S-11-0629, State v. Wesley E. Kitt (Appellant)
Douglas County, Judge James T. Gleason
Attorneys: Gregory Pivovar (Appellant) --- Kimberly Klein (Attorney General’s Office)
Criminal: Robbery; Use of a Weapon to Commit a Felony (2 counts); Attempted Robbery; Second Degree Assault
Proceedings below: Appellant was found guilty of all the charges. He was sentenced 4-6 years for robbery; 2 -2 years for use of a weapon; 2-4 years for attempted robbery; 1-2 years for use of a weapon and 1-2 years for second degree assault. All were ordered to be served consecutively.
Upon direct appeal, the Court of Appeals affirmed 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 (1) finding witness Joshua Harrington unavailable; (2) finding sufficient evidence to support the convictions.
S-11-0894, State v. Steven D. Scott
Douglas County, Judge John D. Hartigan, Jr.
Attorneys: Steve Lefler (Appellant) --- Stacy M. Foust (Attorney General’s Office)
Criminal: 2nd degree assault; Use of a weapon; and Unlawful membership recruitment into an organization or association
Proceedings below: A jury found Appellant guilty of the above crimes. He was sentenced 4 to five years for assault; 4 to 5 years for use of a weapon and one to two years for unlawful membership into an organization or association. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: The trial court erred in (1) ruling that unlawful membership recruitment into an organization or association in violation of Neb. Rev. Stat. § 28-1351(1) is constitutional; (2) overruling Appellant’s motion for mistrial; (3) allowing Novacek’s identification of Appellant in violation of Brady v. Maryland; (4) overruling the motion in limine and trial objections and allowing evidence regarding firearms found during execution of a search warrant; (5) allowing hearsay evidence; (6) allowing prejudicial evidence of Arbaugh being part of a gang; (7) finding the trial court’s repeated absences were not prejudicial; (8) finding sufficient evidence to determine Appellant was part of a “gang” or “association” under the statute; (9) overruling Appellant’s motion for new trial; (10) imposing an excessive sentence.
S-11-1077, Floral Lawns Memorial Gardens (Appellee) v. Bruce C. Becker (Appellant)
Lincoln County, Judge John P. Murphy
Attorneys: Larry R. Baumann & Angela R. Shute (Kelley, Scritsmier & Byrne) (Appellee) --- Gregory C. Damman (Appellant)
Civil: Receivership, Trust funds, Nebraska Burial Pre-Need Sale Act
Proceedings Below: Floral Lawns was in receivership. The district court ordered, based on the receiver’s report, funds from Floral Lawns to be held in trust for 10 years before being paid to Becker, so as to honor any remaining “pre-need” burial sales contracts.
Issue on Appeal: Becker assigned, restated, that the trial court erred when it ordered funds of Floral Lawns, which were awarded to Becker in his divorce action, to be held in a trust account for 10 years in the event those funds were needed to satisfy pre-need burial contracts.
A-10-0981, State v. Mohammed Nadeem (Appellant)
Lancaster County, Judge Steven Burns
Attorneys: Elizabeth D. Elliott (Public Defender’s Office) --- Stacy M. Foust (Attorney General’s Office)
Criminal: Attempted first degree sexual assault; attempted third degree sexual assault
Proceedings below: A jury found Appellant guilty of the above crimes. He was sentenced three to six years for count I and one to one year for count II. The sentences were ordered to be served concurrently. The Court of Appeals reversed and remanded for a new trial. See State v. Nadeem, 19 Neb. App. 466 (2012). The State filed a motion for rehearing which was granted. The Court of Appeals withdrew its previous opinion. The Court of Appeals again reversed and remanded for a new trial. See State v. Nadeem, 19 Neb. 565 (2012). Appellee filed a Petition for Further Review which was granted by the Nebraska Supreme Court.
Issues on Review: The Court of appeals erred in (1) finding the district court abused its discretion in impaneling an anonymous jury; (2) reversing and remanding for a new trial rather than for further proceedings; (3) finding the district court impaneled an anonymous jury; (4) applying the two-part test in State v. Sandoval, 280 Neb. 309 (2010) to a numbers jury.
S-11-0535, In re Interest of Ashley W.
Separate Juvenile Court for Douglas County, Judge Elizabeth Crnkovich
Attorneys: Melinda S. Currans (Public Defender’s Office) --- Courtney Wiresinger (County Attorney’s Office)
Criminal: Adjudication under Neb. Rev. Stat. § 43-247(1) alleging violation of Neb. Rev. Stat. § 28-416(13); possession of marijuana.
Proceedings below: The separate juvenile court found that Ashley W. was a child within Neb. Rev. Stat. § 43-247(1). The Court of Appeals affirmed 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 (1) finding Appellant failed to object at trial and thus failed to preserve evidence that was subject to the motion to suppress; (2) finding that evidence in the record was sufficient to establish that the substance in question was marijuana beyond a reasonable doubt.
S-11-0798, State v. Robert Nave (Appellant)
Douglas County, Judge J. Russell Derr
Attorneys: Thomas C. Riley (Public Defender) (Appellant) --- Erin E. Tangeman (Assistant Attorney General)
Criminal: Count I: First degree murder; Count II, Use of a deadly weapon; Count III, Criminal Conspiracy; Count IV: Possession of a deadly weapon by a prohibited person
Proceedings below: A jury found Appellant guilty of all counts. He was sentenced on Count I: Life Imprisonment; Count II: 25 to 25 years; Count III: 40 to 40 years; Count IV: 10 to 10 years. All sentences were ordered to be served consecutively.
Issues: The trial court erred in (1) overruling Appellant’s motion to suppress his statement given to police as it was in violation of Miranda; (2) rejecting the Appellant’s Batson challenge to the State’s exercise of a peremptory challenge based on the jurors race; (3) accepted a guilty verdict on the offense of conspiracy as there was insufficient evidence.
S-11-0042, Turbines, Ltd. v. Transupport, Incorporated (Appellant)
Cuming County, Judge Robert B. Ensz
Attorneys: Thomas B. Donner (Appellant) --- Clarence E. Mock (Johnson & Mock) (Appellee)
Civil: Recission of a contract
Proceedings below: The trial court entered judgment in favor of Turbines and against Transupport and overruled Transupport’s motion to vacate judgment and motion for new trial. The Court of Appeals reversed and remanded with directions. See Turbines, Ltd. v. Transupport, Inc., 19 Neb. App. 485 (2012). 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) reversing the trial court’s order allowing recission of the contract; (2) misstating evidence from the trial court; (3) holding that the facts and evidence presented to the trial court did not support recission of the contract.
S-11-1080, Greg Krzycki as Trustee of the Shirley Krzycki Trust v. Robin Kryzcki (Appellant)
Lancaster County, Judge Burns
Attorneys: Clark Grant (Grant & Grant) (Appellant)– Wayne Janssen
Proceedings below: Judgment in favor of trustee of estate
Issues: The district court erred in (1) determining the funds in the Wells Fargo Bank Account
Are trust funds belonging to the Trust; (2) determining that Plaintiff adduced clear and convincing evidence to overcome the presumption that Shirley Krzycki intended to create a joint tenancy account at Wells Fargo; (3) imposing a constructive trust on the Wells Fargo Bank Account without any evidence that defendant obtained a title to the account by fraud, misrepresentation or an abuse of an influential or confidential relationship.
S-11-0948, Professional Management Midwest, Inc., James W. Huntington, and Tony C. Clark (Appellants) v. Lund Company
Douglas County, Hon. J. Russell Derr
Attorneys: Theodore R. Boecker, Jr.; Jennifer D. Tricker, Robert A. Stark (Baird Holm)
Civil: Tort – Interference with Lease; Breach of Duty of Realtor
Proceedings below: District court sustained Lund Company’s motion for summary judgment and dismissed plaintiffs’ complaint.
Issues: (1) Whether there was sufficient evidence to find that Lund Company tortuously interfered with PMM’s lease agreement with its landlords, (2) whether there was sufficient evidence that Lund Company induced a breach of the lease and whether there is a private cause of action for such under Nebraska statutes, (3) whether there was sufficient evidence that Lund Company breached a fiduciary duty, (4) whether the plaintiffs needed to adduce expert testimony regarding a realtor’s duties when Lund Company had offered no expert testimony, (5) whether PMM’s agency relationship with Lund Company terminated when the lease began, and (6) whether the district court erred when it sustained Lund Company’s motion for summary judgment.
S-11-1030, Sean M. Olson and Michelle L. Olson, Husband and Wife (Appellants) v. Lucile Wrenshall, M.D., Michael M. Morris, M.D., and University of Nebraska Medical Center Physicians (Appellees).
Douglas County, Judge Joseph S. Troia
Attorneys: John M. Lingelbach, Gregory C. Scalione, and Patrice D. Ott (Appellants) (Koley Jessen) --- Joseph S. Daly and Mary M. Schott (Appellees) (Sodoro, Daly & Sodoro)
Civil: Medical Malpractice
Proceedings Below: The court granted defendants’ motion for summary judgment, finding no breach of any physician-patient duty. The court also found that the plaintiffs had failed to show any damages, since Sean Olson had consented to give up his kidney.
Issues on Appeal: The trial court erred in granting summary judgment because questions of fact existed as to (1) the applicable standard of care; (2) whether defendants breached their physician-patient duty of care; and (3) whether plaintiffs suffered damages under Nebraska law. The Olsons also claim that the court erred in overruling their motion for a continuance to conduct further discovery before opposing defendants’ motions for summary judgment.
THURSDAY, SEPTEMBER 6, 2012, subject to call at 9:00 a.m.
S-12-0115, State v. Justin D. Howell (Appellant)
Hall County, Judge Teresa Luther
Attorneys: Mark Porto (Shamberg Wolf McDermott & Depue) (Appellant) --- Kim Klein (Asst. Attorney General)
Criminal: Possession of a controlled substance with intent to distribute; No drug tax stamp
Proceedings below: After a stipulated trial to the court, Appellant was found guilty of the above crime and sentenced to a term of probation.
Issues: The district court erred in (1) denying Appellant’s motion to suppress evidence; (2) finding sufficient evidence to support the convictions.
S-11-1003, InterCall, Inc. (Appellant) v. Egenera, Inc. (Appellee)
Douglas County --Judge Thomas A. Otepka
Attorneys: Patrick R. Guinan, Erickson Sederstrom, P.C., LLO (Appellant)---Joel E. Feistner, Locher Pavelka Dostal Braddy & Hammes, LLC (Appellee)
Civil: Contract/Fraudulent Representation
Proceedings Below: InterCall, Inc., a provider of audio, web, and video conferencing services, filed a complaint to collect unpaid invoices from Egenera, Inc. Egenera filed a counterclaim alleging fraudulent representation and sought reimbursement for charges it had voluntarily paid for 18 months. The Douglas County District Court granted partial summary judgment in favor of InterCall on the outstanding invoices Egenera failed to pay. After a trial, a jury returned a verdict in favor of Egenera on the fraudulent representation counterclaim. InterCall appeals.
Issues: The trial court erred in (1) not directing verdict in Appellant’s favor; (2) not finding that Appellee failed to prove anyone at InterCall misrepresented a fact that Appellee reasonably and justifiably relied upon; (3) allowing Appellee to untimely amend its counter-claim to allege material misrepresentation, a cause of action not adopted by any appellate court in Nebraska; (4) overruling Appellant’s objections to Appellee’s leave to file a counter-claim; (5) finding that Appellant would not be prejudiced by allowing an amended counter-claim; (6) incorrectly instructing the jury; (7) instructing the jury on material misrepresentation; (8) overruling objections to the jury instructions; (9) refusing to give Appellant’s jury instructions; (10) overruling Appellant’s motion for new trial or in the alternative, motion to alter or amend the judgment.
S-11-1098, Jeffrey Becerra v. United Parcel Service (Appellant)
Nebraska Workers’ Compensation Court
Attorneys: Charles L. Kuper (Larson Kuper & Winninghoff PCLLO) (Appellant) --- M.H. Weinberg (Appellee)
Civil: Vocational rehabilitation; determination of benefits for injured employee
Proceedings below: The trial court found the correct wage to use for determining priority for vocational rehabilitation was the permanent disability wage of $504.00 and found that plaintiff was entitled to a formal period of retraining.
Issues: The trial court erred in (1) finding the appropriate weekly wage to use in formulating a plan of vocational rehabilitation should be the permanent injury wage rate; (2) finding plaintiff was entitled to a vocational rehabilitation plan consisting of formal training.
S-11-0674, Jessica Huebert (Appellant) v. Walnut Acres, LLC, Sanitary Improvement District No. 429, and John or Jane Does 1-99 (Appellees); S-11-0675 Jessica Huebert (Appellant) v. Victor Pelster and Martin Pelster (Appellees)
Consolidated cases on appeal
Douglas County, the Honorable John D. Hartigan, Jr.
Attorneys: James D. Sherrets, Diana J. Vogt, Gwendolyn E. Olney, Sherrets, Bruno & Vogt, LLC (Attorneys for Appellant); Thomas F. Hoarty, Jr., Byam & Hoarty (Attorney for Appellee Martin Pelster); Steven G. Ranum, Scott D. Jochim, Crocker, Huck, Kasher, DeWitt, Anderson & Gonderinger, LLC (Attorneys for Appellees Walnut Acres, LLC, SID 429, and Victor Pelster);
Civil: breach of contract/ fraud
Proceedings below: The district court dismissed Appellant’s claims against Sanitary Improvement District No. 429 (SID), finding it could not be sued for events which occurred before its formation. The court granted summary judgment to Walnut Acres after finding that the parties’ contract correctly represented their agreement and that Walnut Acres did not breach the contract. The court also found that Appellant’s fraud claims against the Pelsters were barred by the statute of limitations.
Issues: Whether Appellant timely filed her appeal; whether the district court erred in finding the SID was not liable for representations made before its official formation; whether the district court properly found that evidence of any representations made before the parties entered the contract was barred by the parol evidence rule, the parties’ contract correctly represented their agreement, and no breach occurred; and whether the district court erred in finding that the statute of limitations barred Appellant’s fraud claims.
S-11-0762, Fonda Holliday (Appellant) v. Plainview Area Health System
Nebraska Workers’ Compensation Court
Attorneys: Jeffrey F. Putnam (Appellant) --- Anne E. Winner (Keating O’Gara Nedved & Peter PCLLO)
Civil: Order of dismissal of petition
Proceedings below: The trial court dismissed Appellant’s petition finding she did not suffer an injury in the course and scope of employment. The review panel affirmed. This case was argued in April 2012. Upon the Supreme Court’s own motion, it directed the Clerk to place this case on the September 2012 Call for re-argument and ordered the parties to submit supplemental briefing.
Issues: The trial court erred in dismissing the petition finding Appellant did not suffer a work-related compensable injury. The review panel erred in affirming the trial court.
Supplemental Briefing issue: Assuming that the plaintiff is a commercial traveler, what principles govern when and where the commercial travel begins?
S-12-0093, Bryan S. Behrens, an individual, Bryan Behrens Co., Inc., National Investments, Inc., and Thomas Stalnaker, as Receiver (Appellants) v. Christian R. Blunk, an individual, Berkshire & Blunk, and Abrahams Kaslow & Cassman LLP
Douglas County, Judge Patrick Mullen
Attorneys: David A. Domina (Domina Law Group pc llo) (for Appellants) ---Mark C. Laughlin, Patrick S. Cooper (Fraser Stryker PCLLO)(for Christian Blunk and Berkshire & Blunk) and William R. Johnson, John M. Walker (Lamson Dugan & Murray LLP) (for Christian Blunk, Abrahams Kaslow & Cassman LLP) (Appellees)
Civil: Legal malpractice
Proceedings below: This appeal was previously before the Supreme Court. See Behrens v. Blunk, 280 Neb. 984 (2010) (reversed and remanded). Upon remand, Blunk and his former law firms of Berkshire & Blunk and Abrahams Kaslow & Cassman LLP filed a motion for summary judgment which was granted by the trial court. The trial court denied Blunk’s motion for judgment on the pleadings.
Issues: The trial court erred in (1) rendering summary judgment; (2) finding plaintiffs’ claims are barred by the statute of limitations and rendered summary judgment; (3) finding plaintiffs’ claims are barred by the doctrine of in pari delicto and rendered summary judgment.
S-11-796, Buckeye State Mutual Insurance Company (appellant) v. Richard Humlicek
Butler County, Honorable Mary C. Gilbride
Attorneys: Jarrod P. Crouse and Colin A. Mues (Baylor Evnen) for appellant; Thomas A. Grennan and Francie C. Riedmann (Gross & Welch) for appellee
Civil: insurance subrogation
Proceedings below: District court granted summary judgment in favor of Humlicek, finding he was a co-insured with his landlord
Issues: Did the district court err in 1) over-ruling Buckeye’s motion for summary judgment, 2) finding Humlicek is a co-insured with his landlord, 3) refusing to allow Buckeye to subrogate against Humlicek, or 4) denying Buckeye’s request for declaratory relief?
S-11-1066, Jerry A. Martin and Leonard G. Martin (Appellants) v. Anna B. Ullsperger and Lonnie A. Martin
Otoe County, Hon. Randall L. Rehmeier
Attorneys: James R. Welsh, Christopher Welsh---Richard H. Hoch
Civil: Declaratory Judgment
Proceedings below: District court concluded that partition action filed by defendants did not contest the validity of a will, and it therefore dismissed plaintiffs’ action seeking a declaration that the partition action was a will contest that triggered a codicil to the will providing that any heir who contested the will would lose his or her share of the estate.
Issues: Whether action to partition farmland was a will contest under a codicil to the will which provided that any heir who contested the will would lose his or her share of the estate.
S-11-1042, Paul and Betty Lou Obermiller (Appellees) v. Gary and Dennis Baasch (Appellants)
Howard County, Judge Karin Noakes
Attorneys: Patrick J. Nelson (Appellants) --- Roger G. Steele and Liana Steele (Appellees)
Proceedings below: After trial, the district court found the Obermillers owned all the land they claimed to own, the fence constructed by the Baaschs was on the Obermillers’ land, and Gary Baasch does not own any of the disputed land. The court ordered the Baaschs to remove the fence and enjoined them from blocking access to land owned by the Obermillers. The court denied Gary Baasch’s quiet title claim.
Issues: The district court erred in (1) determining that the Obermillers own the 27+ acre tract and the 44+ acre tract (also called “Tract A”), (2) determining that Gary Bassch claimed to own Tract A by adverse possession, (3) failing to determine the Sherlock survey was presumptive evidence of facts stated therein, (4) determining that the 27 acre tract was never conveyed by U.S. government, (5) determining that Robert Havery was a “government surveyor,” (6) determining that the doctrine of a lost grant applies to the 27 acre tract, (7) determining that the 27 acre tract was possessed and transferred to private individuals for a century, (8) determining that the 27 acre tract was platted by the government, (9) determining that the continuous stream is the south channel of the Middle Loup River and that the centerline of the slew located south of the 27 acre tract is the tread of the stream of the river, (10) determining that Tract A is accretion to the 27 acre tract, (11) determining that the Baaschs’ installation of the fence is a trespass, (12) determining that the Baaschs are enjoined from blocking access to land owned by the Obermillers, and (13) in failing to determine that the land claimed to be owned by Gary Baasch be quieted in Gary Baasch and against the Obermillers.
S-10-1097, State v. Alma Ramirez Gonzalez (Appellant)
Hall County, Judge James D. Livingston
Attorneys: Joshua W. Weir (Dornan Lustgarten & Troia PCLLO) (Appellant) --- James D. Smith (Attorney General’s Office)
Criminal: Plea; Motion to withdraw plea
Proceedings below: In 2008, Appellant entered a plea of no contest to the above charge and was sentenced to a term of probation. On July 14, 2010, she motioned to withdraw her plea and vacate the court’s judgment based on mandatory deportation consequences of a no contest plea. The motion was overruled. The Supreme Court affirmed. See State v. Gonzalez, 283 Neb. 1 (2012). Appellee filed a motion for rehearing which was granted and the case was ordered to be placed in the September 2012 Call.
Issues on rehearing: Whether there exists a common law right to withdraw a plea after final judgment.
S-10-0442, State v. William E. Smith (Appellant)
Lancaster County, Judge Paul D. Merritt, Jr.
Attorneys: Peter K. Blakeslee (Appellant) --- Stacy M. Foust (Attorney General’s Office)
Criminal: Second degree murder, first degree assault and use of a weapon to commit a felony.
Proceedings below: Appellant was found guilty of the above crimes after a jury trial. He appealed his convictions to the Court of Appeals which affirmed. See State v. Smith, 19 Neb. App. 708 (2012). 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 no self-defense instruction was warranted by the evidence; (2) determining that trial counsel was not ineffective in failing to request a self-defense instruction; (3) determining that the district court did not err in failing to give a self-defense instruction sua sponte.
S-12-0038, Odilon Visoso (Appellant) v. Cargill Meat Solutions
Nebraska Workers’ Compensation Court
Attorneys: Ryan C. Holsten (Atwood Holsten Brown & Deaver PCLLO) (Appellant) --- Caroline M. Westerhold, Colin A. Mues (Baylor Evnen Curtiss Grimit & Witt LLP)
Civil: modification of prior award
Proceedings below: The workers’ compensation court granted the petition for modification of award finding that since MMI was reached, plaintiff was no longer entitled to temporary total disability benefits but declined to determine the extent of Appellant’s permanent disability. Therefore, the court determined that Cargill had no further liability for the payment of temporary or permanent indemnity.
Issues: The trial court erred in (1) finding Cargill met its burden of proving a modification pursuant to Neb. Rev. Stat. § 48-141; (2) finding plaintiff was not entitled to permanent disability benefits corresponding to his loss of earning capacity.