Supreme Court Case Summaries

February 9, 10 or 11, 2010

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

S-09-0246, State v. Antoine D. Young (Appellant)

Douglas County, Judge Peter C. Bataillon

Attorneys: Peder Bartling (Appellant) --- Stacy M. Foust (Attorney General’s Office)

Criminal: First degree murder and use of a deadly weapon to commit a felony

Proceedings below: A jury found Appellant guilty of both crimes. He was sentenced by the district court to life imprisonment without parole for first degree murder with a consecutive sentence of 40 to 40 years for use of a deadly weapon to commit a felony.

Issues: Appellant received ineffective assistance of counsel at trial by not subjecting the prosecution’s case to meaningful adversarial testing and therefore, depriving him of a fair trial.

S-09-0707)  Kearney County Bd. of Equal. (Appellant) v. KAAPA Ethanol, L.L.C.
S-09-0717)  KAAPA Ethanol, L.L.C. (Appellant) v. Kearney County Board of Equalization

Consolidated cases on appeal.

Tax Equalization and Review Commission

Attorneys: David G. Wondra (County Attorney) --- Daniel J. Lindstrom (Jacobsen Orr Nelson Lindstrom & Holbrook PC LLO) and William E. Peters (Peters & Chunka PC LLO) (for KAAPA Ethanol, L.L.C.)

Civil: Personal property valuation protest

In S-09-0707: Proceedings below: KAAPA filed a protest of the personal property return it filed. The Board denied the protest and agreed with the $25,327,386.00 total taxable value of personal property. KAAPA appealed to TERC who reversed the decision of the Board.

In S-09-0717: Proceedings below: The Assessor assessed the real property at $45,060,355.00. The Board issued its findings and report agreeing with the assessment. KAAPA appealed to the TERC which affirmed the decision of the Board.

Issues in S-09-0707: TERC erred in (1) holding KAAPA produced competent evidence that the Board failed to faithfully perform its official duties and act on sufficient competent evidence to justify its actions; (2) holding KAAPA had produced sufficient evidence that the Board’s decision was unreasonable, arbitrary and erred in vacating the decision of the Board.

Issues in S-09-0717: TERC erred in (1) finding “processing equipment” was real property; (2) finding that Appellant’s appraiser understated the actual value because items were excluded from value that TERC had determined to be real estate; (3) finding that Appellant’s appraisal was required to apply the three factor test of Northern Natural Gas Co. v. State Board of Equalization and Assessment, 232 Neb. 806 (1989); (4) finding that Appellant had not met its burden to show taxable value of the subject real property as of January 1, 2007; (5) not applying established interpretations of the law regarding treatment of property as personal and real for ad valorem taxation purposes; (6) not finding that the value of the subject real property was $17,949,000; and (7) finding that Appellant failed to show that the actual value of the subject real property was different than actual value as determined by Appellee.

S-09-0664, Roger Yant, Brian Von Seggern, Jerry Christensen (Appellants) v. The City of Grand Island; The Hall County Livestock improvement Association; the Nebraska State Fair Board; The Nebraska Department of Administrative Services; Carlos Castillo in his official capacity as Director of the Nebraska Department of Administrative Services; Regent Tim Clare, Regent Chuck Hassebrook, Regent Howard Hawks, Regent Bob Phares, Regent Jim McClurg, Regent Bob Whitehouse, Chairman of the Nebraska Board of Regents Kent Schroeder, Regent Randolph Ferlic; Regent Cade Craig, Regent Neal Bonacci, Regent Brad Bohn, Regent Megan Collins, all in their official capacities as members of the Board of Regents of the University of Nebraska; Shane Osborn in his official capacity as Nebraska State Treasurer; Doris Mason, in her official capacity as Hall County Treasurer; the members of the Hall County Board of Supervisors, all in their official capacities; and the Hall Count Agricultural Society, Inc.

Lancaster County, Judge John A. Colborn

Attorneys: Raymond Walden, James Beckmann, Kenneth C. Winston (For Appellants) --- Dale A. Comer, Charles E. Lowe (Assistant Attorneys General) and Joel D. Pedersen, John C. Wiltse (Office of the General Counsel, University of Nebraska) (Appellees)

Civil: Declaratory judgment action

Proceedings below: The district court denied Appellant’s request for declaratory judgment and ruled found that LB 1116, Session Laws 2008, was not unconstitutional and entered an order dismissing Appellants’ amended complaint.

Issues: The trial court erred in (1) ruling that LB 1116 does not constitute special legislation in violation of Neb. Const. art. III, § 18; (2) finding that LB 1116 does not improperly delegate authority to expend tax revenues in violation of Neb. Const. art. III, § 1; (3) failing to issue a declaratory judgment holding that all of LB 1116 is void and of no legal effect.

WEDNESDAY, FEBRUARY 10, 2010, subject to call at 9:00 a.m.

S-09-0075, State v. Lucky Ikenna Iromuanya (Appellant)

Lancaster County, Judge John A. Colborn

Attorneys: Robert W. Kortus (Nebraska Commission on Pubic Advocacy) (Appellant) --- James D. Smith (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The district court denied Appellant an evidentiary hearing, overruled his motions for postconviction relief and sustained the State’s motion to deny an evidentiary hearing.

Issues: The district court erred in (1) failing to grant an evidentiary hearing; (2) dismissing the amended motions for postconviction relief; (3) denying postconviction relief and failing to grant an evidentiary hearing as to the claims of ineffective assistance of counsel. Appellant also assigns as error that he was denied the right to a fair trial and effective counsel on direct appeal in violation of the 5th, 6th, and 15th Amendments to the U.S. Constitution, Neb. Const. art. I §§ 3, 11 and 23 and Strickland v. Washington, 466 U.S. 668 (1984).

S-09-0660, State v. Anthony A. Casillas (Appellant)

Lancaster County, Judge Robert Otte

Attorneys: John Jorgensen (Public Defender’s Office) --- George R. Love (Attorney General’s Office)

Criminal: DUI, 3rd Offense, with BAC greater than .15, a Class III-A felony

Proceedings below: Appellant was found guilty by a jury of DUI with BAC greater than .15. After an enhancement hearing, his DUI was enhanced to 3rd offense. Appellant was sentenced to 360 days in jail with a 15 year license revocation.

Issues: The district court erred in (1) finding the HGN test does not warrant Daubert analysis under Schafersman v. Agland Coop, 262 Neb. 215 (2001) and allowing such evidence at trial; (2) overruling Appellant’s motions to suppress; (3) refusing to give Appellant’s proposed material elements instruction in Exhibit 18; (4) refusing to utilize the proposed jury verdict form found in Exhibit 19; (5) imposing an excessive sentence.

S-09-0735, Midwest PMS and Federated Mutual Insurance Company (Appellants) v. Gary Dean Olsen and Nationwide Agribusiness Insurance Company

Nebraska Workers’ Compensation Court

Attorneys: Todd R. McWha (Waite, McWha & Harvat) (Appellants) --- David A. Dudley, Andrea A. Ordonez (Baylor Evnen)

Civil: Insurance companies claim for indemnity and reimbursement

Proceedings below: The trial court found that it had no jurisdiction to hear the allegations of the petition and no subject matter jurisdiction under Neb. Rev. Stat. § 48-161. The review panel affirmed.

Issues: The trial court erred in (1) finding it had no jurisdiction to hear the allegations of the petition; (2) finding the lawsuit is essentially an action by one insurer against another; (3) finding there was no dispute between the employer Midwest PMS, its workers’ compensation carrier Federated Mutual Insurance Company and the employee; (4) determining it had no jurisdiction under the Workers’ Compensation Act to order Nationwide Agribusiness Insurance Co. to reimburse Federated Mutual Insurance Company. Appellant also alleges the Review Panel erred in affirming the trial court.

S-09-0484 and 09-0691, Theresa K. Murphy and Catherine D. Lang, in her capacity as the Commissioner of  Labor for the State of Nebraska v. Nebco, Inc. (Appellant)

Consolidated appeals.

District court for Lancaster County

S-09-484 Honorable Karen B. Flowers
S-09-691 Honorable Paul D. Merritt

Attorneys:  Shannon L. Doering and Luke F. Vavricek for appellant; James D. McFarland for appellee Murphy; John H. Albin and Thomas A Ubkinski for appellee Lang

Civil: Action for determination of unemployment benefits

Proceedings below:  Judge Flowers in case No. 09-484 found there was insufficient evidence that Murphy engaged in workplace misconduct and affirmed the finding of the Nebraska Appeal Tribunal that she was entitled to unemployment benefits after being terminated by Nebco. Judge Merritt in case No. 09-691 affirmed the Appeal Tribunal’s finding that Nebco’s unemployment insurance experience account could be charged for Murphy’s benefits.

Issues:  In case No. 09-484, Nebco assigns that the district court erred in failing to find that Murphy engaged in misconduct as defined by the applicable case law and was therefore disqualified from receiving unemployment benefits. Murphy contends in a cross-appeal that she should be awarded attorney fees for having to defend against the two separate actions.  In case No. 09-691, Nebco assigns that Judge Merritt erred in finding that its account was properly chargeable for the unemployment benefits paid to Murphy.

S-09-0433, Stephanie Perez  v. Stanley Callan (Appellant)

Sarpy County District Court--Judge David K. Arterburn

Attorneys: Steven M. Delaney, Tara A. Stingley, Cline, Williams, Wright, Johnson & Oldfather, L.L.P. (Appellant)---Matthew A. Lathrop, Law Office of Matthew A. Lathrop, P.C., L.L.O.

Civil:   Battery/Order for Sanctions

Proceedings Below: The Douglas County District Court awarded summary judgment in favor of Stephanie Perez and denied Stanley Callan’s motions to vacate the order for sanctions, to vacate the judgment, and to alter or amend the judgment.

Issues: The district court erred in (1) declining to vacate its order of sanctions; (2) declining to vacate the judgment; and (3) declining to alter or amend the judgment.

THURSDAY, FEBRUARY 11, 2010, subject to call at 9:00 a.m.

FEBRUARY 11th ARGUMENTS ONLY TO BE HELD
IN THE UNL COLLEGE OF LAW AUDITORIUM
(Sign-in at UNL prior to arguments)

S-09-0424, State of Nebraska (Appellee) v. Ras D. Haas

Lancaster County, Judge Paul D. Merritt Jr.

Attorneys: Jerry Soucie (Nebraska Commission on Public Advocacy) and Susan L. Kirchman  -- Erin E. Tangeman (Attorney General’s Office)

Civil: postconviction relief for ineffective assistance of counsel

Proceedings Below:  Ras D. Haas was convicted by a jury of two counts of first degree sexual assault and the Court of Appeals affirmed his conviction on direct appeal. Haas filed a motion for postconviction relief alleging ineffective assistance of counsel.  Following an evidentiary hearing, the district court denied Haas’ motion for postconviction relief.  During the pendency of his postconviction motion, Haas filed motion for DNA testing under the DNA Testing Act, Neb. Rev. Stat. §§ 29-4116 – 4125 (Reissue 2008). The district court denied Haas’ motion for DNA testing and denied him an evidentiary hearing on ineffective assistance of counsel as it related to the DNA testing.

Issue:  Whether (1) Haas’ trial counsel was ineffective for failing to preserve Batson v. Kentucky challenges during trial; (2) Haas should have been allowed to amend his motion to include an allegation of ineffective assistance of trial counsel for failing to conduct DNA testing, and (3) Haas should have been allowed an evidentiary hearing under the DNA Testing Act on his claim that DNA testing was effectively not available at the time of trial because of ineffective assistance of counsel.

S-09-0812, Gerald Jackson v. Brotherhood’s Relief and Compensation Fund (Appellant)

Box Butte County, Judge Brian C. Silverman

Attorneys: Renee Eveland (Wolfe Snowden Hurd Luers & Ahl LLP) (Appellant) --- Andrew W. Snyder (Chaloupka Holyoke Hofmeister Snyder & Chaloupka LLC) (for Gerald Jackson)

Civil: Breach of contract and motion for attorney’s fees under Neb. Rev. Stat. § 44-359

Proceeding below: This case was previously before this Court. See Jackson v. Brotherhood’s Relief and Compensation Fund, 273 Neb. 1013 (2007) (reversed and vacated, and cause remanded for new trial). Upon remand, the district court determined Jackson was entitled to benefits under the governing contract and awarded attorney fees pursuant to Neb. Rev. Stat. § 44-359 (Reissue 2004).

Issues: The district court erred in (1) failing to sustain Appellant’s motion to dismiss; (2) finding Jackson was entitled to benefits under the governing contract; (3) reading and applying the plain language of the contract; (4) finding there was no evidence that Jackson willfully or intentionally did not provide a drug test because Federal law deemed Jackson’s conduct to be a “refusal” to take the best which is a willful or intentional act as a matter of law; (5) its standard of review at trial; (6) awarding attorney fees and costs to Jackson; (7) failing to receive Attachment A to the Exhibit 55.

S-09-0749, In re Interest of Sir T. et al

Separate Juvenile Court of Douglas County, Judge Christopher E. Kelly

Attorneys: Christine P. Costantakos (for Natural Mother Yolanda A., Appellant) --- Thomas K. Harmon (Guardian Ad Litem) --- Amy Schuchman (Deputy County Attorney)

Civil: Termination of parental rights

Proceedings below: The trial court found the State proved by clear and convincing evidence that statutory grounds for termination existed under Neb. Rev. Stat. § 43-292(2) and (6) and found that termination was in the best interests of the minor children.

Issues: The juvenile court erred in (1) terminating parental rights under Neb. Rev. Stat. § 43-292(6) as the State failed to prove existence of that statutory ground; (2) finding the evidence clearly and convincingly established that termination of Appellant’s parental rights was in the best interests of the minor children; (3) finding the state made reasonable efforts to preserve and reunify the family as required under Neb. Rev. Stat. § 43-283.01 in order to support termination under Neb. Rev. Stat. § 43-292(6); (4) terminating parental rights under Neb. Rev. Stat. § 43-292(2) as the evidence failed to prove existence of that statutory ground; (5) overruling Appellant’s motion for Judgment on the Pleadings which challenged the constitutionality of Neb. Rev. Stat. § 43-292(2) and also requested dismissal of Count IV of the motion for termination based upon res judicata/collateral estoppel.

S-09-0642, D&S Realty, Inc (Appellant) v. Markel Insurance Company

Douglas County, Judge Joseph S. Troia

Attorneys: Charles F. Gotch, Jam Garriott, David A. Blagg (Cassem Tierney Adams Gotch & Douglas) (Appellant) --- Richard J. Gilloon, Heather Veik (Erickson Sederstrom PC LLO)

Civil: Denial of insurance claim; breach of contract

Proceedings below: The jury found for the defendant and the district court entered judgment. The district court overruled a motion for judgment notwithstanding the verdict and motion for new trial.

Issues: The trial court erred in (1) refusing to allow submission  to the jury the issue of whether or not the purported breach of the vacancy condition existed at and contributed to the loss; (2)not allowing submission to the jury the question of whether or not Markel waived the provisions of the policy regarding vacancy and occupancy; (3) not submitting to the jury the question of whether or not Markel was estopped from raising as a defense to its obligations the policy condition regarding occupancy; (4) not granting the motion for judgment notwithstanding the verdict and motion for new trial.