Justia Nebraska Supreme Court Opinion Summaries

Articles Posted in June, 2012
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This was an appeal after a retrial on remand in a breach of contract claim by Insured against Insurer. At issue on appeal was the optional replacement cost coverage that Insured contracted. The question was whether Insurer's general denial of liability excused Insured from complying with a policy condition requiring that Insured actually repair or replace the damaged property before replacement costs would be paid. The Supreme Court remanded the cause for a new trial on the limited issue of the extent to which Insurer's conduct prevented Insured from complying with the repair / replace condition to replacement cost coverage under the policy. Also to be tried on remand was the amount of the actual cash value of the loss in the event Insured was not excused from the condition precedent to replacement cost coverage. View "D & S Realty, Inc. v. Markel Ins. Co." on Justia Law

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The Mother of three children appealed from an order of the county court, sitting as a juvenile court, terminating her parental rights to the three minor children. Paternal rights were not at issue in this case. The Supreme Court affirmed, holding that the lower court did not err in terminating Mother's parental rights to her three children, holding (1) clear and convincing evidence showed that Mother's personal deficiencies prevented her from performing her reasonable parental obligations to the three children in the past and would likely prevent her from doing so in the future, and accordingly, the presumption of fitness was rebutted; and (2) clear and convincing evidence showed that terminating Mother's parental right would be in the children's best interests. View "In re Kendra M." on Justia Law

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Lindsay gave birth to Alexander, whose biological father was Carlos. Lindsay and Carlos, who were both fifteen years of age at the time of Alexander's birth, were never married. Lindsay planned to place the child for adoption, but Carlos objected and sought custody. The county court found that Carlos did not timely file his objection to the adoption and that Carlos was not a proper party to bring an action because he was a minor. The court of appeals dismissed Carlos' appeal, finding that the county court's order was not a final order. The Supreme Court dismissed the appeal, holding that the county court lacked jurisdiction over the action, which was brought solely in the name of a minor, and therefore, the Court also lacked jurisdiction. View "Carlos H. v. Lindsay M." on Justia Law

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The district court dissolved the marriage of Jennifer Dalbey, Appellant, and Matthew Bock. At issue on appeal was whether a trial court in a martial dissolution action has the discretion to order the parties to file a joint income tax return. The court of appeals affirmed the trial court's order requiring the parties to file a joint tax return, concluding that trial courts do have such discretion. The Supreme Court reversed, holding that because a trial court can equitably adjust its division of the marital estate to account for a spouse's unreasonable refusal to file a joint return, resort to a coercive remedy that carries potential liability is unnecessary. Remanded. View "Bock v. Dalbey" on Justia Law

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The State of Nebraska Accountability and Disclosure Commission issued an advisory opinion answering the question of whether Omaha firefighters can engage in a campaign to raise funds for the Muscular Dystrophy Association (MDA) during on-duty time paid for with taxpayer funds or using city-owned uniforms and equipment. The Commission stated that such activities violated the Nebraska Political Accountability and Disclosure Act (NPADA). Appellants, the Nebraska Professional Firefighters Association, its president, and the MDA, filed an action against the Commission, asking the district court to declare the advisory opinion invalid. The district court dismissed the case, determining that it lacked subject matter jurisdiction to review a Commission advisory opinion. The court of appeals dismissed the appeal for lack of jurisdiction. The Supreme Court affirmed, holding that the district court correctly concluded that it lacked subject matter jurisdiction, and the court of appeals correctly dismissed the appeal. View "Engler v. State" on Justia Law

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Westin Hills West Three Townhome Owners Association (the Association) appealed an order of the district court, which entered summary judgment in favor of the owner of the property, Federal National Mortgage Association, doing business as Fannie Mae (FNMA). In this foreclosure of lien case, the Association claimed that the recording of its declaration of covenants before the deed of trust gave the assessment lien recorded after the deed of trust first priority. The district court rejected this claim. The Supreme Court affirmed, holding that the court did not err in granting FNMA's motion for summary judgment, as the deed of trust was superior to any assessment lien mentioned in the declaration of the Association. View "Westin Hills Townhome Owners Ass'n v. Fed. Nat'l Mortgage Ass'n" on Justia Law

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Mutual of Omaha Bank filed a petition seeking declaratory judgment against Patrick and April Kassebaum, who owed the Bank payments due under several promissory notes. In particular, the Bank sought to have the district court declare the rights of the parties with respect to an assignment of unliquidated proceeds or personal injury litigation executed by the Kassebaums. The Kassebaums filed a motion to dismiss or, in the alternative, a motion for summary judgment, alleging that the assignment was ineffective. The district court denied the motion, and the matter proceeded to trial. A jury entered a verdict in favor of the Bank in the amount of $126,376. The Supreme Court affirmed, holding that the Kassebaums' assignment was valid and enforceable under Nebraska law. View "Mut. of Omaha Bank v. Kassebaum " on Justia Law

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Amy L. was the biological mother of Fianna. In 2001, the district court entered a paternity decree finding Jeffrey B. to be Fianna's father. Several years later, Amy began to suspect that Todd W. was Fianna's father. In 2009, Amy filed an application to modify the paternity decree. Todd sought to intervene in the action, claiming that he was Fianna's father. The trial court allowed Todd to intervene, and it later set aside the paternity decree. The court subsequently entered an order finding that Todd was Fianna's father and awarding custody of Fianna to Todd. Genetic tests confirmed that Todd was the biological father. The Supreme Court reversed, holding that the trial court erred in permitting Todd to intervene and in setting aside the paternity decree of 2001. Remanded with directions to dismiss Todd from the action and to proceed on Amy's request to modify the paternity decree. View "Jeffrey B. v. Amy L." on Justia Law

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For several years, Michael Feloney used his neighbor Robert Baye's driveway to turn his vehicle to enter his garage. Eventually Baye decided to build a retaining wall on his driveway, which prevented Feloney from using Baye's driveway. Feloney sued Baye, requesting the district court to impose a prescriptive easement on Baye's driveway for ingress and egress. The district court granted summary judgment for Baye, concluding (1) Feloney's use of the driveway was permissive under the "unenclosed land" rule, which provides an exception to the rule presuming adverseness when the use is over unenclosed land; and (2) thus Feloney could not prove the elements required for a prescriptive easement. The Supreme Court affirmed but for different reasons, holding (1) the presumption of permissiveness arises when the land is unenclosed wilderness and does not apply in urban settings such as in this case; (2) when the owner of a property has opened or maintained a right of way for his own use and the claimant's use appears to be in common with that use, the presumption arises that the use is permissive; and (3) Feloney's use of Baye's driveway was presumptively permissive under this rationale. View "Feloney v. Baye" on Justia Law