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Court of Appeals Call Case Summaries

Inbody, Riedmann and Arterburn, Judges

Lincoln - Tuesday, June 6, 2017 subject to call at 9:00 AM

A-16-0801, Tewes v. Tewes No case summary is available for this case at this time.

A-16-1072, Staci Ane Kolar v. Brandon Tester (Appellant)

Hall County, District Court Judge Mark Young

Attorney for Appellant:  Mitchell C. Stehlik (Lauritsen, Brownell, Brostrom, & Stehlik, P.C., L.L.O.)

Attorney for Appellee and Cross-Appellant:  J.D. Sabott (Shamberg, Wolf, McDermott & Depue)

Civil Action:  Paternity; child custody

Action Taken by Trial Court:  The district court determined that Tester was the father of the parties’ minor child, granted physical and legal custody of the minor child to Kolar subject to Tester’s parenting time, and ordered Tester to pay child support.

Assignments of Error on Appeal:  On appeal, Tester assigns that the district court abused its discretion in (1) failing to award Tester the primary custody of the minor child; (2) failing to include several provisions in its parenting plan that were requested by Tester; (3) failing to award the dependency exemption on an equal basis; (4) determining an amount of child support that did not reflect Tester’s actual economic circumstances; and (5) failing to grant a child support abatement to Tester when he has the minor child for the summer months. Tester also assigns that the district court’s decree contains several minor, yet significant, typographical errors. On cross-appeal, Kolar assigns that the district court abused its discretion when it awarded Tester his request to change the name of the minor child.

Lincoln - Wednesday, June 7, 2017 subject to call at 9:00 AM

A-16-0780, Randle Jensen (Appellant) v. Champion Window of Omaha

Douglas County, District Court Judge J. Michael Coffey

Attorney for Appellant:  Terry A. White

Attorney for Appellee:  Kenneth M. Wentz and Sarah J. Millsap

Civil Action: Tort  

Action Taken by Trial Court:  The district court granted Appellee’s motion to dismiss based on claim preclusion.

Assignments of Error on Appeal: On appeal, Appellant asserts the district court erred in granting Appellee’s motion to dismiss based on claim preclusion. Appellee asserts that his claim was not barred because the federal court did not exercise supplemental jurisdiction over his state law claims.

A-16-0202, Paula M. Crozier (Appellant) v. Brownell-Talbot School

Douglas County, District Court Judge Kimberly Miller Pankonin

Attorney for Appellant:  Justin D. Eichmann (Houghton Bradford Whitted, P.C., L.L.O.)

Attorney for Appellee:  Kathryn A. Dittrick, Sarah L. McGill, and Rhianna A. Kittrell (Fraser Stryker P.C., L.L.O.)

Civil Action:  Breach of contract

Action Taken by Trial Court:  The district court denied Crozier’s motion for summary judgment and granted the motion for summary judgment filed by Brownell-Talbot.

Assignments of Error on Appeal:  On appeal, Crozier assigns that the district court erred in (1) failing to determine that she had established a contract of employment with Brownell-Talbot, (2) determining that the parties’ contract failed to overcome any presumption of at-will employment, (3) determining that the terms of the parties’ contract were ambiguous, (4) determining that good cause exists for terminating the contract of employment between Crozier and Brownell-Talbot, and (5) failing to determine that Brownell-Talbot breached its contract of employment with Crozier.

Moore, Chief Judge, Pirtle and Bishop, Judges

Lincoln - Tuesday, June 6, 2017 subject to call at 1:00 PM

A-16-1122 In re Interest of Louis C., a child under 18 years of age. State of Nebraska (Appellant) v. Erasmo G. and Esmeralda B.

Separate Juvenile Court for Douglas County, Juvenile Court Judge Elizabeth G. Crnkovich

Attorney for Appellant:  Jennifer C. Clark (Douglas County Attorney’s Office)

Attorney for Appellee (Erasmo G.):  Peder Bartling

Attorney for Appellee (Esmeralda B.):  Joe Bradley

Juvenile Action:  Dismissal of petitions for termination of parental rights

Action taken by the Juvenile Court:  The juvenile court sustained Erasmo and Esmeralda’s motions to dismiss the State’s motions for termination of parental rights.

Assignments of Error and Issues on Appeal:  Did the juvenile court err in dismissing the motions for termination of parental rights, made pursuant to Neb. Rev. Stat. § 43-292(2), (6), and (7), as to Esmeralda and Erasmo? Did the juvenile court err in sustaining the motions for dismissal by Esmeralda and Erasmo and finding that the State failed to make its prima facie case?

A-16-0587, Dominique Morgan v. Geoff Britton (individually) and Michael L. Kenney (individually) (Appellants), and the State of Nebraska et al.

Douglas County, District Judge J. Michael Coffey

Attorneys for Appellants: Douglas J. Peterson and David A. Lopez (Attorney General’s office) and Maddisen Ebert and Joshua Baumann (Senior Certified Law Students)

Attorney for Appellee: Julie A. Jorgensen (Morrow Willnauer Klosterman Church)

Civil Action: 42 U.S.C. § 1983 action; Motion to Dismiss; Qualified Immunity

Action Taken by Trial Court: The case at issue involves both state tort claims and constitutional claims based on the treatment of Dominique Morgan while he was incarcerated at Omaha Correctional Center. Morgan was raped by a guard, defendant Hansen who is not part of the present appeal.

          At issue is whether Appellant Kenney (then Warden of the Omaha Correctional Center) and Appellant Britton (then a Department investigator who investigated the sexual abuse incident) can be held personally liable under the First, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution for Morgan’s placement into protective custody during the investigation of his sexual assault. The district court overruled Appellants’ motions to dismiss, denying their assertions of qualified immunity from Morgan’s § 1983 claims without explanation or analysis.

Assignments of Error on Appeal:   Britton and Kenney assign that that the district court erred by (1) overruling their motions to dismiss and denying their individual assertions of qualified immunity, and (2) failing to issue a reasoned, thorough, and individualized analysis of each Appellant's entitlement to qualified immunity.

A-16-0910, State of Nebraska v. Barbara J. Williams (Appellant)

Sarpy County, District Court Judge David Arterburn

Attorney for Appellant:  Thomas P. Strigenz (Public Defender’s Office)

Attorney for Appellee:  Douglas J. Peterson, Sarah E. Marfisi (Attorney General’s Office)

Criminal Action:  Denial of plea in bar following mistrial

Action Taken by Trial Court:  The district court granted Appellant's motion for mistrial finding that Appellee's failure to disclose certain information, which was discovered during trial, constituted misconduct. The court found that Appellee's conduct was not intended provoke Appellant into requesting a mistrial. The district court denied Appellant's plea in bar and her motion for relief.

Assignments of Error on Appeal:  Did the district court err in denying Appellant's plea in bar and motion for relief? 

Lincoln - Wednesday, June 7, 2017 subject to call at 1:00 PM

A-16-0620, Bernice E. Ganzel, by and through Beverly A. York, her conservator and guardian v. Norman L. Ganzel, individually, and Norman L. Ganzel, trustee (Appellant)

District Court for Gage County, District Judge Retired Paul Korslund

Attorney for Appellant:  Lyle J. Koenig (Koenig Law Firm)

Attorney for Appellee:  Jeffrey B. Hubka (Hubka Hubka Law Firm)

Civil Action:  Misappropriation of funds while acting as power of attorney

Action taken by the Trial Court:  The trial court found that Norman misappropriated Bernice’s funds for his own benefit.

Assignments of Error on Appeal:  Did the trial court err in finding that Norman misappropriated funds from Bernice? Did the trial court err in awarding damages of $296,224.97? Did the trial court err in excluding exhibit 38?

A-16-0453, Dena M. Araujo (Appellant) v. David R. Araujo

Sarpy County, District Judge William Zastera

Attorney for Appellant: Christopher Perrone (Perrone Law)

Attorneys for Appellee: Edith T. Peebles and Tosha Rae D. Heavican (Brodkey, Peebles, Belmont & Line, LLP)

Civil Action: Divorce, Division of Marital Estate, Child Custody, Child Support

Action Taken by Trial Court: The district court dissolve the marriage. In the decree, child custody was awarded to Dena subject to David’s therapeutic and supervised visitation. Child support was set at $1,535 per month and Dena was awarded the family home and a portion of David’s military pension.

Assignments of Error on Appeal:   Dena assign that that the district court erred by (1) awarding David visitation; (2) not prohibiting the Doxey family from having contact with the minor children of the parties; (3) incorrectly calculating the child support to be paid by David to Dena; (4) not giving Dena full credit for the arrears pursuant to the temporary order; (5) miscalculating the equity in the marital residence and using this incorrect information in its division of the marital debts and assets; (6) by miscalculating the division of household goods and including gifts and using this incorrect information in its division of the marital debts and assets; (7) including the $4,500 SAC Loan 3 as a marital debt and using this incorrect information in its division of the marital debts and assets; (8) wrongly determining that the 2012 tax debt was a marital debt and using this incorrect information in its division of the marital debts and assets; (9) not finding David in contempt or making any ruling at all regarding the contempt actions filed by Dena in this case which were heard in conjunction with the dissolution action by agreement of the parties and the court; (10) not including standard provisions into the decree which would protect Dena’s interests in her portion of David’s military retirement; (11) not ordering David to pay any alimony to Dena; and (12) not equitably dividing the GAL fees or ordering Dena to pay any such expenses and by not ordering David to pay any portion of Dena’s attorneys’ fees.

A-16-0682, Renee Essink, Brandon Henry, Amanda Henry, Michael Foged, and Catherine Howard v. City of Gretna, a Municipal Corporation (Appellant)

Sarpy County, District Court Judge Paul D. Merritt

Attorney for Appellant:  Thomas J. Culhane, Patrick R. Guinan (Erickson|Sederstrom, P.C.)

Attorney for Appellee:  Melanie J. Whittamore-Mantzios (Wolfe, Snowden, Hurd, Luers & Ahl, LLP)

Civil Action:  inverse condemnation; negligence under Political Subdivisions Tort Claims Act (PSTCA)

Action Taken by Trial Court:  Renee Essink, Brandon Henry, Amanda Henry, Michael Foged, and Catherine Howard (collectively the appellees) filed an amended complaint against the City of Gretna alleging claims of inverse condemnation and negligence under the PSTCA. The trial court granted the City’s motion for summary judgment with respect to Essink’s and the Henry’s negligence claims, but not with respect to Foged and Howard’s negligence claim. After trial, a jury returned a verdict in favor of the appellees on their inverse condemnation claim. In a subsequent bench trial, the trial court entered judgment in favor of Foged and Howard on their negligence claim.

Assignments of Error on Appeal:  Did the district court err in failing to direct a verdict in the City’s favor on the inverse condemnation claims? Did the district court err in denying the City’s motion for judgment notwithstanding the verdict on the inverse condemnation claims? Did the district court err in submitting the takings question to the jury? Did the district court improperly instruct the jury on the inverse condemnation claims? Did the district court err in determining that Foged and Howard filed a “claim” under the PSTCA? Did the district court err in determining Foged and Howard complied with the PSTCA with respect to filing a claim? Did the district court err in determining that the City was negligent in causing the backups? Did the district court err in determining the backups were proximately caused by the City’s negligence?

A-16-1038, In re Interest of Elizabeth N., Gabriel N., and Kale N., Children under 18 years of age. State of Nebraska v. Carly P. and Jason N. (Appellants)

Separate Juvenile Court of Lancaster County, Judge Toni G. Thorson

Attorney for Appellants:  Debra K. Lyford

Attorney for Appellee:  Jessica Ann Murphy (Lancaster County Attorney’s Office)

Juvenile Action:  Termination of parental rights

Action taken by the Trial Court:  The trial court found clear and convincing evidence of the alleged statutory grounds to terminate Jason and Carly’s parental rights and that termination of their parental rights was in the children’s best interests.

Assignments of Error on Appeal, Restated:  Did the trial court err in finding clear and convincing evidence of the alleged statutory grounds for termination of Jason and Carly’s parental rights? Did the trial court err in finding that termination of Jason and Carly’s parental rights was in the children’s best interest? Did the trial court err in failing to recess the termination hearing to determine whether the children were eligible for tribal enrollment? Did the State fail to provide a reasonable rehabilitation plan or a reasonable time within which to complete rehabilitation?