Justia Nebraska Supreme Court Opinion Summaries

The Supreme Court affirmed as modified the district court’s order dismissing with prejudice Plaintiff’s complaint for lack of personal jurisdiction. Plaintiff, an attorney, filed a complaint for breach of contract against Defendant. The trial court dismissed the complaint with leave to amend. Plaintiff then filed an amended complaint including claims for tortious conversion and a violation of Nebraska’s Uniform Deceptive Trade Practices Act. The Supreme Court affirmed the dismissal of the complaint, holding (1) neither general nor specific personal jurisdiction over Defendant existed; but (2) the district court erred in dismissing the complaint with prejudice. The court modified the district court’s order to a dismissal without prejudice. View "Nimmer v. Giga Entertainment Media, Inc." on Justia Law

The Supreme Court affirmed the order of the district court dismissing Appellants’ complaint alleging that the Nebraska Public Service Commission (PSC) negligently failed to enforce Nebraska statutes and regulations against Pierce Grain Elevator, Inc. (PEI). The complaint was filed under Nebraska’s State Tort Claims Act (STCA). In dismissing the complaint, the district court concluded that Appellants’ suit was barred by the STCA’s discretionary function exception provided in Neb. Rev. Stat. 81-8,219(1). The Supreme Court affirmed the district court’s determination that it lacked subject matter jurisdiction over the case, holding that Appellants’ claims were grounded in a state agency’s alleged failure to suspend or revoke a license and that the Legislature has preserved sovereign immunity for such conduct. View "Amend v. Nebraska Public Service Commission" on Justia Law

The Supreme Court affirmed the judgment of the district court denying Defendant’s amended and supplemental motions for postconviction relief.Defendant was convicted of second degree murder and use of a firearm to commit a felony. Defendant filed amended and supplemental motions for postconviction relief, claiming that the jury instructions given in his case denied him due process and that he received ineffective assistance of trial and appellate counsel. The district court denied the motions after an evidentiary hearing. The Supreme Court affirmed, holding (1) the holdings in State v. Smith, 806 N.W.2d 383 (Neb. 2011), did not apply to Defendant retroactively on collateral review; (2) Defendant’s convictions did not offend his due process rights; and (3) Defendant’s claims of ineffectiveness of trial and appellate counsel were without merit. View "State v. Glass" on Justia Law

The Supreme Court affirmed the order of the trial court entered on a general verdict for Defendants in this medical negligence claim, holding that there was no merit in Defendant’s claims on appeal.Plaintiff sued Greg Fitzke, M.D. and Surgical Associates P.C. alleging that Fitzke was negligent in failing timely to diagnose and treat her, which resulted in her suffering additional injuries. The jury returned a general verdict for Defendants. The Supreme Court affirmed, holding (1) the trial court did not err in rejecting Defendant’s proposed jury instructions or jury instruction language; (2) the record on appeal was insufficient to review whether the trial court erred in permitting Defendants’ expert to answer certain questions; and (3) the trial court did not abuse its discretion by permitting Fitzke to quote a nonexpert and nontestifying treating physician regarding the standard of care for his postoperative treatment of Plaintiff. View "Rodriguez v. Surgical Associates P.C." on Justia Law

Royal filed a quiet title action against his predecessors in interest and against Omaha Public Power District (OPPD) alleging fee title ownership of land along the railroad right-of-way passing through his Otoe County property by adverse possession. OPPD counterclaimed, alleging that it had acquired fee simple title to that same land, also by adverse possession. The district court granted Royal default judgment as to his predecessors, but following a trial, denied both Royal’s and OPPD’s claims of title. The Nebraska Supreme Court vacated the entry of default as “leading to an illogical result” in extinguishing the rights of the former owners. The court affirmed as to OPPD, which owns an easement over the right-of-way and not a fee simple. That easement was obtained in 1869; its uses are permissive and a direct or incidental use associated with the operation of a rail line. Under Nebraska law, a permissive use is not adverse and cannot ripen into ownership by adverse possession. The court also affirmed as to Royal. While expert testimony indicated that some of the land had been used for farming, it did not support the conclusion that it was done for a continuous period sufficient to prove adverse possession. Royal acknowledged that he had not continuously lived on the property and had not continuously assisted with its farming. View "Royal v. McKee" on Justia Law

In 1998, the Laus bought land from Walters, who financed the purchase. An attorney, chosen by Walters, drafted the documents. The deed of trust included a right of first refusal that ended once the financing was paid. At closing, the warranty deed stated: “No sale ... shall be consummated without giving at least 30 days written notice of the terms to Grantor. Grantor shall have the right to buy the lot on the same terms.” In 2007, the Laus finished paying on the note. Walters executed a deed of reconveyance. Around 2013, the Laus decided to sell the land with their trailer home and contacted a real estate agent, who told Walters about the listing. Walters did not mention his right of first refusal. The Laus entered a purchase agreement with Sporer. Neither that agreement nor the Laus’ affidavit regarding debts, liens, and adverse claims mentioned the right of first refusal. The Laus conveyed the property to the Sporers by warranty deed, which was recorded. Walters sued. The court granted the Laus and the Sporers summary judgment, holding that the deed, which was not signed by the Laus, did not satisfy the statute of frauds, Neb. Rev. Stat. 36-105. The Nebraska Supreme Court reversed, holding that a right of first refusal in a deed is an enforceable agreement under the statute of frauds upon the acceptance of the deed. View "Walters v. Sporer" on Justia Law

Huff was tried for first-degree sexual assault. After voir dire, 12 regular jurors and one alternate were sworn in. The next day, juror M.F., communicated that he was anxious about serving and discussed the issue with the court and parties. M.F. explained that his upbringing included crime, gangs, drugs, and domestic assault. He did not think he was “suitable.” M.F. ultimately agreed to follow the law, stating that he believed he could impartially make a decision based on the evidence. The judge rejected the state’s motion to strike M.F. for cause. After both parties rested and the jury was excused for the day, the court indicated that M.F. had not paid attention during trial. The state submitted a printout, showing more than 30 misdemeanor convictions M.F. had not disclosed on his jury questionnaire. Huff objected. The court determined that it had sufficient cause to discharge M.F. without examining him. Huff unsuccessfuly moved to “strike” other jurors, presenting evidence that they had also been dishonest. The alternate juror was seated. The jury returned a guilty verdict. The Nebraska Supreme Court affirmed, holding that the dismissal was a “discharge,” Neb. Rev. Stat. 29-2004(2). Under the totality of the circumstances, the court did not abuse its discretion: M.F. stated that he did not think he was suitable, the court observed M.F. to be inattentive, and M.F. failed to disclose his criminal record, which included convictions for crimes other than traffic offenses. View "State v. Huff" on Justia Law

Margaret and Hannah lived together in a romantic relationship in Nebraska. They moved to Texas, in 2003 where they legally changed their last names to “Whilde.” In 2010, Hannah gave birth to a baby, conceived by artificial insemination. Margaret did not adopt the child. In 2011, Hannah returned to Otoe with the baby. Ultimately, a Nebraska court determined that Nebraska law applied but considered the effect of a Texas court’s temporary order granting Margaret rights, and concluded that an in loco parentis relationship “at one time did exist” between Margaret and the child but had ceased after Margaret returned to Texas. The court awarded sole custody to Hannah. The Nebraska Supreme Court affirmed. Margaret later sought to vacate an order changing the child’s name to Hannah's family name. She argued that she was entitled to notice by certified mail as a “noncustodial parent” under Neb. Rev. Stat. 25-21,271(2) and had not received such notice. The Nebraska Supreme Court affirmed rejection of Margaret’s motion. The order extinguishing Margaret’s rights was effective at all relevant times: when Hannah filed the name change petition, when she published notice, when the petition was considered and granted by the district court, and when Margaret filed her motion to vacate the name change order. View "In re Change of Name of Whilde" on Justia Law

While dating April, Johnson made threats concerning April’s relationship with her former husband Edward. The night before April’s death, Johnson was upset that Edward had repaired April’s van. April’s neighbors reported hearing loud arguing in the early morning hours of December 11, 2011. On December 12, April did not report to work. Officers found April’s body. A pathologist opined that her death was a homicide caused by a stab wound to her abdomen and suffocation, On December 15, Johnson was arrested in Michigan driving April’s van, which contained Johnson’s blood-stained T-shirt and shoes. The DNA matched April’s profile. Johnson was convicted of first-degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. On appeal, Johnson unsuccessfully claimed that the court erred by admitting cumulative, gruesome autopsy photographs; brought a Batson challenge; and challenged testimony and exhibits about Johnson’s DNA profile. Johnson’s motion for post-conviction relief alleged ineffective assistance of counsel for failing to move for discharge on the basis of speedy trial, failing to object to the prosecutor’s voir dire comments, failing to properly examine various witnesses, failing to argue after moving for a directed verdict, failing to object to the state’s closing argument, failing to sever one count, and failing to allow Johnson to testify. The Nebraska Supreme Court affirmed the denial of the motion without holding an evidentiary hearing. Johnson failed to allege sufficient facts to demonstrate violation of his constitutional rights. View "State v. Johnson" on Justia Law

Margaret and Hannah lived together in a romantic relationship in Lincoln, Nebraska. They moved to Austin, Texas, in 2003. In 2010, Hannah gave birth to a baby, conceived by artificial insemination. Margaret did not adopt the child. The relationship declined. In 2011, Hannah returned to Otoe with the baby. A Texas court entered a temporary order, finding that Margaret had legal standing to assert rights with respect to the child and setting forth certain rights and duties that the women would share. In 2014, Hannah sought to register the Texas order (Neb. Rev. Stat. 43-1226) and requested that the Nebraska court set aside the Texas order and modify custody. Margaret was living in Nebraska. No effort had been taken to obtain entry of a final order in Texas. Margaret returned to Texas. Her contact with the child was minimal thereafter, Hannah moved to suspend Margaret’s contact with the child because of Margaret’s mental health issues. The Nebraska court preliminarily ordered that there be no contact. The Texas court relinquished its jurisdiction. The Nebraska court determined that Nebraska law applied but considered the effect of the Texas court’s determination and concluded that an in loco parentis relationship “at one time did exist” between Margaret and the child but had ceased after Margaret returned to Texas. The court awarded sole custody to Hannah. The Nebraska Supreme Court affirmed, stating that in loco parentis status is transitory and may be lost. View "Whilde v. Whilde" on Justia Law