256 results for 'court:"Nebraska Court Of Appeals"'.
J. Pirtle finds the county court properly awarded the grandmother custody of her grandchild. The child lived with the grandmother, who cared for the child when the father was working. When the father was killed in a car accident, the grandmother filed for custody, which the child's mother opposed. The mother has several other children and leads a life lacking in stability. The county court properly found the mother lacked the maturity and parental relationship with the child necessary for proper care. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle , Filed On: December 5, 2023, Case #: A-23-128, Categories: Family Law, Guardianship
J. Riedmann finds the county court properly held the personal representative of her mother's estate had violated her duties and removed her as personal representative. The personal representative kept financial records from her sister, concealing funds in a joint account she had with the decedent, opened after her death through the representative's power of attorney. The representative also failed to respond to her sister's requests for documentation. The estate tax worksheet showed the estate, including the joint account, would be divided equally between the sisters. This material misrepresentation to the court was also a breach of duty. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Riedmann , Filed On: November 28, 2023, Case #: A-22-766, Categories: Wills / Probate, Fiduciary Duty
J. Bishop finds the district court properly reversed the small claims court's $3,500 judgment against the owner of the used car dealership. After the purchaser of a Jaguar sedan began having significant problems with the vehicle, he filed suit against the owner and not the dealership. The owner cannot be held personally liable for the dealership's actions and judgment cannot be entered against the dealership as it was never made party to the action. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Bishop , Filed On: November 28, 2023, Case #: A-22-927, Categories: Consumer Law, Contract
J. Bishop finds the county court properly sustained the corporation’s motion for discharge of a revived default judgment on a debt. The default judgment term, "compounded annually,” has conflicting interpretations. The first definition supports the corporation's interpretation and, while the second definition supports the lender's, it requires the court to ignore specified per day rates, which must be calculated annually. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Bishop , Filed On: November 28, 2023, Case #: A-22-939, Categories: Debt Collection, Contract
J. Bishop finds the trial court properly determined the amount of the former company vice president's interest in the company in an employment contract action. The court denied the company's motion for a directed verdict seeking declaratory judgment in favor of its determined amount of $410,000 and found the fair market value was $2 million. An independent expert business valuator noted the company's analysis lacked independence and consideration of future projects, while it also used an excessive discount rate and subtracted future debt. Furthermore, the former vice president testified his IRS filing reflects a $2 million closeout of the account. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Bishop , Filed On: November 28, 2023, Case #: A-22-892, Categories: Employment, Securities, Contract
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J. Welch finds the trial court properly convicted defendant for refusal to submit to a test, driving under revocation and operating a motor vehicle to avoid arrest. Defendant did not stop for more than 10 blocks when the officer attempted to pull her over for speeding, and was found to have bloodshot eyes and smelled of alcohol while operating under a revoked license. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Welch , Filed On: November 28, 2023, Case #: A-23-262, Categories: Evidence, Ineffective Assistance, Dui
J. Moore finds the district court properly denied defendant's motion for postconviction relief. Defendant, privy to the fact that the Burger King where his sister worked was having a problem with its security system, burglarized the restaurant and was identified by his sister's recognition of his bushy eyebrows on security video. Furthermore, defendant's ineffective assistance claim fails, as his wife's claim that he was in Colorado during the burglary could have resulted in perjury charges and the decision not to call her was a reasonable strategy. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Moore , Filed On: November 21, 2023, Case #: A-22-965, Categories: Burglary, Evidence, Ineffective Assistance
J. Welch finds the trial court properly convicted defendant for manslaughter, having caused a traffic accident that resulted in the death of a motorcyclist. The lower court properly denied defendant's motion for postconviction relief based on his claims of counsel's failure to object to the instruction on manslaughter. The prosecution has discretion as to what the charge will be. Furthermore, defendant's proposed addition of the word "proximate" to the jury instruction is irrelevant. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Welch , Filed On: November 21, 2023, Case #: A-22-976, Categories: Evidence, Manslaughter, Vehicle
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. Welch finds the Worker's Compensation Court properly found the worker sustained a recurrence of a work-related injury occurring during his employment with Walmart, finding Walmart is responsible for medical expenses even though the worker is no longer employed there. Though Walmart agreed to pay for future medical expenses, it did not pay for expenses previous to the recurrence and ample medical evidence was presented as to causation. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Welch , Filed On: November 14, 2023, Case #: A-23-021, Categories: Tort, Workers' Compensation
J. Riedmann finds the trial court properly convicted defendant for two counts of possession of a controlled substance. Defendant does not claim or make a preliminary showing the investigator knowingly omitted information about photographs of stolen property shot by the informant, and the search warrant affidavit contained statements of sufficient probable cause and led to the discover of the drugs. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Riedmann , Filed On: November 14, 2023, Case #: A-23-082, Categories: Drug Offender, Evidence, Search
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
J. Pirtle finds the trial court properly dismissed the home purchaser's suit alleging defective notice after she defaulted on the loan and the property was conveyed to another purchaser who initiated a forcible entry and detainer action. A lender generally does not owe a duty to its borrower, and the borrower did not state sufficient facts or law to support her causes of action, including negligence and misrepresentation. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle , Filed On: November 14, 2023, Case #: A-19-121, Categories: Property, Due Process, Banking / Lending
J. Moore finds the trial court properly convicted defendant for possession of fentanyl with intent to distribute. The arresting officer had probable cause to search the vehicle, and no coercive tactics were used for defendant's compliance. Dash cam footage shows defendant was nervous upon being stopped, and he revealed the contents of a suitcase in the vehicle without prompting and voluntarily admitted to marijuana possession. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Moore , Filed On: November 14, 2023, Case #: A-22-909, Categories: Drug Offender, Evidence, Search
J. Welch finds the county court properly denied the father's motion to modify custody, finding the child's best interests were served by the joint custody order with physical custody remaining with the mother. Though the mother is out of town for 54 days per year, she is otherwise a full-time, stay-at-home caregiver. Modification would require the father's custody time to include the child's spending long periods with the father's wife, while the mother has been the primary caregiver throughout the child's life and the child is thriving under the current arrangement. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Welch , Filed On: November 14, 2023, Case #: A-22-800, Categories: Family Law, Guardianship
J. Pirtle finds the county court properly terminated defendant from DUI court and sentenced her to a year in prison and 12 months’ post-release supervision. Charged for two counts of felony DUI and for refusal to submit to a blood alcohol test, defendant later drove on a suspended license several times and was once stopped and arrested for a new criminal offense. All witnesses, including law enforcement officers and administrators, were aware of defendant’s multiple infractions and dishonesty. That the witnesses were not sequestered had little prejudicial effect, if any. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: November 7, 2023, Case #: A-23-348, Categories: Evidence, Dui, Due Process
J. Welch finds the trial court properly granted summary judgment in favor of the attorney against whom was brought this legal malpractice action. Defendant was found guilty by no-contest plea to attempted sexual assault, represented by a different attorney. His ineffective assistance arguments failed related this, as well as his seeking of post-conviction relief. Post-conviction counsel’s affidavit presented evidence sufficient to show his conduct complied with standards regardless of any self-serving or conclusory statements. Allegations that the attorney failed to raise certain defenses present a question for the fact finder, not a question of law for the court. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Welch, Filed On: November 7, 2023, Case #: A-23-054, Categories: Evidence, Legal Malpractice
J. Welch finds the county court properly denied defendant’s motion for absolute discharge on speedy trial grounds from charges of sexual assault of child. Defendant’s motion to continue constituted an effective waiver of his right to a speedy trial because the clock was not set to expire at that point, and the court’s granting of the motion resulted “in a ... delay that ... extended ... trial outside the speedy trial window.” Defendant’s assignment that excludable periods associated with delays caused by his own motions for continuances without admonishment fails. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Welch, Filed On: November 7, 2023, Case #: A-23-048, Categories: Sex Offender, Speedy Trial, Child Victims
J. Pirtle finds the trial court properly convicted defendant for three counts of sexual assault of his minor cousin. A resource officer at the victim’s school called child protective services after the victim emailed her a photo of herself crying, stating that defendant had beat her up. The victim was then removed from her home after other evidence came to light, and placed with the resource officer, who noticed a change in the victim’s behavior when around her husband. The officer asked if someone had touched her inappropriately and the victim pointed out defendant. All evidence supports conviction and defendant has not preserved objections to the state’s motions for appellate review. Ineffective assistance claims fail for lack of proof. The record is insufficient on direct appeal. Affirmed
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: November 7, 2023, Case #: A-22-973, Categories: Evidence, Sex Offender, Child Victims
J. Moore finds the county court properly denied defendant’s motion for postconviction relief without an evidentiary hearing from his no contest conviction for generation of child porn. The victim and multiple witnesses testified that defendant pulled the victim’s clothing away from her breasts and vagina while recording with a green cell phone in a public park. Defendant was arrested on a different warrant during a traffic stop and a warranted search was conducted on his green cell phone, revealing a recording of the assault. All evidence supports conviction and any motion to suppress would not have been successful. There is no obligation to engage in unneeded analysis and there was no error in denying defendant’s motion. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Moore, Filed On: November 7, 2023, Case #: A-22-789, Categories: Evidence, Sex Offender, Child Pornography
J. Pirtle finds the trial court properly convicted defendant for possession of meth with intent to distribute and carrying a concealed weapon. After defendant was stopped for a faulty headlight, he provided the officer with a Mexican ID card, a vehicle registration without his name and proof of insurance with his name. Defendant did not speak English and communication was facilitated using Google Translate. Defendant responded “sí” when the officer asked to search the vehicle. The search yielded over a pound of meth, baggies and a handgun. Defendant’s motion to suppress was properly denied because “the evidence is clear that [defendant] knew what was being asked.” Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: October 31, 2023, Case #: A-23-045, Categories: Drug Offender, Evidence, Search
J. Moore finds the district court improperly divided the marital estate in this dissolution proceeding. The court of appeals modifies the decree to restore the ex-wife’s maiden name. Though the wife did not move to amend pleadings, a court may constructively amend in order to render a consistent decision. The husband did not object to the request to restore the name and the court could have amended the pleadings to conform to the evidence. The court also abused its discretion by including the total value of the wife’s whole life insurance policy and two retirement accounts in the marital estate. Valuations and divisions of certain debts and property including a truck and trailer are also modified. Affirmed as modified.
Court: Nebraska Court Of Appeals, Judge: Moore, Filed On: October 31, 2023, Case #: A-22-873, Categories: Family Law, Property, Contract
J. Riedmann finds the district court properly reinstated this child custody case, awarding the never-married parents joint legal and physical custody. The father spent several nights at a time at the mother’s house, operating as a family even after the couple’s relationship dissolved. After the father began dating another woman, the mother would not let him visit and she later moved to Nevada for a new job. Litigation became very complex after the father filed to establish custody and parenting time, and the case was eventually dismissed due to lack of prosecution. After the father’s motion to reinstate, the court determined that the mother failed to show the Nevada job constituted an improvement in employment. The court made findings that the father testified in a credible manner, but the mother did not, inaccurately claiming the father abandoned the child. Though the case had been dismissed when the mother left for Nevada, it was likely to be reinstated. The court’s statement regarding such is not enough to overcome the burden on a party seeking to disqualify a judge for alleged bias. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Riedmann, Filed On: October 31, 2023, Case #: A-23-004, Categories: Evidence, Family Law, Guardianship
[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. Bishop finds the county court improperly terminated the father’s rights to his minor daughter. The child was abandoned at a hospital and the state took custody, being the parents were unknown. In its order terminating parental rights, the juvenile court’s finding of unfitness was based on the father’s conduct of domestic violence prior to the child’s abandonment, and parental unfitness was not proven. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Bishop, Filed On: October 31, 2023, Case #: A-23-158, Categories: Evidence, Family Law, Guardianship
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. Bishop finds the county court properly terminated the father’s parental rights to his daughter. The child was removed from the mother’s home due to concerns that she had been exposed to drugs and has remained in foster care since, as the mother has failed to work with the human services department voluntarily. The father is currently incarcerated, with no means of support. Clear and convincing evidence supports termination. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Bishop, Filed On: October 24, 2023, Case #: A-22-969, Categories: Evidence, Family Law, Guardianship
J. Moore finds the trial court properly terminated the mother’s parental rights to her two-year-old daughter. The daughter was born prematurely in the neonatal intensive care unit and her urine tested positive for meth. The father cannot be located. The mother’s actions have indicated substance use, and she has a history of convictions for possession and driving under the influence, all of which place the child at risk of harm. Clear and convincing evidence supports termination. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Moore, Filed On: October 24, 2023, Case #: A-23-355, Categories: Evidence, Family Law, Guardianship