CONNOLLY, J. SUMMARY Bryan S. Behrens and three other plaintiffs appeal from the district court's order that dismissed with prejudice their attorney malpractice action against Christian R. Blunk and the law firms for which Blunk worked. After Behrens invoked his Fifth Amendment privilege against compulsory self-incrimination, the court dismissed the action as a sanction for Behrens' failure to comply with its order compelling discovery. We conclude that the court erred when it failed to...
SUPPLEMENTAL OPINION PER CURIAM. Case No. S-09-1302 is before this court on the motion for rehearing filed by appellants regarding our opinion reported at Freedom Fin. Group v. Woolley, 280 Neb. 825 , 792 N.W.2d 134 (2010). We overrule the motion but for purposes of clarification, modify the opinion as follows: In the section of the opinion designated "FACTS": We withdraw the first three paragraphs, id. at 827-28, 792 N.W.2d 134 , and substitute the following: Presidents Trust was...
HEAVICAN, C.J. INTRODUCTION Defendant, Kenneth C. Fleming, was convicted of two counts of first degree sexual assault of a child. He was sentenced to 20 to 40 years' imprisonment on each count, with the sentences to run consecutively. Fleming appeals. We affirm. FACTUAL BACKGROUND The convictions in this case arise from sexual assault allegations made against Fleming by his stepdaughter, F.K., and his stepniece, A.S. Fleming was married to T.F. in 2006. At the time of the marriage, T.F. had...
McCORMACK, J. NATURE OF CASE Timothy Meyers filed a claim for unemployment insurance benefits after termination from his employment as a corrections officer at the Nebraska State Penitentiary of the Nebraska Department of Correctional Services (State Penitentiary). The issue in this case is whether Meyers' repeated failures to follow security procedures constituted misconduct in connection with his work so as to disqualify him from receiving unemployment benefits. Because the record does not...
CONNOLLY, J. Under Neb.Rev.Stat. 29-1819.02 (Reissue 2008), the trial court—before accepting a guilty plea or a nolo contendere plea—must advise a defendant that the plea could result in removal from the United States or a denial of naturalization. The court gave the advisement to Wilmar A. Mena-Rivera before accepting a not guilty plea at his arraignment. But later, when under a plea bargain he pleaded guilty to a lesser offense, the court failed to repeat the advisement. May Mena-Rivera...
STEPHAN, J. In these consolidated actions, appellants alleged that the Omaha Public School District (OPS) negligently failed to protect two of its students from harm. They appeal from orders of the district court entering summary judgment in favor of OPS in each case. We conclude that because the notices of appeal were untimely filed, we lack jurisdiction to reach the substantive issues presented. BACKGROUND Separate complaints were filed in the district court for Douglas County by Felicia...
CONNOLLY, J. I. SUMMARY The appellants are former customers of Rebecca Engle, a stockbroker formerly employed by Kirkpatrick Pettis, the predecessor of KFS BD, Inc. The appellants sued KFS BD, a Nebraska corporation and Mutual of Omaha company, and Mutual of Omaha Insurance Company (collectively the defendants). The appellants' theories of recovery hinged on the following allegations: (1) Kirkpatrick Pettis misrepresented to them and to federal regulators why Kirkpatrick Pettis terminated...
CONNOLLY, J. The appellants are former customers of Rebecca Engle, a stockbroker formerly employed by Kirkpatrick Pettis, the predecessor of KFS BD, Inc. The appellants sued KFS BD, a Nebraska corporation and Mutual of Omaha company; Mutual of Omaha Insurance Company; and officers of these two firms (collectively the defendants). The appellants alleged claims of vicarious liability, breach of contract, fraudulent misrepresentation, negligent misrepresentation, and fraudulent concealment. Their...
HEAVICAN, C.J. INTRODUCTION First National Bank North Platte (FNBNP), as successor trustee of the trust of Leo A. Hrnicek, brought an action seeking to retain proceeds of the trust due to Adrienne H. Brietzke. The county court found Brietzke in contempt and otherwise granted FNBNP's request. Brietzke appeals. The primary issue on appeal is whether FNBNP can recover amounts owed to the trust by a beneficiary by retaining trust proceeds owed to that beneficiary. We affirm. FACTUAL BACKGROUND...
McCORMACK, J. NATURE OF CASE International Brotherhood of Electrical Workers Locals 763 and 1483 (collectively IBEW) filed a prohibited practices complaint against Omaha Public Power District (OPPD) on July 7, 2009. The complaint alleged that OPPD's implementation of its "Tobacco-Free Worksite" policy (the Policy) to each existing IBEW collective bargaining agreement (CBA) was a "prohibited practice" under Neb.Rev.Stat. 48-824(1) and (2)(a), (b), and (f) (Reissue 2004). The issue was tried...
MILLER-LERMAN, J. I. NATURE OF THE CASE This case involves a car accident in which Rebekah Huber, appellant, was a passenger in a vehicle struck by a vehicle driven by Kent E. Rohrig, appellee. Huber filed a complaint against Rohrig in the district court for Douglas County alleging that his negligence caused the accident and seeking damages for injuries she alleged resulted from the accident. Rohrig admitted liability. During discovery, Rohrig moved to compel a clinical psychological...
HEAVICAN, C.J. I. INTRODUCTION The Commission of Industrial Relations (CIR) certified a bargaining unit as proposed by the appellee, International Brotherhood of Electrical Workers, Local Union No. 1597 (IBEW). The appellants, Howard County, Nebraska; the individual members of the Howard County Board of Commissioners; and the Howard County assessor, clerk, treasurer, and sheriff (collectively the County) appeal. We affirm in part, and in part reverse. II. FACTUAL BACKGROUND IBEW filed a...
McCORMACK, J. NATURE OF CASE This case presents an appeal from the denial of a motion for postconviction relief without an evidentiary hearing. The defendant, Raymond Mata, Jr., sought to show an infringement of his constitutional rights in relation to his conviction of murder and his sentence of death. On appeal, he does not assert that the allegations in his motion were sufficient to warrant an evidentiary hearing, but, rather, that the court should have appointed counsel and allowed him to...
GERRARD, J. Joseph E. Tamayo was charged with murder and a weapons charge and, before trial, filed a motion to have a psychiatric expert appointed to evaluate him. The motion was granted, and the psychiatric evaluation took several months. The issue presented in this appeal is whether the State proved that the time associated with that evaluation was an automatically excludable period under Nebraska's speedy trial statutes. 1 We find that it did not, and affirm the judgment of the Nebraska...
STEPHAN, J. This is a negligence action against The Harry A. Koch Co. (Koch), an insurance broker. Countryside Cooperative (Countryside) and Michigan Millers Mutual Insurance Company (Michigan Millers) allege that they sustained damages when Koch failed to timely report a personal injury claim against Countryside to the company that insured Countryside under a claims-made policy. Koch appeals from a judgment in favor of Countryside and Michigan Millers, and Countryside and Michigan Millers...
HEAVICAN, C.J. INTRODUCTION Freedom Financial Group, Inc. (FFG), as well as related entities, Bethel Enterprises Limited Liability Company (Bethel Enterprises); Freedom Group, Inc.; Freedom Financial, Inc.; Freedom Asset Management, Inc.; Mid-America Employment Services, Inc.; and U.S. Securities Management, LLC (collectively appellants), appeal the decision of the Douglas County District Court granting summary judgment to Janice M. Woolley, individually; Marks Clare & Richards, L.L.C. (Marks...
McCORMACK, J. NATURE OF CASE More than 15 years after Jeff Boppre was convicted of two counts of first degree murder for the deaths of Richard Valdez and Sharon Condon, the case was reopened when Boppre filed a motion for forensic testing pursuant to Nebraska's DNA Testing Act. 1 Based on the DNA test results, Boppre filed a motion for new trial and a petition for postconviction relief. He now appeals from the denial of the motion for new trial, the denial of his motion for postconviction...
CONNOLLY, J. The appellant, TFF, Inc., sued Brook Valley Limited Partnership (Brook Valley) for breach of contract because it failed to pay special assessments on the real estate it purchased. In the same lawsuit, TFF sued the Sanitary and Improvement District No. 59 of Sarpy County (SID) to void the assessments or, in the alternative, for damages that equaled the amount of the assessments. The district court granted TFF a default judgment against Brook Valley for $51,177.67, the amount of...
STEPHAN, J. Following a jury trial in the district court for Lancaster County, Rodney L. Baker was convicted and sentenced on one count of first degree sexual assault, a Class II felony, and one count of third degree sexual assault of a child, a Class IIIA felony. 1 In this direct appeal, Baker contends that certain testimony from the victim and her mother was erroneously admitted. We conclude that the district court did not err in receiving the testimony, and we therefore affirm. I....
MILLER-LERMAN, J. NATURE OF THE CASE Jeffrey A. Lamb, appellant, was arrested for driving under the influence (DUI) in violation of Neb.Rev.Stat. 60-6,196 (Reissue 2004). Prior to trial, Lamb filed a motion to quash in the county court for Lancaster County in which he challenged the constitutionality of Neb.Rev.Stat. 60-6,197.09 (Cum.Supp.2008) on various bases, all to the effect that this statute improperly prevented the trial court from imposing a sentence of probation. The motion was...
