Justia Nebraska Supreme Court Opinion Summaries

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The case involves a medical malpractice claim brought by Ivan J. Konsul against Juan Antonio Asensio, M.D. The claim arose from treatment Konsul received after being admitted to Creighton University Medical Center following a motor vehicle accident. Asensio, a trauma surgeon, placed an inferior vena cava filter (IVC filter) in Konsul to prevent migration of deep vein thrombosis. Konsul alleged that Asensio violated applicable standards of care in various respects, including unnecessary placement of the filter, improper location of the filter, and failing to inform Konsul of the long-term risks of the filter remaining in his body. Konsul claimed that due to Asensio's failures, the filter migrated throughout his body and became lodged behind his heart, causing physical pain, mental suffering, and additional health care costs.The case went to a jury trial. Konsul called Dr. David Dreyfuss as an expert witness to provide testimony regarding the standard of care applicable to Asensio. However, the district court ruled that Dreyfuss could not testify regarding the applicable standard of care in Omaha, as he was not familiar with the standard of care in Omaha or a similar community. Without Dreyfuss' testimony, Konsul provided no evidence of the standard of care, and the district court dismissed Konsul's case.Konsul appealed, claiming that the district court erred when it struck Dreyfuss as an expert witness and when it granted Asensio's motion for a directed verdict and dismissed the case. The Nebraska Supreme Court affirmed the district court's decision, concluding that the district court did not err when it struck Dreyfuss as an expert witness and when it granted Asensio's motion for a directed verdict and dismissed Konsul's case. The court also found that any error regarding the deposition issues was harmless considering the proper dismissal of the action based on Konsul's failure to provide evidence of the standard of care. View "Konsul v. Asensio" on Justia Law

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The case involves Kevin S. German, who was convicted of second-degree murder, kidnapping, and first-degree false imprisonment. The crimes were based on two separate incidents that occurred over a two-day period in November 2019. German and his girlfriend, Keonna Carter, abducted and assaulted E.A. In the second incident, they abducted, assaulted, and killed Annika Swanson.The District Court for Chase County, Nebraska, heard the case. The court admitted photographic evidence of Swanson's child, gave instructions on aiding and abetting a crime, and refused to give German's tendered instructions. The court also imposed a sentence of life imprisonment for kidnapping.The Nebraska Supreme Court affirmed the district court's judgment. The court found no abuse of discretion in the receipt of photographic evidence and no reversible error related to the jury instructions or kidnapping sentence. With regard to German's ineffective assistance of counsel claims, they either lacked merit, could not be resolved on the existing record, or were not sufficiently alleged. View "State v. German" on Justia Law

Posted in: Criminal Law
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The case revolves around a dispute over the calculation of postjudgment interest on a series of loans between David Meiergerd and Qatalyst Corporation and Roland Pinto. Meiergerd had filed a complaint in 2007 seeking to recover on a series of loans that occurred between him and the appellees. In 2008, the district court granted Meiergerd’s motion for default judgment, ordering the appellees to pay Meiergerd a certain amount plus postjudgment interest “at the rate of 16% compounded annually ($58.97 per day).”The appellees initiated a separate proceeding in 2022, seeking to vacate or amend the judgment from the earlier proceedings. This new action was ultimately dismissed. Subsequently, in the original case, the court granted the appellees’ motion for revivor. The appellees then filed a “Motion for Satisfaction and Discharge of Judgments” related to the judgment against them. The district court calculated the amount of postjudgment interest due to Meiergerd by multiplying the per diem rate stated in the 2008 order, $58.97, by the number of days between the date of the 2008 order and the date of payment. The court found that the appellees’ checks had satisfied the amount due on the judgment, including postjudgment interest, costs, and attorney fees.Meiergerd appealed to the Nebraska Court of Appeals, asserting that the computation of the amount due and owing in the satisfaction of judgment improperly used the specified per diem rate, but failed to apply compound interest on the postjudgment amount. He contended that the district court’s approval of this daily rate disregards the language in the 2008 order that stated that postjudgment interest would be “compounded annually.” The Court of Appeals affirmed the order of the district court, and Meiergerd petitioned for further review.The Nebraska Supreme Court affirmed the decision of the Court of Appeals. The court concluded that the 2008 order was ambiguous with respect to the manner of calculating postjudgment interest, and determined that the 2008 order provided for simple interest and did not introduce compound interest that had not been requested by Meiergerd or supported by prior conduct between the parties. View "Meiergerd v. Qatalyst Corp." on Justia Law

Posted in: Banking, Contracts
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Salvador Garcia, a garbage truck driver, filed a negligence lawsuit against the City of Omaha under the Political Subdivisions Tort Claims Act (PSTCA) after his truck fell into a sinkhole on a city street, causing him injuries. The City of Omaha claimed sovereign immunity under a provision of the PSTCA that generally immunizes political subdivisions from liability claims relating to localized defects in public thoroughfares unless they have actual or constructive notice of the defect and a reasonable time to repair it. The City argued that it did not have such notice.The City of Omaha filed a motion for summary judgment, asserting its sovereign immunity. The District Court for Douglas County denied the City's motion, finding that while the City had made a prima facie case that it lacked actual or constructive notice of the defect, Garcia had met his burden to demonstrate a genuine issue of material fact that precluded summary judgment. The City appealed this decision.The Nebraska Supreme Court affirmed the lower court's decision. The court found that the City had met its initial burden by showing that it did not have actual or constructive notice of the defect. However, the court also found that Garcia had met his burden to demonstrate a genuine issue of material fact as to whether the City had actual or constructive notice of the defect. The court concluded that the evidence created a genuine issue of material fact whether the City received actual or constructive notice of the defect in a public thoroughfare. If the City had received notice within a reasonable time to allow it to make repairs prior to the incident, it would not be immunized under the relevant provision of the PSTCA. View "Garcia v. City of Omaha" on Justia Law

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The case revolves around an alleged business partnership between Elaine Clemens and the late Arthur Emme. Clemens and Emme were intimate partners who never married. Clemens began working at Emme's business, O'Neill Body and Frame, in 1990. They moved in together in 1992 and worked together on several ventures. After Emme's death in 2017, Clemens filed a lawsuit against Curtis Emme, the personal representative of Arthur Emme's estate, claiming that she and Arthur Emme had created a business partnership in 1992. She sought a declaration that a business partnership existed between her and Arthur Emme, with each owning equal interests in the partnership.The district court for Holt County, Nebraska, rejected Clemens' argument that Curtis Emme was judicially estopped from denying the existence of a business partnership between her and Arthur Emme. The court found that Arthur Emme never unequivocally stated in a prior action that Clemens was his business partner and that the courts in that action did not adopt the position that Clemens and Arthur Emme were business partners.The case then proceeded to a jury trial on the existence of a business partnership. The jury found that Clemens failed to meet her burden of proof establishing that a partnership existed. The district court entered judgment in favor of Curtis Emme and against Clemens. Clemens appealed, but the Nebraska Supreme Court affirmed the district court's judgment, finding no error in its rulings. View "Clemens v. Emme" on Justia Law

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The case revolves around a dispute between Dirt Road Development LLC (DRD) and Robert and Kathryn Hirschman over the construction and operation of a new feedlot in Howard County, Nebraska. The Hirschmans own several properties in the county where they operate feedlot facilities. They planned to construct and operate a new feedlot on a property that is separated from their existing feedlots by a quarter section of land owned by a third party. DRD, which owns a property near the proposed new feedlot, filed a lawsuit seeking to prevent the Hirschmans from constructing and operating the new feedlot without obtaining a conditional use permit from the Howard County Board of Commissioners.The District Court for Howard County heard the case initially. The court had to determine whether, under Howard County’s zoning regulations, the Hirschmans' new feedlot was “adjacent” to their existing livestock operations. If so, the regulations required the Hirschmans to obtain a conditional use permit before constructing and operating the new feedlot. The district court concluded that the new feedlot was adjacent to the Hirschmans’ other feedlots and that therefore, the Hirschmans were required to obtain a conditional use permit to build and operate the new feedlot. The court granted DRD’s motion for summary judgment and denied the Hirschmans’ motion.The Hirschmans appealed the decision to the Nebraska Supreme Court. They argued that the district court erred in holding that under the Howard County zoning regulations, their new feedlot was adjacent to their other feedlots and constituted a single commercial livestock operation rather than a separate feedlot. The Nebraska Supreme Court affirmed the district court's decision, agreeing that the term "adjacent" as used within the zoning regulations is unambiguous and that the Hirschmans were required to obtain a conditional use permit for their new feedlot. View "Dirt Road Development v. Hirschman" on Justia Law

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The case revolves around a residential eviction dispute between a landlord, MIMG LXXIV Colonial, LLC (Colonial), and a tenant, TajReAna Ellis. Colonial initiated eviction proceedings against Ellis for failing to pay rent, providing a seven-day notice as required by Nebraska’s Uniform Residential Landlord and Tenant Act (URLTA). Ellis, however, argued that the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) imposed a 30-day notice requirement, superseding the state law. The county court rejected Ellis' argument and ruled in favor of Colonial. Ellis appealed to the district court, which reversed the county court's decision, agreeing with Ellis that the CARES Act required a 30-day notice.The case was then brought before the Nebraska Supreme Court. However, by this time, Ellis' lease had expired, and she had vacated the property. The court found that the case was moot as the relief sought by Colonial, a judgment for restitution of the premises, would have no practical effect since Ellis no longer resided in the property. Colonial argued that the case was not moot due to its interest in knowing whether it violated the law and the financial interest related to the district court's taxing of costs. The court rejected these arguments, stating that claims for costs are generally insufficient to avoid mootness.The court also considered whether to reach the merits of the case under the public interest exception to the mootness doctrine. However, it declined to do so, noting that the primary question in the case was a matter of federal statutory interpretation, over which the U.S. Supreme Court has final authority. The court also declined to apply the collateral consequences exception, which is typically used in criminal cases. Consequently, the appeal was dismissed. View "MIMG LXXIV Colonial v. Ellis" on Justia Law

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The case revolves around a medical malpractice claim filed by Jillyn M. Woodward, individually and as Special Administrator of the Estate of Brian K. Woodward, deceased, against Saint Francis Medical Center and the doctors who treated Brian. Brian was admitted to the emergency room at Saint Francis Medical Center with a swollen tongue and difficulty swallowing. He was diagnosed with angioedema, a condition causing abnormal swelling of the tongue, mouth, and airway. Despite treatment, his condition worsened, and he had to be intubated. The intubation attempts were unsuccessful, leading to a delay in securing his airway. Brian later developed right-side semiparesis, including weakness and partial paralysis, which was attributed to an anoxic brain injury due to the delay in securing his airway.The District Court for Hall County granted summary judgment in favor of the doctors and Saint Francis Medical Center. The court also struck the affidavits of two expert witnesses provided by Woodward, citing inconsistencies with their earlier deposition testimonies. Woodward appealed the decision.The Nebraska Supreme Court reversed the lower court's decision. The court held that the change in testimony of nonparty witnesses is an issue of credibility for a fact finder to make, and that later testimony will normally not be struck by the trial court. The court also noted that the document provided by Saint Francis Medical Center did not conclusively establish that the doctors were not employees or agents of the hospital. The case was remanded for further proceedings. View "Woodward v. Saint Francis Medical Center" on Justia Law

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The case involves a juvenile, Jeovani H., who was placed on probation and ordered to pay restitution as a term and condition of his probation. Jeovani was charged with an act that would constitute the felony of first-degree assault, which was later amended to a misdemeanor of attempted third-degree assault. The incident involved Jeovani shoving another youth, causing the youth to fall and fracture his arm. As part of a plea agreement, Jeovani admitted to the amended petition and agreed that the amount of restitution owed to his victim for medical expenses was $2,553.05. However, he disputed his ability to pay that amount.The Hall County Court, sitting as a juvenile court, accepted Jeovani’s admission to the amended petition and ordered a predisposition investigation. At the disposition and restitution hearing, Jeovani’s mother testified about the family's financial situation and work schedules, arguing that Jeovani did not have the ability to pay the restitution amount. The State called Jeovani and a juvenile probation officer as witnesses, who testified about Jeovani's ability to work and earn money to pay the restitution.The Nebraska Supreme Court affirmed the juvenile court's decision. The court found that Jeovani had the ability to pay the restitution within the 12-month period of his probationary term. The court also rejected Jeovani’s claim that he was not allowed an opportunity to present or cross-examine witnesses on the issue of restitution. The court concluded that the restitution order was consistent with Jeovani’s reformation and rehabilitation and was supported by the record. View "In re Interest of Jeovani H." on Justia Law

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A mother sued a school district for negligence under the Political Subdivisions Tort Claims Act (PSTCA), alleging that her son was injured during a pole-vaulting practice at school when he fell onto an unpadded section of the pole-vaulting box collar area. The district court dismissed the case, concluding that the claim was barred by the PSTCA’s “recreational activity” exemption. The mother appealed.Previously, the district court had ruled that the school district was immune from the lawsuit because the student's pole-vaulting activity fell under the PSTCA's "recreational activity" exemption. The court applied a three-part test from a previous case, determining that pole-vaulting fit the definition of a recreational activity, the injuries arose from an inherent risk of the activity, and no fee was charged for participation.On appeal, the Nebraska Supreme Court reversed the lower court's decision. The Supreme Court found that while pole-vaulting could be considered a recreational activity, it was premature to conclude that the student's injuries necessarily resulted from an inherent risk of that activity. The court noted that the complaint alleged the injuries resulted from the school's negligence in failing to properly pad the pole-vaulting area, supervise the student, and have proper safety protocols in place. The court concluded that a factual record was necessary to resolve the issues raised by the complaint and the assertion of sovereign immunity by the school district. The case was remanded for further proceedings. View "MacFarlane v. Sarpy Cty. Sch. Dist. 77-0037" on Justia Law