Supreme Court Case Summaries

May 1, 2, 3, or 4, 2012

TUESDAY, MAY 1, 2012, subject to call at 9:00 a.m.

S-11-0361, State v. Eddie R. Kibbee (Appellant)

Thayer County, Judge Vicky Johnson

Attorneys: Jerry L. Soucie (Commission on Public Advocacy) (Appellant) --- Stacy M. Foust (Attorney General’s Office)

Criminal: Count I: first degree sexual assault; Count II: child abuse

Proceedings below: A jury found Appellant guilty on both counts. He was sentenced to concurrent sentences of 30 to 40 years and 4 to 5 years in prison.

Issues: The district court erred in (1) admitting evidence of prior sexual contact in violation of Neb. Rev. Stat. § 27-404 and Neb. Rev. Stat. § 27-403 and in error of Neb. Rev. Stat. § 27-414 and the Ex Post Facto clauses of the U.S. and Nebraska Constitutions; (3) rejecting Appellant’s judicial admission of “preparation, motive, opportunity, and plan” regarding contact with K.D. so as to avoid the prejudice attached to evidence of prior sexual contact with minors; (4) overruling Appellant’s motion for mistrial after certain judicial admissions were offered as part of the State’s case-in-chief during trial; (5) failing to instruct the jury on the lesser offense of 3rd degree sexual assault after Appellant’s judicial admissions were received into evidence.

S-11-0257, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court v. Douglas D. Palik

Original Proceeding

Attorneys: Kent L. Frobish (Asst. Counsel For Discipline) --- Douglas D. Palik

Civil: Attorney discipline

Proceedings below: The Respondent admitted all of the factual allegations in the formal charges and admitted he violated the Rules of Professional Conduct as charged. The referee recommended a 12 month suspension of Respondent’s law license and upon reinstatement he should serve a term of probation of 12 months.

Issues: The Relator filed exceptions to the Referre’s recommended sanction on the grounds that it is too lenient. Relator contends the suspension should be for 2 years.

S-11-0181, In re Guardianship and Conservatorship of McIntosh

Lancaster County Court, Judge Susan Strong

Attorneys: Joshua D. Barber (for Appellants Ryan and Leslie McIntosh) --- Kirk Botts (Pro Se)

Civil: Guardianship

Proceedings below: The county court dismissed the action for guardianship finding it had no jurisdiction as a custody action had been filed in district court. The Court of Appeals dismissed the appeal for lack of jurisdiction under Neb. Ct. R. 2-107(A)(2) but later granted Appellants’ motion for rehearing. The parties were ordered to address the jurisdictional issue in the briefs.

Issues: The county court erred in finding it lacked jurisdiction over the guardianship petition and related application for writ of habeas corpus and dismissed the proceedings.

 
S-11-0818 through 11-0820 (consolidated) In re Interest of Det D.

Separate Juvenile Court for Douglas County, Judge Vernon Daniels

Attorneys: Richard P. McGowan (Appellant Det D.) --- Sara Hulac (County Attorney’s Office)

Criminal: Neb. Rev. Stat. § 43-247(1); Sealed record

Proceedings below: The separate juvenile court placed Det D. in the temporary custody of the NDDHS/OJS for placement at YRTC-Kearney until duly discharged as provided by law. The court ordered that jurisdiction of the court shall be terminated and the child’s record shall not be sealed as the juvenile had not successfully been rehabilitated as required by statute.

Issues: The juvenile court erred in not ordering the child’s record to be sealed.

WEDNESDAY, MAY 2, 2012, subject to call at 9:00 a.m.

S-11-0723, State v. Christopher A. Edwards (Appellant)

Douglas County, Judge J. Russell Derr

Attorneys: Brian S. Munnelly (Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The trial court denied Appellant’s request for an evidentiary hearing and sustained the State’s motion to dismiss.

Issues: The district court erred in (1) denying Appellant an evidentiary hearing on the issue of change of venue and counsel was ineffective in failing to raise this issue on direct appeal; (2) failing to grant an evidentiary hearing on the issue of fabricated forensic evidence; (3) failing to find ineffective assistance of trial counsel.

S-11-0952, McCully, Inc. d/b/a/ McCully Ranch Company, a Nebraska Corporation (Appellant) v. Baccaro Ranch, a Nebraska Limited Liability Company

Hooker County, Judge Donald E. Rowlands, II

Attorneys: Ward F. Hoppe, Colby Rinker (The Hoppe Law Firm) (Appellant) --- Steven P. Vinton (Bacon & Vinton LLC)

Civil: Breach of contract; damages

Proceedings below: This case was previously before the Supreme Court. See McCully, Inc. v. Baccaro Ranch, 279 Neb. 443 (2010) (Affirmed in part, and in part reversed and remanded with directions). The district court denied Appellant’s request for recovery finding that no ready, willing, and able buyer was procured during the listing period and that Appellee did not hinder or impede Appellant’s ability to exchange Appellee’s property and therefore, was not entitled to a commission.

Issues: The district court erred in (1) finding that no ready, willing, and able exchanger was procured during the listing term under the listing agreement between Appellant and Appellee; (2) finding that Appellee did not unfairly hinder or impede Appellant’s ability to affect an exchange.

S-11-0749, Mutual of Omaha Bank v. Patrick J. Kassebaum, April M. Kassebaum, and Timothy R. Engler (Appellants)

Lancaster County, the Honorable Steven D. Burns

Attorneys: William C. Nelson, Erickson & Sederstrom, P.C. (Appellee); Matthew S. Torres, Ritnour, Payne, & Coon, LLP (Appellant)

Civil: declaratory judgment action

Proceedings below: A jury found in favor of Mutual of Omaha and awarded judgment against the Kassebaums in the amount of $126,376.42. 

Issues: The district court erred in (1) denying Appellants’ motion to dismiss and/or for summary judgment finding that an assignment of a potential recovery in a tort action was not void against public policy; (2) allowing the enforcement of an unliquidated assignment of personal injury proceeds under Nebraska law.
 

THURSDAY, MAY 3, 2012, subject to call at 9:00 a.m.

S-11-0715, Timothy Dietz (Appellant) v. City of Hastings d/b/a Community Redevelopment Authority (Appellee)

Adams County, Judges Terri S. Harder and Stephen R. Illingsworth

Attorneys: Jason M. Bruno, Thomas D. Prickett, Gwendolyn E. Olney, Sherrets, Bruno & Vogt LLC (Appellant) --- Robert M. Sullivan, Hastings City Attorney (Appellee)

Civil: inverse condemnation proceeding

Proceedings below:     The county court denied Timothy Dietz’s request to appoint a board of appraisers under Neb. Rev. Stat. § 76-706.  Dietz appealed to the district court, which refused to issue a writ of mandamus requiring the county court to appoint a board of appraisers.  The district court later affirmed the county court’s refusal to appoint appraisers. 

Issues: The issues raised in Dietz’s brief are (1) whether the county court erred in refusing to appoint appraisers, and whether the district court erred in affirming that refusal; and (2) whether the district court erred in failing to issue a writ of mandamus.  The City raises several jurisdictional issues: (1) whether the county court’s order refusing to appoint appraisers was a final, appealable order; (2) whether the county court had jurisdiction to appoint appraisers if Dietz lacked standing, or if Dietz’s claim was time-barred or barred under principles of res judicata; and (3) whether Dietz failed to timely appeal the district court’s denial of his petition for a writ of mandamus. 

S-11-0778, Douglas County Health Center Security Union (petitioner-appellee) v. Douglas County, Nebraska (Respondent-appellant)

Commission of Industrial Relations—Judge William Blake

Civil—industrial relations; contract negotiation

Attorneys: Donald W. Kleine & Diane M. Carlson of Douglas County (appellant)—Raymond Aranza of Scheldrup, Blades, Schrock, Smith, & Aranza PC (appellee)

Proceedings Below: The CIR found that Douglas County had committed a prohibited practice by failing to negotiate the union contract in good faith and by attempting to contract out the work to a private entity without negotiating with the union before doing so.

Issues: The County assigns the following as error:
1) The CIR erred in finding that the county committed a prohibited practice by failing to negotiate with the union over its decision to contract out the bargaining unit work;
2) The CIR erred because the union could not establish that the county’s motivation behind its decision was to undermine the union or discriminate against its members.
3) The CIR erred in not giving full force and effect to the plain language of a collective bargaining agreement that unequivocally defined the parties’ rights regarding contracting out bargaining work.
4) The CIR erred in concluding that the county refused to negotiate the impact of contracting out the bargaining unit work.
5) The CIR erred in awarding attorney fees to the union.

 
S-11-0817, Westin Hills West Three Townhome Owners Association (Appellant) v. Federal National Mortgage Association d/b/a Fannie Mae

Douglas County, Judge Thomas A. Otepka

Attorneys: Ben Thompson (Thompson Law PCLLO) (for Appellant) --- Donald J. Pavelka, Patricia D. Schneider (Locher Pavelka Dostal Braddy & Hammes LLC)

Civil: Foreclosure of liens

Proceedings below: The trial court granted Fannie Mae’s motion for summary judgment finding all junior liens and encumbrances on the property in question, including Appellant’s assessment liens, were effective extinguished and terminated when the trustee exercised the power of sale (Trustee’s Sale) as set forth in Neb. Rev. Stat. § 76-1005. Appellees filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The trial court erred in (1) finding the Association’s statutory assessment lien was extinguished by the earlier Trustee’s Sale from which Fannie Mae acquired title but before Fannie Mae became delinquent in the payment of assessments; (2) finding that the Association’s contractual assessment lien did not arise until a notice of delinquency was recorded and was therefore junior to U.S. Bank’s trust deed and extinguished by the trustee’s sale; (3) applying Neb. Rev. Stat. § 52-2001retroactively, when the Association’s contractual assessment lien both attached and became perfected prior to the law’s effective date of March 4, 2010; (4) finding Neb. Rev. Stat. § 52-2001 controlled lien priorities as between the contractual assessment lien and the trust deed, when there is nothing in the statute’s language or the record that suggests any legislative intent to preempt or reprioritize assessment liens arising independently of section 52-2001.

S-11-0970, Farmington Woods Homeowners Association, Inc. v. Glen Wolf and Rhonda Wolf (Appellants)

Douglas County, Judge James T. Gleason

Attorneys: Jason M. Bruno (Sherrets Bruno & Vogt LLC) (Appellants) --- Larry R. Forman (Hillman Forman Childers & McCormack)

Civil: Covenants; summary judgment

Proceedings below: The district court granted Appellee’s motion for summary judgment and ordered that the Appellants were permanently enjoined from operating a day care business from their residence.

Issues: The district court erred in (1) granting Appellee’s motion for summary judgment; (2) failing to apply the defenses of waiver, estoppel, laches and unclean hands despite overwhelming evidence in the record; (3) finding operation of a home day care violates the covenants; (4) failing to grant Appellants’ motion for summary judgment; (5) failing to hold Appellees in contempt for failing to disclose other covenant violations including the five businesses operated out of the home of the Appellee’s president.

FRIDAY, MAY 4, 2012, subject to call at 9:00 a.m.

S-10-0938 and S-10-0939 (consolidated cases) State v. Roberto P. Garcia (Appellant)

Douglas County, Judge W. Russell Bowie III

Attorneys: Peder C. Bartling (Appellant) --- Nathan A. Liss (Attorney General’s Office)

Criminal: Plea: Driving Under the Influence, BAC greater than .15

Proceedings below: Appellant entered no contest pleas to the two charges of DUI, 5th Offense with BAC greater than .15. The trial court found Appellant guilty and sentenced him 5 to 6 years in prison on the first charge with a consecutive sentence of 5 to 5 years in prison. His license was revoked for 15 years. The Court of Appeals vacated the sentences and remanded the cause with directions in memorandum opinion. (Filed July 27, 2011, modified on December 27, 2011). Appellee petitioned the Supreme Court for Further Review which was granted.

Issues on Review: The Court of Appeals erred in (1) using the plain error doctrine to circumvent the Nebraska Supreme Court’s decision in State v. Bundy, 181 Neb. 160 (1966); finding, as a matter of plain error, that Garcia’s prior convictions were improperly admitted for enhancement purposes; (3) finding, as a matter of plain error, that Garcia’s prior convictions were not sufficient evidence of prior convictions; (4) applying the wrong standard for reviewing the sufficiency of a prior conviction.

S-10-1106, Midwest Renewable Energy, LLC (Appellant) v. Lincoln County Board of Equalization

Tax Equalization and Review Commission

Attorneys: Jerrold L. Strasheim (Appellant) --- Joe W. Wright (Lincoln County Attorney’s Office)

Civil: Penalty for failure to file 2009 property tax return

Proceedings below: The Board found that even though the 2009 Personal Property Tax Return was timely mailed the $58,000 penalty was properly imposed as the Return was not received and in the possession of the Assessor on the due date. TERC affirmed. The Court of Appeals affirmed the order of TERC. MRE filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred in (1) failing to determine the correct meaning of Neb. Rev. Stat. § 49-1201; (2) failing to apply the correct law to the evidence; (3) holding there was insufficient evidence to support MRE’s mailing of its 2009 tax return; (4) deciding that a penalty for late filing of MRE’s 2009 Return was not wrongfully imposed on MRE.

S-11-0777, Justis Puchalla, a minor, by and through his father and next friend, Aaron Puchalla v. Millard Public Schools, et al. (Appellants)

Douglas County, Judge James T. Gleason

Attorneys: Jeff C. Miller, Duncan A. Young, Keith I. Kosaki (Young & White Law Offices) (for Appellants) --- Richard P. McGowan

Civil: Suspension: Student Discipline Act, Neb. Rev. Stat. § 79-254 et seq. (Reissue 2008)

Proceedings below: The Board of Education upheld Puchalla’s 19 day suspension from school for violations of the Millard Public Schools Student Code of Conduct. The district court reversed the decision of the Board of Education and ordered the 19 day suspension and offenses of Possession of Alcohol or Other Drugs and Disruptive Behavior removed from Puchalla’s school records.

Issues: The district court erred in (1) reversing the Board of Education’s decision; (2) not affirming the Board committee’s decision; (3) ruling that the search violated Puchalla’s Fourth Amendment rights.