S-08-1159, State v. Jordan M. Goodwin (Appellant)
Douglas County, Judge J. Russell Derr
Attorneys: Thomas C. Riley (Public Defender) --- Erin E. Leuenberger (Attorney General’s Office)
Criminal: Second degree murder; use of a weapon to commit a felony
Proceedings below: Appellant was found guilty of the above crimes by a jury. He was sentenced 50 to 50 years for the murder charge with a consecutive 10 year to 10 year sentence for the weapons charge.
Issues: The trial court erred in (1) giving the jury “step instructions” which deprived Appellant of his due process right to have the jury consider his defense to the charges; (2) admitting Appellant’s statement to police into evidence as he did not knowingly and voluntarily waive Miranda; (3) admitting the Appellant’s statement as it was the product of coercion and inducements of leniency; (4) denying Appellant’s request to waive jurisdiction of the district court and transfer to juvenile court.
S-08-0937, In re Interest of William G.
Separate Juvenile Court for Douglas County, Judge Douglas F. Johnson
Attorneys: Theresia M. Urich (County Attorney’s Office) --- no brief filed on behalf of Appellee.
Civil: Nunc Pro Tunc order
Proceedings below: On its own motion, the court ordered a nunc pro tunc to its order dated August 12, 2008. After adding the nunc pro tunc language, the trial court vacated the May 2008 termination order and then re-terminated jurisdiction over the case.
Issues: The trial court erred in (1) vacating the May 29, 2008 termination order which terminated jurisdiction over William G.; (2) ordering a nunc pro tunc to the order dated January 17, 2008 without any authority or power under Neb. Rev. Stat. § 25-2001; (3) employing an order nunc pro tunc to change rather than correct the order dated January 17, 2008; (4) violating the State’s due process rights by adding disposition language to the January 17,2008 order without allowing the State notice or opportunity to be heard.
S-08-0623, State v. Dwight L. Tucker (Appellant)
Douglas County, Judge Marlon A. Polk
Attorneys: Timothy P. Burns (Public Defender’s Office) --- George R. Love (Attorney General’s Office)
Criminal: Count I: Manslaughter; Count II: Use of a Firearm to Commit a Felony; and Count III: Possession of a Deadly Weapon by a Felon
Proceedings below: Appellant was originally charged with Count I: First degree murder. A jury found him guilty of the lesser-included offense of Manslaughter as well as guilty of the other two counts. He was sentenced on Count I, 20 to 20 years in prison; Count II, 10 to 10 years in prison and on Count III, 4 years to 4 years. The Court of Appeals affirmed. See, State v. Tucker, 17 Neb. App. 487 (2009). Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.
Issues on review: The Court of Appeals erred in affirming the Appellant’s Use of a Deadly Weapon to Commit a Felony conviction as there was insufficient evidence to sustain this finding.
S-09-0062, Angelina Manchester (Appellant) v. Drivers Management, LLC, A Nebraska Corporation (Cross-Appellant)
Nebraska Workers’ Compensation Court
Attorneys: James E. Harris (Harris Kuhn LLP) (Appellant) --- Daniel R. Fridrich (for DMI)
Civil: determination of benefits for injured employee
Proceedings below: The trial court found Appellant reached MMI on July 30, 2007 and awarded TTD from January 8, 2006 to July 30, 2007. The trial court found a 55% loss of earning capacity starting July 31, 2007 and ordered vocational rehabilitation services. The trial court awarded medical expenses, attorney fees and a penalty finding defendant failed to pay TTD for a period of one month prior to the award being entered. The review panel affirmed in part and reversed and remanded in part. The review panel reversed the trial judge’s award of penalties, interest and attorney fees.
Issues: The review panel erred in reversing the trial court’s award of penalties, interest and attorney fees.
Cross-Appeal: The court erred in (1) finding Appellant’s depression is causally related to the accident and resulting injuries; (2) awarding TTD benefits from January 8, 2006 to July 30, 2007; (3) ordering DMI to pay Columbus Psychological Associates $6780.
S-08-1307, Dakota County School District No. 22-0011 a/k/a South Sioux City Community Schools (Appellant) v. South Sioux City Education Association (Appellee)
Nebraska Commission of Industrial Relations
Attorneys: Kelley Baker and Steve Williams (Harding & Shultz, P.C., L.L.O. (Appellant)-- Scott J. Norby (McGuire and Norby) (Appellee)
Civil: Industrial Relations Act--Unfair Labor Practice
Proceedings Below: After a trial, the commission entered an order concluding that it had jurisdiction, the petition stated a claim upon which relief could be granted, the petition was not time barred, and that manning was a member of the bargaining unit subject to the negotiated agreement for the 2007-08 contract year, not a substitute teacher.
Issues: Did the Commission err (1) in concluding it had jurisdiction; (2) by not dismissing the petition for failure to state a claim for relief; and (3) in concluding that Manning was a certificated employee and a member of the bargaining unit.
S-08-1109, TracFone Wireless, Inc. (Appellant) v. Nebraska Public Service Commission
Lancaster County District Court--Judge Steven D. Burns
Attorneys: Stephen M. Bruckner and Russell A. Westerhold, Fraser Stryker, P.C., LLO, and Mitchell F. Brecher, Greenberg Traurig, LLP (Appellant)---Jon Bruning, Attorney General, and L. Jay Bartel, (Appellee)
Civil: Administrative Procedure Act
Proceedings Below: The Nebraska Public Service Commission (PSC) entered an order requiring wireless telephone carriers who offered prepaid wireless services to notify the PSC as to the method the carriers planned to use to assess a surcharge on its users for emergency 911 (E911) service. TracFone Wireless proposed two methods to collect the surcharge. Both methods were rejected by the PSC. The PSC ordered TracFone to use one of three methods set forth by the PSC. TracFone sought review in the Lancaster County District Court, which affirmed the decisions of the PSC. TracFone appeals.
Issues: TracFone claims the district court erred in determining that (1) TracFone failed to demonstrate that it was impossible to collect the E911 surcharge from TracFone users who purchase the service through independent retailers; (2) statutes require TracFone to pay the surcharge even though TracFone has no means to collect the surcharge directly from users who purchase the service through independent retailers; (3) TracFone’s proposed collection methods did not comply with state law; (4) TracFone should be required to adopt one of the three methods established by the PSC for collection of the surcharge; and (5) the PSC’s interpretation of state law was not preempted by the Communications Act of 1934, as amended by the Telecommunications Act of 1996.
S-08-1095) Swift and Company v. Nebraska Department of Revenue, an Agency of the State of Nebraska, and Douglas A. Ewald, Tax Commissioner (Appellant)
S-08-1096) Swift and Company v. Nebraska Department of Revenue, an Agency of the State of Nebraska, and Douglas A. Ewald, Tax Commissioner (Appellant)
S-08-1097) Gibbon Packing, Inc. v. Nebraska Department of Revenue, an Agency of the State of Nebraska, and Douglas A. Ewald, Tax Commissioner (Appellant)
S-08-1098) Skylark Meats, Inc., v. Nebraska Department of Revenue, an Agency of the State of Nebraska, and Douglas A. Ewald, Tax Commissioner (Appellant)
S-08-1099) O’Brien’s Fine Sausage v. Nebraska Department of Revenue, an Agency of the State of Nebraska, and Douglas A. Ewald, Tax Commissioner (Appellant) (consolidated cases).
Lancaster County, Judge Jodi L. Nelson
Attorneys: L. Jay Bartel (Attorney General’s Office) (Appellant) --- Michael L. Schleich, Timothy J. Thalken (Fraser Stryker PC LLO)
Civil: Denial of tax refund claims
Proceedings below: The tax commissioner denied the companies’ refund claims. On appeal to the district court, the district court reversed the commissioner’s decision and found Reg-1-098.03A was invalid. The district court remanded the cases for further proceedings to establish the amount of sales tax paid by the companies associated exclusively with the cleaning and sanitation of tangible personal property during the time periods at issue.
Issues: The district court erred in (1) determining gross receipts from the charges for all cleaning and sanitation services performed at the companies’ meat processing pleants were not subject to the sales tax imposed on “building cleaning and maintenance” services under Neb. Rev. Stat. § 77-2701.16(4)(a) and (10)(a); (2) determining the Department’s Sales and Use Tax Reg-1-098.03A was invalid and in excess of the Department’s rulemaking authority; (3) reversing the commissioner’s denial of the companies’ refund claims and remanding the matter to the Department for further proceedings.
Cross-Appeal: The district court erred in remanding the case to the Department for further proceedings because there was no factual dispute regarding the amount of refund owed to the Appellees/Cross-Appellants.
S-08-1167, Frank Koricic, as Trustee for the Heirs and Next of Kin of Manda Baker (Appellant) v. Beverly Enterprises-Nebraska, Inc. (Appellee)
Douglas County, Judge Marlon A. Polk
Attorneys: Richard F. Hitz, S. Drake Martin, & Brian G. Brooks (Appellant)--- Jeanelle R. Lust & Rodney M. Confer (Appellee)
Civil: Contract: Arbitration; Agency
Proceedings Below: The district court dismissed the proceedings without prejudice, finding that the contract signed by Frank Koricic was binding as to his mother, Manda Baker. The district court determined that Koricic had “actual authority” to enter into an agreement to arbitrate on behalf of his mother.
Issues: Whether the contract signed by Frank Koricic was binding as to his mother, and limited her negligence claim against the nursing home to arbitration.
S-08-0819, Pamela Brentzel (Appellant) v. Christine Peterson, Chief Executive Office of the Nebraska Department of Health and Human Services, Vivianne Chaumont, Director of the Division of Medicaid and Long-Term Care of the Nebraska Department of Health and Human Services and Nebraska Department of Health and Human Services
Lancaster County, Judge Jodi L. Nelson
Attorneys: Mark T. Bestul (Legal Aid of Nebraska) (Appellant) --- John L. Jelkin (Assistant Attorney General)
Civil: Denial of medical benefits
Proceedings below: The Department denied Appellant’s request for a stair lift for Appellant. Appellant filed a Petition for Review of the Administrative Decision with the district court. The district court affirmed the decision of the Department. On appeal, the Court of Appeals affirmed. See A-08-0819, Brentzel v. Peterson (Memorandum Opinion, May 5, 2009). Appellant filed a petition for further review which was granted by the Nebraska Supreme Court.
Issues on Review: The Court of Appeals erred in (1) determining that a director of an agency has the power to vacate its own orders and decision without notice and hearing; (2) determining that the due process rights of the Appellant were not violated; (3) determining the September 20, 2007 Order of a Director was a valid order; and (4) affirming the district court.
S-08-0949, In re Interest of Hope L. et al.
Separate Juvenile Court for Lancaster County, Judge Reggie Ryder
Attorneys: Scott E. Sidwell (Legal Aid of Nebraska) (for Appellant Benjamin L.) --- Stephanie R. Hupp (McHenry, Haszard, Hansen, Roth & Hupp PC LLO) (for Appellee/Cross-Appellant Joanna L.) --- Dalton W. Tietjen (Tietjen Simon & Boyle) (Guardian Ad Litem for minor children) --- Alicia Henderson, Chief Deputy County Attorney and Michelle Clarke, Senior Certified Law Student (County Attorney’s Office)
Civil: Termination of parental rights
Proceedings below: The trial court terminated the parental rights of Benjamin L. and Joanna L. to their four minor children finding the State was not required to make reasonable efforts to reunify the family. Benjamin L. filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: The juvenile court erred in (1) finding sufficient evidence to terminate the parental rights under Neb. Rev. Stat. § 43-292(2), (8), (9) or (10); (2) finding sufficient evidence to prove that termination of the parental rights was in the children’s best interests; (3) finding the parents’ conduct so horrific or egregious as to come within the statutory provisions excusing the State from its duty to undertake reasonable efforts to preserve and reunify the family under Neb. Rev. Stat. § 43-283.01; (4) permitting testimony and evidence, over objection, regarding the mother’s past mental health diagnosis and treatment, which pre-dated the birth of her children, including history of an eating disorder, for which there was never proof offered of a causal connection to the alleged abusive acts or omissions, the probative value of such evidence being outweighed by its prejudice.
Cross-Appeal: The juvenile court erred in (1) terminating Joanna’s parental rights to her 4 children; (2) finding there was sufficient evidence to terminate the parental rights; (3) determining termination of parental rights was in the best interests of the minor children; (4) receiving irrelevant evidence regarding Joanna’s mental health and criminal history; (5) not requiring the Department of Health and Human Services to make reasonable efforts to reunify the family; (6) not removing the Guardian Ad Litem.
S-09-0100, Melissa L. Miller (Appellant) v. Regional West Medical Center and Continental Insurance Company
Nebraska Workers’ Compensation Court
Attorneys: Robert M. Brenner (Appellant) --- Abigail A. Wenninghoff, Jason A. Kidd (Engles Ketcham Olson & Keith PC)
Civil: Determination of future benefits based on 1995 award
Proceedings below: The trial court took judicial notice of the 1995 award. The trial court found permanent indemnity award in 1995 was for an award for loss of earning power consistent with head and neck injuries but found no award for a shoulder injury, which typically is a scheduled-member injury. The trial court found defendants were not liable for evaluation and/or treatment of plaintiff’s right shoulder injury allegedly arising from her previous work-related injury. The trial court sustained defendants’ objection to plaintiff’s request for appointment of an independent medical examiner.
The review panel, 2 judges, found the order was not final for purposes of appeal. The dissent found that in order to file a petition to obtain payments, if any due, under the Workers’ Compensation Act, a the plaintiff must have a resport for an independent medical examiner under § 48-134.01. The dissent found the denial of plaintiff’s request for appointment of an independent medical examiner was error and denied plaintiff the right to file a petition. The dissent found the denial of the right to file a petition is a final order and thus, appealable.
Issues: The majority of the review panel erred in (1) finding the trial court’s order was not a final order, thus failing to consider the appeal on its merits; (2) applying Neb. Rev. Stat. § 48-173 to the case at bar; (3) depriving Appellant of her ability to obtain further medical treatment arising out of the 1995 award. The trial court erred in denying appointment of an independent medical examiner.
S-08-1189, In re matter of the Estate of Lyle L. Fries -- (Margaret Fries Appellant) (Personal Representative appellee) and (Children of Lyle Fries intervenors)
Hall County, Honorable David A. Bush
Civil: Division of Estate
Attorneys: Andrew J. Hoffman (Kroter Hoffman P.C., L.L.O.) and Jason D. Mielak (Fehringer, Mielak & Fehringer, P.C., L.L.O.) (Appellant) -- Thomas L. Kovonda (Anderson, Vipperman, Kovanda & Wetzel) (appellee personal representative) -- Mark Porto (Shamberg, Wolf, McDermott & Depue) (intervenors)
Proceedings Below: The county court for Hall County granted appellee’s and intervenors’ motion for partial summary judgment and denied appellant’s motion for partial summary judgment eliminating certain property from the calculation of Lyle Fries augmented estate. After these rulings, the intervenors field a joint motion for summary judgment arguing that by virtue of the court’s prior determination that the properties should be excluded from Lyle’s augmented estate, the value of the property left to appellant exceeded 50 per cent of the augmented estate and thus no real controversy remained.
Issues: Did the county court err in determining that the three disputed properties were not part of decedent’s augmented estate because decedent transferred the properties to his children prior to his death.
S-09-0018, BSB Construction, Inc. v. Pinnacle Bank (Appellant)
Lancaster County, Judge Paul D. Merritt, Jr.
Attorneys: Todd R. McWha & S. David Schreiber (Waite, McWha & Harvat) (Appellant) – Nichole S. Bogen (Wolfe, Snowden, Hurd, Luers & Ahl LLP)
Civil: Breach of contract, negligence, breach of fiduciary duty, U.C.C.
Issue: The district court erred in (1) denying Appellant’s motion to dismiss; (2) folding the Pinnacle Account was a escrow account; (3) finding Appellant violated the terms of the Addendum to Deposit Account; (4) finding Appellee’s failure to perform the condition precedent in the addendum to Deposit Account of obtaining a signed Draw Authorization Form was not a bar to recovery; (5) holding there was no issue of fact as to whether or not Appellee consented to TC Properties withdrawals from the Pinnacle Account; (6) awarding Appellee $38,040.12 for deliver and placement of rock rip rap at the TC Properties project site; (7) denying Appellant’s motion for summary judgment; (8) granting Appellee’s motion for summary judgment; (9) refusing to permit Appellant to raise an issue of contract interpretation at trial.
Cross Appeal: The district court erred in (1) not awarding the full $41,341.20 sought by Appellee; (2) denying Appellee’s request for prejudgment interest; (3) denying Appellee’s request for attorney’s fees.
S-09-0017, State v. John S. Ways, Jr. (Appellant)
Lancaster County, Judge Robert R. Otte
Attorneys: James L. Beckmann (Appellant) --- Stacy M. Foust (Attorney General’s Office)
Criminal: Criminal Contempt
Proceedings below: The Appellant pleaded guilty to criminal contempt as part of a plea agreement. He was sentenced to 54 days in the county jail with credit for 76 days and a $1000 fine. The trial court also re-notified Appellant of his obligation to register as a sexual offender under the Nebraska Sex Offender Registration Act (SORA). Due to his failure to previously register under the SORA, the trial court informed Appellant that his registration under the SORA would not end until April 9, 2014, subject to any modifications to the SORA.
Issues: The district court erred in (1) requiring Appellant to register as a sex offender after June 24, 2008; (2) amending Appellant’s registration as it lacked jurisdiction and was a collateral attack of a prior district court order.
S-08-1220, State v. Larry Williams (Appellant)
Buffalo County, Judge William T. Wright
Attorneys: John H. Marsh (DeputyBuffalo County Public Defender) --- James D. Smith (Attorney General’s Office)
Criminal: Plea in bar
Proceedings below: The district court overruled Appellant’s plea in bar. The Court of Appeals dismissed the appeal under Neb. Ct. R. App. P. § 2-107(A)(2). Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.
Issues on Review: The Court of Appeals erred in (1) holding that Appellant’s Plea in Bar does not meet the requirements of Neb. Rev. Stat. § 29-1817(Reissue 2008); (2) finding that Appellant did not allege further prosecution barred by double jeopardy clauses of the state and federal constitutions; (3) finding it lacked jurisdiction.
S-08-1203, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. Kimberly K. Carbullido (Respondent)
Attorneys: John W. Steele (Assistant Counsel for Discipline) --- no brief filed on behalf of Respondent
Civil: Attorney Discipline
Proceedings below: Relator filed its Motion for Judgment on the Pleadings. Respondent did not respond. The Supreme Court granted the motion.
Issue: What is the appropriate sanction?
S-08-1290, Lucky 7, LLC (Appellant) v. THT Realty, LLC et al. (Appellee)
Douglas County, Judge J. Patrick Mullen
Attorneys: Donald J. Buresh, Robert J. Becker, John D. Stalnaker, April O’Loughlin (Stalnaker, Becker & Buresh) (Appellant)---Heather Voegele-Anderson (Koley Jessen PC)
Civil: Statutory interpretation of disability pension qualification
Proceedings Below: After a bench trial, the district court dismissed Lucky 7’s complaint.
Issues: Whether the district court erred as a matter of law in applying the “ordinary prudence” standard to Appellant’s claim of negligent misrepresentation and whether, in applying the ordinary prudence standard, the district court erred in finding that Appellant did not exercise ordinary prudence.
S-09-0170, In the Matter of the Estate of Samuel Failla, Sr.
Cass County Court, Judge John F. Steinheider
Attorneys: Steven J. Riekes & David P. Wilson (Marks Clare & Richards, L.L.C.)(Appellant Diana L. Failla, Personal Representative) – William R. Reinsch (Reinsch, Slattery & Bear) (for appellees Samuel J. Failla, Jr., Lisa A. Failla, Teresa A. Kresak and Gene Kresak)
Civil: Partition Sale
Proceedings below: The trial court found the real estate was subject to partition but that it could not be partitioned in kind without prejudice to the owners and could not be conveniently allotted to any one party and should therefore be sold. The trial court set forth the distribution of the proceeds to the parties.
Issues: The county court erred in (1) granting the motion for summary judgment seeking partition of real property that was needed by the personal representative to be sold in a commercially reasonable manner in order to generate sufficient funds to pay the debts and obligations of the Estate; (2) dismissing the petition of the personal representative for authority to sell property in a commercially reasonable manner in order to generate sufficient funds to make payment of the debts and obligations of the Estate for which there were insufficient assets without the sale of said real estate; (3) holding that the right of partition prevails over the right of the personal representative to sell real estate of said sale is necessary for the proper administration of the Estate in order to liquidate the debts and obligations of the same where the other assets of the Estate are insufficient for said purpose.