Articles Posted in Nebraska Supreme Court

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Defendant appealed his conviction for first degree sexual assault of a child, rendered after a jury trial, and his conviction of thirty-five to fifty years’ imprisonment with credit for 129 days served. The Supreme Court affirmed, holding (1) although Defendant was represented at trial by an individual who failed to meet the substantive requirements to be a licensed attorney at trial, there was no per se violation of Defendant’s constitutional right to trial because the lead attorney for Defendant’s trial was a qualified, licensed attorney; (2) Defendant’s counsel were not constitutionally ineffective; (3) there was sufficient evidence to sustain a guilty verdict; and (4) there was no abuse of discretion in the sentence imposed. View "State v. Loding" on Justia Law

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Plaintiff, as an individual and as an assignee, brought this action pro se to recover for wrongs allegedly committed against the assignor, a limited liability corporation (LLC). The district court dismissed the action, concluding (1) Plaintiff was attempting to litigate “the claim of another which has merely been assigned to him” and that Plaintiff was therefore engaging in the unauthorized practice of law because an attorney is required when the action is derived from a wrong to an LLC; and (2) therefore, the pleadings were a nullity. The Supreme Court affirmed, holding (1) an assignment of a distinct business entity’s cause of action to an assignee who then brings such suit requires that the assignee must be represented by counsel and cannot bring such action pro se; (2) by bringing the assigned claim, Plaintiff engaged in the unauthorized practice of law; and (3) therefore, Plaintiff’s filings were a nullity as a matter of law. View "Zapata v. McHugh" on Justia Law

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Plaintiffs filed an action against Defendants relating to "forward corn contracts." Counsel for Defendants conveyed confidential information to a grain industry expert in attempting to retain him. Plaintiff's counsel later retained that same expert. Defendant subsequently filed a motion to disqualify the expert from testifying and moved to disqualify Plaintiffs' counsel. The district court disqualified the expert but did disqualify Plaintiffs' counsel, finding that Defendants failed to advance any evidence that Defendants' trial strategy, work product, or mental impressions had been communicated by the expert to Plaintiffs' counsel. Thereafter, Defendants applied for leave to file an original action for a writ of mandamus requiring the district court to disqualify Plaintiffs' counsel. The Supreme Court denied the writ, holding that Plaintiffs rebutted the presumption that the expert shared confidences gained from Defendants' counsel with Plaintiffs' counsel, and therefore, disqualification of Plaintiffs' counsel was not required. View "Mid Am. Agri Products/Horizon, LLC v. Dist. Court" on Justia Law

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Defendant pleaded guilty to and was convicted of attempted first degree sexual assault. Throughout the criminal proceedings, Defendant was represented by a Nebraska attorney (Attorney) whose license had been suspended for nonpayment of dues. After learning Attorney's license was suspended but before Attorney was disbarred, Defendant filed a motion for postconviction relief, alleging ineffective assistance of counsel. The district court denied the motion after (1) declining to apply a per se rule, reasoning that Attorney was qualified when admitted and was suspended solely for nonpayment of dues; and (2) finding Defendant's specific claims were either affirmatively disproved by the record or constituted mere conclusions. The Supreme Court affirmed after declining to adopt a per se determination of ineffectiveness based on the fact that Attorney was suspended for nonpayment of dues at the time he represented Defendant, holding that Defendant failed to establish Attorney provided ineffective assistance based on specific aspects of Attorney's actual performance. View "State v. Vanderpool" on Justia Law

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Thomas & Thomas Court Reporters sued Douglas Switzer, an attorney, and his law firm, Hathaway & Switzer (Hathaway Switzer), for failure to pay for court reporting services. The district court entered judgment for Thomas & Thomas. At issue on appeal was whether Hathaway Switzer was liable to Thomas & Thomas for its fees or whether Hathaway Switzer's clients were. The Supreme Court (1) affirmed the district court's judgment to the extent that it held Hathaway Switzer rather than Hathaway Switzer's clients liable, as Hathaway Switzer had not disclaimed liability for those fees; and (2) reversed the court's judgment to the extent that it held Switzer personally liable. Remanded with directions to dismiss Thomas & Thomas' claim against Switzer as an individual. View "Thomas & Thomas Court Reporters, LLC v. Switzer" on Justia Law

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Jamyia, a minor child of Navajo decent, was removed from her parents' home after doctors discovered that Jamyia suffered injuries consistent with shaken baby syndrome. The juvenile court entered a dispositional order that terminated the parents' parental rights. On appeal, the court of appeals reversed, holding (1) the State had not proved it made active efforts pursuant to Neb. Rev. Stat. 43-1505(4) to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts had been unsuccessful; and (2) the State was required to provide active efforts to both parents to prevent the breakup of the family within the meaning of the statute when aggravated circumstances were present. The Supreme Court reversed the judgment of the appellate court, holding that the court of appeals did not have jurisdiction to reach the active efforts issue, and it erred when it reversed the juvenile court's determination that the State had satisfied the statute before terminating the parents' parental rights.

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James Tierney and Jeffrey Tierney brought an action against Four H Land Company and other defendants to compel them to lower the elevation of a lakeside housing development adjoining the Tierneys' land. The district court granted summary judgment in favor of the defendants, and the Tierneys appealed. While their appeal was pending the Tierneys discovered that the district court judge who issued the order harbored a personal prejudice against the Tierneys' attorney. The Supreme Court concluded that the three-factor test set forth in Liljeberg v. Health Services Acquisition Corp. is the best means of determining when the rulings of a judge who should have recused himself or herself will be vacated and adopted the test. Applying the Liljeberg test to the facts of the case, the Court concluded that the district court judge's order on the summary judgment motions should be vacated.