44 results for 'judge:"Arterburn "'.
J. Arterburn finds the county court properly granted specific performance as to the original property owner's right of first refusal. The original owner sold property to their farming employee, executing a promissory note for payment of $37,000 over eight years. A trust deed provided the purchaser would get the owner's consent if he meant to sell the property before paying it off. A warranty deed also gave the seller right of first refusal. The original owner was not provided with sufficient notice of the sale. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: April 30, 2024, Case #: A-23-165, Categories: Property, Banking / Lending, Contract
J. Arterburn finds the district court improperly dismissed the swimming pool owner's breach of contract suit. The owner did not sign the third page of the pool remodel contract, which included the forum selection clause, and the court did not consider evidence relevant to whether an exception barred the clause's enforcement. Reversed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: April 23, 2024, Case #: A-23-572, Categories: Evidence, Jurisdiction, Contract
J. Arterburn finds the trial court properly convicted defendant for criminal mischief. Surveillance video from the vandalized outpatient clinic, which was properly admitted, showed defendant breaking windows. All sentencing factors involving the costs incurred by the clinic and defendant's record of previous offenses were properly and fully considered. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: April 16, 2024, Case #: A-23-510, Categories: Evidence, Sentencing, Vandalism
J. Arterburn finds the trial court properly convicted defendant for operating a motor vehicle during revocation. Though defendant was observed in the driver's seat before the traffic stop, upon making contact officers found him lying down between seats, with a woman driving. Though defendant argues the woman's testimony was consistent with his claim he was never driving, jurors found the officers' testimony more credible, and credibility findings will not be reviewed. Affirmed in part.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: April 16, 2024, Case #: A-23-435, Categories: Evidence, Sentencing, Vehicle
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J. Arterburn finds the trial court improperly granted summary judgment to a hospital on medical malpractice claims filed by a widow and estate administrator after her husband died following an emergency room visit. The husband died at home from coronary artery disease after the emergency room doctor diagnosed and treated him for a head injury incurred at work. The court improperly denied the wife's motion to compel and granted the hospital���s motion for a protective order. Though the court correctly received the doctor's affidavit, it improperly declined to receive the wife's expert's affidavit stating the hospital violated standards of care involving the husband's history of heart disease. Reversed in part.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: April 9, 2024, Case #: A-23-339, Categories: Negligence, Experts, Medical Malpractice
J. Arterburn finds the district court properly denied the union���s motion for declaratory judgment and its application to vacate an arbitration award resulting from the labor dispute. The dispute arose from certain positions being reclassified, resulting in the employees being required to work holidays they previously had off. The arbitrator found the human services agency could change the holiday schedule if it negotiated with the union in compliance with the labor agreement. The arbitrator did not award the union's request to return to the previous holiday schedule but did specify steps to be taken before implementing the change. This is a final ruling, and the union���s assertion that the arbitrator failed to rule is without merit. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: April 9, 2024, Case #: A-23-603, Categories: Civil Rights, Employment, Labor / Unions
J. Arterburn finds the county court properly denied the former, currently incarcerated law clients' claims for relief. The clients say they are due monetary relief from their deceased lawyer's estate because of claimed deficient performance. The record is devoid of evidence the lawyer represented at least one of the clients, and both also failed to file their claims within the two-month period following publication of notice to creditors. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: March 12, 2024, Case #: A-23-214, Categories: Wills / Probate, Damages
J. Arterburn finds the trial court properly convicted and sentenced defendant, by no-contest plea, for felony theft. The victim testified defendant drove away in her truck after she entered a convenience store, leaving the truck's engine running. Other testimony corroborates this, as well as officer's having found the truck later, abandoned. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: February 27, 2024, Case #: A-23-650, Categories: Theft, Plea, Vehicle
J. Arterburn finds the juvenile court properly removed the 13-year-old child from her grandmother's care. The child's therapist testified she exhibited trauma and avoidance issues. The child was properly allowed to testify as to the parties' combative relationship outside the grandmother's presence, with the therapist explaining the presence would likely cause the child emotional distress or fear, probably impacting the testimony. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: February 13, 2024, Case #: A-23-388, Categories: Evidence, Family Law, Guardianship
J. Arterburn finds the workers compensation court properly entered an award finding the worker had suffered a work-related injury to his foot and was entitled to disability benefits. The award was not clearly wrong and the company's allegations are moot because the worker died prior to receiving services. Affirmed in part.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: February 6, 2024, Case #: A-23-457, Categories: Health Care, Workers' Compensation
[Consolidated.] J. Arterburn finds the county court improperly issued domestic abuse and harassment protection orders against the ex-boyfriend. Because the boyfriend had been found guilty of domestic assault, the court improperly denied him his due process right to be heard at the show-cause hearing. Reversed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: January 30, 2024, Case #: A-23-384 , Categories: Due Process, Restraining Order
J. Arterburn finds the district court properly affirmed defendant's county bench trial convictions and sentences for damage to property and disturbing the peace. Defendant's ex-girlfriend recorded defendant as he attempted to enter her home through a window, where he knocked over a dresser with a TV on it, causing damage. The court considered all sentencing factors, as well as defendant's criminal history. Furthermore, misdemeanor and municipal code violations do not require a presentence investigation. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: January 23, 2024, Case #: A-23-461, Categories: Restraining Order, Property Crimes
J. Arterburn finds the juvenile court properly entered an order for the removal of the daughter, who tested positive for meth and codeine immediately after her birth. After the daughter was returned to her mother following a year in foster care, the mother sought childcare with the previous foster parents. The mother's contact with the foster parents gradually decreased until the foster parents were the primary caregivers by the time the child was 6 years old. The mother's failure to maintain contact negatively impacted the child's mental health, and the court properly found her to be at risk of harm due to the mother's faults and habits. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: January 9, 2024, Case #: A-23-460, Categories: Evidence, Family Law, Guardianship
J. Arterburn finds the county court properly declined to approve the personal representative deeds in an estate dispute. The deeds were applied for by the representative and son of the decedent contemporaneously with the recording of joint tenancy warranty deeds and would have distributed property differently from the decedent's will. The record indicates there are various execution dates of the deeds, uncertain sets of terms, erroneous legal descriptions, the possible misnaming of grantors or grantees, and undue influence. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn, Filed On: January 2, 2024, Case #: A-22-920, Categories: Evidence, Wills / Probate, Due Process
J. Arterburn finds the district court improperly found for a contractor on a food producer's negligence claim against a contractor for the mishandling of manure that allegedly led to an outbreak of disease among the producer's hogs. Contrary to the district court's finding, the contractor owed the producer a general duty of care. Reversed in part.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: December 19, 2023, Case #: A-23-116, Categories: Agriculture, Negligence, Contract
J. Arterburn finds the district court properly found the ex-wife in a post-divorce case was not in contempt. The husband says the ex-wife improperly claimed a particular child on filings for which the child was not designated. Evidence shows she relied on the advice of her tax advisor, the child's having reached the age of majority, her provision of support and adult child's consent to her claiming him as a dependent. The mother reasonably believed she could legally claim the child in her taxes. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: December 19, 2023, Case #: A-22-978, Categories: Family Law, Tax, Guardianship
J. Arterburn finds the district court improperly affirmed the protection order entered against the father. The father pleaded no contest to negligent child abuse causing no serious bodily injury after the mother brought several allegations of abuse, supported with photographs. Evidence demonstrates the father is willing to comply with limited contact and the court failed to modify the order to allow telephone, video, and supervised contact. Reversed in part.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: December 12, 2023, Case #: A-23-285, Categories: Evidence, Restraining Order, Assault
J. Arterburn finds the district court properly denied defendant's motion for postconviction relief without an evidentiary hearing. The state proved that defendant had been convicted of two prior offenses carrying prison sentences of 1 year or more. Defendant does not contest this, and the evidence clearly supports the habitual criminal enhancement. Furthermore, defendant fails to show he received ineffective assistance of counsel. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: December 12, 2023, Case #: A-23-203, Categories: Evidence, Sentencing, Vehicular Homicide
J. Arterburn finds the district court properly granted the employer summary judgment on a temp worker's improper supervision claim following a workplace accident. Her negligence claims are barred by the exclusive remedy doctrine of the Workers��� Compensation Act. Furthermore, the worker has not shown that additional discovery would create an issue of fact as to her employment status. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: November 21, 2023, Case #: A-23-183, Categories: Tort, Negligence, Workers' Compensation
J. Arterburn finds the county court properly terminated the father's parental rights after police were called to the family's home and discovered their 3-year-old had been present during the father's assault on the mother and had access to drug paraphernalia. The father was convicted for domestic assault and has shown he is unwilling and unable to provide the child the stability, permanency, and the care she needs. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: November 21, 2023, Case #: A-23-313, Categories: Evidence, Family Law, Guardianship
J. Arterburn finds the district court properly upheld defendant's DUI conviction. The arresting officer had probable cause to conduct a breath test, as defendant smelled of alcohol and admitted to drinking, while a breath test showed that his blood alcohol level was over the limit. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: November 14, 2023, Case #: A-22-918, Categories: Evidence, Dui
[Consolidated.] J. Arterburn finds the trial court properly convicted defendant by plea agreement for possession of a deadly weapon by a prohibited person and attempted murder and unlawful discharge of a firearm. The plain terms of the plea agreement allowed the state to recommend a sentence that, after good time credit, would still require defendant to serve 22 years. But the state recommended an actual bottom number of 22 years, which with good time credit could result in parole at an earlier point. Though no restrictions were placed on the upper limit of the sentence, there was no breach of the agreement. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn, Filed On: October 31, 2023, Case #: A-23-011, Categories: Firearms, Murder, Plea
J. Arterburn finds the district court properly denied the purported father���s motion to vacate an earlier judgment finding him to be the child���s father and ordering him to pay child support. Three years after the order, genetic testing proved that he was not the father. Twenty years after that, the court stipulated that he would be disestablished as the biological father while still being responsible for child support. He is judicially estopped from changing his prior stipulation that he is liable for child support. He hasn���t shown what circumstances have changed and does not allege that he was unaware of relevant information at the time of the stipulation. His arguments are without merit. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn, Filed On: October 31, 2023, Case #: A-22-815, Categories: Debt Collection, Family Law, Guardianship
J. Arterburn finds the county court properly denied the mother���s request to change her sons��� surname to her maiden surname. The sons, now in high school, have had contentious relationships with their father, who they have witnessed abusing their mother and his other girlfriends. The father has had inconsistent relationships with the sons since the divorce, which happened when the sons were five and six years old. Though the sons use their mother���s maiden name where allowable and their father���s where legally required, evidence does not show that their substantial welfare requires the name change. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn, Filed On: October 24, 2023, Case #: A-22-878, Categories: Civil Procedure, Family Law, Juvenile Law
J. Arterburn finds the juvenile court properly terminated the father���s parental rights to his minor child. Several children of various parentage were removed from the mother���s care due to neglect and drug use, and the father in this case was identified through a paternity test. A case manager informed him of the child���s eating needs, and he failed to demonstrate his ability to meet them. He was also required to attend the child���s medical appointments but failed to follow through. The father has not acquired the skills to care for the child and has not established that he is a fit parent. The court properly denied his request for visitation pending appeal. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn, Filed On: October 10, 2023, Case #: A-23-143, Categories: Evidence, Family Law, Guardianship
[Consolidated.] J. Arterburn finds the trial court properly convicted defendant by no contest plea for flight to avoid arrest, obstructing a peace officer, failure to appear on bond in another case, and to criminal mischief and domestic assault. Even if defendant���s claims of ineffective assistance were true, he was still not prejudiced by counsel���s performance. New charges which defendant says counsel failed to investigate were not considered by the court. The court considered defendant���s age, mentality, past criminal record and other relevant factors fully, noting that he had a lengthy criminal history and a history of failing to appear in court. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn, Filed On: October 3, 2023, Case #: A-22-910, Categories: Assault, Obstruction, Escape
J. Arterburn finds the trial court properly convicted defendant for forgery, abuse of a vulnerable or senior adult, and attempted theft of over $5,000. All evidence supports the convictions on all counts. Defendant has numerous prior convictions including assault, strangulation, theft, terroristic threats and attempted abuse of a vulnerable adult. Even after having been previously convicted of victimizing the vulnerable adult, defendant continued to act with the purpose of depriving her of property. The sentences imposed are below the combined statutory maximum, particularly if the court had chosen to impose them consecutively. There is no abuse of discretion. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn, Filed On: October 3, 2023, Case #: A-23-026, Categories: Theft, Elder Abuse, Forgery
J. Arterburn finds that the Worker's Compensation Court properly dismissed the employee's claim for benefits after she was injured by slipping on a floor she had just washed. Though she experienced pain requiring medication, she did not report the incident until months later. The employee failed to give Walmart notice ���as soon as practicable��� as required by relevant statute. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: September 26, 2023, Case #: A-23-044, Categories: Due Process, Workers' Compensation