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Court of Appeals Call Case Summaries

Inbody, Riedmann, Bishop

Lincoln - Tuesday, September 16, 2014 subject to call at 9:00 AM

A-13-1105, State of Nebraska v. Elijah Watts (Appellant)
A-13-1136, State of Nebraska v. Elijah Watts (Appellant)

Lancaster County, District Court Judge Paul D. Merritt, Jr. (A-13-1105)

Lancaster County, District Court Judge Jodi L. Nelson (A-13-1136)

Attorney for Appellant:  Chad J. Wythers (Berry law Firm)

Attorney for Appellee:  Jon Bruning, James D. Smith (Attorney General’s Office)

Criminal Action:  Driving under the influence

Action Taken by Trial Court:  In A-13-1105, the district court dismissed Watts’ appeal from his 2005 county court conviction for driving under the influence because he failed to request or pay for an appeal transcript. In A-13-1136, the trial court enhanced Watts’ most recent DUI conviction to a third offense, based in part on its finding that the 2005 DUI conviction currently on appeal in A-13-1105 was a valid prior conviction for purposes of enhancement.

Assignments of Error on Appeal:  Watts assigns that the district court erred in (1) dismissing his appeal from the 2005 county court conviction, and (2) finding that his 2005 conviction was valid for purposes of enhancement even though it was pending on appeal at the time of the enhancement hearing.

 

A-13-717, Koch (Appellant) v. Koch  (Appellee/Cross-Appellant)

Knox County, District Court Judge James G. Kube

Attorney for Appellant: Michelle M. Schlecht (Copple, Rockey, McKeever & Schlecht, P.C., L.L.O.)

Attorney for Appellee: Ronald E. Temple (Fitzgerald, Vetter & Temple)  

Civil Action:  Dissolution of Marriage

Action Taken by Trial Court:  The district court entered an order addressing issues including the division of marital property, custody, visitation, child support, alimony, security for alimony and child support obligations, dependency exemptions, and attorney fees.

Assignments of Error on Appeal:  The appellant contends that the district court abused its discretion (1) in failing to set off to him real estate and farm equipment that he had been gifted or had inherited from his parents, (2) in its valuation of farmland, (3) in its division of farmland between the parties, (4) in the award of alimony, and (5) in ordering security for his alimony and child support obligations. On cross-appeal, the appellee/cross-appellant contends that the district court abused its discretion (1) in ordering an unequal division of the marital estate, (2) in determining the value of farmland and the acreage, (3) in the amount of child support awarded, (4) in awarding insufficient alimony, (5) in failing to award interest on the money judgment and alimony as it becomes due, (6) in failing to award her the dependency exemptions, and (7) in awarding her inadequate attorney fees.

A-14-0058, State of Nebraska v. Jacob D. Armagost (Appellant)

Merrick County, District Court Judge Michael Owens

Attorney for Appellant:  Mitchell C. Stehlik (Lauritsen, Brownell, Brostrom, & Stehlik, P.C., L.L.O.)

Attorney for Appellee:  Jon Bruning, Lauro Nigro (Attorney General’s Office)

Criminal Action:  Operating a motor vehicle to avoid arrest

Action Taken by Trial Court:  Following a jury trial, Armagost was convicted of operating a motor vehicle in a willful reckless manner to avoid arrest

Assignments of Error on Appeal:  Armagost assigns that the district court erred in (1) failing to grant his motions for directed verdict, (2) declining to give his proposed jury instruction containing the definition of “arrest,” (3) overruling his objection to the elements instruction, which did not include the essential element of an attempt to arrest, (4) accepting the jury’s guilty verdict when the evidence was insufficient to prove his guilt beyond a reasonable doubt, (5) failing to grant his motion for new trial, and (6) failing to grant his motion for judgment notwithstanding the verdict.  

A-13-0917, Laura A. Snodgrass n/k/a Laura A. Tomczak (Appellant) v. Bryan S. Snodgrass  

Douglas County, District Judge Kimberly M. Pankonin

Attorney for Appellant:  Kelly T. Shattuck (Vacanti Shattuck)

Attorney for Appellee: John A. Kinney and Jill M. Mason (Kinney Law, PC, LLO)

Civil Action: Modification of Dissolution Decree; Custody/Visitation

Action Taken by Trial Court:  The district court denied Laura permission to move from Nebraska to Alabama with the parties’ minor children.

Assignments of Error on Appeal:  Laura alleges the district court erred in denying her permission to remove the minor children from the State of Nebraska.

 

A-14-119, Aaron E. Rommers (Appellant) v. Elizabeth Rommers

Holt County, Judge Mark D. Kozisek

Attorney for Appellant:  Joel E. Carlson (Stratton DeLay Doele Carlson & Buettner PCLLO)

Attorney for Appellee:  Lori McLain Lee (Legal Aid of Nebraska)

Civil Action: Dissolution of Marriage; Custody

Action Taken by Trial Court:  The trial court dissolved the marriage an awarded custody of the parties’ minor child to the appellee. The appellant was given parenting time and ordered to pay child support of $424 per month.

Assignments of Error on Appeal: The district court erred in (1) awarding custody to Appellee; (2) ordering a parenting plan restricting Appellant’s parenting time as it alienates the child from Appellant; (3) failing to find Appellee’s flight to another state was a critical factor in deciding custody and parenting time; (4) failing to deviate from the child support calculation to factor transportation costs; (5) not allocating the tax exemption between the parties.

 

Irwin, Moore, Pirtle

Lincoln - Tuesday, September 16, 2014 subject to call at 1:00 PM

A-14-0038, State of Nebraska v. Betty Kellogg (Appellant)

Burt County, District Court Judge John E. Samson

Attorney for Appellant:  Nicholas E. Wurth (The Law Offices of Nichloas E. Wurth, PC)

Attorney for Appellee:  Jon Bruning, Kimberly A. Klein (Attorney General’s Office)

Criminal Action:  Possession of Methamphetamine

Action Taken by Trial Court:  The trial court overruled a motion to suppress and convicted Appellant after a bench trial.

Assignments of Error on Appeal:  Appellant’s assignments of error challenge the denial of her motion to suppress, based on assertions that the law enforcement officer lacked reasonable suspicion to expand the scope of a traffic stop and lacked probable cause to arrest Appellant.

A-13-0942, Joseph Glenn Leonard (Appellant) v. Kristina Kaye McKee, a/k/a Kristina Kaye Leonard

District Court for Washington County, District Judge John E. Samson

Attorney for Appellant:  Avis R. Andrews

Attorney for Appellee:  Anita L. Mayo (Family and Juvenile Law Omaha)

Civil Action:  Dissolution of marriage

Action taken by the Trial Court:  The trial court dissolved the parties’ marriage, granted sole legal and physical custody of the parties’ children to Kristina, and ordered Joseph to pay child support.

Assignments of Error on Appeal:  Did the trial court err in granting Kristina sole legal and physical custody of the minor children as opposed to awarding the parties joint custody? Were Joseph’s due process rights violated at trial?

A-13-0762, Joy Malchow (Appellant) v. Mary Michaelsen

Douglas County, District Court Judge Shelly R. Stratman

Attorney for Appellant:  Terrence J. Salerno, Joseph B. Muller

Attorney for Appellee:  Dan H. Ketcham, Dain J. Johnson (Engles, Ketcham, Olson & Keith, P.C.)

Civil Action:  Negligence/Personal Injury

Action Taken by Trial Court:  Based on Malchow’s motion for directed verdict at the close of evidence, the trial court found as a matter of law that Michaelsen was negligent in the operation of her vehicle, and such negligence was the proximate cause of the automobile accident. The court declined to grant a directed verdict regarding whether Malchow had sustained an injury as a result of the accident, and that issue was given to the jury. The jury returned a verdict in favor of Malchow in the amount of $10,000. Malchow filed a motion for new trial, which the trial court denied.

Assignments of Error on Appeal:  Did the trial court err when it refused to receive into evidence an exhibit consisting of Malchow’s medical bills? Did the trial err in failing to redact the medical bills exhibit or conditionally admit it subject to additional proof? Did the trial court err in failing to direct a verdict on the issue of whether Malchow was injured? Did the trial court err in failing to strike certain potential jurors for cause?

A-13-0675, Donald H. Breit, III (Appellant) v. Marianne S. Breit

District Court for Lancaster County, District Judge John A. Colburn

Attorneys for Appellant:  Donald H. Bowman & Terri M. Weeks (Bowman Krieger Law Firm)

Attorney for Appellee:  W. Patrick Betterman (Betterman Law Firm)

Civil Action:  Motion to vacate decree of dissolution

Action taken by the Trial Court:  The trial court invoked its power under Neb. Rev. Stat. § 25-2001(1) (Reissue 2008) and vacated the property settlement portion of the decree. The court awarded Marianne $50,000 in attorney fees.

Assignments of Error on Appeal:  Did the trial court abuse its discretion by granting Marianne equitable relief when she had an adequate remedy at law? Did the trial court abuse its discretion by failing to consider whether Marianne exercised due diligence? Did the trial court abuse its discretion by failing to address whether the elements of fraud had been established in this case? Did the trial court abuse its discretion by vacating the decree as to the property settlement agreement? Did the trial court abuse its discretion by awarding Marianne $50,000 in attorney fees?

A-13-0775, Elizabeth Grant D’Allura (f/k/a Elizabeth Grant Johnson) (Appellant) v. Kari Johnson

Douglas County, District Court Judge Shelly R. Stratman

Attorney for Appellant:  Rodney c. Dahlquist, Jr., Christine A. Lustgarten (Dornan, Lustgarten & Troia PC LLO)

Attorney for Appellee:  Virgina A. Albers (Lieben, Whitted, Houghton, Slowiaczek & Cavanagh, P.C., L.L.O.)

Civil Action:  Child Support Modification

Action Taken by Trial Court:  The trial court retroactively modified Appellant’s child support obligation and granted credits against future support payments and a personal judgment for amounts considered overpaid as a result of the retroactive modification.

Assignments of Error on Appeal:  Assignments of error on appeal include that the court erred in calculating the parties’ respective earnings, in modifying child support retroactively, in awarding credits, and in granting a personal judgment for alleged overpayments of support.

Lincoln - Wednesday, September 17, 2014 subject to call at 10:00 AM

A-13-0777, In the Matter of the Estate of Ellen M. Panec, Deceased. Rebecca Griffin (Appellant) v. William J. Panec, Personal Representative

Jefferson County, County Court Judge Steven B. Timm

Attorney for Appellant:  Eric B. Brown (Atwood, Holsten, Brown & Deaver Law Firm, P.C., L.L.O.)

Attorney for Appellee:  Vincent M. Powers (Vincent M. Powers & Associates)

Civil Action:  Probate

Action Taken by Trial Court:  The county court accepted the settlement agreement with the tortfeasor and with the Ellen Panec’s underinsured motorist carrier. The court distributed the settlement proceeds according to Neb. Rev. Stat. §30-810 (Reissue 2008).

Assignments of Error on Appeal:  Did the county court err in holding it did not have jurisdiction to allocate damages other than as provided by §30-810? Did the county court err in not allocating any of the settlement proceeds to the personal injury survivor claim? Did the county court err when it did not factor the medical expenses sustained for the treatment and care of Ellen Panec into the final award to either Appellant or Appellee?