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Court of Appeals Call Case Summaries

Irwin, Riedmann, Bishop

Lincoln - Wednesday, April 16, 2014 subject to call at 9:00 AM

A-13-0288, State of Nebraska v. Tim R. Wulf (Appellant)

Washington County, District Court Judge Daniel E. Bryan Jr.

Attorney for Appellant:  Steven W. Holland (Holland Law Office, P.C.)

Attorney for Appellee:  Jon Bruning, George R. Love (Attorney General’s Office)

Criminal Action:  Theft in excess of $1,500

Action Taken by Trial Court:  Wulf was convicted of the above crime.

Assignments of Error on Appeal:  Wulf assigns that the district court erred in (1) admitting the county court judgment into evidence, (2) admitting the execution of the judgment into evidence, and (3) excluding Wulf’s evidence to collaterally attack the judgment and execution.

 

A-13-0182, Mark Steven Pestal and Kimberly Ann Pestal v. John J. Malone, Sr. and Karen Malone (Appellants)

Douglas County, District Court Judge Leigh Ann Retelsdorf

Attorney for Appellant:  Eric A. Nanfito

Attorney for Appellee:  James B. McVay (Tiedeman, Lynch, Kampfe, McVay & Respeliers) for Appellees Mark and Kimberly Pestal; Patrick M. Flood (Hotz, Weaver, Flood, Breitkrutz & Grant) for Appellees Steven and Elizabeth Gleason.

Civil Action:  Adverse Possession, Prescriptive Easement, Property Rights

Action Taken by Trial Court:  The court awarded certain parcels to Appellees the Pestals in fee title, awarded prescriptive easements with respective to other parcels, and dismissed various counterclaims of Appellants Malones; the court also awarded certain parcels to Appellees Gleasons.

Assignments of Error on Appeal:  Appellant assigns error to the district court’s findings regarding adverse possession, prescriptive easement, and other property rights associated with the parcels of property and the rights of the various parties to this action.

A-13-0709, Christian A. Barth (Cross-Appellant) v. Mindi J. Barth (Appellant)

Lincoln County, District Court Judge Donald E. Rowlands

Attorney for Appellant:  Stephanie Flynn

Attorney for Appellee:  Shane M. Cochran (Snyder, Hilliard & Bishop, LLO)

Civil Action:  Dissolution of marriage

Action Taken by Trial Court:  The district court dissolved the parties’ marriage, awarded custody of their minor child to Christian, and ordered Mindi to pay child support of $305 per month.

Assignments of Error on Appeal:  Mindi assigns that the district court erred in (1) finding that the Lincoln County District Court acquired jurisdiction before the Lancaster County District Court, (2) awarding Christian custody of the minor child, (3) placing restrictions on cohabitation in the parenting plan, and (4) ordering Mindi to pay a portion of an expert witness fee. On cross-appeal, Christian assigns that the district court erred in deviating from the child support guidelines without good cause.

A-13-0156, Dennis R. Else (Appellant) v. Cheri J. Else

Saunders County, District Court Judge Mary C. Gilbride

Attorney for Appellant:  John C. Hahn, Brent C. Stephenson (Jeffrey, Hahn, Hemmerling & Zimmerman, P.C., L.L.O.)

Attorney for Appellee:  John H. Sohl

Civil Action:  Dissolution of Marriage

Action Taken by Trial Court:  The court adopted a property settlement agreement and made findings concerning whether certain alleged expenses associated with a cattle operation were properly deducted from proceeds of the sale of cattle.

Assignments of Error on Appeal:  Appellant challenges the district court’s finding that certain alleged expenses should not be included in calculating the net proceeds from the sale of cattle to be divided under the parties’ property settlement agreement.

Inbody, Moore, Pirtle

Lincoln - Wednesday, April 16, 2014 subject to call at 1:00 PM

A-13-0783, State v. Dukhan Iqraa Jihad Mumin (Appellant)

Lancaster County District Court, Judge Karen Flowers

Attorney for Appellant: John Jorgensen (Lancaster County Public Defender’s Office)

Attorney for Appellee: Jon Bruning, George R. Love (Attorney General’s Office)

Criminal:  Possession of a Controlled Substance; Habitual Criminal

Action Taken by Trial Court: After a stipulated trial to the court, Appellant was found guilty of possession of a controlled substance. A hearing was held concerning the habitual criminal allegation and the appellant was found to be a habitual criminal. The appellant was sentenced to 10 years’ to 20 years’ imprisonment.

Assignment of Errors on Appeal: The appellant assigns that the district court erred by overruling his motion to suppress and admitting all evidence obtained; that trial counsel was ineffective; and that the sentence imposed was excessive. 

A-13-0773, Patrick O’Flannagan v. Elizabeth Oschner (Appellant)

District Court for Adams County, District Judge Terri S. Harder

Attorneys for Appellant:  Roger G. Steele & Liana Steele (Steele Law Firm)

Attorneys for Appellee:  Sheila A. Bentzen, Peter C. Wegman, & Mark R. Richardson (Rembolt Ludtke Law Firm)

Civil Action:  Negligence, personal injury

Action taken by the Trial Court:  The trial court entered judgment on a jury verdict in favor of O’Flnannagan in the amount of $500,000 and denied Oschner’s motion for new trial.

Assignments of Error on Appeal:  Did the trial court err in admitting exhibit 33, an electrodiagnostic evaluation report, into evidence? Did the trial court err in instructing the jury that Ochsner was liable for all damages if the damages caused by the accident could not be separated from those caused by preexisting conditions? Was the jury’s verdict was excessive?

A-13-0405, In re Estate of Knickman

Otoe County Court, Judge Jeffrey J. Funke

Attorney for Appellant: Gerald M. Stilmock (Brandt, Horan, Hallstrom & Stilmock)

Attorney for Appellee: Donald R. Witt (Baylor, Evnen, Curtiss, Grimit & Witt)

Probate: Claim filed against Estate

Action Taken by Trial Court: The county court found that the indebtedness evidenced by a 1996 promissory note had been revived due to a payment made by, or consented to by, the decedent on September 23, 2009, and that a portion of the expenses advanced by the claimant were recoverable.

Assignments of Errors on Appeal: The appellant contends that the county court erred in finding that the evidence was sufficient to revive the promissory note from the statute of limitations bar and in allowing additional claims by the claimant which were not included in the original statement of claim.

A-13-0337, U.S.S. Hazard, Inc., a Nebraska corporation, and John Portera, its President v. City of Omaha Zoning Board of Appeals (Appellant)

Douglas County, District Court Judge James T. Gleason

Attorney for Appellant:  Alan M. Thelen, Rosemarie R. Horvath (City Attorney’s Office)

Attorney for Appellee:  David A. Domina (DOMINALAW Group)

Civil Action:  Issuance of Building Permits

Action Taken by Trial Court:  The district court overruled the decision of the Zoning Board, which had denied U.S.S. Hazard’s request for building permits to restore structures that had been damaged by flooding based on Omaha Municipal Code § 55-661(b).

Assignments of Error on Appeal:  Did the district court err in concluding that the Zoning Board’s decision denying U.S.S. Hazard’s request for building permits was not supported by the evidence and was clearly wrong? Did the district court err in concluding that U.S.S. Hazard’s evidence was unrebutted or unchallenged by any competent evidence before the Zoning Board? Did the district court err in requiring the Zoning Board to order the City to issue the building permits notwithstanding the fact that the structures were located in a floodway? Did the district court err in failing to consider the evidence that U.S.S. Hazard’s structures are located within an area prone to flooding and requires the City, as the property owner, to comply with the National Floodway Insurance Program guidelines?

A-13-0196, Craig A. Loveless (Appellant) v. JoAnn Loveless (Cross-Appellant)

Hall County, District Court Judge James D. Livingston

Attorney for Appellant:  Kevin A. Brostrom, Matthew C. Boyle (Lauritsen, Brownell, Brostrom & Stehlik, PC, LLO)

Attorney for Appellee:  Susan M. Koenig (Mayer, Burns, Koenig & Janulewicz)

Civil Action:  Dissolution of Marriage

Action Taken by Trial Court:  The trial court divided the marital estate, using the trial date as the valuation date; ordered JoAnn to reimburse Craig for one-third of the mortgage payments and utilities on the marital home; equally divided the parties’ retirement accounts, and awarded JoAnn $1 per year in alimony for 120 months.

Assignments of Error on Appeal:  Did the trial court err in valuing the marital estate at the time of trial? Did the trial court err in failing to require JoAnn to reimburse Craig for one-half of the mortgage payments and utilities on the marital home? Did the trial court err in allocating the parties’ retirement accounts equally? Did the trial court err in granting JoAnn any alimony?

Assignment of Error on Cross-Appeal: Did the trial court err in awarding JoAnn only a nominal amount of alimony?

A-13-0663, State of Nebraska v. Lewis Rakosnik (Appellant)

Pawnee County, District Court Judge Daniel L. Bryan, Jr.

Attorney for Appellant:  John S. Berry (Berry Law Firm)

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

Criminal Action:   Knowing and Intentional Abuse of a Vulnerable Adult, Attempted Theft by Deception, Attempted Knowing and Intentional Abuse of a Vulnerable Adult.

Action Taken by Trial Court:  Appellant was convicted of the above crimes following a jury trial.

Assignments of Error on Appeal:  Did the district court err in giving the jury misleading, confusing, or incomplete jury instructions? Did the district court abuse its discretion in allowing Appellee to go beyond the scope of direct examination in re-cross examination of a witness? Was the evidence sufficient to prove Appellant’s guilt beyond a reasonable doubt?