STEPHAN , J. This is an appeal from an order of the district court for Lancaster County which reversed a determination by the Nebraska Department of Health and Human Services (the Department) that Brian Shaffer was ineligible for certain Medicaid benefits. The appellant, Coventry Health Care of Nebraska, Inc. (Coventry), participated in the administrative proceedings and advocated the determination eventually reached by the Department, but it was not named as a party in the appeal to the...
WRIGHT , J. I. NATURE OF CASE In 2013, as part of ongoing litigation between Ameritox, Ltd., and Millennium Laboratories, Inc. (Millennium), a U.S. district court in Florida (Florida court) denied Millennium's motion for leave to amend its second amended counterclaims to Ameritox's third amended complaint. Subsequently, Millennium and two of its employees sued Brian Ward, one of Ameritox's employees, in the district court for Sarpy County, Nebraska (district court). Ward moved to dismiss...
CONNOLLY , J. SUMMARY Jennifer Van Kleek agreed to watch Walter and Janet Chapman's dog while the Chapmans were out of town. While Van Kleek was caring for the dog, it bit her on her lower lip. Van Kleek filed a claim with the Chapmans' homeowner's insurer, Farmers Insurance Exchange (Farmers). Farmers rejected the claim because Van Kleek was also an insured and the policy excludes coverage for bodily injuries to insureds. The policy defines " insured " to include "any person ... legally...
Per Curiam . I. NATURE OF CASE The issue presented in this attorney discipline proceeding is what discipline should be imposed on James E. Connor, respondent, for violating certain provisions of the Nebraska Rules of Professional Conduct and his oath of office as an attorney. These violations occurred while respondent was serving as guardian and conservator for Geraldine Dell and as attorney for the personal representative of her estate. The referee recommended a 90-day suspension of...
McCormack , J. I. NATURE OF CASE This matter involves petitions filed by John E. Stuchlik seeking removal of the personal representative of the Edward J. Stuchlik, Jr., estate and removal of the cotrustees of the Edward J. Stuchlik, Jr., Family Trust. The personal representative and one of the cotrustees is John's mother and the spouse of the decedent. The other cotrustee is John's brother. The probate dispute involves assets held in a testamentary trust established by the last will...
Miller-Lerman , J. NATURE OF CASE Robert O'Brien, the appellant, filed a complaint in the district court for Sarpy County against Bellevue Public Schools (BPS), the appellee, alleging that he was wrongfully discharged from his employment as a carpenter with BPS because he reported the presence, demolition, and disposal of asbestos and asbestos-containing materials to his superiors at BPS. BPS moved for summary judgment. After a hearing, the district court granted summary judgment in...
CONNOLLY , J. SUMMARY This workers' compensation case presents an issue of first impression in Nebraska: whether a claimant's incarceration after sustaining a compensable injury should bar the claimant from recovering temporary total disability benefits while she is incarcerated. The appellant, Pike Enterprises, Inc. (Pike), also argues that the court erred in finding a causal connection between the appellee's alleged injury in October 2009 and her back surgery in January 2013, and in...
McCormack , J. NATURE OF CASE In early 2014, Linda N., on behalf of her minor child, filed a petition for a domestic abuse protection order against the minor child's father, William N. An ex parte domestic abuse protection order was issued by the district court, and William requested a show cause hearing on the ex parte order. The evidence against William included many text messages including vulgar language and name-calling. Upon hearing, the district court upheld its domestic abuse...
Wright , J. NATURE OF CASE Antonio Banks appeals the order of the district court which overruled his amended motion for postconviction relief without an evidentiary hearing. We affirm. SCOPE OF REVIEW An appellate court determines jurisdictional questions that do not involve a factual dispute as a matter of law. State v. Yuma, 286 Neb. 244 , 835 N.W.2d 679 (2013). A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v....
Stephan , J. Carlos R. Herrera and Jennifer Herrera are the biological parents of A.H. and S.H., both minor children. In 2012, Carlos and Jennifer were separately charged in the district court for Scotts Bluff County with child abuse resulting in serious bodily injury to A.H. Following a consolidated jury trial, both were convicted of the lesser-included offense of child abuse. Carlos perfected this timely direct appeal. I. BACKGROUND In an information filed on November 15, 2012, Carlos...
Connolly , J. SUMMARY Daniel A. Meints owns an uninhabited, unfenced lot in the City of Beatrice, Nebraska (City), on which he kept an array of automobiles and motorcycles. In a bench trial, the county court convicted Meints of multiple violations of a municipal ordinance relating to unregistered motor vehicles. On appeal, the district court reversed Meints' convictions on 2 of the 12 counts and otherwise affirmed. The Nebraska Court of Appeals affirmed the district court's judgment, 1...
Cassel , J. INTRODUCTION Sarah E. Planck appeals from a district court judgment affirming her county court conviction and sentence for driving while her motor vehicle operator's license was administratively revoked "on points." She focuses on the trial court's refusal to give an instruction on entrapment by estoppel. To support the defense, she pointed to a different court's earlier return of her operator's license following a period of impoundment as part of a sentence for reckless...
CONNOLLY, J. SUMMARY Daphne Hansen conspired with her employee, Jerry Torres, to burn down a house that was owned and insured by Hansen's friend. In exchange for setting the fire, Torres testified that Hansen bought him various household goods. After a bench trial, the district court found Hansen guilty of arson in the second degree, conspiracy to commit arson, and aiding the consummation of a felony. Under Neb. Rev.Stat. 28-205 (Reissue 2008), aiding the consummation of a felony is...
Heavican, C.J. INTRODUCTION Christopher M. Payne appeals from the district court's denial, without an evidentiary hearing, of his motion for post-conviction relief. We reverse, and remand with directions. FACTUAL BACKGROUND Payne was charged by information on April 27, 2005, with first degree sexual assault on a child, incest, and sexual assault of a child. Pursuant to a plea agreement, Payne pled no contest to first degree sexual assault on a child and was sentenced to 40 to 50 years'...
McCormack, J. NATURE OF CASE The district court for Boone County determined paternity in a paternity action, but did not explicitly determine custody. Approximately 3 years later, all parties lived in Madison County, Nebraska. The mother filed a complaint for custody in the district court for Madison County. The question presented is whether the district court for Madison County was correct in dismissing the case and vacating its prior orders under the mother's complaint on the ground that...
McCormack, J. I. NATURE OF CASE Neb.Rev.Stat. 29-4106(2) (Cum.Supp. 2012) provides for retroactive application of its requirement that all inmates convicted of a felony sex offense or other specified offense submit a DNA sample before being discharged from confinement. Section 29-4106(2) also specifically provides that those inmates convicted before the passage of 29-4106 "shall not be released prior to the expiration of his or her maximum term of confinement or revocation or discharge...
Heavican, C.J. NATURE OF CASE Jesus R. Castillo-Zamora appeals his conviction for first degree sexual assault. Castillo-Zamora alleges that the district court for Hall County, Nebraska, erred in two different evidentiary rulings; that the district court abused its discretion in denying a joint motion for mistrial; and that he received ineffective assistance of counsel. We conclude that the district court did not err in its evidentiary rulings and did not abuse its discretion in denying the...
McCormack, J. NATURE OF CASE In 2003, following a bench trial, Luis Fernando-Granados was convicted of first degree murder and use of a deadly weapon to commit a felony. We affirmed Fernando-Granados' convictions on direct appeal. 1 In 2012, Fernando-Granados brought a motion for postconviction relief in the district court for Douglas County, claiming ineffective assistance of counsel, prosecutorial misconduct, and a violation of the terms of the Vienna Convention on Consular Relations. The...
Wright, J. I. NATURE OF CASE Kerstin M. Piper, also known as Kerstin M. Clarkson, appeals from the district court's order which affirmed her conviction and sentence in the county court for driving while under the influence (DUI), second offense. She challenges the county court's determinations that the Nebraska rules of evidence did not apply at the hearing on her motion to suppress and that the Nebraska State Patrol checkpoint at which Piper was stopped was constitutional. Finding no error...
Miller-Lerman, J. NATURE OF CASE Ricky J. Sanders appeals the order of the district court for Douglas County denying his motion for postconviction relief without an evidentiary hearing. Sanders had been convicted of discharging a firearm at a dwelling while in or near a motor vehicle, in violation of Neb.Rev.Stat. 28-1212.04 (Cum.Supp.2012), and using a firearm to commit a felony. He contends that an evidentiary hearing should have been held on his ineffective assistance of counsel claims...
