William M. Connolly

The case involved Montana Feeders' appeal from a Sheridan County District Court order finding the company in willful contempt and entering a $10,000 judgment against it. The Nebraska Supreme Court affirmed the district court's judgment. The court reasoned that Montana Feeders' appellate brief failed to comply with rules and statutes requiring specific assignments of error, record annotations, a statement of the case, and a proper jurisdictional statement; as a result, the court treated the matter as presenting no reviewable error and found no plain error after examining the record.

procedure

In Myers v. Nebraska Investment Council, a taxpayer filed a class action on behalf of Nebraska taxpayers seeking to recover alleged losses of state retirement funds from investment contracts between the Nebraska Investment Council and private entities WG Trading and Westridge, claiming the contracts were speculative, illegal, and violated the Nebraska State Funds Investment Act. The Nebraska Supreme Court affirmed dismissal of the claims as moot, ruling that the contracts were unenforceable against the state due to statutory violations but not void ab initio, so the state had no right to avoid its obligations or seek disgorgement after the principal and income were returned. The court reasoned that a taxpayer's derivative claims could not exceed the rights of the governmental entity itself, and sovereign immunity did not bar the action but the lack of further recoverable relief rendered it moot.

business & regulatoryprocedure

In Kanne v. Visa U.S.A. Inc., consumers filed a class action against Visa and MasterCard alleging violations of Nebraska's Junkin Act and Consumer Protection Act through tying arrangements that forced merchants to accept debit card processing services alongside credit card services, resulting in inflated merchant fees passed on to consumers as higher retail prices; plaintiffs also asserted an unjust enrichment claim. The district court dismissed the action for lack of standing under a Rule 12(b)(6) motion. The Nebraska Supreme Court affirmed, holding that the consumers' alleged injuries were derivative and remote from the defendants' conduct, precluding antitrust standing, and that no unjust enrichment occurred because Visa and MasterCard had settled parallel merchant claims for over $3 billion without retaining any benefit from the plaintiffs.

business & regulatoryprocedure

This case concerned whether Nebraska Secretary of State John A. Gale was required to place two 2006 initiative measures—the "3 Casinos Initiative" amending the constitution to allow casinos and the "K-12 Initiative" earmarking tax proceeds for education—on the November ballot. Gale had refused to verify signatures, determining that both measures were substantially similar to initiatives submitted in 2004 and thus barred by the resubmission clause in article III, § 2, of the Nebraska Constitution, which prohibits resubmitting the same measure more often than once in three years. The district court barred only the K-12 Initiative, but the Nebraska Supreme Court held on appeal that the resubmission clause precluded both measures because each was the same in essential substance as a 2004 initiative when compared by purpose, object, and effect. The court rejected cross-appeal arguments that applying the clause violated free speech or political association rights under the federal or state constitutions, as ballot access for initiatives is governed solely by state constitutional rules.

electionsfree speech

In State v. Davlin, the defendant appealed his second conviction for second-degree murder in the 1993 killing of Tamara Ligenza, following the reversal of his initial conviction on jury instruction grounds. The Nebraska Supreme Court considered claims regarding the district court's jury instructions on the elements of second-degree murder, denial of a continuance, admission of expert testimony and other evidence, double jeopardy protections after acquittal on first-degree murder, the verdict form, sentencing, and ineffective assistance of counsel. The court rejected each assignment of error, finding that the instructions were proper, the evidence was admissible and sufficient, prior rulings barred retrial only on first-degree murder, and remaining claims lacked merit or could not be resolved on direct appeal. It therefore affirmed the conviction and life sentence.

criminal lawprocedure

This case involved a boundary dispute between adjacent residential property owners who purchased lots from a common grantor. After a survey revealed that Huffman’s driveway encroached on the Petersons’ lot, Huffman filed an action to quiet title based on the common grantor doctrine, asserting that a tree and metal post marked the intended boundary, while the Petersons filed a cross-action for ejectment. The district court applied the common grantor rule to quiet title in Huffman’s favor. On appeal, the court affirmed, concluding that credible evidence of the grantor’s identification of the boundary markers and the parties’ subsequent conduct supported the marked line as the boundary between the lots.

property

Darryl Didier, an employee of an independent contractor hired by Ash Grove Cement Company, sued Ash Grove for negligence after falling from a roof at its facility and sustaining serious injuries. The district court granted summary judgment to Ash Grove, finding no evidence that Ash Grove retained control over the contractor's work, that the work posed a peculiar unreasonable risk, or that Ash Grove violated applicable Mine Safety and Health Administration regulations. The Nebraska Court of Appeals reversed on the regulatory jurisdiction issue, but the Nebraska Supreme Court reversed the Court of Appeals and directed affirmance of the summary judgment. The Supreme Court held that MSHA had jurisdiction over the site, preempting OSHA, and that the district court had properly addressed and rejected claims of a nondelegable duty to provide a safe workplace arising from Ash Grove's ownership of the premises.

torts & liabilityprocedurelabor & employment

In this case, area landowners and taxpayers sued the Papio-Missouri River Natural Resources District and a developer after the district approved a land purchase and agreement to build a reservoir and dam, alleging violations of the district's bidding procedures and restrictions on using public funds for private purposes. The district court dismissed the suit for lack of jurisdiction, ruling that the plaintiffs failed to appeal the board's decision within the 30-day deadline set by Neb. Rev. Stat. § 2-3255. The Nebraska Supreme Court reversed, holding that § 2-3255 applies only to decisions involving formally established improvement project areas with special benefit assessments, not to general-benefit projects like this one. The court examined the statutory scheme governing natural resources districts and concluded that the appeal requirement is limited to the specific procedural context of improvement project areas.

procedureenvironmentproperty

This case involved a dispute between Metropolitan Utilities District (MUD), a public natural gas utility, and its competitor Aquila, Inc., over MUD's proposed extension of gas mains and construction of a town border station in Sarpy County, Nebraska. Aquila filed a complaint with the Nebraska Public Service Commission (PSC) alleging the extension was not in the public interest under Neb. Rev. Stat. § 57-1303, leading the PSC to issue a cease-and-desist order. The district court affirmed the PSC's order after reviewing the statutory factors and rejected MUD's jurisdictional challenge. On appeal, the Nebraska Supreme Court held that the PSC and district court had jurisdiction, that competent evidence supported the finding the extension was not in the public interest, and that the PSC should be dismissed from the action as it was not a necessary party. The court affirmed the cease-and-desist order with directions.

business & regulatory

The case concerned the Nebraska State Patrol's classification of Clifton McCray as a Level 3 sex offender under the Sex Offender Registration Act based on a risk assessment instrument that assigned him a high recidivism score. McCray challenged the scoring of three items that relied on convictions later set aside by court order and on unsworn, unsigned victim statements not tied to his actual convictions. The court held that set-aside convictions could not be used for scoring and that the victim statements lacked probative value under the applicable evidentiary standard, making their use improper. Subtracting the 80 erroneously assigned points produced a total score of 115, which corresponds to Level 2 classification, leading the court to reverse the district court's affirmance and direct reclassification.

criminal lawprocedure

In Smith v. City of Papillion, adjacent homeowners sued the city, developers, and landowner after the Papillion City Council amended its comprehensive development plan via resolution and rezoned a parcel from agricultural to mixed use to permit a large commercial project including a Wal-Mart Supercenter. The homeowners sought declaratory and injunctive relief, claiming the actions violated city code, were arbitrary, and infringed their due process rights. The district court denied relief after trial, finding the resolutions and ordinance valid. The Nebraska Supreme Court affirmed, concluding the city properly exercised its zoning authority in pursuit of public welfare after studying impacts such as traffic, incorporating public comments, and acting unanimously, and that the homeowners had not overcome the presumption of validity.

propertybusiness & regulatorycivil rights

Clifton McCray challenged his classification as a Level 3 sex offender under Nebraska's Sex Offender Registration Act after a risk assessment scored him at 195 points based on his criminal history, including non-sex-related convictions and victim statements. The district court affirmed the Nebraska State Patrol's order upholding the classification, and McCray appealed under the Administrative Procedure Act. The Nebraska Supreme Court affirmed, holding that convictions set aside after the assessment was completed could still be used because the record at the time of scoring controlled, and that even if one disputed item was scored incorrectly the total remained high enough to support Level 3 status. The court found competent evidence supported the scoring of the contested items and that the decision conformed to law.

criminal lawprocedure

The case involved the City of Sutton, Nebraska, awarding a contract for improvements to its wastewater treatment facility to local contractor Van Kirk despite a $16,000 lower bid from Westhoff; taxpayer Marlowe Rath sued, claiming the award violated state statutes requiring the contract to go to the lowest responsible bidder. The Nebraska Supreme Court dismissed the appeal as moot because the project had been completed, but addressed the merits under the public interest exception to mootness. The court reasoned that the two bids were identical except for price, leaving the City no discretion under Neb. Rev. Stat. §§ 17-918 and 18-507 to consider local economic benefits or other factors, and that bid instructions purporting to grant broader discretion could not override the statutes.

business & regulatoryprocedure

The case involved Unisys Corporation seeking coverage from the Nebraska Life and Health Insurance Guaranty Association for Nebraska employees' investments in retirement plans after Executive Life Insurance Company became insolvent. The contracts at issue were purchased by the plans' trustee and held assets in fixed-term deposits earning guaranteed interest, with provisions allowing conversion to individual annuities. The Nebraska Supreme Court affirmed the district court's ruling that the contracts qualified as annuity contracts under the Nebraska Life and Health Insurance Guaranty Association Act and that the employees were the equitable owners entitled to protection. The court also held that the Association was liable for prejudgment and postjudgment interest under general Nebraska statutes because no exemption applied to the Association. The decision was based on the statutory definitions, the contract terms designating participants' interests, and the absence of any carve-out for interest obligations arising from the Association's refusal to pay.

business & regulatoryprocedure

In Hamilton v. Nestor, the plaintiff sued the estate of a negligent driver after a fatal car accident in which he sustained no physical injuries but claimed to have developed posttraumatic stress disorder with nightmares, flashbacks, and anxiety. The district court granted summary judgment to the defendant, ruling that Nebraska law does not permit recovery for emotional distress in a negligence action absent physical injury and that the claim could not proceed as negligent infliction of emotional distress. On appeal, the Nebraska Supreme Court affirmed, holding that while the action could be characterized as one for negligent infliction of emotional distress, the plaintiff's symptoms—described by his expert as between mild and moderate—did not meet the required threshold of being so severe that no reasonable person could be expected to endure them. The court therefore concluded there was no genuine issue of material fact and that summary judgment was proper.

torts & liabilityprocedure

The case involved a dispute over whether the Nebraska Motor Vehicle Industry Licensing Board had authority to approve the relocation of a Honda dealership from Council Bluffs, Iowa, to Omaha, Nebraska, over protests from two existing local Honda franchisees. The Board found good cause for the relocation and granted the application, but the district court reversed that decision after reviewing the evidence. On appeal, the Nebraska Supreme Court held that the Board lacked subject matter jurisdiction under Neb. Rev. Stat. § 60-1422 because the protesting dealers' franchise agreements did not stipulate any geographic area of responsibility or community, as required by the motor vehicle industry licensing statutes. The court reasoned that without such a stipulated area in the agreements, the statutory scheme did not authorize the Board to adjudicate the good-cause issue or regulate the addition of the franchise. It therefore reversed the district court's judgment and directed remand to the Board for proceedings consistent with the lack of jurisdiction.

business & regulatoryprocedure

The case involved clients who lost money to an attorney due to the Nebraska State Bar Association's alleged failure to investigate the attorney's prior reported thefts from his law firm. The clients sued the bar association for negligence, claiming its inaction allowed the attorney to continue practicing and convert their funds. The trial court dismissed the suit on standing grounds, and the Nebraska Supreme Court affirmed, ruling that the bar and its Counsel for Discipline have quasi-judicial immunity from liability for actions or omissions in attorney disciplinary matters. This immunity barred both direct claims and vicarious liability, and no amendment could overcome it.

proceduretorts & liability

The case involved Roger Dale Bjorklund's appeal of his convictions for first-degree murder and use of a weapon to commit a felony in the 1992 kidnapping, rape, and murder of Candice Harms. Bjorklund challenged various aspects of the trial, including the admission of his statements to police, jury selection, sentencing procedures, and the trial judge's questioning of witnesses, claiming violations of his constitutional rights. The Nebraska Supreme Court affirmed the convictions and sentences, finding that Bjorklund failed to properly argue many assignments of error and that the trial court did not err in its handling of the proceedings or evidence.

criminal lawprocedure

This case is an appeal from a Nebraska district court decision modifying a divorce decree's provisions on child custody and support for the parties' minor son. The trial court had kept custody with the father but ordered him to pay the mother $488 per month during the child's summer visitation with her, while she paid him $266 per month otherwise. The Nebraska Supreme Court affirmed the custody and visitation rulings but modified the support order, holding that the guidelines permit only a 50% reduction in the noncustodial parent's obligation during extended visitation and do not authorize requiring the custodial parent to pay the noncustodial parent; it reasoned that the custodial parent's ongoing expenses do not cease during visits and that such an obligation would be an improper deviation from the guidelines and contrary to the policy followed in other states.

family law

In this case, Rush Creek Land and Live Stock Company sued Jack Chain and the Beth Hudson Chain Revocable Trust to quiet title to an island in the North Platte River, relying on a 1979 judgment that had awarded Rush Creek accretions north of the river's thread. The trust countered that it had acquired the island through adverse possession by using it exclusively for hunting and pasturage via its lessee since at least 1979. The Nebraska Supreme Court affirmed the trial court's ruling for the trust, holding that the evidence established all elements of adverse possession for the required ten-year period, including exclusivity, which extinguished any prior title held by Rush Creek and rendered issues of res judicata and boundary location moot.

property