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Court of Appeals Call Case Summaries

Inbody, Irwin, Bishop

Papillion - Wednesday, May 14, 2014 subject to call at 9:00 AM

A-13-0269,  Lyman-Richey Corp. (Appellant) v. Nebr. Dept. of Revenue

Lancaster County, District Court Judge Robert R. Otte

Attorney for Appellant:  Nicholas K. Niemann, Matthew R. Ottemann (McGrath, North, Mullin & Kratz, PC, LLO)

Attorney for Appellee:  L. Jay Bartel (Attorney General’s Office)

Civil Action:  Appeal of Denial of Petition for Redetermination of Taxes

Action Taken by Trial Court:  The district court affirmed the decision of the Department that Lyman-Richey’s petition for redetermination was not timely filed with the Department of Revenue.

Assignments of Error on Appeal:  The appellant contends that the district court erred in failing to add the 3-day filing extension of Neb. Ct. R. Pldg. § 6-1106(e) to the time it had to file its petition for redetermination with the Department of Revenue and thereby concluding that its petition for redetermination was not timely filed under Neb. Rev. Stat. § 77-2709(7).

A-13-0962, Estate of Rufino Cortes Elox, Deceased, by Aleta S. Allen, Personal Representative (Appellant) v. Paul Johnson & Sons Cattle Co., a Nebraska corporation

Nebraska Workers’ Compensation Court, Judge J. Michael Fitzgerald

Attorney for Appellant:  Larry R. Demerath (Demerath Law Office)

Attorney for Appellee:  Daniel M. Placzek, Timothy G. Hruza (Leininger, Smith, Johnson, Baack, Placzek & Allen)

Workers’ Compensation Action:  Original Award

Action Taken by Trial Court:  The trial court denied appellant’s requests that appellee be required to pay waiting-time penalties and post reasonable security to ensure payment of future benefits under the award.

Assignments of Error on Appeal:  On appeal, appellant asserts that the trial court erred in denying its request for waiting-time penalties and for a reasonable security.

 

A-13-0594,  Anzalone v. Anzalone (Appellant)

Douglas County, District Court Judge Gary B. Randall

Attorney for Appellant: Lawrence G. Whelan (Whelan Law Office)

Attorney for Appellee:  James A. Adams (Law Offices of James A. Adams, P.C., L.L.O.)

Civil Action:  Custody Modification

Action Taken by Trial Court:  The trial court modified the dissolution decree to eliminate the right of first refusal during the school year pursuant to the appellee’s cross-complaint. The trial court further ordered the appellant to pay child support and attorney fees to the appellee.

Assignments of Error on Appeal:  The district court erred in 1) finding the appellant failed to meet her burden of proof to show a material change in circumstances has arisen sufficient to grant her requested relief; 2)finding a material change in circumstances to grant appellee’s cross-complaint for removing the first right of refusal during the school year; 3) finding a material change in circumstances which warrants the award of child support and in imputing appellant’s earning capacity; and 4) awarding appellee attorney fees.

A-13-0313, In the Matter of the Amended and Restated Irrevocable Trust of Beverly J. Morris, deceased. Allen Morris and Cynthia Morris (Appellants) v. Diane Rich, Rosalind Morris and Stephanie Morris

Douglas County, Judge Joseph P. Caniglia

Attorney for Appellants:  James D. Sherrets, Diana J. Vogt, Robert S. Sherrets (Sherrets Bruno & Vogt LLC)

Attorney for Appellee:  Kristopher J. Covi (McGrath North Mullin & Kratz, PC LLO)

Civil Action:  Action to Vacate Prior Order

Action Taken by Trial Court:  The trial court refused to vacate its prior order and found Appellant to be in contempt of court.

Assignments of Error on Appeal:  Appellants have assigned a number of errors, in which they challenge the court’s refusal to vacate its prior order, its finding of contempt, and its denial of recusal.

A-13-0625, Lynn S. Daugherty (Appellee/Cross-Appellant) v. Kim L. Daugherty (Appellant/Cross-Appellee)

Douglas County, District Court Judge Thomas A. Otepka

Attorney for Appellant:  Terrance A. Poppe, Benjamin D. Kramer (Morrow, Poppe, Watermeier & Lonowski, P.C.)

Attorney for Appellee:  Jodie Haferbier McGill (McGill Law, P.C., L.L.O.)

Domestic Action:  Modification of custody and child support

Action Taken by Trial Court:  The district court modified appellant’s parenting time and ordered such parenting time to be at the discretion of a therapist; denied appellee’s request to terminate the parental rights of appellant; reduced appellant’s child support obligation; found appellant to be in contempt of court for failing to pay certain child care expenses; and ordered appellant to pay a portion of appellee’s attorney fees.

Assignments of Error on Appeal:  On appeal, appellant asserts that the district court erred in (1) granting a therapist the authority to decide his parenting time with the children; (2) finding him in contempt for his failure to pay the child care expenses; and (3) ordering him to pay a portion of appellee’s attorney fees. On cross-appeal, appellee asserts that the district court erred in (1) modifying appellant’s child support obligation; (2) failing to terminate appellant’s parental rights; and (3) failing to order that the attorney fee judgment entered in her favor should bear interest.

 

 

Moore, Pirtle, Riedmann

North Platte - Wednesday, May 14, 2014 subject to call at 9:00 AM

A-13-0206, Sheryl Ann Fellers v. William George Fellers, III (Appellant)

Dawson County, District Court Judge James E. Doyle IV

Attorney for Appellant:  Kent A. Schroeder (Ross, Schroeder and George, LLC)

Attorney for Appellee:  Claude E. Berreckman, Jr. (Berreckman & Davis, P.C.)

Civil Action:  Dissolution of Marriage

Action Taken by Trial Court:  The district court dissolved the parties’ marriage and divided their marital property.

Assignments of Error on Appeal:  William assigns that the district court erred in (1) failing to include in the marital estate the savings account set up by Sheryl for her son, (2) failing to divide the marital estate equitably, (3) awarding Sheryl the property known as the “50 cent 40,” (4) including in the marital estate certain equipment owned by Fellers Ag, (5) including the Canadian Shorthorn Bull in the marital estate, (6) awarding Sheryl attorney’s fees, (7) valuing Sheryl’s retirement account, (8) finding that William’s co-op retirement accounts were marital property, (9) ordering William to pledge non-marital property to satisfy marital debt, and (10) dividing the marital property and allocating the marital debt between the parties.

A-13-0513, In re Interest of Lorenzo S., a child under 18 years of age.
A-13-0516, In re Interest of Lillian S., a child under 18 years of age.

Scotts Bluff County, County Court Judge Kristen Mickey

Attorney for Appellant:  David S. MacDonald  (Public Defender’s Office)

Attorney for Appellee:  Doug Warner (County Attorney’s Office), Lindsay R. Snyder (Guardian Ad Litem, Smith, Snyder & Petitt)

Civil Action:  Termination of Parental Rights

Action Taken by Trial Court:  The trial court terminated the parental rights of Appellant.

Assignments of Error on Appeal:  Did the court err in finding termination was in the children’s best interests? Was the Appellant denied due process?  Did the court err in finding there was no conflict of interest in the placement of the children with  a family member who was also an employee of the county attorney’s office? 

A-13-0301, Jeff Bott and Victoria Bott, husband and wife (Appellants) v. Thomas L. Holman and Sharon A. Holman, husband and wife

Scotts Bluff County, District Court Judge Leo Dobrovolny

Attorney for Appellant:  Maren Lynn Chaloupka (Chaloupka Holyoke Snyder Chaloupka Longoria & Kishiyama)

Attorney for Appellee:  Paul W. Snyder (Smith, Snyder & Petitt)

Civil Action: Rescission of real estate contract based on fraudulent misrepresentation and fraudulent concealment

Action Taken by Trial Court:  Following a bench trial, the trial court found insufficient evidence to prove the elements of fraudulent misrepresentation or fraudulent concealment, and found in favor of the defendants. 

Assignments of Error on Appeal:  The appellants assign that the district court erred in (1) confusing a sellers property condition disclosure statement with a contract, (2) failing to find that the evidence established fraudulent concealment, and (3) failing to find that the evidence established fraudulent misrepresentation. 

A-13-0276, Deborah K. Kunnemann v. Marlon K. Kunnemann (Appellant)

District Court for Chase County, District Judge David W. Urbom

Attorney for Appellant:  Jeffrey S. Armour (Armour Law Firm)

Attorney for Appellee:  Gregory J. Beal (Beal Law Firm)

Civil Action:  Dissolution of marriage

Action taken by the Trial Court:  The trial court entered a decree dissolving the parties’ marriage and denied Marlon’s motion for a new trial or for entry of an amended decree.

Assignments of Error on Appeal, Restated:  Did the trial court err in calculating and dividing the marital estate? Did the trial court err in awarding alimony to Deborah? Did the trial court err in ordering Marlon to pay a portion of Deborah’s attorney fees? Did the trial court err in denying Marlon’s motion for a new trial?

A-13-0688, Linda K. Coupens v. Patrick J. Coupons (Appellant)

Box Butte County, District Court Judge Travis P. O’Gorman

Attorney for Appellant:  Paul W. Snyder (Smith, Snyder & Pettit)

Attorney for Appellee:  A. James Moravek (Curtiss, Moravek, & Curtiss, PC LLO)

Civil Action:  Dissolution of Marriage

Action Taken by Trial Court:  The district court dissolved the parties’ marriage and divided the marital estate.

Assignments of Error on Appeal:  On appeal, Patrick assigns that the district court erred in (1) including real estate located in South Dakota in the marital estate, (2) including two bank accounts in the marital estate and valuing them at their pre-dissolution balances, (3) valuing two collector’s cars, (4) failing to allow Patrick a reasonable opportunity to object to certain exhibits, (5) overruling objections to exhibits 61 and 62, (6) failing to include in the marital estate insurance proceeds received for damage to the marital residence, (7) using testimony of Linda, which Linda admitted was derived from opinions given to her by her attorney, for the purpose of valuing certain property, and (8) failing to account for and attribute to Linda $10,300 that she moved from a joint bank account to her personal account.

A-13-0635, Rita A. Sutton and Kai Carlson v. Helen Killham, et al. (Appellants)

District Court for Cheyenne County, District Judge Leo Dobrovolny

Attorney for Appellants:  Robert M. Brenner (Brenner Law Firm)

Attorney for Appellees (Sutton and Carlson):  Thomas D. Oliver

Attorney for Appellee (Reciever):  Todd Morten (Island Huff Law Firm)

Civil Action:  Appeal from orders denying motion to reconsider and ordering sale of interests in oil wells to proceed

Action taken by the Trial Court:  The trial court directed the referee to sell the remaining interests of the parties in certain oil wells and removed the condition that the wells be placed into production before sale.

Assignments of Error on Appeal:  Did the trial court err in directing the receiver to no longer pursue placing the oil wells into production prior to sale? Did the trial court err in determining that the Nebraska Oil and Gas Conservation Commission (NOGC) had determined a denial of the receiver to operate and asserting there was no current lease covering the wells? Did the trial court err in modifying the prior final orders and giving the referee directions to proceed to sale without oil production? Did the trial court err in receiving and relying on letters from the director of the NOGCC? Did the trial court err in allowing the conduct of the receivership to continue when the receiver ignored, avoided, and failed to act upon numerous court directions?

A-13-0892, Buckley C. Deterding (Appellant) v. Teresa A. Deterding

Lincoln County, District Court Judge John P. Murphy (Retired)/District Judge Richard A. Birch

Attorney for Appellant:  Bradley Dawson (Lindemeier, Gillett & Dawson)

Attorney for Appellee:  Kim M. Seacrest (Seacrest Law Office, P.C., L.L.O.)

Civil Action:  Alimony

Action Taken by Trial Court:  The district court dissolved the marriage of the parties and ordered Buckley to pay Teresa alimony of $500 per month for a period of 84 months.

Assignments of Error on Appeal:  Did the court err in the awarding alimony? Did the court err in the determination of the amount and duration of alimony?