer met his burden of showing a material change of circumstances. The district court modified the decree of paternity ordering a parenting schedule which gave each party parenting time and ordered that Garringer shall pay child support in conformity with Nebraska Child Support Guidelines.
Issues: Whether the district court erred when it: 1) modified the decree of paternity without finding that the modification was in the best interests of the minor child; 2) found that there was a material change in circumstances warranting a modification of the decree of paternity; 3) denied plaintiff-appellant Michaela Munger due process of law because she did not have a hearing before a neutral and objective decision maker.
S-10-0741, The Chicago Lumber Company of Omaha, a Nebraska corporation (Appellant) v. JoAnn Selvera et al.
Douglas County, Judge J. Michael Coffey
Attorneys: Angela L. Burmeister, Angela M. Boyer (Berkshire & Burmeister) (Appellant) --- Emmett D. Childers (Hillman Forman Childers & McCormack)
Civil: Equity; Construction lien, Neb. Rev. Stat. § 52-152 et seq.
Proceedings below: The trial court granted Selvera’s motion for summary judgment finding the construction lien recorded by Appellant was invalid and unenforceable against the residential real property of Selvera as a protected party under the Nebraska Construction Lien Act and that Selvera had no lien liability to Appellant; finding Appellant acted in bad faith in refusing to release its construction lien and petition in lien foreclosure; finding Selvera was entitled to an award of attorney’s fees in the amount of $10,000. Appellee Selvera filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: The district court erred in (1) granting Selvera’s motion for summary judgment when genuine issues of material fact remained; (2) overruling Appellant’s motion for summary judgment when no genuine issues of material fact remained; (3) awarding Selvera attorney’s fees; (4) failing to grant Appellant’s motion for sanctions against Selvera based on unreasonable actions and delays.
S-10-0643, In re Interest of Katrina R., State (Appellant) v. Katrina R.
Lincoln County, Judge Kent D. Turnbull
Attorneys: Eric M. Stott (Special Asst. Atty. General) (Appellant) --- Jennifer Wellan (County Attorney’s Office)
Proceedings below: Katrina R. was adjudicated under Neb. Rev. Stat. § 43-247(3)(b). At the dispositional hearing, the trial court ordered Katrina R. should be placed in the legal custody of the NDHHS, with physical custody with the child’s mother. The juvenile court also ordered Katrina R. be placed on probation for a period of six months.
Issues: The juvenile court erred in simultaneously committing the child to NDHHS and placing her on probation in the same juvenile court case.
S- 10‑698, Ronald Fry (Appellant) v. Janet R. Fry
Douglas County, Judge Thomas A. Otepka
Attorneys: David A. Domina, Mark D. Raffety (Domina Law Group) (Appellant) ‑‑‑Susan A. Anderson, Molly M. Blazek (Anderson & Bressman Law Firm)
Civil: Domestic Relations; postjudgment interest on division of husband’s profit-sharing plan
Proceedings below: The court awarded the wife the requested postjudgment interest.
Issues: The husband assigns that the court erred in awarding interest to a litigant who did not execute on a judgment during an appeal that proceeded without a supersedeas bond.
S-10-0717, In re Interest of D.I., Mental Health Board of the Fourth Judicial District v. D.I. (Appellant)
Douglas County, Judge J. Michael Coffey
Attorneys: Travis L. Wampler (Public Defender’s Office) (Appellant) --- Michael B. Guinan (Attorney General’s Office)
Civil: Determination and commitment of allegedly dangerous sex offender; Neb. Rev. Stat. § 83-174.01
Proceedings below: The Board found Appellant was a dangerous sex offender and found that inpatient treatment was the least restrictive alternative. The district court affirmed.
Issues: The Board erred in (1) finding Appellant is a dangerous sex offender as defined by Neb. Rev. Stat. § 83-174.01; (2) finding that neither voluntary hospitalization nor other treatment alternatives less restrictive of Appellant’s liberty were available or would suffice, as required by Neb. Rev. Stat. § 71-1209.
S-10-1013, Pat Britton, Personal Representative of the Estate of Jesse Britton, Deceased (Appellant) v. City of Crawford, a Nebraska Political Subdivision
Dawes County, Judge Leo Dobrovolny
Attorneys: Maren Lynn Chaloupka (Chaloupka Holyoke Hofmeister Snyder & Chaloupka) (Appellant) --- Steven W. Olsen, John F. Simmons (Simmons Olsen)
Civil: Wrongful death
Proceedings below: The City moved to dismiss the complaint which was granted by the district court. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: The district court erred in sustaining the City’s motion to dismiss.
S-10-0894, Chad A. Hofferber v. Hastings Utilities and EMC Insurance (Appellants)
Nebraska Workers’ Compensation Court
Attorneys: Dallas D. Jones, Amanda A. Dutton (Baylor Evnen Curtiss Grimit & Witt LLP) (Appellants) --- Dirk V. Block, Steven J. Riekes (Marks Clare & Richards LLC)
Civil: Entitlement to future benefits
Proceedings below: The trial court found that that the March 28, 2008 Order was a nullity and vacated it. The review panel reversed finding the trial court was without authority to vacate the Order for lack of venue. However, the review panel found the March 28, 2008 Order was improper as the trial court laced the authority to terminate defendants’ obligation for further benefits. Appellee Hofferber filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: The review panel erred in (1) determining the trial court lacked authority to terminate defendants’ obligation to pay further benefits; (2) finding the trial court did not have jurisdiction to enter the remedial provisions set for the in the March 28, 2008 Order; (3) finding the trial court did not have the authority to enter the penalty of terminating any further liability on behalf of the defendants; (4) vacating the Order of March 28, 2008 after finding the trial court lacked the authority to do so; (5) failing to find the trial court lacked subject matter jurisdiction over the plaintiff’s Further Petition; (6) affirming the trial court’s January 20, 2010. Order which overruled the defendants’ motion to dismiss.
Cross-Appeal: (1) The review panel erred in overruling the trial court’s holding that its Order of March 28, 2008 was void for lack of jurisdictional venue. (2) A trial court does not have jurisdiction to change venue on its own motion.
S-10-867, Mack & Deborah Downey and Ferguson Signs, Inc. (plaintiff/appellees/cross-appellants) v. Western Community College Area (Defendant/appellant/cross-appellee)
Scottsbluff County --Judge Randall Lippstreu
Attorneys: Richard A. Douglas & Jerald L. Ostdiek of Douglas, Kelly, Ostdiek, and Ossian (Western Community College Aread); Steven W. Olsen & John F. Simmons of Simmons Olsen Law Firm, P.C. (Ferguson Signs, Inc.); Kyle J. Long of the Robert Pahlke Law Group (Mack & Deborah Downey)
Civil--tort against a political subdivision
Proceedings Below: The court held a bifurcated trial. The trial was divided between the issues of liability and damages. Plaintiffs showed that defendants were liable and then received damages.
Issues: Appellants assign 14 errors:
1) The Court erred in not finding that the negligence of Mack Downey was the proximate cause of the accident and injury.
2) The Court erred in not finding that the physical characteristics of the sheet metal scoreboard with a wood platform located within the scoreboard was open and obvious.
3) The Court erred in determining the scoreboard’s sheet metal flooring constituted a latent defect.
4) The Court erred in determining that the College breached a nondelegable duty derived from ownership of the workplace.
5) The Court erred in finding that Defendant had a duty to warn the Plaintiffs.
6) The Court erred in not finding that the means and methods of construction was the sole responsibility of Plaintiffs.
7) The Court erred in not finding that other means and methods in removing the scoreboard were available to Plaintiffs which did not require Plaintiffs to enter the old scoreboard.
8) The Court erred in not finding that the general duty clause (29 USC § 654) requires the negligence of Downey to be combined with the negligence of Ferguson in determining comparative negligence.
9) The Court erred in not finding the existence of an implied contract of indemnity and a special relationship between College and its subcontractor Ferguson.
10) The Court erred in not limiting Downey’s recovery for economic damages and therefore entitled College to contribution and indemnity for all sums previously paid by Ferguson and its Workers’ Compensation carrier.
11) The Court erred in considering foreseeability as a factor when making a determination of duty.
12) The Court erred in failing to reduce Downey’s economic damages by Ferguson’s proportionate share of the total negligence.
13) The Court erred in finding Defendant liable under a premises liability theory.
14) The Court erred in failing to find Plaintiff’ violation of the OSHA standards barred their right of recovery.
The cross-appeal assigns 3 errors:
1) The District Court erred when it determined that Ferguson Sign was a released party for the purpose of Neb. Rev. Stat. § 25-21,185.11.
2) The court erred when it apportioned negligence to Ferguson Sign.
3) The court erred when it reduced Downey’s noneconomic damages by the share of negligence that it apportioned to Ferguson Sign.