STEPHAN, J. This case involves a dispute arising from a contractual relationship between InterCall, Inc., and Egenera, Inc. After Egenera failed to pay for certain services InterCall provided pursuant to a contract, InterCall brought an action in the district court for Douglas County. Egenera asserted affirmative defenses and a counterclaim to recover what it claimed to be overpayments. InterCall appeals from a judgment in favor of Egenera on the counterclaim. We affirm. I. BACKGROUND 1....
HEAVICAN, C.J. INTRODUCTION Pursuant to a plea bargain, appellant Devin D. Qualls pled guilty to one count of theft by deception in the amount of $500 to $1,500, in return for the dismissal of other charges and the State's promise that it would not object to Qualls' request that any sentence be served concurrently to a federal sentence that had been imposed upon Qualls. The district court sentenced Qualls to 20 months' to 4 years' imprisonment with credit for 5 days' time served. The district...
CONNOLLY, J. I. SUMMARY Brian J. Werner sued the County of Platte (County) under Neb.Rev.Stat. 13-911 (Reissue 2012) for injuries he sustained during a vehicular pursuit by a law enforcement officer. Werner was a passenger in the car that the officer was pursuing. Section 13-911 authorizes compensation for damages to an "innocent third party" who is injured by such a pursuit. The primary issues are whether the district court properly (1) admitted testimony over the County's hearsay...
PER CURIAM. Having reviewed the briefs and record and having heard oral arguments, we conclude on further review that the decision of the Nebraska Court of Appeals in State v. Burbach, 20 Neb.App. 157 , 821 N.W.2d 215 (2012), is correct, and accordingly, we affirm the decision of the Court of Appeals which affirmed the judgment of the district court. AFFIRMED. CASSEL, J., not participating.
WRIGHT, J. NATURE OF CASE The appellant, Alberto C. Magallanes, was stopped on Interstate 80 for driving on the shoulder of the highway in violation of Neb.Rev.Stat. 60-6,142 (Reissue 2010). After consent to search was given, drugs were found in the gasoline tank of the car Magallanes was driving. Magallanes was charged with and convicted of two counts of possession with intent to deliver a controlled substance and two counts of failure to affix a drug tax stamp. Following a bench trial, he...
STEPHAN, J. Timothy L. Peterson sought leave to proceed in forma pauperis in order to file a petition for a writ of habeas corpus in the district court for Lancaster County. On its own motion, the district court determined that the legal positions asserted in the petition were frivolous, and it denied the motion to proceed in forma pauperis for that reason. Peterson appealed, and we moved the case to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of...
McCORMACK, J. NATURE OF CASE Ryan L. Poe was convicted of first degree felony murder and use of a deadly weapon to commit a felony. His convictions were affirmed on direct appeal to this court. 1 He now appeals from the dismissal of his motion for postconviction relief without an evidentiary hearing. Poe claims he was prejudiced by prosecutorial misconduct stemming from the presentation of inconsistent theories as to a key witness' involvement in the crimes. He also claims that he was...
MILLER-LERMAN, J. NATURE OF CASE Steven D. Scott appeals his convictions for second degree assault, use of a deadly weapon to commit a felony, and unlawful membership recruitment into an organization or association, a Class IV felony under Neb.Rev.Stat. 28-1351 (Cum.Supp.2012). Scott claims that the district court for Douglas County erred with respect to numerous evidentiary and other trial rulings and when it rejected his constitutional challenges to 28-1351. We affirm Scott's...
CASSEL, J. INTRODUCTION In a second postconviction proceeding, the appellant attempted to raise the issue of his competence to enter a guilty plea but he alleged no reason why the issue could not have been asserted in his direct appeal or his first postconviction proceeding. Because the need for finality in the judicial process demands application of a procedural bar rule, we affirm the district court's judgment. BACKGROUND In 2004, while represented by counsel, Damien D. Watkins pled...
HEAVICAN, C.J. INTRODUCTION Shirley M. Krzycki was the sole settlor, trustee, and beneficiary of the Shirley M. Krzycki Trust (Trust) established to hold annual payments from an insurance settlement. Shirley died unexpectedly on August 19, 2009. She was survived by her four children: Greg Krzycki, appellee; Dawn Vogt; Robin Krzycki, appellant; and Zachary Krzycki. Upon Shirley's death, Greg was named successor trustee of the Trust. Greg filed suit in Lancaster County District Court claiming...
WRIGHT, J. NATURE OF CASE Arevalo Ramirez pled no contest to first degree sexual assault. He was sentenced to 25 to 30 years' imprisonment with credit for 224 days served. The two issues presented for review in this appeal are whether Ramirez' trial counsel was ineffective and whether Ramirez received an excessive sentence. SCOPE OF REVIEW The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. The determining...
McCORMACK, J. NATURE OF CASE Pursuant to Neb.Rev.Stat. 24-219 et seq. (Reissue 2008), the U.S. District Court for the District of Nebraska certified the following question to this court: "Can a child, conceived after her biological father's death through intrauterine insemination using his sperm, and born within nine months of his death, inherit from him as his surviving issue under Nebraska intestacy law " BACKGROUND In accordance with 24-221, the following facts were provided by the U....
STEPHAN, J. William E. Smith was convicted by a jury of attempted second degree murder, first degree assault, and use of a weapon to commit a felony. The Nebraska Court of Appeals affirmed the assault and weapon convictions and found that the trial court did not err in failing to give a self-defense instruction. 1 But it reversed, and remanded for a new trial on the attempted second degree murder conviction, finding the jury should have been instructed on both attempted second degree murder...
MILLER-LERMAN, J. I. NATURE OF THE CASE After a jury trial, at which the jury was instructed on aiding and abetting, Wesley E. Kitt was convicted of robbery, attempted robbery, two counts of use of a weapon to commit a felony, and second degree assault. The district court for Douglas County sentenced him to imprisonment for a total of 10 to 14 years. As postconviction relief, Kitt was granted a new direct appeal. The matter before us involves the direct appeal. In a memorandum opinion, the...
PER CURIAM. In an opinion filed on July 27, 2012, 1 we affirmed Timothy Gaskill's Class IV felony conviction 2 based on his failure to comply with certain registration provisions of the Sex Offender Registration Act (SORA). 3 We subsequently sustained Gaskill's motion for rehearing and ordered the case submitted without further oral argument. We now withdraw our prior opinion, reverse and vacate Gaskill's conviction and sentence, and remand the cause to the district court with directions...
McCORMACK, J. NATURE OF CASE Ronald "Tim" Bacon was severely injured while working on a construction project as an employee of Davis Erection Co., Inc. (Davis). Davis and its insurer, Liberty Mutual Group (Liberty), began paying lifetime workers' compensation benefits. Bacon brought a separate negligence action against Davis' parent company, Ridgetop Holdings, Inc. (Ridgetop), and joined Davis and Liberty for workers' compensation subrogation purposes. Ridgetop's safety director had worked on...
CASSEL, J. INTRODUCTION Sherrie L. McCarthy was convicted of theft by shoplifting, $200 or less. 1 The district court relied on two prior county court convictions to enhance the crime for punishment as a Class IV felony. 2 In the second of these two prior proceedings, the county court had refused to enhance the conviction and had treated it as a first offense. McCarthy argues that the doctrine of collateral estoppel required the district court to treat the instant conviction as only a...
CASSEL, J. INTRODUCTION The principal issue in this appeal is whether a reasonable person would understand that a general consent to search a vehicle for illegal drugs authorized the opening of a gift-wrapped box in the vehicle's storage area. Because (1) the object of the search was clearly disclosed, (2) the container was not equivalent to a locked container and was not destroyed, and (3) the consent was not withdrawn after the officer's interest in the container was communicated to its...
MILLER-LERMAN, J. NATURE OF THE CASE This appeal, filed by brothers Gary Baasch and Dennis Baasch, the appellants, concerns disputed land located in Howard County, Nebraska, in and near the Middle Loup River. After a bench trial, the district court for Howard County denied Gary Baasch's counterclaim for quiet title. The district court found that husband and wife Paul Obermiller and Betty Lou Obermiller, the appellees, owned all the land they claimed to own, that the fence constructed by the...
CONNOLLY, J. NATURE OF THE CASE The district court placed Bruce C. Becker's corporation, Floral Lawns Memorial Gardens Association (Floral Lawns), a cemetery association, into receivership and approved the winding up of the business and its dissolution. The court then fashioned an equitable remedy for distribution of the resulting funds, which Bruce challenged on appeal. The issue is whether the court had the power to take these actions. BACKGROUND Several events in this case occurred under...
