S-08-0735, State v. Kenneth Clark (Appellant)
Lancaster County, Judge Jeffre Cheuvront
Attorneys: Webb E. Bancroft (Public Defender’s Office) --- Stacy M. Foust (Attorney General’s Office)
Criminal: third degree sexual assault, class I misdemeanor
Proceedings below: Appellant entered a plea of guilty to the above crime. He was sentenced to 360 days in jail and credit was given for 361 days of time served. On June 12, 2008, the district court resentenced Appellant to 360 days in jail with 61 days credit for time served. The Court of Appeals affirmed. See State v. Clark, 17 Neb. App. 361 (2009). Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.
Issues on Review: The Nebraska Court of Appeals erred in holding that it was not error for the trial court to enter an order of commitment and resentence Appellant on June 12, 2008 as it lacked jurisdiction to modify a lawfully imposed and final sentence pronounced by the district court on May 19, 2008.
S-08-1278, James L. Sack (Appellant) v. Carlos Castillo, Jr., Director of the Nebraska Department of Administrative Services
Lancaster County, Judge Jodi L. Nelson
Attorneys: Pro Se Appellant --- Dale A. Comer (Attorney General’s Office)
Civil: Claim for unpaid wages
Proceedings below: The district court granted the State’s motion for summary judgment finding that Appellant no written or oral contract of employment with the State during the time that he was employed byt eh State apart from the rights to sick leave which he had under Neb. Rev. Stat. § § 81-1320 to 81-1326 (Cum. Supp. 2008) and the corresponding State Personnel Rules and that he received sick leave benefits in conformance with those rights. The district court held the statutes do not conflict with the Nebraska Wage Payment and Collection Act and they are constitutional.
Issues: Appellant argues the district court erred in (1) receiving Exhibit 17 into evidence; (2) finding that Neb. Rev. Stat. §§ 48-1228 to 48-1232, 84-1308(1) and 84-1311(1) along with 26 U.S.C. § 3111 does not create any specific employment rights For Appellant or other state employees; (3) finding that the Wage Act did not repeal Neb. Rev. Stat. §§ 81-1323 to 81-1325 and does not control those sections; (4) finding the Wage Act does not create a duty upon the State to pay out unused sick leave upon an employee’s retirement or separation; (5) finding that Neb. Rev. Stat. § 81-1323 to 81-1325 are constitutional; (6) finding that the state did not deprive its employees of wages to which they have earned a vested right in violation of the Nebraska and U.S. Constitutions; (7) finding Appellant received the benefits he was entitled to; (8) denying Appellant’s motion for summary judgment and granting the State’s motion for summary judgment.
S-08-1134, State v. Damian L. Thompson (Appellant)
Lancaster County, Judge Robert Otte
Attorneys: John C. Jorgensen (Public Defender’s Office) --- Dan Packard (County Attorney’s Office)
Criminal: Misdemeanor City Assault, Section 9.12.010 of Lincoln Municipal Code
Proceedings below: A trial was held before the county court. Appellant was found guilty and sentenced to 100 days in jail. The district court affirmed.
Issues: The county court erred in (1) receiving exhibits 1 to 5 without proper foundation; (2) overruling Appellant’s motion to dismiss; (3) finding sufficient evidence to sustain the conviction; (4) imposing an excessive sentence; (5) receiving exhibit 6; (6) overruling Appellant’s Rule 404 motion.
S-08-0980, In re Estate of Leona Hedke, John Nowak and Nathan Schneider (appellants) v. Charles Hedke (cross-appellant)
Hitchcock County, Judge David Urbom
Attorneys: J. Bryant Brooks (Appellant) -- Steve W. Hirsch/Terry L. Rogers
Civil: Action for constructive fraud, undue influence, and breach of fiduciary duties.
Proceedings below: After trial, the court entered judgment in favor of the estate and conservator, ordering Charles to pay for or return assets that he had taken in abuse of his fiduciary duties. The court determined that the will was valid and that the plaintiffs had failed to prove undue influence.
Issues: On appeal, whether the district court erred in (1) putting the burden on the appellants to prove Leona’s lack of testamentary capacity failing to apply the correct burden of proof on the issues of undue influence and testamentary capacity, (2) finding that Leona validly executed her December 2004 will, (3) finding that Leona validly executed a December 2004 quitclaim deed, and (5) failing to recover all assets that Charles fraudulently conveyed to himself while acting as Leona’s attorney-in-fact or as trustee.
On cross-appeal, Charles assigns that the district court erred in failing to dismiss all claims brought by Nowak and Schneider for lack of standing.
S-08-0811, Roger Johnson (Appellant) v. Kathryn L. Anderson and Robert Broberg, Co-Personal Representatives of the Estate of Aner Anderson, Deceased
Madison County, Judge Robert B. Ensz
Attorneys: George H. Moyer, Jr. (Moyer Egley Fullner & Montag) (Appellant) --- Mark D. Fitzgerald (Fitzgerald Vetter & Temple)
Civil: equity; specific performance
Proceedings below: The district court granted defendants’ motion for summary judgment.
Issues: The district court erred in (1) sustaining the defendants’ objection to filing a second amended complaint; (2) failing to join necessary parties; (3) proceeding to hear the motion for summary judgment without all necessary parties; (4) sustaining defendants’ motion for summary judgment.
S-08-1182) In re Interest of Elias L.
S-08-1183) In re Interest of Evelyn M.
Consolidated cases on appeal.
Dakota County Court, Judge Kurt T. Rager
Attorneys: Brad S. Jolly (Smith & Jolly LLC) (Appellant Ponca Tribe of Nebraska) --- Sarah Helvey, LaShawn Young (Amicus Curiae, Nebraska Appleseed Center for Law in the Public Interest) --- Rosalyn J. Koob (Heidman Law Firm LLP)(Amicus Curiae for Winnebago Tribe of Nebraska) --- Mark C. Tilden, pro hac vice (Native American Rights Fund) (Amici Curiae for National Indian Child Welfare Association, Indian Center, Inc., the Santee Sioux Nation, the Oglala Sioux Tribe, the Osage Nation, the Sac and Fox Tribe of the Mississippi in Iowa, the Spirit Lake Tribe of North Dakota, and the Rosebud Sioux Tribe) --- Ben Thompson (Thompson Law Office LLC) (for Amicus Curiae Omaha Tribe of Nebraska) --- Jennifer Gaughan (Legal Aid of Nebraska) (Amicus Curiae Legal Aid of Nebraska)
Civil: Juvenile action under Neb. Rev. Stat. § 43-247(3)(a), Nebraska Indian Child Welfare Act, Neb. Rev. Stat. § 43-1501 et seq.
Proceedings below: The trial court denied intervention by the Ponca Tribe of Nebraska through its designated representative who was not authorized to practice law in the State of Nebraska.
Issues: The county court erred in (1) holding that Neb. Rev. Stat. § 7-101 prohibits the Ponca Tribe of Nebraska from intervening in, filing pleadings in, or fully participating in, through its designated representative, a child custody proceeding subject to the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., and the Nebraska Indian Child Welfare Act, Neb. Rev. Stat. § 43-1501 et seq., without being represented by an attorney licensed to practice law in Nebraska; (2) applying Neb. Rev. Stat. § 7-101 to the Ponca Tribe of Nebraska’s designated representative because the statute is unconstitutional as applied to the Tribe’s intervention and participation in child custody proceedings subject to the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. pursuant to the Supremacy Clause of the U.S. Constitution, U.S. Const. art. VI, cl. 2.
S-08-0810, State v. Duante L. Goynes (Appellant)
Douglas County, Judge Sandra L. Dougherty
Attorneys: Thomas C. Riley (Public Defender’s Office) --- James D. Smith (Attorney General’s Office)
Criminal: Count I: First Degree Murder; Count II: Use of a Deadly Weapon
Proceedings below: A jury found Appellant guilty of both crimes. He was sentenced on Count I to a term of sixty years to life in prison and on Count II, a consecutive ten to twenty year sentence.
Issues: The trial court erred in (1) precluding evidence of threats of death made toward Appellant and his family on a “MySpace” page by the Murdertown Gang and evidence of a drive-by shooting made toward Appellant prior to the death of the victim; (2)denying Appellant’s motion for mistrial based on prosecutorial misconduct during cross-examination of Appellant.
S-08-1173, Children’s Hospital (Appellant) v. State of Nebraska, DHHS, Division of Medicaid and Long-Term Care(Appellee)
Lancaster County, Honorable Steven D. Burns
Attorneys: James L. Quinlan and Kristin A. Crone, Fraser Stryker, P.C., L.L.O.(Appellant)-- Michael J. Rumbaugh, Assistant Attorney General (Appellee)
Civil: Administrative Procedure Act
Proceedings Below: After an evidentiary hearing, the court affirmed DHHS’s order finding that Children’s must bill for the services in question as physician services.
Issues: Whether the court erred in determining that the Scott Pavilion was a physicians’ clinic and not an outpatient hospital for Medicaid billing purposes.
S-08-1040, State (Appellant) v. Mario D. Alford
Sarpy County, Judge David Arterburn
Attorneys: Tricia Freeman (County Attorney’s Office)(Appellant) --- Thomas P. Stringenz (Public Defender’s Office)
Criminal: Excessively lenient sentence on Count I: Assault by a confined person and Count II: habitual criminal. This case
Proceedings below: A jury found Alford guilty of Count I. The trial court found Count II to be true for enhancement purposes. Appellant was sentenced 10 to 36 years and given credit for 223 days spent in pretrial incarceration. The State appealed arguing the sentence is excessively lenient in that the trial court erroneously gave Alford credit for time served.
Issues: The district court erred in granting Alford credit for time served in pretrial and presentence incarceration.
S-08-0953, State v. Rickey L. Jim (Appellant)
Douglas County, Judge Patricia A. Lamberty
Attorneys: Deborah D. Cunningham (Appellant) --- James D. Smith (Attorney General’s Office)
Proceedings below: This case was previously before the Supreme Court. See State v. Jim, 275 Neb. 481 (2008) (reversed and remanded for further proceedings). Upon remand, the district court conducted an evidentiary hearing. After the hearing, the district court denied Appellant’s motion for postconviction relief.
Issues: The district court erred in finding Appellant had not demonstrated there was a reasonable probability but for the admission of damaging statement in the video that the result would have been different and that other questioned actions by counsel were reasonable, strategic decisions.
S-08-1341, Heather L. Andersen v. Matthew A. Andersen v. State of Nebraska (Intervenor/Appellant)
Dodge County, Judge John E. Samson
Attorneys: Michael T. Tatten (State of Nebraska) --- no brief filed on behalf of any other party.
Civil: Child support
Proceedings below: The district court dismissed the State’s complaint for modification through intervention.
Issues: The district court erred in (1) dismissing the State’s complaint for modification through intervention; (2) not granting equitable relief in favor of the State.
S-08-1251, Susan J. Schinnerer v. Nebraska Diamond Sales Company, Inc. (Appellant)
Lancaster County, Honorable Paul D. Merritt, Jr.
Attorneys: John M. Boehm & Paul L. Douglas --- John Tavlin & David R. Buntain, Cline, Williams, Wright, Johnson & Oldfather, L.L.P. (Appellant)
Civil: Wage Payment Act
Proceedings Below: The county court concluded that Schinnerer was entitled to commissions under the Wage Payment Act. The district court affirmed the county court order and judgment in favor of the plaintiff. The county court awarded the plaintiff $4,878.15 in commissions, $9,255.00 in attorneys fees, costs and judgment interest. The district court awarded the plaintiff $3,000 in additional attorney’s fees for the appeal to the district court.
Issues on Appeal: Nebraska Diamond asserts that the district court erred in affirming the county court’s award to Schinnerer. Nebraska Diamond argues that Schinnerer should not have been awarded commissions under the Wage Payment Act because Schinnerer did not meet the conditions stipulated to earn them. Nebraska Diamond also argues that the court erred in holding the employment agreement between the parties violated of the Wage Payment Act.
S-08-0128, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. Lyle J. Koenig (Respondent)
Attorneys: Kent L. Frobish (Assistant Counsel for Discipline) --- C.J. Gatz and Lyle Joseph Koenig
Civil: Attorney discipline
Proceedings below: The referee found by clear and convincing evidence that respondent violated his oath of office and the following Rules of Professional Conduct: Neb. Ct. R. §§ 3-503.5, 3-508.4(a), (b), (d), and (e). Respondent filed exceptions to the referee’s report.
Issues: The referee erred in (1) making findings of fact not supported by the record; (2) drawing conclusions of law not supported by the record; (3) finding that respondent committed the crime of attempted bribery; (4) finding that respondent committed professional misconduct; and (5) finding respondent should be suspended from the practice of law for one year.
S-08-1261, State of Nebraska ex. rel. Patrick Reed (Appellant) v. State of Nebraska Game and Parks Commission, Rex Amack, in his official capacity as director of the Nebraska Game and Parks Commission, Carey Grell, in her official capacity as environmental analyst for the Nebraska Game and Parks Commission, and Nebraska Public Power District, a public corporation and political subdivision of the State of Nebraska
Seward County, Judge Paul D. Merritt, Jr.
Attorneys: Richard L. Rice, Mathew T. Watson (Crosby Guenzel LLP) (Appellant) --- Jody Gittins, Michelle Weber (Attorney General’s Office for the State) --- Kile W. Johnson (Johnson Flodman Guenzel & Widger), Stephen D. Mossman (Mattson Ricketts Davies Steward & Calkins) and Bonnie J. H ostetler (Nebraska Public Power District)
Civil: Writ of Mandamus, Complaint for Injunctive Relief and Declaratory Judgment Action
Proceedings below: The district court concluded that the allegations in Appellant’s petition did not state a sufficient basis upon which he could establish standing to confer subject matter jurisdiction upon the district court. The district court further concluded that the common law exceptions to the general principles of standing were either no longer recognized under Nebraska Law or not applicable to the facts as alleged in Appellant’s Petition. The district court dismissed for lack of subject matter jurisdiction.
Issues: The district court erred in (1) finding Appellant did not have standing under the “public right” exception to the general rule of standing to bring his mandamus action on the basis that there no longer exists the “public right” exception; (2) finding Appellant did not have standing to bring all three causes of action alleged in his petition because the facts alleged did not constitute a matter of great public concern.
S-08-0807, Elizabeth Wilke and Mark Wilke (appellants) v. Woodhouse Ford, Inc.
Douglas County, Judge W. Mark Ashford
Attorneys: Melany Chesterman (Hauptman, O’Brien, Wolf & Lathrop) (Appellants) -- Brian Nolan (Nolan, Olson, Hansen, Lautenbaugh & Buckley)(Woodhouse Ford, Inc.)
Civil: Product liability; Breach of Implied Warranty; and Negligence
Proceedings Below: The district court sustained Woodhouse Ford’s motion for summary judgment based on its argument that the van was sold “as is.”
Issue: The trial court erred in (1) holding that no genuine issue of material fact exists and in granting summary judgment; (2) finding that the inherent safety defect with the van purchased by Appellants was not in violation of public policy and thus outside the bounds of the ‘as is’ clause in the purchase agreement.
S-08-0141, Leon Dean Kuhn, Personal Representative of the Estate of Ashton Hasebrook v. Wells Fargo Bank of Nebraska, N.A. v. TJ Lauvetz Enterprises, Inc. (Appellant) v. O’Keefe Elevator Company, Inc., Third-party defendant
Adams County, Judge Stephen Illingsworth
Attorneys: Eugene C. Foote, II (for the Personal Representative) --- Michael F. Scahill, Terry J. Grennan (Cassem Tierney) (for Wells Fargo) --- Justin R. Herrmann, Jeffrey H. Jacobsen (Jacobsen Orr) (Appellant) --- Robert M. Schartz (Sodoro Daly) (for O’Keefe Elevator Co.)
Proceedings below: The district court determined that the decedent that he fell and broke his hip entering an elevator in a building owned by Appellant after leaving Wells Fargo and retrieving documents from a Wells Fargo safety deposit box. The district court found the lease placed Appellant in control of the service and maintenance of the elevator and Appellant had a legal duty to maintain a safe elevator. The district court found Wells Fargo was entitled to summary judgment as it did not owe any legal duty to decedent, that Appellant count not by contract transfer liability to its lessee found the indemnification and exculpatory provisions set forth in the lease were ambiguous and did not clearly set for that Appellant should be indemnified by Wells Fargo. The trial court thus dismissed Wells Fargo from the case with prejudice.
The Court of Appeals dismissed the appeal in a memorandum opinion. Appellant filed a petition for further review which was granted by the Nebraska Supreme Court.
Issues on Review: The Court of Appeals erred in determining that the January 29, 2008 order rendered Appellant’s appeal of its cross-claim against Wells Fargo moot.
S-08-1177, State v. L.T. Thomas (Appellant)
Douglas County, Judge W. Russell Bowie
Attorneys: Pro Se Appellant --- George R. Love (Attorney General’s Office)
Proceedings below: After an evidentiary hearing, the district court denied Appellant’s motion for postconviction relief.
Issues: The district court erred in (1)not finding Appellant was prejudiced; (2) failing to find Nebraska’s postconviction procedures are inadequate and ineffective to protect Appellant’s constitutional claims; (3) finding Appellant failed to meet the standard in State v. Bishop, 263 Neb. 266 (2002); (4) failing to find obstruction of justice and ineffective assistance of counsel; (5) failing to find ineffective assistance of counsel on the manslaughter instruction; (6) failing to find that counsel was ineffective in failing to argue lack of subject matter jurisdiction over second degree murder as Neb. Rev. Stat. § 28-304 is facially unconstitutional; (7) denying relief on issues raised in the postconviction motion.
S-08-0878, State v. Todd A. Rung (Appellant)
Lancaster County, Judge Paul D. Merritt, Jr.
Attorneys: Shawn Elliott (Public Defender’s Office) --- Erin E. Leuenberger (Attorney General’s Office)
Criminal: Child enticement with a computer
Proceedings below: The trial court overruled Appellant’s motion to quash and found him guilty after a stipulated bench trial. He was sentenced one to two years in prison and ordered to register as a sex offender. 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) failing to determine that the child enticement statute was facially invalid as it violates the Equal Protection Clause of the U.S. and Nebraska Constitutions: (2) failing to determine that the child enticement statute was facially invalid because it is vague and overbroad in violation of the 1st and 14th Amendments to the U.S. Constitution and Article I, § 5 of the Nebraska Constitution.
S-08-1042, Homestead Estates Homeowners’ Association v. Thomas D. Jones and Michelle L. Peterson-Jones (appellants)
Cass County, Randall L. Rehmeier
Attorneys: David V. Chebatoris (Svoboda & Chebatoris Law Office) ---- Grant A. Forsberg (Forsberg & Jolly Law, PC, LLO) (appellants)
Civil: Declaratory judgment action
Proceedings Below: The district court entered a declaratory judgment in favor of appellee - plaintiffs, Homestead Estates Homeowners’ Association (homeowners’ association), concluding that appellee has the authority to pave the road located within the easement on appellants - defendants’, Thomas Jones and Michelle Peterson-Jones, land against appellants’ objections. The court concluded, inter alia, that the pavement of the road was not an unreasonable burden on appellants’ property, and that appellee as holders of the ingress and egress easement may make reasonable improvement to the land.
Issue: Whether appellee’s decision to pave the road located within the easement on appellants’ property would constitute an unreasonable burden on the use and enjoyment of appellants’ land.
S-08-1011, Kelly Jean Connelly and Timothy James Connelly, husband and wife and natural guardians of Rachel and Chelsea Connelly v. The City of Omaha (Appellant)
Douglas County, Honorable Patricia A. Lamberty
Attorneys: Thomas M. Lochner, Ralph A. Froehlich, and Timothy M. Morrison, Locher, Pavelka, Dostal, Braddy & Hammes, L.L.C. v. Thomas Mumgaard, Deputy City Attorney (Appellant)
Civil: Political Subdivisions Tort Claims Act
Proceedings Below: Thomas and Kelly brought a claim against the City of Omaha for injuries their daughters incurred while sledding in an Omaha park. After a bench trial in March 2006, the court found that the City engaged in willful or malicious conduct and was liable for Rachel and Chelsea Connelly’s injuries under the RLA. The court found that there was insufficient evidence to support either parent’s negligent infliction of emotional distress claim. And the court found no affirmative defenses applicable except for 25 percent contributory negligence by Timothy.
After the trial, but prior to any further proceedings in the case, Bronsen v. Dawes County, 272 Neb. 320 (2006) was released. At that time, a second action was filed by Chelsea and Rachel Connelly which was consolidated with the parents’ pending action. The parties next filed motions asking the court to reconsider the March 2006 decision in light of the Bronsen case.
The district court sustained the parents’ partial summary judgment regarding: (1) the amount recoverable by each individual party to the action under Neb. Rev. Stat. § 13-926; (2) that Timothy Connelly’s negligence would not be imputed to Kelly Connelly because there was no finding of a joint enterprise; and (3) that Bronsenwould be applied retroactively.
The children’s partial summary judgment was sustained regarding (1) the amount each individual could recover under § 13-926, (2) the retroactive applicability of Bronsen, and (3) a finding Timothy Connelly’s negligence would not be imputed to the children. Their motion for summary judgment was overruled as to (1) Rachel Connelly’s argument that she could not be contributorily negligent as a matter of law because of her age and (2) the application of res judicata and collateral estoppel.
Issues on Appeal: The City claims the district court erred (1) in concluding that planting a tree on a hill in a park that people sled in and not padding the tree was unreasonable conduct amounting to actionable negligence; (2) in concluding that a six to seven foot tree was not an open and obvious danger to sledders; (3) in concluding that the City could not expect people using the hill for sledding to avoid sledding into and striking the six to seven foot tall tress; (4) in requiring the city to anticipate that people sledding would fail to protect themselves form hitting the tree because they would become distracted by the presence of other people sledding; (5) in applying the “distraction” exception to the City’s open and obvious danger affirmative defenses; (6) in finding Timothy Connelly to have been less negligent than the City; and (7) in finding that the City was not entitled to discretionary immunity.
S-09-0209, W.K. Stetson, M.D.; C.A. Sutera, M.D.; and Chadron Medical Clinic, P.C., A Nebraska Professional Corporation (Relators) v. The Honorable Brian C. Silverman, Judge of the District Court of Dawes County, Nebraska (Respondent)
Original Action for Writ of Mandamus
Attorneys: Maren Lynn Chaloupka (Chaloupka Holyoke Hofmeister Snyder & Chaloupka) (For Intervenor Sharon Rankin) --- Lonnie R. Braum (Thomas Braun Bernard & Burke LLP) and Mark E. Novotny (Lamson Dugan & Murray LLP) (for Relators)
Civil: Writ of Mandamus
Proceedings below: The district court sustained Rankin’s motion to continue trial and reopen limited discovery. The district court overruled Stetson’s objection to Rankin’s subpoena duces tecum to the Nebraska Department of Health and Human Services.
In the related underlying civil action, this Court previously heard the appeal in Rankin v. Stetson, 275 Neb. 775 (2008) (reversed and remanded for further proceedings). In addition, the Relators filed an application and verified petition and motion for peremptory mandamus with the Nebraska Supreme Court. The Supreme Court issued an alternative writ of mandamus staying the underlying civil case, Rankin v. Stetson and ordered respondent to vacate and set aside the February 13, 2009 order or show cause why a peremptory writ should not issue.
Issues: Respondent erred in (1) ordering his February 13, 2009 journal entry that plaintiff may conduct discover, including a second deposition of Dr. Stetson and such other discover as appropriate relative to the new allegations and the surrender of Dr. Stetson’s license; (2) ordering in his February 13, 2009 journal entry that plaintiff’s subpoena duces tecum was overruled in that such discover is barred and preclude in the case by Neb. Rev. Stat. § 38-1,106; (3) ordering in his February 13, 2009 journal entry that the court was not ruling on relators’ motion in limine at hta ttime as such discovery is inadmissible in evidence in any legal proceeding of any kind or character by Neb. Rev. Stat. § 38-1,106.
S-08-0974, Nancy Conley and Todd Conley (Appellants) v. Thomas Brazer and Kathy Brazer, Paradise Pet Suites, LLC, the City of Omaha, et al.
Douglas County, Hon. W. Russell Bowie
Attorneys: Brian C. Doyle (Fullenkamp, Doyle & Jobeun) (Appellants)---Donald P. Dworak (Stinson Morrison Hecker) (Brazers and Paradise)---Alan M. Thelen (Deputy City Attorney) (representing City of Omaha)
Civil: Action for Declaratory Judgment and Injunctive Relief Relating to Building Permit
Proceedings below: The district court determined that Conleys had failed to appeal granting of a building permit to the Board of Adjustment and therefore failed to exhaust administrative remedies. The district court therefore concluded that building permit was valid, dissolved temporary injunction, granted Brazers’ and Paradise Pet’s motion for summary judgment, and dismissed action as to all defendants.
Issues: Whether district court erred in refusing to admit evidence that the Conleys assert would establish that the Brazers admitted the jurisdiction of the City of Omaha. Whether district court erred in granting summary judgment in favor of the Brazers and Paradise Pet and dissolving temporary injunction because there were genuine issues of law and fact as to 1) whether appeal to the Board of Adjustment was required or even possible, 2) whether the building permit was valid and had grandfather rights, 3) whether City of Omaha effectively ceded responsibility relating to building permits to Douglas County, and 4) whether the building permit allowed use of the property for retail sales or pet grooming.