49 results for 'judge:"Pirtle"'.
J. Pirtle finds the county court properly terminated the father’s parental rights to his children. The father is an alcoholic who has been rough with the children and has abused the mother in their presence. He was arrested for leading police on a high-speed chase with the children in the car, after having smoked meth. He also killed the mother in the presence of the children by running her over with a car, fled the state while leaving the children alone, and has made no progress with rehabilitation programs. All evidence supports termination. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: October 24, 2023, Case #: A-23-297, Categories: Evidence, Family Law, Guardianship
J. Pirtle finds the district court properly affirmed the county court’s denial of the DUI defendant’s motion for absolute discharge on speedy trial grounds due to delays occurring from the forensic scientist’s lack of availability. Scheduling issues were identified well in advance of the original trial date and measures were taken to secure the availability of the expert’s testimony; due diligence was exercised. Defendant’s motion and subsequent appeal caused proceedings to extend beyond the six-month trial period, and so he has waived his right to a speedy trial. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: October 17, 2023, Case #: A-23-178, Categories: Dui, Speedy Trial, Experts
J. Pirtle finds the district court properly affirmed defendant’s convictions for disturbing the peace, loitering and trespass for refusing to wear a mask at Office Depot during the Covid-19 pandemic. Video evidence shows defendant was agitated during the confrontation. The store manager testified that he “kept on calling [him] names” like “gay,” “fat,” “pussy” and “big ogre.” Defendant poked the manager in the chest and “sucker punched” him in the stomach. The evidence supports the conviction, and no abuse of discretion is found. Defendant has also failed to assign error to counsel’s allege deficient performance. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: October 3, 2023, Case #: A-23-027, Categories: Assault, Trespass, Loitering
J. Pirtle finds that the trial court properly dismissed the sibling's suit alleging civil conspiracy, tortious interference with contracts, and fraud against his other siblings regarding a dispute over stock purchase agreements and ownership interests in the family farm brought after the deaths of other siblings. Statements regarding the other siblings' notice of prior agreements, as well as general allegations of collusion and fraud, were issues addressed in the underlying litigation. There had been a prior opportunity to litigate the issue, and the elements for issue preclusion are met. There was no abuse of discretion in denying the sibling's motion for recusal as the judge was not assigned to the underlying litigation. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle , Filed On: September 12, 2023, Case #: A-22-278, Categories: Family Law, Property, Due Process
J. Pirtle finds that the trial court improperly denied defendant's motion to withdraw his no contest plea for sexual assault and battery. Though defendant stated that he wished to go to trial if a no-contest plea would result in his having to register as a sex offender, the court interpreted the stipulation to be that a factual basis existed for nonconsensual sexual touch. Defendant alleged confusion about the nature of the intended plea, as the parties had crafted a plea where defendant was to plead no contest to assault and battery, and that “the factual basis would be stipulated to by both parties” so as to avoid sex offender registration. Defendant has carried his burden to prove a fair and just reason to withdraw his plea. Reversed.
Court: Nebraska Court Of Appeals, Judge: Pirtle , Filed On: September 12, 2023, Case #: A-22-762, Categories: Sex Offender, Assault, Plea
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J. Pirtle finds that the trial court properly convicted defendant by no contest plea for one count of terroristic threat, later revoking his probation and sentencing him to one year of confinement. While the court did not articulate its weighing of requisite factors, there is no statutory requirement for this. Defendant was already serving concurrent probations for separate offenses and had violated probationary terms several times. However, the court did err in failing to impose post-release supervision in addition to confinement, and this issue is remanded. Affirmed in part.
Court: Nebraska Court Of Appeals, Judge: Pirtle , Filed On: September 12, 2023, Case #: A-23-080, Categories: Probation, Due Process, Terrorism
J. Pirtle finds the trial court properly found that the premarital agreement was enforceable and entered into voluntarily. The husband's attorney testified that he did not observe his client threaten or intimidate his fiancé to get her to sign, nor did the fiancé indicate that she was being threatened or intimidated. There was no evidence of surprise in the presentation of the agreement as the attorney was contacted a month before the wedding and prepared a draft sent to both parties. The court erred in finding the alimony portion of the agreement unconscionable as the elimination provision did not cause the wife to be eligible for Social Security disability benefits that she received during the marriage due to a stroke. Affirmed in part, reversed in part.
Court: Nebraska Court Of Appeals, Judge: Pirtle , Filed On: September 5, 2023, Case #: A-22-386, Categories: Evidence, Family Law, Contract
J. Pirtle finds the county court properly overruled the mother’s counter-complaint for modification of the father’s sole custody order and removal of the children from the jurisdiction. Despite changes in the parents’ residences and living environments, it cannot be said that the trial court would have granted physical custody to the mother had it been aware. At the time of the original decree, the court found the mother not credible, her reasons for moving to be selfish and not in the children's best interest. A removal analysis is unnecessary. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: August 22, 2023, Case #: A-22-783, Categories: Evidence, Family Law, Guardianship
[Consolidated.] J. Pirtle finds the county court sitting as juvenile court properly terminated the father’s parental rights due to his homelessness and the children’s living in dirty conditions with their grandparents without him present. Evidence shows that there is a loving attachment between the children and father, but also that the attachment is unhealthy and harmful due to the father’s mental health issues. Despite efforts of caseworkers and therapists, the father shows that he is unwilling or unable to repair the relationships and establish a safe and stable environment. All evidence supports the best interest finding. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: August 15, 2023, Case #: A-22-907, Categories: Evidence, Family Law, Guardianship
J. Pirtle finds the trial court properly applied a habitual offender sentencing enhancement on defendant’s plea-base conviction for escape. He objected to certain exhibits proving his offender status, arguing that they failed to show his pleas were voluntarily entered. He also objected that others were not entered in the original information. There was sufficient evidence shown to prove prior convictions. Whether the court erred in receiving exhibits not in the original information need not be addressed. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: August 8, 2023, Case #: A-23-117, Categories: Evidence, Sentencing, Escape
J. Pirtle finds the county court properly dismissed the domestic abuse protection order entered against the petitioner’s boyfriend. Patterns of abuse testified to by both parties favor the boyfriend’s version, including the fact that arguments led him to block her on social media and his phone, with her responding by getting a new phone number to stay in contact. The trial court had access to and took note of the allegations and nature of the relationship history. The girlfriend’s arguments rely almost exclusively on her own testimony. No error is found. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: August 8, 2023, Case #: A-22-923, Categories: Evidence, Restraining Order
J. Pirtle finds the county court properly denied defendant’s motion for postconviction relief without evidentiary hearing regarding his convictions for motor vehicle homicide, manslaughter, driving under the influence causing serious bodily injury and refusal to submit to a breath test. All evidence supports the convictions. The record shows that defendant would not have been found incompetent, so his counsel was not ineffective for failing to seek evaluation. Defendant’s appellate counsel was not ineffective for failing to raise the claim on direct appeal, so the claim was properly denied. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: July 11, 2023, Case #: A-22-716, Categories: Competence, Ineffective Assistance, Vehicular Homicide
[Consolidated.] J. Pirtle finds the trial court properly convicted defendant by no-contest pleas for multiple violations of protection orders got by his ex-girlfriend. The ex-girlfriend reported that defendant had sent her text messages, calling her ugly and apologizing. A subpoena of the number revealed 2,800 messages. Security video from jail showed another inmate placing calls then handing the phone to defendant. All evidence supports conviction. Claims of ineffective assistance were not proven or sufficiently pleaded and the sentences were within guidelines. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: June 27, 2023, Case #: A-22-552, Categories: Evidence, Restraining Order
J. Pirtle finds the county court properly renewed a domestic abuse protection order against the father without holding a hearing. The father argues that the court’s definition of “abuse” varies from the definition found in the relevant statute, though he does not specifically state what the difference is. The ex parte order with which he was served provided that he had 10 days to request a hearing. The record contains no indication that one was requested. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: June 13, 2023, Case #: A-22-940, Categories: Due Process, Restraining Order
[Consolidated.] J. Pirtle finds the county court properly terminated a mother’s parental rights to her three minor children, precipitated by Health and Human Services’ finding of hazardous and unsanitary living conditions as well as physical neglect. The father relinquished his parental rights after a domestic abuse protection order was entered against him. The mother’s lack of progress toward reunification and her difficulty maintaining separation from the father make an adequate showing of unfitness, supporting a best interest finding. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: June 13, 2023, Case #: A-22-758, Categories: Family Law, Guardianship
J. Pirtle finds the trial court improperly granted summary judgment to the insurance company in this dispute over coverage for breast cancer treatment, payment for which was sent to the collector. The patient, pursuant to a previous mammogram, was told that the density of her breasts reduces instrument sensitivity and that a negative report can be inconclusive. She had reason to be concerned the lump could be cancerous despite the negative result. There are genuine issues of material fact regarding the applicability of the policy’s preexisting condition clause. Reversed and remanded.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: June 6, 2023, Case #: A-22-406, Categories: Health Care, Insurance, Contract
J. Pirtle finds the district court improperly modified physical custody and parenting time as to the unmarried, separated couple’s minor child. The mother says that the court erred in finding a material change of circumstances affecting the child’s best interests. The majority of evidence brought by the father addressed the parties’ contentious relationship and communication issues. There was no dispute that those circumstances existed at the time the parties’ parenting plan was adopted. The father failed to meet his burden to demonstrate new facts and circumstances that warrant modification. Reversed and dismissed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: June 6, 2023, Case #: A-22-485, Categories: Evidence, Family Law, Guardianship
J. Pirtle finds the district court properly granted the subdivision residents’ petition for permanent injunction preventing a fellow owner from operating a junk car business on his property. The business owner’s distinction between the definition of “junk cars” and “junk trucks” goes against common understanding and against the intent of the owner’s contract. Also, the limitation on personal vehicles, as opposed to business-associated, was not overbroad. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: May 30, 2023, Case #: A-22-203, Categories: Property, Business Practices, Contract
J. Pirtle finds the juvenile court properly terminated the mother’s parental rights to her minor children. The mother was initially arrested after a welfare check during which injuries were observed on one of the children inconsistent with the mother’s explanation. She refused to follow up on recommendations for therapy and medication management, and after the case had been open for over five years, she had consistently failed to make progress with visitation and parenting skills, as well as engagement with rehabilitative services and employment. Record evidence amply documents safety concerns as well as the mother’s inability to make progress toward reunification. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: May 30, 2023, Case #: A-22-695, Categories: Family Law, Guardianship