Justia Nebraska Supreme Court Opinion Summaries

The Supreme Court reversed in part the district court's order dismissing a sexual assault protection order and entering a harassment protection order in that case, holding that the entry of the harassment protection order violated A.G.'s right to procedural due process.D.W. sought an obtained an ex parte sexual assault protection order against A.G. A.G. requested a show cause hearing on whether the sexual assault protection order should remain in effect. After a hearing, the trial court concluded that the sexual assault protection order would not remain in effect but that it would enter a harassment protection order. After sua sponte filing D.W.'s original petition and affidavit under a new case number, the trial court dismissed the sexual assault protection order and entered a harassment protection order in that case. The Supreme Court held (1) there is no basis to reverse the dismissal of the sexual assault protection order; but (2) the entry of the harassment protection order did not comply with procedural due process. View "D.W. v. A.G." on Justia Law

The Supreme Court affirmed the district court's order affirming the denial of LeVeta Winslow's 2016 application for Medicaid benefits, holding that Nebraska's Department of Health and Human Services (DHHS), Division of Medicaid and Long-Term Care properly determined that Winslow was ineligible for Medicaid due to excess resources.DHHS determined that Winslow was ineligible for Medicaid because her resources, which included a house, were above $4,000. The district court affirmed the denial of benefits, finding that the house did not qualify for Winslow's home and thus was not exempt from consideration as an available resource as Winslow's home. The Supreme Court affirmed, holding (1) the district court correctly determined that the house was not subject to the home exemption for Winslow's Medicaid application; (2) the district court erred in determining that the property was not eligible for the other real property exception because Winslow lacked authority to liquidate while it was held by a revocable trust; and (3) Winslow failed to provide sufficient documentation that she was under the available resource limit if she could exclude the house, and therefore, the district court did not err in failing to find that DHHS was required to provide Winslow an IM-1 form for the house while it was held by the trust. View "Winslow v. State ex rel. Peterson" on Justia Law

The Supreme Court affirmed the district court's order granting a mortgage company's motion for summary judgment, holding that a subordination clause in a land contract for the purchase of a residence effectively subordinated the rights of the purchasers to the rights held by later assignees of the note and deed of trust.The purchasers of the property entered into the land contract with a seller-trust. After the purchasers took possession, the seller-trust signed a promissory note and a deed of trust to a bank for a certain amount of money in order to pay a previously existing mortgage on the property. The note and deed of trust were eventually assigned to the mortgage company. When the seller-trust defaulted on its loan, the purchasers filed suit to enjoin a trustee sale of the property, asserting that his claim to the property was superior to that of the mortgage company. The district court granted summary judgment for the mortgage company. The Supreme Court affirmed, holding that the subordination clause meant that the rights of any existing lenders of the seller-trust would take precedence over the purchasers' rights or interest in the property until the purchasers have paid the contract price in full. View "Wintroub v. Nationstar Mortgage, LLC" on Justia Law

The Supreme Court affirmed the order of the district court affirming the decision of the Nebraska Department of Health and Human Services (DHHS) terminating Appellant's status as a Medicaid service provider, holding that the district court's affirmance of the sanction imposed by DHHS was not arbitrary, capricious, or unreasonable.Based on Appellant's failures to adhere to the standards for participation in Medicaid, DHHS terminated Appellant's provider agreements for good cause and then informed Appellant of her permanent exclusion from the Medicaid program. The DHHS director of the Division of Medicaid and Long-Term Care ruled that DHHS' decision to terminate Appellant as a Medicaid service provider was proper. The district court affirmed. The Supreme Court affirmed, holding (1) the court's finding that Appellant billed for overlapping services was based on competent evidence; and (2) DHHS' sanction to permanently exclude Appellant from the Medicaid program was not arbitrary or capricious. View "Tran v. State" on Justia Law

The Supreme Court reversed the judgment of the district court granting summary judgment in favor of Defendant on the ground that Plaintiff's cause of action was time barred by the statute of limitations for professional negligence under Neb. Rev. Stat. 25-222, holding that the district court erred in concluding that a massage therapist is a professional under section 25-222 and in granting summary judgment on that ground.Plaintiff, a customer of Defendant, a massage therapy establishment, alleged that Defendant's employee, a licensed massage therapist, improperly compressed a nerve on Plaintiff's neck, causing her to become unconscious, fall out of the massage chair, and sustain injuries. Plaintiff filed suit against Defendant, alleging that her injuries were caused by Defendant's negligence as the massage therapist's employer. The district court dismissed the complaint, concluding that Plaintiff's claim was time barred by the application of section 25-222. The Supreme Court reversed, holding that the district court erred by finding that massage therapy is a "profession" within the meaning of section 25-222. The Supreme Court remanded the cause to the district court. View "Wehrer v. Dynamic Life Therapy & Wellness, P.C." on Justia Law

The Supreme Court affirmed the judgment of the district court in favor of Defendants in this medical malpractice and loss of consortium action, holding that Plaintiffs' assignments of error were without merit and that Neb. Rev. Stat. 44-2816 does not require that informed consent be written.Plaintiffs alleged that Defendant breached the standard of care because he failed to obtain informed consent before performing an injunction and manipulation procedure on Plaintiff's shoulder and failed to diagnose and treat a subsequent infection. A jury returned a general verdict in favor of Defendants. The Supreme Court affirmed, holding (1) Plaintiffs' assignments of error challenging various rulings regarding the admission of evidence, the jury instructions, and the overruling of Plaintiffs' various posttrial motions were without merit; and (2) the court's jury instruction to the effect that section 44-2816 does not require informed consent to be written was a correct statement of the law and warranted by the evidence. View "Bank v. Mickels" on Justia Law

The Supreme Court affirmed the judgment of the trial court granting a company using registered trade names (Plaintiff) a permanent injunction, statutory damages, and attorney fees against a corporation using a similar name (Defendant), holding that that Plaintiff was entitled to relief, and this relief is unaffected by the Court's determination that Plaintiff proved only two of its three causes of action.Specifically, the Court held (1) the denial of Defendant's motion to dismiss under Neb. Rev. Stat. 6-1112(b)(6) is moot; (2) Defendant's argument that the trial court erred in denying its motion under section 6-1112 lacked merit; (3) Plaintiff met its burden of proof regarding its claims for trade name infringement and deceptive trade practices, but it did not establish tortious interference with a business relationship or expectancy; and (4) the relief ultimately granted was supported by Plaintiff's claims for trade name infringement and deceptive trade practices. View "Denali Real Estate, LLC v. Denali Custom Builders, Inc." on Justia Law

The Supreme Court reversed the declaratory and injunction entered by the district court enjoining the City of Arapahoe, Nebraska from enforcing an ordinance against Brooke Wilkison to prohibit his retention of a pit bull at his home within the city limits, holding that Brooke failed to show that allowing him to retain the dog in his home was necessary.The district court's order determined that the city ordinance, if enforced against Brooke, would violate the federal Fair Housing Act (FHA), 42 U.S.C. 3601 to 3619, by permitting a discriminatory housing practice and precluding Brooke from mitigating the ill effects of his handicap by living with his emotional assistance animal. The Supreme Court reversed, holding (1) the district court did not err in holding that the FHA applies to the ordinance enacted by the city; but (2) Brooke failed to prove that an accommodation from the city's ban on certain breeds of dogs was essential to his equal enjoyment of his property. View "Wilkison v. City of Arapahoe" on Justia Law

The Supreme Court affirmed in part and reversed in part the order of the county court accepting the resignation of the trustee for a trust fund created for the perpetual care and maintenance of the Sunset Memorial Park Mausoleum, ordering the trustee to pay trustee fees, attorney fees, costs, and expenses incurred during the prosecution of the petition, and failing to provide for future trust management.The Trustee in this case sought to terminate the perpetual care trust due to circumstances not anticipated at the time the trust was created. Myrtle Hughbanks, Sunset Memorial Park Cemetery Association, Inc., and others opposed terminating the trust. The county court found that the Cemetery Association lacked standing and accepted the resignation of the Trustee. The Cemetery Association and Hughbanks appealed. The Supreme Court affirmed the county court's denial of the parties' motions for attorney fees but reversed the order of discharge and associated award of fees, holding (1) in addition to Hughbanks, the Cemetery Association possessed standing; and (2) due to the perpetual nature of a mausoleum trust, the county court erred in granting the Trustee's request for resignation and discharge without the Trustee's having identified and requested the appointment of a successor trustee. View "Bank of the West v. Sunset Memorial Park Cemetery Ass'n" on Justia Law

The Supreme Court affirmed Defendant's conviction and sentence for first degree sexual assault, holding there was no merit to Defendant's assignments of error.On appeal, Defendant argued, among other things, that counsel was ineffective for failing to object to the authenticity for "Snapchat" evidence and that the prosecutor committed misconduct by commenting on Defendant's use of an interpreter. The Supreme Court affirmed, holding (1) the "Snapchat" evidence was properly authenticated, and therefore, trial counsel did not perform deficiently in failing to object to it; (2) there was no plain error in the prosecutor's closing argument; (3) there was no error in Defendant's assignments alleging that the evidence was insufficient and that his sentence was excessive; and (4) the record was insufficient to reach Defendant's other ineffective assistance of counsel claims. View "State v. Mrza" on Justia Law