Leslie Boslaugh

The case involved Josephine Upah suing her brothers and their family company for civil conspiracy, alleging they deprived her of stock ownership through unauthorized stock issuances that violated preemptive rights, failure to register inherited shares, improper cancellation of gifted shares, and related acts dating back to the 1960s. A jury awarded her $3.766 million, but on appeal the Nebraska Supreme Court reversed the judgment in most respects. The court reasoned that the claims were facially barred by the statute of limitations, that the plaintiff had not shown fraudulent concealment sufficient to toll the limitations period except in limited instances involving fiduciary duties by two brothers as trustees, and that the remaining claims against Carl Ancona and the company should be dismissed.

business & regulatoryproceduretorts & liability

This case concerns the plaintiff's efforts to enforce a $3,766,000 judgment against the individual and corporate defendants through orders in aid of execution, targeting distributions from a company profit-sharing plan and evidences of indebtedness owed by the company. After the underlying judgment was reversed on appeal and remanded in part, the district court had directed that any such distributions be applied to satisfy the judgment and had enjoined the defendants from transferring the assets. The defendants appealed those enforcement orders. The court reversed and vacated the orders, reasoning that ancillary or accessory orders dependent on a reversed judgment must fall with it.

procedure

The case involved a marina company that leased commercial property from Ramey under a lease with options to renew for additional terms, requiring written notice by a specific deadline. The marina missed the deadline due to an alleged honest mistake and sought to compel extension of the lease through an equity action, arguing that strict enforcement would cause unconscionable harm given the improvements made to the property. The Nebraska Supreme Court affirmed the district court's dismissal of the petition, holding that renewal options must be exercised strictly in accordance with their terms and that equity will not relieve against mere forgetfulness in such cases.

property

The case involved an association of depositors who lost money from the 1983 failure of Commonwealth Savings Company suing former directors of the Nebraska Depository Institution Guaranty Corporation (NDIGC) and others for wrongful conduct that allegedly caused NDIGC's 1985 collapse and prevented recovery on deposit guarantees. The plaintiffs filed their petition in December 1988, more than four years after the events. The district court sustained a demurrer and dismissed the action as barred by the four-year statute of limitations in Neb. Rev. Stat. § 25-207(3) and (4). The Supreme Court affirmed, concluding that the claims accrued no later than November 1983 when Commonwealth was declared insolvent and a receiver appointed, and that the petition could not be amended to allege later discovery because public records from related 1984 proceedings showed the alleged fraud was known or discoverable well before December 1984.

procedurebusiness & regulatorytorts & liability

In Duggan v. Beermann, a voter challenged the placement of a term-limits initiative (Measure #407) on the 1992 Nebraska ballot, arguing that the petition lacked the required number of signatures under the state constitution, among other claims. The district court denied relief and allowed the measure on the ballot, where it passed. On appeal, the Nebraska Supreme Court held that the number of signatures submitted fell short of the constitutional threshold—whether measured by registered voters or votes cast in the prior gubernatorial election—and did not constitute substantial compliance with the procedural requirements of Neb. Const. art. III, §§ 2 and 4. The court therefore reversed the district court, declared the measure void despite voter approval, and remanded for entry of judgment accordingly.

electionsprocedure

This case involves a long-running dispute in which Whitehead Oil challenged the City of Lincoln's denial of a use permit to develop its property as a convenience store under a zoning ordinance, claiming the denial was arbitrary and seeking to enjoin enforcement of the ordinance along with damages. The Nebraska Supreme Court affirmed the district court's rulings that the ordinance was unreasonable and unenforceable, that the denial effected a temporary taking of property under the Fifth Amendment (incorporated via the Fourteenth) and the Nebraska Constitution, and that the city had violated Whitehead Oil's civil rights. The court awarded damages measured by the diminished rental value of the property ($762.50 per month) from the date of denial until the permit issues, reflecting the difference between retail use under B-2 zoning and office use under O-3 zoning. The decision rests on prior holdings in the same controversy that the permit refusal was arbitrary and capricious, as well as principles of inverse condemnation and equitable jurisdiction to resolve all related claims. The decree was modified only to extend damages accrual until the permit is actually issued.

propertycivil rightsbusiness & regulatory

This case concerns Whitehead Oil Company's challenge to the City of Lincoln's refusal to grant a land-use permit allowing a particular use of its property under the existing zoning designation. The district court reversed the city's decision after finding it arbitrary. On appeal, the Nebraska Supreme Court affirmed as modified, directing the city to issue the permit subject to standard conditions and a possible traffic light requirement. The court's reasoning centered on the city's denial being driven by aversion to the proposed use rather than regulatory compliance, with deviations stemming from staff negotiations and the multilayered zoning process creating risks of arbitrary action.

propertybusiness & regulatory

This case involved a foreclosure action brought by Metropolitan Life Insurance Company against land owned by Kissinger Farms, Inc., which had mortgaged the property to secure a promissory note for the benefit of a related entity, Kissinger Feed Lots, Inc. The successor owner, DeWitt Farms, Inc., challenged the foreclosure on grounds that Kissinger Farms had not properly authorized the mortgage due to conflicts of interest among directors, failure to hold formal meetings, and noncompliance with corporate bylaws requiring unanimous board consent. The Nebraska Supreme Court affirmed the district court's judgment enforcing the mortgage. It held that although the initial board action in writing was not unanimous, a later unanimous written ratification by all directors, including the previously holdout director, validated the transaction under Neb. Rev. Stat. §§ 21-2040.01 and 21-2042 and the corporation's bylaws, which permit action by written consent and address conflicted transactions.

business & regulatorypropertyprocedure

In this probate case, the siblings of decedent Earl Trew sought to challenge his paternity of two children born during his marriage by requesting genetic testing decades after the divorce, in which the divorce court had treated the children as his and ordered support and visitation without any contest to paternity. The county and district courts denied the testing motion and ruled that the children were Trew's lawful heirs entitled to his intestate estate under Nebraska probate statutes defining issue by parent-child relationships. The Nebraska Supreme Court affirmed, holding that the prior divorce proceedings and stipulations established the children's status as issue, precluding the siblings' late challenge, and that the children therefore inherit the estate in equal shares. The court also rejected the siblings' other claims regarding will interpretation and attorney fees on procedural grounds.

family lawpropertyprocedure

In this case, plaintiff Gerald Marple sued Sears after being injured at a store counter when a part-time employee moving a refrigerator on a dolly pushed it into his knee. The trial court directed a verdict on liability after Sears conceded there was no evidence of contributory negligence, and the jury awarded damages; Sears appealed, arguing the directed verdict was improper and that the court erred in allowing evidence and closing-argument comments about a vocational expert Sears had listed but later withdrew after the expert interviewed Marple. The Nebraska Supreme Court affirmed, holding that the undisputed facts established Sears' negligence as a matter of law and that the expert-witness issues did not require reversal because the expert became a percipient witness after the interview and Sears failed to preserve objections to the comments. The court also rejected Sears' requested jury instruction on the issue as unsupported by the evidence.

torts & liabilityprocedure

Concerned Citizens of Kimball County sued the Nebraska Department of Environmental Control under the Uniform Declaratory Judgments Act to challenge a permit for a hazardous waste incinerator, arguing the permit was invalid because it listed the Koustases as owners after Waste-Tech filed the application and that subsequent transfers to Amoco and Waste-Tech did not cure the defect. The district court sustained a demurrer based on sovereign immunity and lack of standing and granted summary judgment to Waste-Tech, dismissing the case with prejudice on grounds that it was an improper collateral attack and the plaintiffs lacked standing. The Nebraska Supreme Court affirmed the dismissal on jurisdictional grounds, holding that sovereign immunity barred the suit against the state agency absent express waiver and that the plaintiffs had not properly established standing, but it reversed the with-prejudice dismissal because the defects could be cured by amending the petition to name the agency director and properly allege associational standing. The court further reasoned that the action was not a collateral attack since the plaintiffs were not parties to the original permit proceeding. The case was remanded for further proceedings.

environmentprocedure

The case involved Mike and Tina Andreasen and their two young children suing two physicians and their medical groups for emotional distress allegedly caused by the stillbirth of the couple's baby, which the plaintiffs attributed to negligent prenatal monitoring and a delayed cesarean section. The trial courts granted summary judgment to the defendants in both consolidated actions, and the Nebraska Supreme Court affirmed. The majority held that the children's bystander claims failed because their relationship to the fetus was not sufficiently intimate as a matter of law, while the parents' claims failed because their symptoms of distress did not meet the severity threshold required for recovery in negligent infliction of emotional distress cases.

torts & liabilityhealthcare

The case involved a Nebraska resident challenging the state's taxation of income derived from mutual fund investments in U.S. government securities through repurchase agreements, pursuant to a Department of Revenue ruling. The Nebraska Supreme Court held that such income is exempt from state income tax under federal law (31 U.S.C. § 3124) and the Supremacy Clause, affirming the lower court's decision to invalidate the ruling. The court reasoned that the repurchase agreements effectively involve interest on federal obligations, which cannot be taxed by the state, despite the form of the transactions as loans. The decision was based on de novo review of the legal issue, with undisputed facts showing the trusts' exclusive investment in government securities.

taxesfederal power

This case involves the State's motion for resentencing of Carey Dean Moore, who was convicted of two counts of first-degree murder and originally sentenced to death, after federal district and appeals courts granted habeas relief on the ground that the "exceptional depravity" aggravating circumstance in Neb. Rev. Stat. § 29-2523(1)(d) was unconstitutionally vague. The Nebraska Supreme Court concluded it possessed authority under State v. Reeves to reweigh aggravating and mitigating factors itself and impose a new sentence, but declined to exercise that authority. Instead, the court remanded the matter to the Douglas County district court for resentencing, reasoning that proceeding with reweighing would likely result in reversal by federal courts under the Eighth Circuit's decision in Rust v. Hopkins and would therefore waste judicial resources.

criminal lawfederal power

The case concerned Upper Big Blue Natural Resources District's applications to divert water from the Platte and Blue Rivers, which the Department of Water Resources denied in part after consulting the Game Commission under Neb. Rev. Stat. § 37-435(3) regarding impacts on endangered species. On rehearing, the court first determined that Big Blue had standing to challenge the statute because the required consultation affected the director's decision, even though the applications were also evaluated under public-interest factors in § 46-289. The court then upheld the constitutionality of § 37-435(3), concluding that the Legislature's determination that protecting endangered species serves the public interest was not clearly without public purpose and that the statute's limitations on water diversions were reasonable and consistent with constitutional provisions on water use. The motion for rehearing was overruled and the prior opinion modified accordingly.

environment

This case involved Shelter Insurance Company's claim to $10,000 held in escrow from Frohlich's settlement of her personal injury lawsuit against the Denbestes, based on Shelter's prior $10,000 medical payments to Frohlich under its insured's policy and an asserted right of subrogation. The district court granted summary judgment to Shelter, but the Nebraska Supreme Court reversed and remanded for further proceedings. The court held that an insurer's subrogation right to settlement proceeds does not arise until the insured has been fully compensated for her injuries, and the record did not establish whether Frohlich's damages exceeded the $212,500 settlement amount. The court also rejected Frohlich's waiver argument but did not address her claim about proper parties to the action.

torts & liabilityprocedure

The case involved Rick E. Robinson, who was terminated from his employment with Cushman, Inc. after a work-related injury while on disability leave, without access to grievance procedures under the union collective bargaining agreement. Robinson sued alleging violations of the Nebraska Civil Rights Act, breach of contract, and Nebraska public policy. The district court sustained the defendant's demurrer and dismissed the petition, and the Nebraska Supreme Court affirmed. The court reasoned that all claims were preempted by Section 301 of the federal Labor Management Relations Act because resolving them required interpreting the collective bargaining agreement's grievance procedures.

labor & employmentfederal powercivil rights

The case involved Upper Big Blue Natural Resources District's appeal of the Department of Water Resources director's denial of its applications to divert unappropriated water from the Platte and Blue Rivers for a large irrigation and groundwater replenishment project known as the Landmark Project, which included interbasin transfers. The court affirmed the director's decision, holding that the relevant Nebraska statutes governing water appropriations, public interest reviews, and endangered species protections were constitutional and did not violate the prior appropriation doctrine or separation of powers. The core reasoning was that the doctrine of prior appropriation protects only perfected water rights, not mere applications, and that the legislature may validly define public interest factors for granting permits; the applicant failed to meet its burden to show unconstitutionality. The court did not reach other assigned errors because the statutes were upheld.

environmentpropertybusiness & regulatory

In Turek v. Saint Elizabeth Community Health Center, the plaintiff sued a hospital, a doctor, and a nurse for negligence after discovering years later that the nurse had performed unlicensed medical procedures, including catheter insertion, anesthesia administration, and skin grafting, during his 1978-1979 burn treatment as a child; he sought damages for emotional distress including headaches and anxiety, while waiving a medical review panel. The trial court granted the defendants' motions for summary judgment and dismissed the case with prejudice. The Nebraska Supreme Court affirmed, holding that the plaintiff failed to allege any deviation from applicable standards of care or resulting physical injury, that the emotional distress was not severe enough to be compensable, and that any intensified distress was proximately caused by the outcome of a state investigation rather than the defendants' actions.

torts & liabilityprocedurehealthcare

This case is a wrongful death suit brought by the estate of a worker killed when a trench wall collapsed during excavation work for Cass County. The plaintiff sued the employer (protected by workers' compensation immunity), the general contractor, and the county; after an initial trial and appeal, the Nebraska Supreme Court in McKinstry I found the county negligent due to its nondelegable duty of care but remanded for a new trial. On remand, the trial court granted partial summary judgment on the county's negligence and amended the order nunc pro tunc to limit the retrial to damages only. The court reversed that decision, holding that a general remand requires a new trial on all issues, including proximate cause, contributory negligence, and other defenses not previously resolved, while directing the factfinder to consider the established negligence of the county. The matter was remanded for a full new trial between the plaintiff and the county.

torts & liabilityprocedurelabor & employment