Supreme Court Case Summaries

December 3, 4 or 5, 2012

MONDAY, DECEMBER 3, 2012, subject to call at 9:00 a.m.

S-12-0438, State v. William B. Pereira (Appellant)

Lancaster County, Judge Paul D. Merritt

Attorneys: James R. Mowbray and Robert W. Kortus (Nebraska Commission on Public Advocacy)(Appellant) --- George R. Love and Dain J. Johnson (Senior Certified Law Clerk) (Attorney General’s Office)

Criminal: 2nd degree murder

Proceedings below: Appellant entered a no contest plea. He was sentenced 50 years to life imprisonment.

Issues: 1. The district court abused its discretion by imposing an excessive sentence.
2. The district court abused its discretion and erroneously limited or denied appellant the right to allocution. 3. Issues involving the use of interpreters at the sentencing proceeding below have been identified but will require a further evidentiary hearing. Appellant maintains that because of the manner in which translation was conducted of the sentencing proceedings from
English to Spanish, he was unable to comprehend the proceedings.

S-12-0342, 12-0343-12-0344, 12-0345 (consolidated) In re Interest of Edward B.

Adams County Court, Judge Michael Offner

Attorneys: Daniel C. Pauley (Appellant Edward B.) --- Alyson Keiser Roudebush (County Attorney’s Office)

Criminal: Juvenile Adjudication for criminal law violations

Proceedings below: The trial court entered orders of disposition on all four counts and committed Appellant to OJS, specifically YRTC-Kearney, until the age of majority.

Issues: The trial court erred in (1) placing Appellant at YRTC-Kearney; (2) finding placement at YRTC-Kearney was correct under Neb. Rev. Stat. § 43-286(1)(b); (3) not allowing appellant adequate review of the OJS report; (4) finding Appellant to a delinquent and a habitual offender under Neb. Rev. Stat. § 43-286 and Neb. Rev. Stat. § 43-247(3).

S-11-0424, State v. Jessica Burbach (Appellant)

Lancaster County, Judge Steven Burns

Attorneys: Korey L. Reiman (Appellant) --- Kimberly Klein (Attorney General’s Office)

Criminal: Aiding and Abetting Robbery

Proceedings below: A jury returned a verdict finding Appellant guilty of the crime. She was sentenced 4 to 6 years in prison. The Court of Appeals affirmed. Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: Whether the Court of Appeals erred in affirming the decision of the lower court? Whether the Court of Appeals ignored case law which holds means rea of robbery includes intent to steal? Whether there was evidence that Appellant had the requisite mens rea?

S-12-0486, State v. Keith D. Purdie (Appellant)

Colfax County, Judge Mary C. Gilbride

Attorneys; Pro SE Appellant --- George R. Love (Attorney General’s Office)

Civil: Habeas Corpus

Proceedings below: The district court denied Appellant’s Petition for a Writ of Habeas Corpus. The Court of Appeals granted the State’s motion for summary affirmance. Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred in granting summary affirmance as the district court abused its discretion by denying the Petition for a Writ of Habeas Corpus

S-11-914, Mary C. Swift [appellant] v. Norwest Bank, n/k/a Wells Fargo, Inc., a banking corporation

Douglas County, Honorable Peter C. Bataillon

Attorneys: Michael J. O’Bradovich for appellant; Scott D. Jochim and Robert M. Gonderinger (Croker Huck) for appellee

Civil: Action to recover on a certificate of deposit

Proceedings below: District court granted summary judgment in favor of bank

Issues: Did the district court err in granting the bank summary judgment, in over-ruling Swift’s motion for summary judgment, or in issuing an order contrary to law and the great weight of the evidence?

TUESDAY, DECEMBER 4, 2012, subject to call at 9:00 a.m.

S-11-0940, State v. Angel R. Landera (Appellant)

Platte County, Judge Robert R. Steinke

Attorneys: Nathan J. Sohriakoff (Deputy Public Defender) (Appellant) --- Erin E. Tangeman (Assistant Attorney General)

Criminal: Plea: Possession of Child Pornography

Proceedings below: Appellant’s motion to transfer to juvenile court was denied. He entered a plea of guilty to 10 counts of Possession of Child Pornography, all Class IV felonies. The district court sentenced him 30 months to 4 years in prison on each count, to be served concurrently. The Court of Appeals vacated the sentences and remanded the cause for resentencing. See State v. Landera, 20 Neb. App. 24 (2012). The State filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred by determining that the State violated the plea agreement it made with Landera. State v. Landera, 20 Neb. App.24 (2012).

S-11-0870, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. David E. Cording

Original Action

Attorneys: John W. Steele (Assistant Counsel for Discipline) --- Lyle Joseph Koenig (for Respondent)

Civil: Attorney Discipline; appropriate sanction

Proceedings below: The referee found Respondent violated his oath of office and Neb. Ct. R. Prof. Cond. 3-504.4(B). The referee recommended a public reprimand. No exceptions were taken and Relator moved for judgment on the pleadings.

Issues: What is the appropriate discipline?

S-12-0339, State v. Chad A. Norman (Appellant)

Buffalo County, Judge John P. Icenogle

Attorneys: Michael J. Synek (Appellant) --- Nathan A. Liss (Attorney General’s Office)

Criminal: Registration as a sex offender; Sex Offender Registration Act

Proceedings below: This case was previously before the Supreme Court. See State v. Norman, 282 Neb. 990 (2012). Upon remand, the district found Norman must register as a sex offender and ordered the same.

Issues: The Buffalo County District Court erred and abused its discretion as follows:
1. By ordering Chad Norman to register as a sex offender, subject to the provisions of the Sex Offender Registration Act. 2. By finding that Chad Norman's conviction involved sexual contact with a minor child. 3. By finding that the State had met its burden to prove that sexual contact occurred, by clear and convincing evidence. 4. By basing its findings upon unsworn statements of the State's attorney at the re-arraignment hearing. 5. By imposing a sentence that was clearly excessive, to the extent that it required Chad Norman to register as a sex offender.

S-11-0626, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. Terri L. Crawford (Respondent)

Original Action

Attorneys: Kent L. Frobish (Assistant Counsel for Discipline) --- Christopher M. Ferdico (Baylor Evnen Curtiss Grimit &Witt LLP) and Sheri Long Cotton (Law Offices of Sheri Long Cotton PC LLO) (for Respondent)

Civil: Attorney discipline

Proceedings below: The referee found that respondent violated Neb. Ct. R. of Prof. Cond. § 3-501.5(f); § 3-501.15 (a) and (c); § 3-508.a (c) and (d), and that she violated her oath of office as an attorney. The referee recommended that respondent be disbarred. Respondent filed exceptions to the referee’s report.

Issues: The referee erred:  1. In finding that the Relator met his burden of proof by "clear and convincing evidence." 2. In overruling Ms. Crawford's motion for new trial when the Relator withheld material allegations and evidence that significantly prejudiced her defense. 3. In overruling Ms. Crawford's motion to recuse the Assistant Counsel for Discipline based upon the fact that he knew or should have known from the inception of this matter that he was a necessary witness in the case. 4. In finding that the Respondent failed to provide an adequate explanation for her conduct thus impermissibly shifting the burden of proof to the Respondent in violation of Court Rules. 5. In failing to find that the Relator's failure to provide the relevant grievances until the time of trial violated Ms. Crawford's rights of due process. 6. In finding that Ms. Crawford failed to cooperate with the Respondent. 7. In finding that there was clear and convincing evidence that Ms. Crawford was not truthful. 8. In finding that the conduct of the Respondent rises to the level of disbarment.

S-12-0377, Walentine, O’Toole, McQuillan & Gordon (“Walentine”) (Appellant) v. Midwest Neurosurgery, P.C. (“Midwest”) (Appellee)

Douglas County, Judge Kimberly Miller Pankonin

Attorneys:         Richard C. Gordon & Betty L. Egan (Appellant) (Walentine, O’Toole, McQuillan & Gordon) --- Richard D. Vroman & Brenda K. George (Appellee) (Koley Jessen)

Civil:                 Attorneys’ Fees, Workers’ Compensation, Common Fund Doctrine

Proceedings Below:      The district court dismissed Walentine’s complaint for attorneys’ fees because Neb. Rev. Stat. § 48-125(2)(a) prohibited collection of such fees from a medical provider.

Issues on Appeal:         The district court erred in (1) applying § 48-125 in a district court proceeding; (2) interpreting Neb. Rev. Stat. § 48-125(2)(a); and (3) finding that § 48-125 prohibited collection of attorneys’ fees from a medical provider through the Common Fund doctrine.

WEDNESDAY, DECEMBER 5, 2012, subject to call at 9:00 a.m.

| S-12-0251, State v. Billy Ramirez (Appellant)

Hall County, Judge Teresa Luther

Attorneys: Mark Porto (Shamberg Wolf McDermott & Depue) (Appellant) --- Carrie Thober (Attorney General’s Office)

Criminal: Third degree assault; restitution order

Proceedings below: The trial court ordered restitution for the victim’s medical bills.

Issues: (1) The district court erred in ordering restitution for medical expenses related to an offense to which Appellant was not convicted. (2) Appellant received ineffective assistance of trial counsel in failing to object to the racial composition of the jury and failing to make a Batson challenge to the striking of the only prospective juror with a Hispanic surname.

S-11-0718, State v. Randall Bromm (Appellant)

Washington County, Judge John E. Samson

Attorneys: John A. Svoboda (Gross & Welch PCLLO) (Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Criminal: Driving Under the Influence, First Offense

Proceedings below: The county court overruled Appellant’s motion to suppress and found Appellant guilty. He was sentenced to a term of probation. The district court affirmed. Upon appeal, the Court of Appeals reversed and remanded finding it was error to not sustain Appellant’s motion to suppress evidence. The State filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred in finding that the county court and the district court erred in not sustaining Bromm's motion to suppress evidence, particularly with respect to the basis for the stop of his vehicle and the sufficiency of the evidence relating to the registration.

S-12-0200, State v. Hector Medina-Liborio (Appellant)

Douglas County, Judge J. Michael Coffey

Attorneys: Matthew S. McKeever (Appellant) --- James D. Smith (Attorney General’s Office)

Criminal: Withdrawal of no contest pleas

Proceedings below: The trial court denied Appellant’s motion to withdraw pleas.

Issues: 1. The District Court erred in (1) denying the Defendant's Motion to Set Aside Plea where the District Court previously failed to give the Defendant the rights advisement required by Neb. Rev. Stat. § 29-1819.02(l) regarding both the immigration and naturalization consequences of a guilty or nolo contendere plea for a person who was not a United States citizen; (2) considering the intent of the legislature as it pertained to a clear and unambiguous statute, Neb. Rev. Stat. § 29-1819.02, as the basis of its decision to deny the Defendant's Motion to Set Aside Plea. (3) admitting into evidence testimony and exhibits that were not relevant to the issues presented by the Defendant's Motion to Set Aside Plea, specifically the testimony of Sarah Spizzirri and Joshua Weir as well as Exhibits 7, 8 and 9; (4) admitting into evidence testimony that was subject to privilege pursuant to the doctrine of attorney-client privilege, specifically the testimony of Joshua Weir.

S-12-0271, Kerri Clark (Appellant) v. Alegent Health Nebraska

Nebraska Workers’ Compensation Court

Attorneys: Sean P. Rensch, Richard J. Rensch (Appellant) --- Patrick Guinan (Erikson Sederstrom PCLLO)

Civil: Denial of certain medical treatments and corresponding medial bills

Proceedings below: The trial court found a compensable injury from the April 18, 2010 accident and found it was an aggravation of a non-work related head, neck and shoulder condition for which Appellant had previously undergone recent surgery and was not yet at MMI. The trial court found medical treatment, including the 2011 surgery was necessary and reasonable. However, the trial court denied all treatment and bills for medical providers other than Dr. Nystrom finding Appellant failed to produce evidence of a chain of referral for medical providers under Neb. Rev. Stat. § 48-120(2)(e) and (f). The trial court awarded TTD but that is not part of this appeal.

Issues: The trial court erred in (1) disallowing payment for certain medical benefits based on the “chain of referral” set forth in Neb. Rev. Stat. § 48-120(2) and (3); requiring “chain of referral” proof for all reasonable, necessary and recuperative medical treatment following the April 18, 2010 injury date; (3) not finding that Appellant could choose her own treating physicians per Rule 50(A)(6) in the interest of justice and in furtherance of the Workers’ Comp Act’s beneficent purposes; (4) making findings of fact that are clearly wrong and are incapable of being sustained by the evidence found in the record of the September 14, 2010 ER visit.

S-12-0107, Credit Bureau Services, Inc., a Nebraska corporation (Appellant) v. Experian Information Solutions, an Ohio corporation (Cross-Appellant)

Dodge County, Judge Geoffrey C. Hall

Attorneys: Thomas B. Thomsen (Sidner Svoboda Schilke Thomsen Holtorf Boggy Nick & Placek) and Jonathan L. Rubin (pro hac vice) (for Appellant) --- Michael f. Coyle, Patrick S. Cooper (Frasker Stryker PCLLO) and Thomas Demitrack, Brian K. Grube, Meir Feder, David Cooper (Jones Day) (all pro hac vice) (for Appellee/Cross-Appellant)

Civil: Antitrust: Unlawful restraint of trade in violation of Neb. Rev. Stat. § 59-805; tortious interference with business expectations

Proceedings below: The jury found for Experian on all claims and the trial court entered judgment for Experian. 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) giving jury instruction No. 5 as it misstated the law; (2) failing to instruct the jury consistent with Appellant’s requested jury instruction.

Cross-Appeal: The trial court erred in finding that genuine issues of material fact prevented entry of a directed verdict in favor of Experian.