The Nebraska Court of Appeals
CASE SUMMARIES

January 26 and 27, 2010

Panel I Judges: Inbody, Chief Judge, Irwin, and Cassel, Judges.

TUESDAY, JANUARY 26, 2010, subject to call at 9:00 a.m.

A-09-0473, State of Nebraska v. Erwin B. Swiney (Appellant)

Hall County, District Court Judge Teresa K. Luther

Attorney for Appellant:  L. William Kelly

Attorney for Appellee:  Jon Bruning, Nathan A. Liss (Attorney General’s Office)

Criminal Action:  Possession of a Controlled Substance with Intent to Distribute and No Drug Tax Stamp

Action Taken by Trial Court:  The trial court denied appellant’s motion to suppress and found appellant guilty for possession of a controlled substance with the intent to distribute and no drug tax stamp.

Assignments of Error on Appeal: The appellant assigns that the trial court erred in denying his motion to suppress and in finding him guilty of the charges.

A-09-0760, Lawler Farm & Ranch Co., and James D. Lawler and Peggy Lawler (Appellants) v. Bank of Paxton

Keith County, District Court Judge Donald E. Rowlands

Attorney for Appellant:  Neil E. Williams (Lane & Williams, P.C., L.L.O.)

Attorney for Appellee:  David W. Pederson (McCarthy, Pederson, Moore & Bocott)

Civil Action:  Promissory Notes

Action Taken by Trial Court:  The trial court sustained the appellee’s motion for summary judgment and dismissed the appellant’s complaint.

Assignments of Error on Appeal:  The appellant assigns, consolidated, that the trial court erred in sustaining the appellee’s motion for summary judgment.

WEDNESDAY, JANUARY 27, 2010, subject to call at 9:00 a.m.

A-09-0437, State of Nebraska v. Luis Carlos Vasquez-Arenivar (Appellant)

Hall County, District Court Judge James D. Livingston

Attorney for Appellant:  Jeff E. Loeffler (Public Defender’s Office)

Attorney for Appellee:  Jon Bruning, George R. Love (Attorney General’s Office)

Criminal Action:  Possession of a controlled substance with intent to distribute and tampering with physical evidence.

Action Taken by Trial Court:  The trial court denied the appellant’s motion to suppress.

Assignment of Error on Appeal:  The trial court erred by failing to grant the appellant’s motion to suppress.

A-09-0833, In re Interest of Cedric T. et al., State of Nebraska v. Natasha D. (Appellant)

Separate Juvenile Court of Lancaster County, Judge Linda S. Porter

Attorney for Appellant:  Hazell G. Rodriguez (Legal Aid of Nebraska)

Attorney for Appellee:  Brief not yet filed

Juvenile Action:  Termination of Parental Rights

Action Taken by Juvenile Court:  The court found by clear and convincing evidence the statutory grounds for termination under § 43-292(2), (4), (6), and (7), and that termination of Appellant’s parental rights was in the best interests of the children.

Assignments of Error on Appeal:  Appellant assigns that the juvenile court erred in determining (1) that grounds for termination existed under § 43-292(2) when Appellant made repeated attempts to comply with services and maintain positive contact despite restrictions on her visits and obstacles placed by the system, (2) that grounds for termination existed under § 43-292(4) when Appellant continued to seek out treatment and had maintained sobriety for several months, (3) that grounds for termination existed under § 43-292(6) when reasonable efforts to preserve and reunify the family were not exhausted and the evidence presented at trial was insufficient, and (4) that it was in the best interests of the children to terminate Appellant’s parental rights.

A-09-0616, Robert Socha v. Larry E. Socha and Bonita Carraher, Successor Co-Trustees of the Joe W. and Eva E. Socha Living Revocable Trust (Appellants)

Greeley County, County Court Judge Alan L. Brodbeck

Attorney for Appellant:  Michael D. Kozlik

Attorney for Appellee:  Robert F. Peterson, Kathleen M. Foster (Laughlin, Peterson & Lang)

Probate Action:  Action to remove a trustee

Action Taken by Trial Court: The county court found that appellants, as successor co-trustees, failed to act in the best interests of the trust and ordered that appellants be removed as trustees and that a successor co-trustee be appointed.

Assignments of Error on Appeal:  On appeal, appellants allege that the county court erred in removing them as co-trustees; that the court’s findings of fact do not satisfy the removal statute (Neb. Rev. Stat. § 30-3862(b)); and that the court erred in finding that appellee has standing.

A-09-0711, In re Interest of Baby Girl P., a child under 18 years of age. State of Nebraska v. Michael P. and Victoria P. (Appellants)

Hall County, County Court Judge Philip M. Martin, Jr.

Attorney for Appellant:  Jerom E. Janulewicz (Mayer, Burns, Koenig & Janulewicz)

Attorney for Appellee:  Robert J. Cashoili (County Attorney’s Office)

Attorney for Guardian ad Litem (Baby Girl P.):  Jerry Fogarty

Attorney for Guardian ad Litem (Victoria P.):  Hunter A. H. Campbell (Campbell Law Office)

Juvenile  Action:  Termination of Parental Rights

Action Taken by Trial Court:  The trial court found that the State had proven by clear and convincing evidence that the parents were unable to discharge their parental responsibilities because of mental illness or mental deficiency and that it was in the child’s best interests that their rights be terminated.

Assignments of Error on Appeal:  The appellants assign, consolidated, that the trial court erred in terminating their parental rights.

Panel II Judges:  Sievers, Carlson, and Moore, Judges.

TUESDAY, JANUARY 26, 2010, subject to call at 1:00 p.m.

A-09-0536, State of Nebraska v. Joshua Curry (Appellant)

Cheyenne County, District Judge Derek C. Weimer

Attorney for Appellant:  James R. Mowbray and Kelly S. Breen (Nebraska Commission on Public Advocacy)

Attorney for Appellee:  Jon Bruning (Attorney General) and Stacy M. Foust (Assistant Attorney General)

Criminal Action: Speedy Trial

Action Taken by Trial Court:  The district court held that certain time periods were excluded by Neb. Rev. Stat. § 29-1207(4)(a) and (b) for purposes of calculating speedy trial.

Assignments of Error on Appeal:  Curry alleges that the district court erred in finding that time periods which caused no delay should count against Curry and be excluded from the statutory speedy trial computation by application of Neb. Rev. Stat. § 29-1207(4)(a) and (b).

A-09-0571, Lary and Barbara Moeller (Appellants) v. Dale Moeller d/b/a The Wisner Chapter of the Izaak Walton League of America, Inc.

Cuming County, District Judge Robert B. Ensz

Attorney for Appellant:  Nichole S. Bogen and David W. Rasmussen (Wolfe, Snowden, Hurd, Luers & Ahl, LLP)

Attorney for Appellee:  Thomas B. Donner

Civil Action: Forcible Entry and Detainer; Breach of Lease Agreement

Action Taken by Trial Court:  The district court entered an order finding that the Appellees had not breached the lease agreement and denied restitution of the premises to Appellants.

Assignments of Error on Appeal:  Lary and Barbara Moeller allege that the district court erred in: (1) finding that Appellees had not breached the lease agreement and not finding that Appellees had failed to timely cure such breaches; (2) not finding that the Lease specifically reserved to Appellants the right to terminate the lease agreement for an event of default by Appellees; and (3) finding that Appellants had acquiesced in Appellees’ breaches of the lease agreement.

A-09-0655, In re Interest of Mariah R., a ch ild under 18 years of age. State of Nebraska v. Tanja R. (Appellant)

Lancaster County, Separate Juvenile Court Judge Toni G. Thorson

Attorney for Appellant:  David P. Kyker; Christopher A. Furches (Furches Law Office)

Attorney for Appellee:  Alicia B. Henderson

Juvenile Action:  Adjudication

Action Taken by Trial Court:  The juvenile court adjudicated appellant’s four minor children, finding that the children lacked proper parental care by reason of the fault or habit of appellant and were placed in a situation dangerous to life or limb or injurious to the health or morals of the children due to appellant’s involvement with a certain individual and the exposure of the children to acts of domestic violence.

Assignments of Error on Appeal:  Was there sufficient evidence to support a finding that appellant had exposed her children to acts of domestic violence? Were the altercations between appellant and her minor child sufficient to adjudicate appellant’s minor children? Was there sufficient evidence to support a conclusion that appellant’s children were at risk of emotional or physical harm if returned to appellant’s custody?

A-09-0613, Eston L. Jones, obo Saundra L. Jones v. Cecil E. Brooks, Jr. (Appellant)

Webster County, District Court Judge Michael L. Offner

Attorney for Appellant:  Joseph H. Murray, PC LLO; Lucas L. Swartzendruber (Germer, Murray & Johnson)

Attorney for Appellee:  

Civil Action:  Protection Order

Action Taken by Trial Court:  The trial court determined that there was sufficient evidence to prove that appellant placed Saundra in fear of imminent bodily injury as defined by Neb. Rev. Stat. § 42-903(1)(b), and it entered a domestic abuse protection order to remain in effect until May 29, 2010, one year from the date of the original order.

Assignments of Error on Appeal:  Did the trial court err in determining that appellant produced sufficient evidence to grant a protection order against appellant?

A-09-0589, Travis Stoler (Appellant) v. Otis Bed, Inc.

District Court for Douglas County, District Judge W. Russell Bowie III

Attorney for Appellant: W. Patrick Betterman (Betterman Law Firm)

Attorney for Appellee:  Donald P. Dworak (Stinson Morrison Law Firm)

Civil Action:  Breach of contract

Action taken by the Trial Court:  The trial court found that the parties had an oral contract, which they later amended, concluded that the 4-year statute of limitations applied, and rejected Stoler’s argument that the parties had an “open account” arrangement. The court awarded Stoler the sum of $42,129.94 for commissions earned between certain dates, but it found that Otis was entitled to an adjustment of $11,372.77. The trial court also awarded Stoler attorney fees of $7,689.29.

Assignments of Error on Appeal, Consolidated and Restated: Did the trial court err in concluding that the 4-year statute of limitations for oral contracts applied and in its application of the 4-year statute of limitations? Did the trial court err in concluding that the parties did not have an open account arrangement? Did the trial court err in failing to allow Stoler to prove certain evidence with respect to the award of attorney fees? Did the trial court err in the amount of damages awarded?  Did the trial court fail to give the required conclusive effect to Otis’ admissions to Stoler’s requests for admissions? Did the trial court err in failing to grant Stoler’s motion to alter or amend the judgment or for new trial?

A-09-0356, Troia Family Limited Partnership v. Howard Kool, Kool Motors, Inc., and Mike Devevy (Appellant)

Red Willow County, District Judge David Urbom

Attorney for Appellant:  Michael Sullivan (Sullivan, Shoemaker, Witt & Burns, PC))

Attorneys for Appellee:  Daylene A Bennett (Burger & Bennett, PC)

Civil Action:  contract

Action Taken by Trial Court: The trial court found generally in favor of Troia Family Limited Partnership and entered judgment again Devevy for unpaid rent under a business lease.

Assignments of Error on Appeal: the trial court erred in (1) holding that the assignment of business property lease was a fully integrated agreement; (2) relying on the parol evidence rule to exclude evidence which showed the actual agreement of the parties; (3) failing to find that the assignment of business property lease was a closing document which was to have been delivered at closing on a broader transaction; (4) failing to find that the implementation of the assignment of business lease was subject to a condition which failed; (5) failing to find that the assignment of business lease was rescinded; (6) holding that Troia Family Limited Partnership was party to the assignment of business lease; (7) failing to find that the mutual release executed by Kool and Devevy terminated any rights which Troia Family Limited Partnership may have had against Devevy under the assignment of business lease.

WEDNESDAY, JANUARY 27, 2010, subject to call at 1:00 p.m.

A-09-0696, State of Nebraska v. Andrew J. Semrad (Appellant)

Lancaster County, District Judge Robert R. Otte

Attorney for Appellant:  Dennis R. Keefe (Public Defender) and Robert G. Hays (Chief Deputy Public Defender)

Attorney for Appellee:  Jon Bruning (Attorney General) and Nathan A. Liss (Assistant Attorney General)

Criminal Action: Third Degree Assault on an Officer; Driving Under the Influence 2nd Offense; and Refusing to Submit to a Chemical Test

Action Taken by Trial Court:  After a jury trial, the district court convicted Semrad of third degree assault on an officer, driving under the influence 2nd offense, and refusing to submit to a chemical test. Semrad was sentenced to 2 years probation. Among the conditions of his probation, Semrad was ordered to pay a $1,000 fine, serve 30 days in jail, and his license was revoked for one year.

Assignments of Error on Appeal:  Semrad alleges that the district court erred in: (1) overruling Semrad’s objection to jury instruction No. 4; (2) refusing Semrad’s proposed jury instruction No. 2; (3) refusing Semrad’s proposed jury instruction No. 3; (4) refusing Semrad’s proposed jury instruction No. 6; (5) overruling Semrad’s motion for mistrial based on prosecutorial misconduct; and (6) overruling Semrad’s request that the jury be admonished to disregard the prosecutor’s appeal to sympathy and prejudice.

A-09-0891, In re Interest of Nadia S.: State of Nebraska v. Duwanda S. (Appellant)

Douglas County, Juvenile Judge Wadie Thomas

Attorney for Appellant:  Thomas C. Riley (Douglas County Public Defender) and Zoë R. Wade (Assistant Public Defender)

Attorney for Appellee:  No brief filed yet.

Juvenile Action: Termination of Parental Rights

Action Taken by Trial Court:  The juvenile court terminated Duwanda’s parental rights to her three minor children.

Assignments of Error on Appeal:  Duwanda alleges that the juvenile court erred in by clear and convincing evidence that: (1) Duwanda abandoned Nadia and Tabious for six months or more immediately prior to the fining of the motion for termination; (2) reasonable efforts were not required because Duwanda had subjected Nadia and Tabious to aggravated circumstances, including abandonment; (3) reasonable efforts to preserve and reunify the family have failed to correct the conditions leading to the court’s determination that Nadia and Tabious come within Neb. Rev. Stat. § 43-247(3)(a); (4) Duwanda has substantially and continuously or repeatedly neglected Nadia and Tabious; (5) terminating Duwanda’s parental rights to Nadia and Tabious is in their best interest; (6) Duwanda has substantially and continuously or repeatedly neglected Danzana; and (7) terminating Duwanda’s parental rights to Dazana is in Dazana’a best interest.

A-09-0821, A-09-0822, In re Interest of Tauteyana J., Tenaarea J., Terron J., Tayana J., Children Under Eighteen Years of Age. State of Nebraska v. Wendy J. (Appellant)

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

Attorney for Appellant: Jason L. Scott

Attorney for Appellee (State):  Michelle D. Sabata (Lancaster County Attorney’s Office)

Attorney for Appellee (HHS):  Karen C. Knight (Health and Human Services)

Attorney for Appellee (Melvin J.):  Gene T. Oglesby (Oglesby Law Firm

Guardian Ad Litem (Children):  Tina M. Marroquin (Pollack Ball Law Firm)

Juvenile Action:  Termination of Parental Rights

Action taken by the Trial Court:  The trial court terminated Wendy’s parental rights to Tenaarea, Terron, and Tayana.

Assignments of Error on Appeal: Did the trial court err in finding that Wendy had abandoned the children? Did the trial court err in finding that Wendy had neglected the children? Did the trial court err in finding that reasonable efforts to preserve and reunify the family had failed to correct the conditions leading to the adjudication? Did the trial court err in finding that termination of Wendy’s parental rights was in the children’s best interests?