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Supreme Court Call - Case Summaries

Tuesday, May 23, 2017

S-16-0875, Jade Sullwold (Appellant) v. Grand Island Public Schools

Hall County District Court, Judge Teresa K. Luther

Attorneys: Mitchell C. Stehlik (Lauritsen Brownell Law Firm) for Appellant — Jeanelle R. Lust and Paul B. Donahue (Knudsen Berkheimer Law Firm) for Appellee

Civil: Student Discipline Act Appeal

Proceedings Below: The district court affirmed the exclusion of Sullwold from school for 15 days.

Issues: Whether the district court’s decision affirming Sullwold’s long-term suspension from school was arbitrary and capricious.

S-16-0812, In re Interest of Dante S.

Lancaster County Separate Juvenile Court, Judge Reggie L.Ryder

Attorneys: Shellie D. Sabata & Michael Florance, Senior Certified Law Clerk (County Attorney’s Office) --- Megan E. McDowell (McDowell Law Office, LLC (Appellant)

Civil: Visitation

Proceedings below: The trial court denied Appellant’s motion for placement change or visitation.

Issues: The trial court erred in 1) denying Appellant visitation with the minor child, and 2) determining it was not in the child’s best interest to grant grandparent visitation due to the potential for termination of the father’s parental rights.

S-16-0873, In re Estate of Psota

Probate Court of Valley County, Hon. Alan Brodbeck

Attorneys:   J. O’Bradovich for Appellant; Mark L. Eurek for Appellee

Criminal/Civil:  Civil; Probate

Proceedings Below:  The Appellant filed an application to be treated as an “omitted spouse,” which the probate court denied.

Issues:  Whether the prenuptial agreement between the Appellant and the deceased (the Appellant’s spouse) prevents the Appellant from being treated as an “omitted spouse” in the estate of the deceased.

S-16-1001, State v. Daniel Lee Jones (Appellant)

Sarpy County District Court, Judge David Arterburn

Attorneys: Melissa R. Vincent (Attorney General’s Office) --- Julie E. Bear (Reinsch, Slattery, Bear & Minahan, PC, LLO) (Appellant)

Criminal: Plea: excessive sentence

Proceedings below: Appellant entered a plea of no contest to first degree murder.  He was sentenced to life imprisonment, which was later vacated on post-conviction.  He was resentenced to 80 years to life. 

Issues: 1. The trial court abused its discretion and imposed an excessive sentence which is a de facto life sentence in violation of the Eighth Amendment of the United States

Constitution and Article I, Sections 9 and l5 of the Nebraska Constitution.

2. By making him ineligible for parole consideration until the age of 56, and never eligible for release from parole, the sentence denies the Appellant a meaningful opportunity for release based upon demonstrated maturity and rehabilitation in violation of the Eighth

Amendment of the United States Constitution and Article I, Sections 9 and l5 of the

Nebraska Constitution. 3. In violation of the Appellant's rights under the Fifth and Fourteenth Amendments of the United States Constitution, and Article I Section 3 of the Nebraska Constitution, the trial court committed procedural error and denied Appellant due process by failing to use adequate procedural safeguards to protect against arbitrary and capricious imposition of a de facto life sentence: a. The district court erred by failing to make findings necessary to subject Appellant to the de facto life sentence imposed, and b. The district court erred by failing to make findings demonstrating adequate consideration of Appellant’s age and age-related characteristics.

S-16-0845, State v. Christian E. Phillips (Appellant)

Lancaster County, Judge Susan I. Strong

Attorneys: Kimberly A. Klein (Attorney General’s Office) --- John C. Jorgensen (Public Defender’s Office for Appellant)

Criminal: Plea: Violation of Sex Offender Registration Act

Proceedings below: Appellant entered a plea of no contest to the charge. He was found guilty. He was sentenced 12 months in prison, with 12 months’ post-release supervision.

Issues: 1. The sentence imposed was excessive and an abuse of discretion. 2. The court imposed conditions of post-release supervision that were unconstitutional and not reasonably related to Appellant’s rehabilitation.


S-16-1114, State v. Latriesha L. Rogers (Appellant)

Lancaster County District Court, Judge Lori Mare

Attorneys: Christopher Lee Eickholt (Brennan Nielsen Law Firm) for Appellant — Joseph P. Meyer (Attorney General’s Office) for Appellee

Criminal: Possession of a controlled substance

Proceedings Below: The district court overruled Rogers’ motion to suppress a stop and search and sentenced Rogers to 20 months to 5 years’ imprisonment for her conviction.

Issues:  Whether the district court erred by (1) failing to suppress the stop and search of a vehicle and the evidence seized; and (2) imposing an excessive sentence.

Wednesday, May 24, 2017

S-16-0901, State v. Travis L. Bohy (Appellant)

District court for Knox County, Honorable Mark A. Johnson

Attorneys: Mark D. Albin for appellant; Kimberly A. Klein (AG) for appellee

Civil: motion for postconviction relief

Proceedings below: District court denied postconviction relief

Issues: Did the district court err in 1) denying Bohy’s postconviction motion; 2) failing to find Bohy received ineffective assistance of appellate counsel because trial counsel performed deficiently in a manner that prejudiced Bohy; or 3) failing to find Bohy’s mental health deficiencies prevented him from entering a voluntary plea and trial counsel “allowed the court to erroneously find that [Bohy] was competent to proceed unhindered at his sentencing.”


S-16-0810, Matt Karo and Michael Karo v. NAU Country Insurance Company (Appellant)

Holt County District Court, Judge Mark Kozisek

Attorneys: Sean A. Ninahan (Lamson Dugan & Murray LLP) --- Thomas M. Locher & Amy Locher (Locher Pavelka Dostal Braddy & Hammes, LLC) & Mirch D. Carthel, appearing pro hac vice (Sprouse Shrade Smith, PLLC)(Appellant)

Civil: Summary judgment; crop insurance; arbitration award

Proceedings below: Following a hearing, the district court granted summary judgment in favor Appellees and vacated the arbitration award.  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) reviewing and vacating the arbitration award based on factual determinations made by the arbitrator, 2) applying the manifest disregard of law doctrine, 3) vacating the award based upon a final agency determination issued after the arbitration hearing and award, 4) ruling the arbitrator exceeded his powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made, and 5) refusing to grant Appellant’s motion for summary judgment and thereby confirm the arbitration award.

S-16-0550, State v. Abel Mendez-Osorio (Appellant)

Saline County District Court, Judge Vicki Johnson

Attorneys: Erin Tangeman (Attorney General’s Office) --- Brett McArthur (Appellant)

Criminal: Ineffective assistance; terroristic threats; use of weapon to commit felony; child abuse

Proceedings below: Following a jury trial, Appellant was convicted.  The Court of Appeals affirmed on Appeal.  Appellant filed a petition for further review which was granted by the Nebraska Supreme Court.

Issues: Trial counsel was ineffective in 1) failing to adequately prepare for the trial of this matter, including failing to identify and interview prospective witnesses, 2) failing to adequately review the police report in this case, 3) introducing testimony from a witness that contradicted defendant's position, 4) failing to interpose objections to leading and hearsay questions, 5) in failing to explore Ms. Santos Velasquez's immigration status as a possible motive for falsely claiming that Appellant had threatened her, and 6) failing to explore Ms. Santos Velasquez's statements to Appellant that she had attempted to have the protection order against him vacated.  7) There was insufficient evidence for a jury to find beyond a reasonable doubt that Appellant was guilty of child abuse in violation of Neb. Rev. Stat. §28-707.

S-16-0763, In re Interest of Skyleeya M.

Douglas County Separate Juvenile Court, Judge Elizabeth G. Crnkovich

Attorneys: M. Gabriel Rowberry, A. Alexander DeMasi & Lyndsey a. Canning (The Law Office of Patrick J. Sodoro) (GAL) --- Jennifer C. Clark (County Attorney’s Office) --- Karen C. Hicks (Hicks Law, P.C., LLO) (Appellant - father)

Civil: Placement

Proceedings below: The trial court denied Appellant’s motion for placement change.

Issues: The trial court erred in refusing to grant the joint motion for change of placement to the home of the paternal grandmother and guardian of the child’s sibling 1) in violation of Neb. Rev. Stat. § 43-1,311.02(1)(a), which dictates that a child shall be placed with her siblings, unless such placement is contrary to the safety or well-being of any of the siblings, and 2) in violation of Neb. Rev. Stat. §§ 43-246(5) and 43-533, which dictates preference is given to relative placement when a child cannot remain with her parents.

S-16-0445, Vulcraft, a division of Nucor Corp. (Appellant) v. Board of Adjustment of the City of Norfolk, Nebraska v. Our Savior Lutheran Church

Madison County District Court, Hon. James G. Kube

Attorneys:  Mark D. Fitzgerald (Fitzgerald, Vetter & Temple) for the Appellant; Clint Schukel (Norfolk City Attorney) for Appellee Board of Adjustment of the City of Norfolk, Nebraska and John M. Lingelbach and Elizabeth A. Hoffman, (Koley Jessen) for the Appellee Our Savior Lutheran Church

Civil:   Interpretation of a Comprehensive Development Plan  

Proceedings below:    Appellee Board of Adjustment of the City of Norfolk, Nebraska (Board) affirmed the interpretation of the Norfolk City Planner and Zoning Official (Official), who agreed with the Norfolk Planning Commission’s recommendation to rezone certain land in Norfolk, Nebraska. The District Court affirmed the Board’s decision.

Issue:  Whether the decision of the Board was illegal or is not supported by the evidence and is thus arbitrary, unreasonable, or clearly wrong. 

Thursday, May 25, 2017

S-16-0694 and S-16-0849 In re Estate of Gilbert R. Fuchs; Joe Fuchs, Julie K. Albin, and Jason R. Fuchs v. Jim R. Fuchs, Personal Representative of the Estate of Gilbert R. Fuchs (Appellant)

(Consolidated Appeals)

Pierce County District Court, Judge Mark A. Johnson

Attorneys: George H. Moyer, Jr. (Moyer Moyer Law Firm) for Appellant — Susan J. Spahn (Endacott Peetz & Timmer) for Appellees Julie K. Albin and Jason R. Fuchs

Probate: Application for Formal Probate

Proceedings Below: The district court granted summary judgment and dismissed the personal representative’s amended petition for formal probate of the last will and testament of Gilbert R. Fuchs.        

Issues:  Whether the district court erred by sustaining the motion for summary judgment.

S-16-0804 In re Estate of Cora H. Etmund, deceased. Jean Holubar et al. (Appellants) v. Cheryl Brown, Personal Representative

Lancaster County Court, Judge Holly J. Parsley

Attorneys: Daniel E. Klaus & Sheila A. Bentzen (Rembolt Ludtke LLP) (Appellants) — Reginald S. Kuhn & Christina L. Usher (Mattson Ricketts) (for Personal Representative Cheryl Brown)

Probate: Removal of personal representative (PR)

Proceedings Below: The court denied appellants’ petition for removal of the PR.

Issues: Appellants assign that the court erred in denying their petition for removal.

S-16-0987, Frohberg Electric Company v. Grossenburg Implement, Inc. and Kiehm Construction, Inc. (Appellants)

Wayne County, Hon. James G. Kube

Attorneys: Timothy Engler (Remboldt Ludtke, LLP) – David Copple and Michelle Schlecht (Copple, Rockey, McKeever & Schlecht, LLO)

Civil:  Breach of Contract

Proceedings Below: The district court denied Appellants’ joint motion to dismiss Plaintiff’s complaint or in the alternative, motion to compel arbitration and stay action pending arbitration.

Issues: Grossenburg assigns that the district court erred in (1) issuing and entering the Order denying Appellants’ Motion to Compel Arbitration; (2) failing to give effect to the entire subcontract, including the arbitration agreement therein, and its determination that the subcontract did not bind Frohberg to the arbitration agreement contained in the general contract incorporated by reference in the subcontract; (3) failing to compel arbitration on Frohberg’s claims and failure to stay the district court action in accordance with the Federal Arbitration Act (FAA).

A-16-0995, Salem Grain Company, Inc., a Corporation (Appellant) v. Consolidated Grain & Barge Co., Becky Cromer, Gary Jorn, Ray Joy, Bart Keller, Kevin Malone, Charles Radatz, Beth Sickel and John Doe I-IV and Jane Doe I-IV, real names unknown

Richardson County, Judge Daniel E. Bryan, Jr.

Attorneys: David A. Domina, Christian T. Williams (DominaLaw Group pcllo) (Appellant)--- Bonnie M. Boryca, Patrick Guinan (Erickson Sederstrom PCLLO) (Appellees Cromer, Joy, Keller and Radatz) --- Terry C. Dougherty, Audrey Svane, Kari A.F. Scheer (Woods & Aitken LLP) (Appellee Consolidated Grain & Barge Co.) --- Robert S. Keith, Alexis M. Wright (Engles Ketcham Olson & Keith PC) (Appellees Jorn, Malone & Sickel)

Civil: Damages under the Nebraska Consumer Protection Act, Neb. Rev. Stat. §§ 59-1602 et seq.

Proceedings below: The district court dismissed Appellant’s Complaint, sustaining the motions to dismiss filed by all Appellees. The court found Appellees were immune to suit and also denied leave to file an amended complaint. All Appellees joined in filing a Petition to Bypass the Court of Appeals that was granted by the Nebraska Supreme Court.

Issues: Error 1: The court erred when it sustained the motion to dismiss filed by each Appellee on the grounds that the Complaint failed to state a claim upon which relief could be granted under Neb Ct R Plead. § 6-1112(b)(6). Error 2: The court erred when it held that the Appellees are immune from suit under the Noerr-Pennington doctrine, or any other immunity theory. Error 3: The court erred when it held that conspiracy claims and aiding and abetting claims require the allegation of an independent tort to have viability and are not, themselves, independent claims upon which relief can be granted. Error 4: The court erred when it denied leave to amend. Error 5: The court erred when it did not sustain Appellant's jury demand.

S-16-0785, Patricia A. Knapp (appellant) v. Kevin Ruser, in his official capacity, and the University of Nebraska Board of Regents

Lancaster County District Court, Judge Horacio J. Wheelock

Attorneys: Brandon B. Hanson (Appellant) – John C. Wiltse (University Counsel) and David R. Buntain (Cline Williams) for Appellees

Civil:   Discriminatory wage and employment practices

Proceedings below: The district court sustained the defendants’ motion for summary judgment and overruled Knapp’s motion to alter or amend the judgment.

Issues: Whether the court erred in (1) analyzing Knapp’s claim that the defendants classified her position in a manner that deprived her of economic opportunities because of her sex under the legal framework that applies to a failure-to-hire claim; (2) determining that Knapp failed to show similarly situated males were treated differently regarding her wage discrimination claim, when the evidence showed that males were treated differently for moving into tenure track positions that paid more; (3) determining that Knapp’s claim under the Nebraska Fair Employment Practices Act (FEPA) failed for the same reason; (4) determining that Knapp failed to show her supervisor’s retaliatory or unreasonable conduct because a different standard of retaliation applies to communications between the partners of a de facto law firm; (5) granting the defendants summary judgment on her four claims for relief when there were there were genuine of material fact to resolve; and (6) overruling Knapp’s motion to alter or amend the judgment when she alleged that the court failed to address certain issues, including her improper classification claim; (7) Knapp also argues that the federal district court erred in granting the defendants’ motion summary judgment on her federal claims because there were issues of material fact on the comparator issue. 

Friday, May 26, 2017

S-16-0852, City of Lincoln, Nebraska, a political subdivision (Appellant) v. County of Lancaster, Nebraska, a political subdivision

Lancaster County District Court, Hon. Jodi L. Nelson

Attorneys:  Elizabeth D. Elliot (Assistant City Attorney) for the Appellant; Douglas D. Cyr (Chief Deputy Lancaster County Attorney) for the Appellee.

Civil:  Tort claim under the Political Subdivision Tort Claim Act                 

Proceedings below:  The Lancaster County Board denied the City’s claim. On appeal, the district court sustained the County’s motion for summary judgment.

Issues:  The City assigns error to the court’s findings that: 1) there were no genuine issue to any material fact, and 2) the County had sovereign immunity and did not waive its immunity when it purchased liability insurance.

A-16-0634, Eric Cano (Appellee) v. Michael Walker (Appellant) and Billy E. Claborn

Douglas County, Hon. Shelly R. Stratman.

Attorneys:  Larry R. Foreman (Hillman, Forman, Childers & McCormack) (appellee); Warren R. Whitted, Jr. and Keith A. Harvat (Houghton Bradford Whitted, PC, LLO) (appellant)

Civil: breach of contract

Proceedings below:  Eric Cano brought this breach of contract action against Michael Walker and Billy E. Claborn. In November 2013, the district court granted Cano’s motion for summary judgment and entered judgment against Walker and Claborn in the amount of $299,500 plus interest. In May 2016, the district court subsequently granted Walker’s motion and reduced the judgment entered in the November 2013 order by $40,000. Walker appeals.                                               

Issues: Walker claims the district court erred when it (1) determined the undisclosed stipulation between Cano and Claborn did not also release Walker on the judgment against them, (2) determined that the satisfaction did not completely satisfy the judgment entered against both Walker and Claborn, (3) determined that the district court had the inherent power to dismiss and cancel a portion of the November 2013 order, (4) determined that it had the inherent power to recalculate interest on the judgment entered in the November 2013 order, and (5) failed to discharge the November 2013 judgment and cancel it of record. 

S-16-0906, Mutual of Omaha Bank v. Robert W. Watson (Appellant) and Shona Rae Watson, formerly husband and wife; Community Bank of Lincoln, trustee and beneficiary; Cardwell Reserve Home Owners Association, Inc.; The Cattle National Bank & Trust Co.; West Gate Bank; and State of Nebraska

Lancaster County District Court, Judge John A. Colborn

Attorneys: Appellant Pro Se — John D. Stalnaker, Robert J. Becker (Stalnaker Becker Law Firm) and Eric H. Lindquist for Appellee Mutual of Omaha Bank; John C. Hurd (Wolfe Snowden Law Firm) for Appellee Shona Rae Watson; Douglas J. Peterson (Attorney General) for Appellee State of Nebraska

Civil: Judicial Foreclosure

Proceedings Below: The district court granted summary judgment in favor of Mutual of Omaha Bank and overruled Watson’s motion to dismiss.

Issues: Whether the district court erred in (1) finding instrument No. 2009059054 was valid and enforceable; (2) finding instrument No. 2009059054 and instrument No. 2009059056 should be read together; (3) finding that it had jurisdiction to hear Mutual of Omaha’s claim for declaratory relief; (4) “finding Instrument No. 2009059054 a first priority”; (5) granting judicial foreclosure; and (6) dismissing Robert’s counterclaims.

S-16-0798, State v. Patrick J. Combs (Appellant)

Lancaster County District Court, Judge Robert Otte

Attorneys: Austin N. Relph (Attorney General’s Office) --- Robert B. Creager (Anderson, Creager & Wittstruck, P.C. (Appellant)

Criminal: Mistrial; plea in bar; jurisdiction; theft

Proceedings below: Following a trial, the jury was unable to reach a unanimous verdict and the district court declared a mistrial.  Several days later a juror indicated the jury had voted unanimously to acquit Appellant on Counts 2, 3, & 4.  The district court overruled Appellant’s motions for acquittal and plea in bar.

Issues: The district court erred in 1) failing to sustain the plea in bar as to Counts 2, 3, & 4, 2) failing to sustain the motion for judgment of acquittal as to all counts, 3) failing to dismiss the case at the close of evidence, 4) committing plain error in not inquiring as to whether the jury was deadlocked on all or some of the counts, 5) the presiding juror’s failure to publish the jury’s verdict for acquittal on counts 2, 3, & 4, and 6) the admission of opinion testimony from a caregiver as to whether the alleged victim has the capacity to execute legal documents.

A-16-0421, Michael Marvin Dugan (Appellant) v. State of Nebraska; Scott Frakes, Director, NDCS; and Richard Cruickshank, Warden, Nebraska State Penitentiary

Lancaster County, Hon. Steven D. Burns

Attorneys: Michael J. Wilson (Schaefer Shapiro, LLP) (Appellant)— Kimberly A. Klein (Attorney General’s Office)

Civil: Habeas Corpus

Proceedings Below: The district court denied Dugan’s petition for writ of habeas corpus.

Issues: Dugan asserts that the district court erred in denying his petition for a writ of habeas corpus because (1) his sentence is void since he was tried, convicted, and sentenced during the pendency of an appeal that divested the trial court of jurisdiction, and (2) the Court of Appeals failed to properly exercise its jurisdiction to hear Dugan’s appeal from the order denying his motion to reduce excessive bail, relying on the wrongly decided case of State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998).