Michael Heavican

This case involved consolidated appeals by the Nebraska Department of Health and Human Services (DHHS) challenging two juvenile court orders that committed juveniles Jorge O. and Deng M. to the custody of the Office of Juvenile Services (OJS) for placement at the Youth Rehabilitation and Treatment Center (YRTC). The orders also stated that the juveniles could not be discharged from YRTC without juvenile court approval and scheduled post-discharge review hearings. The Nebraska Supreme Court affirmed the commitments to YRTC but vacated the portions of the orders granting the juvenile court discharge authority and requiring review hearings. The court reasoned that the Health and Human Services, Office of Juvenile Services Act specifically empowers OJS, not the juvenile court, to determine discharges from YRTC, and that the juvenile court's orders exceeded its statutory authority under the relevant provisions of the Nebraska Juvenile Code.

criminal lawfamily lawprocedure

The case involved a mother suing a school district on behalf of her kindergarten son who was sexually assaulted in a school restroom by an intruder who entered the building without signing in. The district court granted summary judgment to the school district on the ground that the assault was not foreseeable. The Nebraska Supreme Court reversed and remanded, holding that questions of foreseeability are factual matters for the finder of fact to consider in determining breach of the duty of reasonable care rather than legal questions of duty. The court found a genuine issue of material fact regarding whether the school's conduct satisfied that duty.

torts & liabilityprocedure

The case involved Laura Lebeau, charged with violating an Omaha city ordinance against telephone harassment after leaving messages for her ex-husband. Lebeau filed motions to discharge the case on statutory speedy trial grounds, arguing that the six-month period under Neb. Rev. Stat. § 29-1207 began when the complaint was filed in September 2008 and had expired by the time of her March 2009 arraignment. The lower courts denied the motions, applying an "intimate partner" exception in § 29-1207(2) that would start the clock from the date of arrest instead. The Nebraska Supreme Court reversed, holding that the exception applies only to misdemeanor offenses under the domestic assault statute (§ 28-323) and does not extend to prosecutions for city ordinance violations, so no excludable periods existed and the speedy trial deadline had passed. The court remanded with directions to dismiss the complaint.

criminal lawprocedure

The case involved Vitalix, Inc., a manufacturer of livestock nutritional supplements leasing city-owned land in Alliance, Nebraska, where it built a warehouse addition using community redevelopment funds; the county assessor taxed the addition at over $570,000, and the Board of Equalization and Tax Equalization and Review Commission denied Vitalix's claimed exemption. Vitalix appealed, arguing the addition qualified as exempt public property used for a public purpose under Neb. Rev. Stat. § 77-202(1)(a). The Nebraska Supreme Court affirmed the denial, holding that the addition was owned by Vitalix rather than the city for taxation purposes under the statute governing improvements on leased public lands, and that operating a for-profit business did not constitute a public purpose even though redevelopment funds were used. The court rejected a parties' stipulation as improperly addressing a legal conclusion on ownership and found no error in the lower decisions.

taxesproperty

This case involves a dispute over ownership of two parcels of real estate in Merrick County, Nebraska, between the cotrustees of the American Family Trust (which holds the last recorded deed) and an heir to the estate of Irene Bahensky. The district court granted summary judgment to the heir, quieting title in Irene's name after determining that an earlier trust (the M & I Bahensky Trust) was invalid and created a resulting trust in Irene, rendering all subsequent conveyances void. The Nebraska Supreme Court reversed and remanded for further proceedings, concluding that Irene retained the power to transfer the property after the invalid trust and that genuine issues of material fact exist regarding the validity of later transfers, such as the 1988 deed to the Green Acres Trust, for which supporting trust documents are missing from the record.

property

This case involved NEBCO's appeal of two district court orders concerning unemployment benefits for its former truck driver employee, Theresa Murphy, who was terminated after five driving accidents over three years. The Nebraska Supreme Court affirmed the lower courts' rulings that Murphy was not partially disqualified from receiving benefits under Neb. Rev. Stat. § 48-628(2) because the evidence did not establish misconduct, as the accidents reflected negligence at most but not the required level of culpability, wrongful intent, or recurrence showing evil design, with some incidents attributable to site conditions and others separated by significant time after prior discipline. The court also affirmed that NEBCO's unemployment insurance experience account was chargeable for the benefits paid, since the separation was not for disqualifying misconduct under the relevant statutes.

labor & employment

The case involved two former employees of the City of Elkhorn who had signed severance agreements before Omaha annexed Elkhorn; after their employment ended due to the annexation, they sought attorney fees under the Nebraska Wage Payment and Collection Act and prejudgment interest on the severance payments that Omaha had approved following earlier litigation. The district court upheld the City Council's denial of both requests, and the Nebraska Supreme Court affirmed. The court reasoned that the severance payments did not qualify as wages for labor or services under the Act because they were triggered by termination rather than performance of work, so no statutory basis existed for attorney fees. It further held that a separate statute bars prejudgment interest in actions against political subdivisions regardless of whether the claim involves negligence.

labor & employmentprocedure

In Straub v. City of Scottsbluff, a police sergeant sought workers' compensation after injuries from two vehicle accidents: the first during a routine traffic stop on duty, resulting in a fractured hip and back issues, and the second while traveling to an MRI appointment for those injuries. The trial court and review panel found both accidents compensable, awarding the maximum temporary total disability benefits and payments for a 35% loss of earning power, while rejecting a shoulder injury claim. The Nebraska Supreme Court affirmed, holding that the second accident arose out of and in the course of employment under the rule that travel to a required medical appointment for a prior compensable injury is itself compensable, and that the trial court's factual findings on injuries and earning capacity were not clearly erroneous.

labor & employment

The case involved disciplinary proceedings against attorney Paula B. Hutchinson for neglecting client matters, including failing to file a petition as requested, not communicating with clients, and refusing to respond to inquiries from the Counsel for Discipline. The Nebraska Supreme Court granted judgment on the pleadings regarding the facts and determined that Hutchinson violated her oath of office and rules of professional conduct concerning diligence, communication, fees, and misconduct. The court decided to impose an indefinite suspension from the practice of law with a minimum period of two years, effective from the date of temporary suspension. The reasoning emphasized the need to protect the public, maintain the bar's reputation, and deter others, considering the attorney's lack of response and absence of mitigating factors, consistent with prior similar cases.

procedure

In State v. Prescott, the defendant was stopped for speeding and subsequently arrested for driving under the influence after failing field sobriety tests and a preliminary breath test, leading to a blood alcohol content of 0.093. The county court convicted him of second-offense DUI following a bench trial, and the district court affirmed. On appeal, the Nebraska Supreme Court held that the traffic stop was supported by probable cause, the field sobriety tests and PBT by reasonable suspicion, and the blood test results were admissible, while also upholding the constitutionality of the relevant statute. The court reasoned that minor traffic violations justify stops and that specific articulable facts supported further testing without needing full probable cause for the PBT.

criminal lawprocedure

This case concerned whether severed mineral interests in two parcels of land in Hitchcock County, Nebraska, had been abandoned under the state's dormant mineral statutes, allowing the surface owner to terminate them. The record owners had executed and recorded five-year mineral leases in 1983 and 1984 that later expired, and the surface owner filed suit in 2009—more than 23 years after the leases were recorded but less than 23 years after they expired. The Nebraska Supreme Court affirmed the district court's grant of summary judgment to the surface owner, holding that the leases constituted a public exercise of ownership rights that started the 23-year dormancy clock upon execution and recording, not upon expiration. The court reasoned that the plain language of the statutes requires the record owner to actively exercise ownership within the period, and no such action occurred in the 23 years before the suit.

property

The case involved Donald and Marilyn Hooper suing Freedom Financial Group, Inc. (FFG) and its principals (the Pierces) for violations of the Securities Act of Nebraska after the Hoopers purchased $105,000 in unregistered preferred stock of Capital Equity Fund through FFG's registered representatives. Following a bench trial, the district court held FFG and the Pierces jointly and severally liable and awarded the Hoopers $88,942.39 in damages plus costs and attorney fees. The Nebraska Supreme Court affirmed, finding that the defendants, as broker-dealer and its directors, failed to ensure the offering complied with registration or exemption requirements under the Act, and that evidence including admissions supported the liability findings and damage amount.

business & regulatory

The case involved a dispute over the distribution of assets in a family trust established by Andrez P. Akerlund, specifically how to allocate an interest in a farm and other assets between his two children, Fritz Akerlund and Ellen Akerlund Gonella, after the death of his wife Frances. The trustee petitioned the court for instructions because the trust language directed that half the assets go to each child but requested the farm be placed in trust for Fritz, which was impossible since the farm exceeded half the value of the estate. The county court ordered an equal division of the family trust assets, including splitting the farm interest equally. The Nebraska Supreme Court affirmed, reasoning that the settlor's primary intent was equal division between the children, and the preference for Fritz receiving the farm could not be fulfilled without violating other provisions or the equal division requirement.

propertyfamily law

This case involved disciplinary proceedings brought by the Counsel for Discipline against Nebraska attorney Shannon J. Samuelson, who abandoned his practice in 2009 and neglected the legal matters of four clients in divorce, child custody, and protection order cases while failing to communicate with clients or the court and mishandling advanced fees by not depositing them in his trust account. After Samuelson did not respond to the charges, the Nebraska Supreme Court granted judgment on the pleadings and ordered disbarment as the sanction. The court reasoned that the attorney's pattern of neglect, abandonment of clients, mismanagement of funds, and refusal to cooperate with the disciplinary process demonstrated his unfitness to practice law, warranting disbarment under precedents addressing similar attorney misconduct to protect the public and the bar's reputation.

procedure

This case involved disciplinary proceedings against Nebraska attorney William D. Gilner, who was accused of professional misconduct while representing clients in a federal insurance case and a workers' compensation matter. The referee found that Gilner violated multiple Nebraska Rules of Professional Conduct, including those requiring competence, diligence, proper communication with clients, and avoidance of misconduct, after he failed to notify his client of court orders and motions, leading to sanctions, and altered the date on a court order. The Nebraska Supreme Court accepted these findings and imposed a two-year suspension retroactive to September 2006, followed by two years of supervised probation upon reinstatement, based on factors such as the nature of the offenses, the need to protect the public, and the attorney's fitness to practice. The court lifted an earlier disability stay and granted prospective reinstatement after the suspension period was served, subject to conditions including payment of costs.

procedurebusiness & regulatory

In State v. Wollam, the defendant was charged with various offenses including refusal to submit to preliminary breath and chemical tests after a traffic stop initiated by Crete police officers based on a relayed report from Lancaster County dispatch about a drunk driver. The county court denied Wollam's motion to suppress evidence from the stop, he was convicted on the refusal charges, and both the district court and Nebraska Supreme Court affirmed. The Supreme Court held that the stop was supported by reasonable suspicion under the Fourth Amendment because the tip from a non-anonymous caller (the driver's wife) provided sufficient indicia of reliability, including her name, phone number, vehicle description, and travel details, which officers could rely on without personally observing erratic driving. The court reasoned that the information was properly imputed between agencies and that the totality of circumstances justified the investigatory stop to address the imminent danger of impaired driving.

criminal lawcivil rights

In State v. Thorpe, the defendant was convicted after a jury trial of two counts of first-degree murder and two counts of use of a weapon to commit a felony, receiving life sentences without parole on the murder counts and lengthy prison terms on the weapons counts. Thorpe appealed, raising claims that the prosecution violated equal protection by using a peremptory challenge to strike a Black juror during voir dire, that improper contact between a witness and juror required a mistrial, and that a jury instruction on consciousness of guilt was improper. The Nebraska Supreme Court affirmed the murder and weapons convictions along with the weapons sentences. It held that the peremptory strike was not racially discriminatory because it was based on the juror's expressed difficulty applying the beyond-a-reasonable-doubt standard and preference for eyewitness proof. The court vacated the life-without-parole sentences as invalid under state law and remanded for imposition of life sentences.

criminal lawcivil rightsprocedure

The case involved landowners who sold property to Waste Management for use as a landfill and later sought to exercise a contractual option to repurchase the land after operations ceased. The district court enforced the option and quieted title in favor of the sellers, but the Court of Appeals reversed, holding the option void under the rule against perpetuities. On further review, the Nebraska Supreme Court reversed the Court of Appeals and held that the common-law rule against perpetuities does not apply to this type of commercial contractual option to repurchase. The court reasoned that legislative policy reflected in the Uniform Statutory Rule Against Perpetuities Act, along with the distinct purposes of commercial transactions, support enforcing such options rather than invalidating them as perpetuities violations. The case was remanded for consideration of remaining issues.

property

This case was an industrial dispute between the Central City Education Association and the Merrick County School District over terms in their 2008-09 collective bargaining agreement, specifically the inclusion of a contract continuation clause and compensation for unused sick and personal leave. After negotiations failed, the Commission of Industrial Relations (CIR) found the continuation clause prevalent in an array of comparable districts and ordered it included as a mandatory bargaining topic, while initially removing but later reinstating the leave pay provision upon reconsideration. The District appealed, arguing the CIR exceeded its authority and erred in prevalence findings. The Nebraska Supreme Court affirmed in part by upholding the continuation clause as within the CIR's statutory powers under Neb. Rev. Stat. § 48-818, but reversed in part and remanded on the leave pay issue due to an error in determining prevalence based on the record.

labor & employment

In Carmicheal v. Rollins, the Nebraska Supreme Court reviewed a district court's temporary custody and child support order issued while the mother, a U.S. Army Reserve member with primary custody, was deployed overseas for 400 days. The mother had sought to modify support and moved to stay proceedings under the Servicemembers Civil Relief Act, but the father cross-claimed for temporary custody and support during deployment; the district court denied the stay, granted temporary custody to the father with support, and provided for reversion to the original order upon her return. The Supreme Court affirmed, first determining that denial of the stay was a final appealable order affecting a substantial right in a special proceeding, then concluding that the SCRA did not require a stay because the mother's military duty did not materially affect her ability to appear and defend, and that the temporary order properly enforced the original custody arrangement without altering permanent rights.

family lawfederal power