114 results for 'court:"Nebraska Supreme Court"'.
J. Heavican dismisses this appeal from the juvenile court’s order for electronic monitoring of defendant after an altercation with a police officer, as well as her staff secure detention order for noncompliance with electronic monitoring. Originally charged as a minor in possession of alcohol, obstructing an officer and attempted assault on an officer, the court ordered that defendant wear a monitoring device which she eventually cut off, leaving her residence without permission. As the juvenile was not detained, but subject to alternative detention by electronic monitoring, and the eventual detention was meant to be temporary, the appeal is dismissed for lack of a final, appealable order.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: November 3, 2023, Case #: S-23-071, Categories: Juvenile Law, Assault, Obstruction
J. Cassel finds the district court properly dismissed this suit brought by the prison inmate regarding the computation of her tentative mandatory release date. The court sentenced defendant to life for a murder committed as a juvenile, imposing a consecutive sentence of two to five years for a firearm use conviction. Later, the court imposed a consecutive sentence of one year for assault by a confined person. The murder sentence was vacated following a decision involving juvenile offenders and changed to 60 to 80 years. The inmate’s complaint, challenging confinement duration, fails to state a claim. Also, in failing to challenge the validity of a rule, the sovereign immunity waiver does not apply. Affirmed.
Court: Nebraska Supreme Court, Judge: Cassel, Filed On: October 27, 2023, Case #: S-22-719, Categories: Juvenile Law, Murder, Sentencing
J. Funke finds the county court properly awarded alimony and an equalization payment to the wife in this divorce decree, also equally dividing the children’s student loan debts. No abuse of discretion is found as to the alimony award and the Nebraska Supreme Court will not reweigh evidence. All assets and debts were valued between dates rationally related to an account the husband contests. This asset cannot be singled out. There is no requirement that the student loan debts must have been incurred before separation to be considered marital. Affirmed.
Court: Nebraska Supreme Court, Judge: Funke, Filed On: October 27, 2023, Case #: S-22-826, Categories: Family Law, Contract
J. Heavican finds the district court improperly denied the estate representative and husband of the deceased’s motion to intervene in her personal capacity in the suit involving an agreement between her husband and his deceased brother to name one another as beneficiaries for each’s $2 million life insurance policies, with proceeds to be used to buy out the other’s portion of their shared business. The brother changed the beneficiary to his own wife after his brother’s death, and the first brother’s wife has a direct and legal interest in that she is the residual beneficiary under her husband’s will. Reversed and remanded.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: October 20, 2023, Case #: S-22-743, Categories: Insurance, Wills / Probate, Business Expectancy
J. Cassel finds the trial court properly convicted defendant for possession of meth and drug paraphernalia. Officers responded to a call from an auto parts store involving reports of a customer who “could barely stand up.” Upon engaging the customer, officers noted that she seemed “fidgety” and unstable. After asking about drugs and if they could search her vehicle, the subject replied, “If you absolutely need to... If you really need to go look, more power to you.” The subsequent search yielding the drugs was undertaken with consent and defendant’s motion to suppress was properly denied. Affirmed.
Court: Nebraska Supreme Court, Judge: Cassel, Filed On: October 20, 2023, Case #: S-22-867, Categories: Drug Offender, Search
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J. Papik finds the trial court properly granted summary judgment to the state in this negligence claim arising from the collision of a mower with a picnic table at which a park-goer was seated. The mower slid down a slope, which was wet due to the previous day’s rain. The State Tort Claims Act provides the state immunity from certain claims arising from conditions caused by weather. Affirmed.
Court: Nebraska Supreme Court, Judge: Papik, Filed On: October 13, 2023, Case #: S-22-952, Categories: Tort, Immunity, Negligence
J. Miller-Lerman finds the district court properly granted summary judgment to the insurance company in this dispute over underinsured motorist coverage. After the injured driver settled with the at-fault driver’s insurance for $25,000, and for another $25,000 with the provider for the borrowed vehicle she was operating, it was determined that she had been fully compensated. A limitations of action policy provision states that “any suit … will be barred unless commenced within two years.” The policy was purchased in Iowa, and the Iowa two‑year policy limitation bars the action according to the policy’s choice of law provision. Affirmed.
Court: Nebraska Supreme Court, Judge: Miller-Lerman, Filed On: October 6, 2023, Case #: S-22-898, Categories: Insurance, Vehicle, Choice Of Law
J. Cassel finds the Nebraska Department of Natural Resources properly dismissed the resources district and a citizens group’s objections to the Platte to Republican Basin High Flow Diversion Project’s application seeking to divert surface water from an over-appropriated river. The groups’ allegations do not demonstrate that they have or will suffer an injury in fact, and so they fail to establish standing. Affirmed.
Court: Nebraska Supreme Court, Judge: Cassel, Filed On: October 6, 2023, Case #: S-23-028, Categories: Environment, Water, Agency
J. Stacy finds the court of appeals properly affirmed the trial court's conviction of defendant for misdemeanor shoplifting and assessing a $100 fine. The court properly overruled defendant's hearsay objection as testimony supported by surveillance video shows that the department store manager reported missing clothing immediately after discovering it, which supports the "present sense impression" exception to hearsay. Other video evidence and defendant's behavior support the conviction. Affirmed.
Court: Nebraska Supreme Court, Judge: Stacy , Filed On: September 22, 2023, Case #: S-22-798, Categories: Evidence, Theft
J. Cassel finds the trial court properly dismissed the department of correctional service's inmate's tort claim. The inmate filed separate cases alleging negligent medical care, one of which was removed to federal court, then remanded. The case was then dismissed as untimely, having not been filed within 6 months of the dismissal of an earlier, nearly identical case. The second instant case, which had been dismissed for failure to comply with presentment provisions, was remanded after the Nebraska Supreme Court found it to be in compliance. The trial court then found that both actions “alleged the same cause of action based on the same operative facts” and that the first resulted in a final judgment on the merits. The claim was properly dismissed as barred by claim preclusion. Affirmed.
Court: Nebraska Supreme Court, Judge: Cassel , Filed On: September 22, 2023, Case #: S-22-822, Categories: Tort, Due Process, Prisoners' Rights
J. Freudenberg finds the district court properly denied defendant's plea in bar. Defendant alleges that a trial on pending Uniform Controlled Substances Act charges would subject him to double jeopardy through a separate judgment of money forfeiture. Defendant failed to demonstrate he was punished by the forfeiture because he did not show he had an ownership interest in the forfeited money. The forfeiture sanction is civil, not criminal for purposes of a double jeopardy analysis. Affirmed.
Court: Nebraska Supreme Court, Judge: Freudenberg , Filed On: September 15, 2023, Case #: S-22-612, Categories: Drug Offender, Forfeiture, Double Jeopardy
J. Stacy finds the district court properly dismissed defendant's motion for a new trial without an evidentiary hearing. Defendant was convicted for 2 counts of murder during a robbery of a rural farmhouse in 1989. His convictions were affirmed on direct appeal, with various motions for new trial and postconviction relief being consistently denied. Evidence of an accomplice's DNA at the scene has already been considered and found not to support a new trial. The claim is barred by law-of-the-case doctrine. Defendant's operative motion and supporting documents do not support entitlement to an evidentiary hearing. Affirmed.
Court: Nebraska Supreme Court, Judge: Stacy , Filed On: September 15, 2023, Case #: S-21-515, Categories: Evidence, Murder, Robbery
Per curiam, The Nebraska Supreme Court overrules defendant's motion for rehearing on his first-degree murder conviction, also modifying the opinion. Under the analysis subheading: “Juror Misconduct,” the court substitutes the second paragraph with: [statute] provides that “[a] new trial, after a verdict of conviction, may be granted, on the application of the defendant” for “misconduct of the jury” “affecting materially his or her substantial rights.” The court has said that “misconduct of the jury” does not only mean a jury’s bad faith or malicious motive, but also a departure from a procedure for production of a valid verdict. Former opinion modified. Motion for rehearing overruled.
Court: Nebraska Supreme Court, Judge: Per curiam, Filed On: September 15, 2023, Case #: S-22-169, Categories: Jury, Murder, Due Process
J. Heavican finds the trial court properly convicted defendant for four counts of first-degree murder, four counts of use of a weapon to commit a felony, and one count of attempted burglary. All evidence shows that defendant cut the victims’ throats during burglaries taking place five years apart. Certain assignments of error are barred, others are without merit. It cannot be determined on direct appeal whether counsel was ineffective in certain regards. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: September 8, 2023, Case #: S-18-979, Categories: Burglary, Murder, Weapons
Per curiam, the Nebraska Supreme Court finds the trial court properly overruled defendant’s motion for postconviction relief without an evidentiary hearing after his conviction for bank robbery, conspiracy and murder. During the robbery, four bank employees and one customer were shot and killed, with defendant firing shots that killed at least one of the people. Defendant alleges that the prosecution used false testimony in obtaining the conviction, but even if this is proved true there is no reasonable likelihood that such false testimony could have affected defendant’s death sentences. Affirmed.
Court: Nebraska Supreme Court, Judge: Per curiam, Filed On: September 1, 2023, Case #: S-21-419, Categories: Murder, Robbery, Conspiracy
J. Funke finds the trial court properly convicted defendant for first-degree murder and use of a firearm to commit a felony. The evidence supports conviction, including surveillance video and a photograph of a receipt for an extended magazine found during the search of a vehicle also containing defendant's ID cards. Furthermore, the record is insufficient to address claims of ineffective assistance, and there is no merit to the arguments made on direct appeal. However, the state concedes the court erroneously sentenced defendant to life without the possibility of parole on the murder convictions and amends those to life imprisonment. Affirmed in part.
Court: Nebraska Supreme Court, Judge: Funke , Filed On: August 25, 2023, Case #: S-22-574, Categories: Evidence, Firearms, Murder
J. Heavican finds the district court properly affirmed defendant's convictions and sentences for driving under the influence, possession of an open container and careless driving. The deputy testified he responded to an accident call to find defendant already in an ambulance with a c-collar around his neck. The deputy smelled alcohol and conducted a horizontal and vertical gaze test, which indicated defendant was impaired. A later blood alcohol test revealed defendant was impaired. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican , Filed On: August 25, 2023, Case #: S-22-739, Categories: Evidence, Dui
Per curiam, the Nebraska Supreme Court finds the district court properly granted the mother some Special Immigrant Juvenile status findings for her child in this marriage dissolution. The couple are Mexican citizens who were married in Mexico and the child was born in Mexico before the family moved to the U.S. for the child’s specialized medical treatment. Certain findings were made as to allegations of abuse by the father and the marriage was dissolved, with custody of the child going to the mother. There was no abuse of discretion in the court’s concluding that there was insufficient evidence to make all requested status determinations. The Nebraska Supreme Court declines to reweigh credibility. An “unsworn, unnotarized declaration” by the mother was properly excluded at the father’s objection to its not being written in Spanish and the court interpreter’s declining to “sight translate” it due to its length and complexity. The mother cannot show prejudice by the exclusion. Affirmed.
Court: Nebraska Supreme Court, Judge: Per curiam, Filed On: August 18, 2023, Case #: S-22-549, Categories: Family Law, Immigration, Guardianship
J. Papik finds the trial court improperly entered judgment against the property owners for unjust enrichment in this suit brought by the purchaser of the property’s tax certificate, which paid its taxes before title was quieted in the owners when it was found that the purchaser did not comply with tax sale statutes. The purchaser transferred the property to an entity whose parent company paid taxes on its behalf. The transferee and its parent company were in privity in the quiet title suit and so the transferee is precluded from litigating this suit. The purchaser’s claim for reimbursement could have been awarded as part of relief the owners sought in a previous lawsuit involving all the parties, and so it is also precluded from seeking relief. A third owner did not plead claim preclusion in the district court and did not appeal the judgment. Affirmed in part. Reversed in part.
Court: Nebraska Supreme Court, Judge: Papik, Filed On: August 11, 2023, Case #: S-22-673, Categories: Property, Tax, Business Expectancy
J. Stacy dismisses this interlocutory appeal from a district court order granting a motion to stay arbitration proceedings between Walgreens and its landscaping and property maintenance contractors, arising from a negligence suit brought by a customer who incurred injury from slipping and falling on an icy sidewalk. No final judgment or decree has been entered, and there has been no proper certification under the Nebraska statute governing negligence actions against multiple parties.
Court: Nebraska Supreme Court, Judge: Stacy, Filed On: August 11, 2023, Case #: S-22-603, Categories: Arbitration, Negligence, Due Process
J. Heavican finds the trial court properly convicted defendant by no-contest plea for felony charges related to an officer-involved shooting, overruling his motion for disqualification and his sentences. Though the judge’s spouse is an active-duty, on-duty law enforcement officer, absent any direct personal connection to the proceeding a judge’s disqualification is not required as a matter of law. All evidence, including defendant’s criminal history, supports the conviction and consecutive sentences. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: August 4, 2023, Case #: S-22-411, Categories: Firearms, Sentencing
J. Funke finds the district court properly found in favor of the officer and former director of the commercial tenant against whom a judgment was entered for nonpayment of rent, and who has since failed or refused to pay. The parties, who are not shareholders, have shown that they did not have decisionmaking authority within the commercial entity at the times of incorporation, execution of the lease or exercise of the lease option. They had also never received property or compensation from the corporation. Affirmed.
Court: Nebraska Supreme Court, Judge: Funke, Filed On: August 4, 2023, Case #: S-22-610, Categories: Landlord Tenant, Property
J. Heavican finds the district court lacked jurisdiction to review the Nebraska Police Standards Advisory Council's denial of petitioner's admission into basic officer certification training. His application was denied because he lied on the question of whether or not he had ever been convicted of breaking a law. When he was a peace officer in the state of Georgia he was arrested for alleged battery, and the following investigation revealed he had violated agency policies and had displayed a lack of veracity during the investigation. Now, because the district court lacked jurisdiction, the Nebraska Supreme Court acquired no jurisdiction. Appeal dismissed.
Court: Nebraska Supreme Court, Judge: Heavican , Filed On: July 28, 2023, Case #: S-22-648, Categories: Agency, Jurisdiction, Police Misconduct
Per curiam, the Nebraska Supreme Court finds the trial court improperly convicted defendant for charges arising from his resisting officers when they attempted to take him into protective custody after his girlfriend reported him as mentally ill and threatening self-harm with a knife. An officer was stabbed, and defendant was shot, then pleading not guilty by reason of insanity at trial. Throughout his life, defendant has received a series of diagnoses, including schizophrenia, schizoaffective disorder, and bipolar disorder, and there was plain error in the jury instruction which necessitated the defense prove that defendant's behavior was not caused by any substances he had taken. Reversed.
Court: Nebraska Supreme Court, Judge: Per curiam, Filed On: July 28, 2023, Case #: S-21-642, Categories: Assault, Resisting Arrest, Jury Instructions
J. Cassel finds the Nebraska Court of Appeals improperly found the driver’s action for damages a nullity, being that the original complaint was filed against the other driver’s closed estate; the other driver died of unrelated causes. The first amended complaint was filed after the driver’s application to reopen the estate was granted and the administrator was reappointed, validly commencing a proceeding within the limitations period. Reversed and remanded with directions.
Court: Nebraska Supreme Court, Judge: Cassel, Filed On: July 21, 2023, Case #: S-21-1041, Categories: Vehicle, Damages, Due Process
Per curiam, the Nebraska Supreme Court dismisses this appeal brought by a tenant who was evicted for making violent threats against other tenants and whose request for jury trial was denied by the county court. Before the tenant’s appeal of the decision in favor of the landlord at bench trial was decided, a writ of restitution was issued, whereby she was removed from the property. The appeal is moot, as the evicted tenant’s lease expired two years ago and there is no basis for her to claim a current right of possession. Though the tenant may experience negative collateral consequences, the Nebraska Supreme Court has previously refused to apply the collateral consequences exception to mootness outside a criminal context.
Court: Nebraska Supreme Court, Judge: Per curiam, Filed On: July 21, 2023, Case #: S-22-272, Categories: Constitution, Landlord Tenant, Due Process
J. Funke finds the district court properly upheld the decision of the Nebraska Department of Correctional Services Appeals Board affirming the decision of the Institutional Disciplinary Committee sanctioning the inmate for drug use while in prison. Though all evidence supports the misconduct charge, the inmate was never drug-tested. Nothing in the record calls the reliability of the detaining officer’s observations of evidence in the inmate’s cell into question. She was present and able to observe both the drug paraphernalia and the inmate’s behavior and appearance. The officer’s report is fully corroborated, and drug-testing was not required. Affirmed.
Court: Nebraska Supreme Court, Judge: Funke, Filed On: July 21, 2023, Case #: S-22-754, Categories: Drug Offender, Evidence, Prisoners' Rights
J. Freudenberg finds the trial court properly convicted defendant for murder and use of a weapon to commit a felony. After a disagreement over items the victim purchased for defendant’s “on-again, off-again” girlfriend, defendant shot the victim nine times from the passenger seat of the girlfriend’s car as soon as the victim opened the door to exit his adjacent SUV. The girlfriend testified that defendant talked about killing the victim prior to the shooting, saying “all I need is a clear shot.” She and a passenger in the victim’s SUV also testified that defendant provoked the victim by saying “fight me like a man” in order to get him to exit his SUV. Testimony by a forensic expert who did not perform the autopsy, but interpreted crime scene and examiner photos was not prejudicial. Affirmed.
Court: Nebraska Supreme Court, Judge: Freudenberg, Filed On: July 14, 2023, Case #: S-22-169, Categories: Evidence, Firearms, Murder
J. Papik finds the trial court improperly granted the residential development group's motion for directed verdict in this suit brought by the accountant who was not paid for services. The court found the oral agreement unenforceable, falling within a statute of frauds provision requiring agreements “not to be performed within one year” to be in writing. That the development was a “long-term project" does not demonstrate that the developer could not perform its obligations within the first year. A reasonable jury could find that the parties formed an enforceable contract when the developer promised to pay $1,000 from every closing. Such a contract would not be covered by the administrative rule relied upon by the developer. No other challenge is raised. Affirmed in part. Reversed in part and remanded.
Court: Nebraska Supreme Court, Judge: Papik, Filed On: July 14, 2023, Case #: S-22-622, Categories: Construction, Contract
J. Miller-Lerman finds the district court improperly reinstated the city’s animal control contract with the Humane Society, finding that the city lacked reasonable sufficient evidence to terminate. The city did not exercise a judicial function when it voted on the matter and the court lacked petition in error jurisdiction. The court’s order is vacated, and the appeal is dismissed for lack of jurisdiction.
Court: Nebraska Supreme Court, Judge: Miller-Lerman, Filed On: July 14, 2023, Case #: S-22-698, Categories: Municipal Law, Jurisdiction, Contract