114 results for 'court:"Nebraska Supreme Court"'.
J. Miller-Lerman finds the Nebraska court of appeals properly reversed the juvenile court’s termination of the father’s parental rights to his son on grounds that he had substantially neglected the child’s necessary care and protection. Though the father is currently incarcerated, since learning of his paternity he has shown interest in parenting, completed classes, stayed in contact with caseworkers and consistently visited with his son. The evidence does not support termination. Though the court of appeals advocates for placement with the mother, the Nebraska Supreme Court advocates for placement with the grandmother. Affirmed as modified.
Court: Nebraska Supreme Court, Judge: Miller-Lerman, Filed On: July 7, 2023, Case #: S-22-312, Categories: Family Law, Guardianship
J. Cassel finds the trial court properly convicted and sentenced defendant for unspecified felony and misdemeanor offenses. Though defendant claims she was not advised as to the terms of her post-release supervision, the record shows that she was advised by the court and that her attorney received the sentencing order with certificate of service. That the order was unsigned amounts to nonprejudicial, plain error. Defendant also fails to allege any specific deficient performance by counsel. Affirmed.
Court: Nebraska Supreme Court, Judge: Cassel, Filed On: July 7, 2023, Case #: S-22-864, Categories: Ineffective Assistance, Sentencing
J. Papik finds the trial court properly convicted defendant, by plea agreement, for manslaughter and use of a firearm to commit a felony in the shooting death of his girlfriend. Defendant claims that his counsel was ineffective in advising him to plead guilty and the court denied his motion to withdraw his plea. Because direct appeal was still available to defendant for his claims of ineffective assistance, the district court lacked jurisdiction to allow defendant to withdraw his plea. Affirmed.
Court: Nebraska Supreme Court, Judge: Papik , Filed On: June 30, 2023, Case #: S-22-929, Categories: Firearms, Plea, Manslaughter
J. Stacy finds the trial court properly entered judgment in favor of the contractor in this suit arising from a residential construction project regarding which contractual specifications and dollar amounts changed, resulting in a cessation of work and the contractor's seeking of payment for work completed. During a conference to get a ruling on proposed exhibit admissibility, the property owner requested “some direction from the court before the jury comes in”, which was effectively an oral motion in limine. A ruling on a motion in limine is not a final ruling, the question of admissibility being the basis of the owner's appeal. The non-final ruling does not present a question for review. Because the contractor successfully foreclosed on its lien, nothing establishes wrongful deprivation to support an award of attorney fees. Affirmed in part.
Court: Nebraska Supreme Court, Judge: Stacy , Filed On: June 30, 2023, Case #: S-22-377, Categories: Construction, Evidence, Contract
J. Miller-Lerman dismisses the conservator's appeal of the county court's authorization of a settlement with the insurance carrier of the driver of a vehicle in which the minor passenger was injured from a collision with a school bus. The conservator sought an order vacating the settlement authorization on the grounds that it limited the minor's recovery against non-settling parties, and now appeals the court's denial of that motion. The conservator’s motion was a request for rescission of contract sounding in equity over which neither the county court nor the Nebraska Supreme Court have jurisdiction. Vacated.
Court: Nebraska Supreme Court, Judge: Miller-Lerman, Filed On: June 30, 2023, Case #: S-22-239, Categories: Insurance, Vehicle, Jurisdiction
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[Consolidated.] J. Freudenberg finds the Nebraska Tax Equalization and Review Commission properly reversed three decisions of the Lincoln County Board of Equalization upholding the assessed value of a rent-restricted housing property for the 2018, 2019 and 2020 tax years. Because of the difficulty in determining which of conflicting income reports was most accurate, TERC reasonably concluded that the income-based approach would not result in actual value, leaving it free to consider a previous year’s valuation as evidence of the property’s value. Affirmed.
Court: Nebraska Supreme Court, Judge: Freudenberg, Filed On: June 23, 2023, Case #: S-22-665, Categories: Property, Tax
J. Funke finds the county court improperly reformed a settlement agreement entered into by the decedent’s brother, wife and father to resolve a claim against the estate as to life insurance coverage designated under a divorce decree for the children’s benefit. The decedent designated only his brother as the beneficiary, though another policy was later discovered designating the decedent’s daughter as beneficiary. The parties sought various solutions as to reformation or recission. The mutual mistake as to the existence of a fact that was a material inducement to the contract is not ground for reformation. Reversed and remanded.
Court: Nebraska Supreme Court, Judge: Funke, Filed On: June 23, 2023, Case #: S-22-543, Categories: Family Law, Insurance, Wills / Probate
J. Heavican finds the trial court properly convicted defendant for murder and firearms offenses. Police located a Ford Explorer registered to defendant and identical to one shown on apartment complex security video from which shots were fired into a vehicle in which the victim was a passenger, hitting him in the back. The occupants of this vehicle were searching for a drug dealer they intended to rob. Defendant, in a separate investigation, was discovered to be involved in drug dealing, and had previously been robbed. Cell phone tower data showed that defendant and the victim were in the same area at the same time, which was also consistent with the security video. All evidence was properly admitted and strongly supports conviction. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: June 16, 2023, Case #: S-22-443, Categories: Drug Offender, Evidence, Murder
J. Cassel finds the district court improperly found in favor of the hybrid popcorn seed grower in this dispute over rent to be paid on its leased property. The lease is susceptible of at least two reasonable interpretations and is ambiguous regarding minimum rent. The district court erred in entering partial summary judgment because the court should not have settled the meaning of the contract. Issues at trial were then based on a flawed premise. Reversed and remanded.
Court: Nebraska Supreme Court, Judge: Cassel, Filed On: June 16, 2023, Case #: S-22-488, Categories: Agriculture, Landlord Tenant, Contract
J. Miller-Lerman finds the district court properly denied the inmate’s petition for a writ of habeas corpus. Defendant, who was 17 at the time of his conviction, was convicted for other felonies while in prison and was also granted postconviction relief on his murder sentence from then-recent case law holding that mandatory life sentences without parole for juveniles are unconstitutional. He filed for the habeas writ, asserting that he had reached his mandatory discharge date in 2022. With all sentences aggregated, and applying the good time law in effect when the first of the sentences became final, the court correctly found that the claim failed to show entitlement to immediate discharge. Affirmed.
Court: Nebraska Supreme Court, Judge: Miller-Lerman, Filed On: June 16, 2023, Case #: S-22-605, Categories: Habeas, Juvenile Law, Murder
J. Stacy finds the district court properly found in favor of the property owner’s association as to this dispute over restrictive covenants regarding the parking of an RV outside of an enclosed structure. The owners purchased their lot before the association entered into a declaration of covenants incorporated under Nebraska law. Relying on a case in which a similar decision was reversed, the owners argue that violations by other owners were known, but ignored, resulting in the association’s waiver of its right to enforce. In this case, though evidence existed showing that other owners may have violated covenants, there was none showing that the association knew of the violations and failed to act. Affirmed.
Court: Nebraska Supreme Court, Judge: Stacy, Filed On: June 9, 2023, Case #: S-22-284, Categories: Property, Contract
J. Heavican finds the trial court properly found defendant guilty, by no contest plea, for possession with intent to deliver meth, overruling his motion for new trial. Defendant delivered the drugs to an undercover officer involved in a sting operation. He then discovered that the evidence technician for his case had been federally indicted on drug distribution charges. The chain of evidence custody was shown to not have been compromised and defendant failed to show that his substantial rights were materially affected. He also failed to plead that the Nebraska Postconviction Act was unavailable to him and his motion to withdraw his plea was therefore properly denied. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: June 9, 2023, Case #: S-22-332, Categories: Drug Offender, Evidence, Plea
J. Papik finds the Nebraska Court of Appeals improperly determined that defendant, who pled guilty to two counts of firearm possession by a prohibited person, was entitled to relief for ineffective assistance of counsel on the grounds that his counsel did not consult with him as to whether or not he wanted to appeal. Defendant did not allege in his postconviction motion that counsel failed to consult, but that appeal was requested and not filed. The Court of Appeals erred by finding that defendant was entitled to relief on the failure to consult theory. Reversed and remanded with directions.
Court: Nebraska Supreme Court, Judge: Papik, Filed On: June 9, 2023, Case #: S-21-812, Categories: Firearms, Ineffective Assistance, Plea
J. Cassel finds the district court properly added restrictions to the developmentally disabled patient’s treatment plan, who, in his court-ordered custody and treatment, still presents an ongoing threat of harm due to his sexual interest in children. The least restrictive alternative for treatment was found to be a shared living provider environment with no other participants and all-day supervision, including the monitoring of all electronic or telephonic communications. The court revoked internet access entirely, adding the requirement that the patient wear a GPS monitor, which he appeals. The added conditions conform to law, are supported by competent evidence and are not arbitrary, capricious or unreasonable. Affirmed.
Court: Nebraska Supreme Court, Judge: Cassel, Filed On: June 9, 2023, Case #: S-22-652, Categories: Civil Rights, Health Care, Commitment
J. Miller-Lerman finds the district court improperly dismissed the ex-wife’s motion to modify alimony. The ex-husband had accepted a veteran’s disability pension which allowed the wife to modify alimony because his acceptance reduced his benefits, and therefore the value of her share. The district court, thinking it was being asked to divide the benefits, concluded that it lacked subject matter jurisdiction as preempted by federal law. The motion sought merely to modify alimony based on a reduction in the pension, and the court had jurisdiction to do this. Reversed and remanded.
Court: Nebraska Supreme Court, Judge: Miller-Lerman, Filed On: June 2, 2023, Case #: S-22-066, Categories: Family Law, Jurisdiction, Contract
J. Cassel finds the trial court, on remand for resentencing, properly sentenced defendant for two murder convictions and one attempted murder conviction to consecutive sentences “amounting to a life sentence.” No evidence shows that the court failed to consider relevant mitigating factors. A full evidentiary hearing was held prior to resentencing, giving defendant an opportunity to present mitigating factors. The record shows that the court read and reviewed all evidence. The court explicitly stated that all evidence was weighed and the sentences were based upon relevant factors. Affirmed.
Court: Nebraska Supreme Court, Judge: Cassel, Filed On: June 2, 2023, Case #: S-22-568, Categories: Evidence, Murder, Sentencing
J. Papik finds the trial court properly convicted defendant for murder and use of a deadly weapon to commit a felony. The victim, a real estate agent, had shown a house to defendant the day before his body was found at that same house. Defendant had credit issues and was also being threatened with eviction. Witnesses testified to encountering a man fitting defendant’s description at the house the day before the body was discovered. Split-screen surveillance video of the area, showing slowed footage of an individual walking alongside slowed footage of defendant walking was properly admitted. All evidence supports conviction. Affirmed.
Court: Nebraska Supreme Court, Judge: Papik, Filed On: June 2, 2023, Case #: S-22-412, Categories: Evidence, Murder
J. Funke finds the trial court properly convicted defendant for DUI causing serious bodily injury after he failed to stop at a stop sign and collided with another vehicle. He was sentenced to a term of imprisonment, post-release supervision, and had his driver’s license revoked. Though defendant says the court focused solely on the crime while ignoring mitigating factors such as his nonviolent nature and lack of criminal history, the court specified that it had considered and applied all the relevant statutory factors, including defendant’s background and criminal history and the amount of violence involved in the commission of the crime. Affirmed.
Court: Nebraska Supreme Court, Judge: Funke, Filed On: June 2, 2023, Case #: S-22-480, Categories: Vehicle, Criminal Negligence
J. Funke finds the district court improperly entered a declaratory judgment and permanent injunction in favor of the livestock company in this dispute over cattle brand inspection statute interpretation. Cattle moved into registered feedlots from their point of origin, with no other movements, avoid brand inspection. Cattle moved from their point of origin to “backgrounding” lots for calf weight and immunity build up before going to a feedlot do not avoid brand inspection. Reversed. Injunction vacated and dismissed.
Court: Nebraska Supreme Court, Judge: Funke, Filed On: May 26, 2023, Case #: S-22-534, Categories: Administrative Law, Agriculture
Per curiam, the Nebraska Supreme Court accepts attorney Benjamin Maxell’s voluntary surrender of his law license and enters a judgment of disbarment. His license had been previously suspended for failure to report continuing legal education compliance. He failed to inform clients of this, then failed to deliver their file to them or other counsel. He stopped communicating with multiple clients and several grievances have been filed. He does not challenge the allegations, consents to disbarment and waives his right to notice, appearing or hearing.
Court: Nebraska Supreme Court, Judge: Per curiam, Filed On: May 26, 2023, Case #: S-22-195, Categories: Administrative Law, Attorney Discipline
J. Funke finds the district court properly affirmed the conviction of the county sheriff for official misconduct by refusing to receive a prisoner into the county jail. The sheriff cites no authority for his theory that, absent a court order, he has inherent authority to decline to receive arrestees. Affirmed.
Court: Nebraska Supreme Court, Judge: Funke, Filed On: May 26, 2023, Case #: S-22-102, Categories: Administrative Law, Police Misconduct
J. Heavican finds the court of appeals properly affirmed defendant’s conviction for possession of a firearm by a prohibited person, refuting his claims of ineffective assistance. After defendant was arrested pursuant to a drug deal-involved shooting, a witness testified that defendant “carries a Glock 9 with an extended clip everywhere he goes.” Though counsel failed to object to this propensity evidence, it is cumulative of other testimony to which defendant does not assign error and is therefore harmless. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: May 19, 2023, Case #: S-21-1036, Categories: Drug Offender, Evidence, Firearms
[Consolidated.] J. Freudenberg finds the trial court properly convicted defendant for possession of meth and DUI. Defendant’s no contest plea in a second drug distribution case waives his right to appeal all issues in both cases, with the state agreeing not to pursue enhancements and to dismiss a third case. Though defendant argues that his counsel was ineffective for allowing him to testify on his own behalf and for eliciting incriminating testimony in the first case, the claim is waived by the agreement. Dismissed.
Court: Nebraska Supreme Court, Judge: Freudenberg, Filed On: May 19, 2023, Case #: S-22-466, Categories: Drug Offender, Ineffective Assistance, Plea
J. Papik finds the district court improperly entered summary judgment in favor of the eye surgeon whose patient experienced pain and reduced vision after cataract surgery. The surgeon claimed the action was brought after limitations but did not assert in his answer that the patient’s claims were barred. The surgeon was therefore precluded from raising limitations in his summary judgment motion. The statute of limitations is an affirmative defense that is waived if the defendant fails to plead it. Reversed and remanded.
Court: Nebraska Supreme Court, Judge: Papik, Filed On: May 19, 2023, Case #: S-22-268, Categories: Health Care, Negligence, Due Process