S-09-1183, Donald B. Eikmeier (Appellant) v. The City of Omaha, Nebraska, a municipal corporation; and City of Omaha Mayor Michael Fahey, and City of Omaha Councilmen James Vokal, Jr., Chuck Sigerson, Jr., Jim Suttle, Frank Brown, Garry Gernandt, Dan Welch, and Franklin Thompson, in their official capacities and not individually
S-09-1184, Cheryl Eckerman (Appellant) v. The City of Omaha, Nebraska, a municipal corporation; and City of Omaha Mayor Michael Fahey, and City of Omaha Councilmen James Vokal, Jr., Chuck Sigerson, Jr., Jim Suttle, Frank Brown, Garry Gernandt, Dan Welch, and Franklin Thompson, in their official capacities and not individually.
Douglas County, Judge Gerald E. Moran
Attorneys: Jeff C. Miller, Duncan A. Young, Keith I. Kosaki (Young and White) (for Appellants)--- Alan M. Thelen (Deputy City Attorney)
Civil: Wage Claims under Neb. Rev. Stat. § 14-804
Proceedings below: Appellants sought enforcement of their wage agreements with their employer, the City of Elkhorn, which was annexed by the City of Omaha. The Omaha City Council adopted certain resolutions which approved payment of compensation but denied excess amounts requested. Appellants appealed to the district court and filed motions for summary judgment and motions for disposition and motions for attorney fees pursuant to the Nebraska Wage Payment and Collection Act. The district court denied the motions and affirmed the actions of the City Council.
Issues: The district court erred in (1) finding that the Appellants’ claims to the Omaha City Comptroller were not claims for “wages” as defined by the Nebraska Wage Payment and Collection Act; (2) affirming the City Council’s denial of the Appellants’ claims for attorney fees; (3) failing to award attorney fees; (4) failing to award prejudgment interest.
S-09-1300, Arleen M. Weber (Appellant) v. Gas ‘N Shop, Inc., Milwaukee Insurance Co., and Employers Mutual Companies (Appellees)
Douglas County, Honorable Marlon A. Polk
Attorneys: Jerold V. Fennell & Michael J. Dyer (Appellant); Tyler P. McLeod & Jeffrey J. Blumel (Appellees)
Civil: Workers’ Compensation Court
Proceedings Below: This appeal arises from the decision of the Supreme Court and order of remand, directing the trial court “to consider and decide whether Weber’s request for a summons in garnishment was barred by any of the alternate defenses raised by Employers Mutual Companies (EMC) and Gas ‘N Shop.” See Weber v. Gas ‘N Shop, 278 Neb. 49 (2009) (reversed and remanded for further proceedings). The trial court held a hearing on remand to consider the alternate defenses, and it granted Gas ‘N Shop’s motion to dismiss. Weber appeals from that decision, and EMC and Gas ‘N Shop cross-appeals.
Issues: Whether the trial court erred when it held that Neb. Rev. Stat. § 48-137 bars a claim made more than two years after the last payment of compensation where the compensation was paid pursuant to an award from the workers’ compensation court.
Cross-Appeal: The trial court erred in failing to grant Appellees’ motion to dismiss on the grounds that the Appellees had complied with all of the terms of the Award and in ruling that the Appellees were required to seek modification of the Award pursuant to Neb. Rev. Stat. § 48-141.
S-09-0929, Rex J. Moats (Appellant) v. Republican Party of Nebraska
Douglas County District Court, Hon. W. Mark Ashford
Attorneys: David Domina (Appellant) --- L. Steven Grasz (Husch Blackwell Sanders LLP)
Civil: Nebraska Consumer Protection Act
Proceedings Below: Moats filed suit against the Republican Part of Nebraska alleging that publications it circulated that were opposed to his (Moats’) candidacy for the Nebraska Legislature were a violation of the Nebraska Consumer Protection Act. The district court dismissed Moats’ complaint. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues on Appeal: Moats assigns that the district court erred in (1) dismissing his complaint for failure to state a claim; (2) failing to recognize that all publications against Moats were violations the Nebraska Consumer Protection Act; (3) failing to recognize that all claims made against Moats by the Party constituted defamation; (4) failing to recognize that one or more of his claims placed him in a false light in violation of Nebraska statutes relating to the right of privacy; and (5) failing to grant Moats the right to amend his complaint.
S-09-1074, Vitalix, Inc. (Appellant) v. Box Butte County Board of Equalization, Nebraska (Appellee).
Tax Equalization and Review Commission
Attorneys: Gerard T. Forgét (Appellant) -- No brief filed by appellee.
Proceedings Below: The Tax Equalization and Review Commission (TERC) denied the request for tax-exempt status on property owned by the City of Alliance and leased to the appellant, Vitalix, Inc.
Issues: Whether TERC erred in (1) finding that the stipulation entered into by the parties contained facts that were contrary to the evidence and was against public policy; (2) denying the tax exemption on the basis that the City of Alliance is not the “owner” of the property; and (3) denying the exemption since the development is on land owned by a governmental subdivision for a public purpose.
S-09-0915, Patricia Richardson, Special Administrator of the Estate of Corey Richardson, Deceased, and Patricia Richardson, Individually (Appellees) v. Children’s Hospital and Dr. Scott James (Appellants)
Douglas County, Honorable James T. Gleason
Attorneys: Patrick G. Vipond, William R. Settles and Maria T. Lighthall (Appellants); Terrence J. Salerno & R. Collin Mangrum (Appellees)
Civil: Medical Malpractice
Proceedings Below: Patricia Richardson brought this consolidated civil action for damages arising out of alleged professional negligence against Children’s Hospital and Dr. Scott James. This case consolidates the wrongful death action brought on behalf of the next of kin of Corey Richardson, with a survivor action for pre-death pain and suffering brought on behalf of the Estate of Corey Richardson. The case was tried to a jury, which returned a verdict in favor of Patricia Richardson and the estate, awarding $900,000. The Appellees filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: Whether (1) the plaintiffs’ evidence of causation was inadmissible and insufficient to sustain a verdict; (2) the trial court erroneously prevented Dr. Werlin from giving his ultimate opinions regarding causation; (3) the trial court erroneously excluded relevant evidence of Corey Richardson’s past medical history; (4) the rebuttal testimony of Dr. Odell raised issues not presented in Children’s case-in-chief and repeated the plaintiffs’ case-in-chief; (5) surrebuttal evidence was required to respond to new issues raised by Dr. Odell in her rebuttal testimony; (6) the trial court improperly instructed the jury they could award damages for Corey Richardson’s pain and suffering despite the absence of evidence to support this element of damages; (7) plaintiffs used improper per diem argument; and (8) the court should have granted Children’s motion for a new trial.
S-09-1193 through 09-1196, In re Estate of Patti Johnson, Conservatorships of Victoria Johnson, Kayla Johnson and Monica Johnson
County Court for Cheyenne County, Hon. Randin Roland
Attorneys: David Domina (Appellant) --- Michael J. Javoronok, Monte L. Neilan
Civil: attorney fees
Proceedings Below: These consolidated cases were previously before this Court. See In re Conservatorship of Johnson, memorandum opinion, May 7, 2009, (affirmed in part and in part reversed and remanded with directions). Following that decision, this case was remanded for a determination of attorney’s fees. The county court divided the fees as follows: Attorney Neilan $367,500 (84.5%); Attorney Domina $67,050 (15.5%).
Issues: The county court erred in (1) making a decision in disregard of the facts and circumstances of the case; (2) failing to divide the attorney fees in accord with the directions of the Nebraska Supreme Court’s mandate and requirements of Neb. Rev. Stat. § 30-2482.
S-09-0731, State of Nebraska v. Anthony D. Riley (Appellant)
Lancaster County, Judge Jodi Nelson
Attorneys: Peter Blakeslee (Appellant) -- James D. Smith, Erin Tangeman (Attorney General’s Office)
Criminal: Manslaughter; attempted second degree murder
Proceedings Below: Riley was charged with second degree murder, three counts of attempted second degree murder, unlawful discharge of a firearm, and five counts of use of a weapon to commit a felony. Following a jury trial, Riley was convicted of a lesser included offense, manslaughter, and of three counts of attempted second degree murder. He was found not guilty of unlawful discharge of a firearm and of the five “use of a weapon” charges. Riley was sentenced to 20 to 20 years for manslaughter, and 8 to 15 years on each count of attempted second degree murder, sentences to be served consecutively. Riley appeals.
Issues: Riley assigns that the district court erred in not granting his motion for mistrial based upon the mention of a polygraph examination taken by witness Terrell Jones, or in the alternative, erred in not admitting evidence of the results of that exam. Riley also argues that the district court erred in (1) limiting cross-examination of Jones relating to a prior shooting by Jones; (2) giving a lesser included offense instruction; (3) finding sufficient evidence of guilt; (4) overruling his motion for new trial; (5) determining that his due process rights were not violated despite the inconsistent verdicts; and (6) not finding that numerous trial errors had the cumulative effect of depriving him of a fair trial.
S-09-0805, State of Nebraska ex rel. Counsel for Discipline v. Paula B. Hutchinson
Original Action: Attorney Discipline
Attorneys: Kent L. Frobish (Assistant Counsel for Discipline) --- no brief filed by Hutchinson
Proceedings Below: Formal charges were filed against Hutchinson alleging that she neglected several clients. She failed to respond, and the CFD’s motion for judgment on the pleadings was granted.
Issue on Appeal: What is an appropriate sanction?
S-09-0843, TFF, Inc., (Appellant) v. Sanitary and Improvement District No. 59 of Sarpy County, Nebraska
Sarpy County, Judge William B. Zastera
Attorneys: Kristopher J. Covi, Brian T. McKernan (McGrath North Mullin & Kratz PC LLO) (Appellant) --- Robert J. Huck, Scott D. Jochim, Elizabeth A. Elwell (Croker Huck Kasher DeWitt Anderson& Gonderinger LLC)
Civil: declaratory judgment; special assessments against commercial property
Proceedings below: The district court granted Appellee’s motion for summary judgment based on the doctrine of judicial estoppel.
Issues: The trial court erred in (1) finding that judicial estoppel bars Appellant’s claims; (2) granting Appellee’s motion for summary judgment; (3) dismissing Appellant’s complaint; (4) overruling Appellant’s motion for summary judgment.
S-09-0914, State of Nebraska ex rel. Counsel for Discipline v. Shannon J. Samuelson
Original Action: attorney discipline
Attorneys: John W. Steele (Assistant Counsel for Discipline) --- No brief filed by Samuelson
Proceedings Below: Formal charges were filed against Steele for neglecting several clients. Samuelson failed to respond to those charges, so motion for judgment on the pleadings was granted.
Issue on Appeal: What is the appropriate discipline to be imposed upon Samuelson?
S-09-1130, In re Interest of Thomas D. (Appellant).
Separate Juvenile Court of Douglas County, Judge Elizabeth Crnkovich
Attorneys: Chad M. Brown (Appellant) -- Appellee filed no brief.
Adjudication: Motion to set aside adjudication and seal juvenile record
Proceedings Below: The appellant requested the Separate Juvenile Court of Douglas County to set aside his adjudication as a juvenile and sought a sealing of his juvenile record. The Juvenile Court denied his motion and ordered that he not come back to seek a resealing of the record.
Issues: Whether the juvenile court has authority to order the appellant not to come back to seek a resealing, and whether it abused its discretion by failing to seal the appellant’s juvenile court record under Neb. Rev. Stat. § 43-2,102 (Reissue 2008).
S-09-0931, Robert Wayne Drummond and Gayle Drummond (Appellants) v. State Farm Mutual Automobile Insurance Company
Lancaster County, Judge Karen B. Flowers
Attorneys: Jeffry D. Patterson (Bartle & Geier) (Appellants) --- Stephen S. Gealy, Jarrod P. Crouse (Baylor Evnen Curtiss Grimit & Witt LLP)
Civil: Arbitration award
Proceedings below: Appellants filed an application for confirmation of the arbitration award obtained upon arbitration of their claim for underinsured motorist benefits. State Farm moved to strike the application based on the grounds that State Farm had paid the award in full and thus, confirmation was moot. The district court sustained State Farm’s motion to strike and dismissed the action.
Issues: The district court erred in (1) refusing to confirm the arbitration award upon application; (2) finding the application for confirmation was moot.
S-09‑0991, Barbara A. Ricks (Appellee) v. Daniel Vap, a/k/a Daniel S. Vap, Joe K. Vap, and all persons having or claiming any interest in Section 11: NW¼; SW¼, Township 1 North, Range 33, West of the 6TH P.M., Hitchcock County, Nebraska, real names unknown.
Hitchcock County, Judge David W. Urbom
Attorneys: George G. Vinton (Appellants) ‑‑‑Daylene A. Bennett (Burger & Bennett, P.C.)
Civil: Property (Landowner sued heirs to owners of mineral interest seeking to terminate the mineral interest due to abandonment.)
Proceedings below: The district court entered summary judgment for the landowner.
Issues: Whether the 23-year abandonment period for a mineral interest began to run when a lease was executed, or when the lease terminated.
S-09-1086, Sunridge Townhome Owners Association (Appellant) v. Carol A. Abbott, an individual; U.S. Bank, N.A., a national association; and Patrick K. Nields, an individual acting as trustee under a deed of trust
S-09-1204, Grayhawk West Townhome Owners Association (Appellant) v. Cherri S. Birth, a single person, First Horizon Home Loans, a division of First Tennessee Bank, National Association; Gregory L. Galles, an individual as trustee under a deed of trust; Old Republic Insurance Company, a Nebraska insurance company; and Centennial Bank, a Nebraska state bank.
District Court for Sarpy County, Hon. William B. Zastera
Attorneys: Ben Thompson, Amanda J. Karr (Thompson Law Office PC LLO) (for appellants Sunridge and Grayhawk) ---Donald J. Pavelka, Joseph A. Kehm (Locher Pavelka Dostal Braddy & Hammes LLC) (for appellees U.S. Bank, Patrick K. Nields, First Horizon Home Loans, Gregory L. Galles)
Civil: equity; foreclosure of continuing assessment lien
Proceedings Below in 09-1086: The trial court initially granted summary judgment in favor of the appellant Sunridge, but upon a motion to alter or amend found the assessment lien to be ineffective because it was not timely recorded.
Issues on Appeal in 09-1086: Sunridge assigns that the trial court erred in (1) finding the subordination clause in recorded real estate covenants was not determinative as to Sunridge’s priority of lien; (2) finding that Sunridge’s lien did not attach until the assessment became delinquent; and (3) denying an award of attorney fees to Sunridge.
Proceedings below in 09-1204: The trial court granted summary judgment in favor of Appellees finding the first deed of trust was superior to the assessment lien of Appellant.
Issues on Appeal in 09-1204: The trial court erred in (1) finding the subordination clause in recorded real estate covenants was not determinative as to the priority of the lien over a later filed trust deed which lender elected to foreclose nonjudicially; (2) finding that the lien did not attach until the assessment became delinquent; (3) not foreclosing the association’s lien when no evidence was presented that the lien had been extinguished; (4) denying an award of attorney fees to Grayhawk.