John V. Hendry

This case consists of two consolidated attorney disciplinary actions brought by the Nebraska Supreme Court's Counsel for Discipline against respondent Robert H. Beach. The charges arose from Beach's representation of a client in a felony probation revocation proceeding, during which he sent unauthorized and inflammatory letters to the county attorney and the client's husband, purchased alcohol for the client in violation of her probation terms, encouraged her to divorce, and later disclosed client confidences after a grievance was filed. Beach had received two prior private reprimands for similar misconduct. The court found clear and convincing evidence that he violated DR 1-102(A)(5) and (6) in both cases, plus DR 4-101(B)(1) in the second, and concluded that disbarment was the appropriate sanction given the pattern of conduct, absence of mitigating factors, and lack of acknowledgment of ethical violations.

criminal lawprocedure

Carolyn Bronsen sued Dawes County and Fur Trade Days, Inc. (FTD) for negligence after she broke her ankle by stepping in a hole on the county courthouse lawn while attending a public festival that included picnicking. The district court and Court of Appeals granted summary judgment to both defendants under Nebraska’s Recreation Liability Act (RLA), which limits landowner liability for recreational users to willful or malicious conduct. On further review, the Nebraska Supreme Court held that the RLA’s limited immunity applies only to private landowners and does not protect governmental entities such as counties, overruling prior precedent that had extended the statute to public bodies; it therefore reversed summary judgment for the County. The court affirmed summary judgment for FTD, finding no error in the conclusion that Bronsen was engaged in the protected recreational activity of picnicking and that FTD qualified as an “owner” under the RLA.

torts & liabilityproperty

This case involved a juvenile court proceeding under the Nebraska Juvenile Code concerning Veronica H., a minor adjudicated as abused and placed in the temporary custody of the Nebraska Department of Health and Human Services (DHHS). The juvenile court ordered DHHS to replace the assigned case manager with a more experienced one knowledgeable about incest cases due to concerns over the child's lack of progress and case management. DHHS appealed, arguing the court lacked statutory or constitutional authority to direct such a personnel change. The Nebraska Supreme Court affirmed the lower courts' rulings, holding that the juvenile court possessed jurisdiction over DHHS as custodian and authority under Neb. Rev. Stat. § 43-285 to modify or dissent from DHHS plans when necessary to serve the juvenile's best interests. The decision rested on the Juvenile Code's emphasis on liberal construction to protect children and the broad discretion granted to juvenile courts in placement and care matters.

family lawprocedure

Three Nebraska residents who pay telecommunications surcharges brought suit against state officials, challenging the Nebraska Telecommunications Universal Service Fund Act as an unconstitutional delegation of legislative power to the Public Service Commission and as violating due process, equal protection, and other constitutional provisions; they sought declaratory and injunctive relief against the surcharge that funds universal service goals. Intervening telecommunications providers opposed the claims. After a trial on stipulated facts, the district court upheld the statute, and the Nebraska Supreme Court affirmed. The court held that the Act supplies reasonably adequate standards to guide the Commission in setting the fund level and surcharge, that the surcharge is a valid regulatory fee rather than an unlawful tax, and that the legislation does not violate due process, equal protection, or the Nebraska Constitution’s provisions on the Commission’s authority.

business & regulatoryfederal powerprocedure

The case involved defendant Erick Fernando Vela, who was convicted of multiple first-degree murders and related felonies after pleading guilty, with the State seeking the death penalty based on aggravating circumstances found by a jury. Vela filed a verified motion under Neb. Rev. Stat. § 28-105.01 to preclude a death sentence on grounds of mental retardation, citing the statutory ban and Atkins v. Virginia; after an evidentiary hearing, the district court overruled the motion, finding insufficient proof of mental retardation. Vela appealed the order, but the Nebraska Supreme Court dismissed the appeal on its own motion for lack of jurisdiction. The court reasoned that in criminal cases the final judgment is the sentence, which had not yet been imposed, and the mental retardation hearing was merely one step in the capital sentencing process rather than a special proceeding affecting a substantial right that would render the order immediately appealable under Neb. Rev. Stat. § 25-1902.

criminal lawprocedure

This case involved a dispute between Pennfield Oil Company and the estate of its former shareholder R.W. Winstrom over the enforcement of stock repurchase agreements from 1960 and 1988, which required the company to redeem shares at book value upon a shareholder's death. The Nebraska Supreme Court reversed the district court's judgment and remanded with directions to grant declaratory relief establishing that the estate's shares were subject to a valid redemption demand under the agreements. However, the court declined to order specific performance of the redemption because no shareholders' meeting had occurred to determine book value as required, the board had not considered waiver options, and a temporary injunction had prevented the parties from fulfilling these procedural steps.

business & regulatoryproperty

This case involved a derivative action brought by some members of the board of trustees of a charitable foundation against other board members, stemming from disputes that rendered effective management of the foundation impossible. The district court addressed issues including the validity of separate board meetings and requests to remove trustees. On appeal, the Nebraska Supreme Court reversed the district court's judgment, holding that the lower court erred in exercising jurisdiction without evidence that the plaintiffs had provided the required statutory notice to the Attorney General. The core reasoning was that effective notice to the Attorney General is essential to allow protection of the public interest in the oversight of charitable corporations, and the absence of such evidence meant the court should not have proceeded to decide the merits.

business & regulatoryprocedure

The case involved Steven and JoDean Crouse seeking a writ of mandamus to compel the Pioneer Irrigation District to exclude 200 acres of their farmland from the district and refund taxes paid on that land, following the cancellation of water rights due to nonuse. The district court dismissed the action, and the Nebraska Supreme Court affirmed, holding that exclusion is discretionary for the district's board under the relevant statutes and that the landowners failed to show a clear duty enforceable by mandamus. The court reasoned that the land's characteristics did not make it nonirrigable by natural causes, and external factors like the Department of Natural Resources' determination could not be considered in the exclusion analysis; thus, no refund was available absent exclusion.

propertytaxesprocedureenvironment

In Johnson v. Johnson, a shareholder of a Delaware corporation whose only asset was a Nebraska subsidiary sued his brother and the companies, alleging shareholder oppression, exclusion from management, and misuse of corporate assets after their father's death. The Nebraska Supreme Court affirmed the district court's dismissal of the complaint under rule 12(b)(6). The court held that Delaware law governs the internal affairs of the Delaware corporation under the internal affairs doctrine and Restatement (Second) of Conflict of Laws § 302, which prioritizes the law of the state of incorporation for matters like shareholder rights and corporate governance to promote predictability and protect expectations. Nebraska's interest in the Nebraska subsidiary and its own corporate statutes did not override this principle, and an alter-ego theory did not create a viable cause of action under Delaware law.

business & regulatoryprocedure

In this negligence case arising from a three-car collision, plaintiff Nancy Castillo sued drivers Megan Young and Marlys Sears for injuries she sustained, including to her jaw and neck. A jury found Young liable and awarded Castillo $13,058.67 in damages but found no liability for Sears. On appeal, the Nebraska Supreme Court affirmed the liability determinations but reversed on damages, holding that the trial court erred by refusing to give Castillo's requested jury instruction on the eggshell-skull plaintiff doctrine. The court reasoned that the tendered instruction correctly stated the law, was supported by evidence of Castillo's prior jaw fracture that made her more susceptible to injury, and that its omission prejudiced her. The case was remanded for a new trial on damages only.

torts & liabilityprocedure

In this case, National American Insurance Company (NAICO) sued Constructors Bonding Company (CBI) for negligently failing to disclose information about claims against a third-party contractor, Welshiemer, which NAICO claimed affected its decision to issue surety bonds. The district court granted summary judgment in favor of CBI and dismissed the complaint, and the Nebraska Supreme Court affirmed. The court reasoned that CBI, as an independent agent, had no fiduciary duty to disclose such information, the parties' agreement did not impose any such duty, and NAICO conducted its own underwriting without expecting CBI to perform that role or provide prior claims history.

business & regulatorytorts & liability

The case involved Lucky I. Iromuanya's appeal from his jury convictions on charges of second-degree murder, attempted second-degree murder, and two related counts of use of a weapon to commit a felony. The convictions stemmed from a shooting at a Lincoln, Nebraska house party in April 2004, where Iromuanya fired a derringer that killed one person and wounded another. The Nebraska Supreme Court affirmed the convictions and most sentences but modified the indeterminate life sentence on the second-degree murder count, with separate opinions concurring in part and dissenting in part on the sentencing modification based on statutory requirements and the trial court's discretion.

criminal lawprocedure

The case involved a dispute between contractor Irving F. Jensen Co. and the Nebraska Department of Roads over a 1998 contract for a wetlands mitigation construction project. Jensen encountered wetter soil conditions than expected, notified the DOR of differing site conditions and intent to seek extra compensation, but the DOR denied the claim in 1998 after investigation; Jensen completed the work and submitted a formal payment claim in 2000, which the DOR rejected in 2001. The district court dismissed Jensen's breach of contract action as time-barred under the two-year statute of limitations, but the Nebraska Supreme Court reversed that ruling, holding that the claim for unpaid extra work accrued only upon the DOR's 2001 refusal to pay and was therefore timely, while affirming dismissal of related misrepresentation and good-faith claims as untimely. The core reasoning focused on the contract specifications requiring payment for actual work performed and treating the final denial of compensation as a distinct breach separate from the earlier denial of a contract modification.

business & regulatoryprocedureenvironment

This case involved an appeal by Hazel Wilson challenging the denial of her Medicaid benefits by the Nebraska Department of Health and Human Services, which found her ineligible due to transferring assets worth over $600,000 to her sons in 1999, within what was deemed a 60-month look-back period. The Nebraska Supreme Court reversed the district court's affirmation of the denial, holding that the transfers occurred outside the applicable look-back period under federal Medicaid law. The court reasoned that the trust established by Wilson and her husband became irrevocable upon the husband's death, subjecting different portions to either 36-month or 60-month look-back periods, but the 1999 transfers from the available trust assets were beyond both periods when measured from her 2003 application. Consequently, the court directed reinstatement of her Medicaid benefits.

healthcarefederal powerproperty

In State v. Moore, Carey Dean Moore, who had been convicted of two counts of first-degree murder and sentenced to death, filed a second petition for postconviction relief challenging the constitutionality of electrocution as Nebraska's method of execution under the Eighth and Fourteenth Amendments and corresponding state constitutional provisions. Moore raised both a general challenge to electrocution as the mandated method and a specific challenge to the state's new execution protocol. The district court denied relief without a hearing, and on appeal, the Nebraska Supreme Court affirmed the denial on different grounds than the lower court. The court held that Moore's general challenge to electrocution was procedurally barred because it had been raised in prior proceedings, while his challenge to the specific protocol could not be brought in a postconviction action since it would not render his death sentence void or voidable under the Nebraska Postconviction Act.

criminal lawcivil rightsprocedure

In State v. Keen, the defendant was convicted of second-offense DUI in Sarpy County Court based on a prior 1998 DUI conviction under an Omaha municipal ordinance, which he argued could not qualify as a prior conviction for enhancement under Neb. Rev. Stat. § 60-6,197.02 because the ordinance was not enacted in conformance with the state DUI statute, citing State v. Loyd. The county court and district court rejected this challenge, and the Nebraska Supreme Court affirmed, holding that the argument constituted an impermissible collateral attack on the 1998 conviction. The court reasoned that the prior conviction inherently included a determination that the ordinance was valid and enforceable, that any challenge to its conformance should have been raised in the original 1998 proceedings, and that the conviction was not void so as to permit collateral attack. The court also upheld the sentence as within statutory limits and not an abuse of discretion.

criminal lawprocedure

Hallie Management Co. sued its former attorneys for legal malpractice, claiming their advice on a motorized scooter policy at a retirement community led to a HUD housing discrimination lawsuit and resulting consent order with penalties. During discovery in the malpractice case, the attorneys sought documents from the HUD representation, which Hallie withheld as protected by attorney-client privilege and work product doctrine; the district court found the protections waived and ordered production. Hallie appealed the discovery order, but the Nebraska Supreme Court dismissed the appeal, concluding it lacked jurisdiction because such interlocutory orders compelling disclosure of privileged materials are not immediately appealable under the collateral order doctrine, as any error can be remedied after final judgment.

proceduretorts & liability

In this case, Aaron Ferer and Robin Monsley sued the law firm Erickson & Sederstrom (E&S), which had served as counsel and transfer agent for Aaron Ferer & Sons Co. (AFSC), asserting an individual claim for wrongful registration of Aaron's shares and derivative claims on AFSC's behalf for negligence, breach of duties, and unjust enrichment related to advice on stock dissenters' rights and asset sales. The district court dismissed the claims, finding no individual duty owed to Aaron and that the plaintiffs did not fairly and adequately represent the corporation's interests in the derivative actions. On appeal, the Nebraska Supreme Court reversed the dismissal of the individual wrongful registration claim, holding that it stated a viable cause under Neb. Rev. Stat. § 8-407, but affirmed dismissal of the derivative claims because the plaintiffs' concurrent personal lawsuits against AFSC and majority shareholders demonstrated conflicting interests that prevented fair representation of the corporation.

business & regulatoryprocedureproperty

This case involved Dennis Stark's convictions for first-degree murder and use of a deadly weapon to commit a felony in the death of Victoria Fortune, based primarily on testimony from accomplice Scott McNeill, who received a reduced charge in exchange for testifying against Stark. Stark appealed after obtaining a new direct appeal, challenging the sufficiency of the evidence, jury instructions on accomplice testimony and lesser-included offenses, prosecutorial comments during closing argument, and ineffective assistance of counsel. The court affirmed the convictions and sentences, holding that the evidence supported the verdict, that any instructional or comment errors were harmless and not prejudicial, and that the ineffective assistance claims lacked a sufficient record for review on direct appeal.

criminal lawprocedure

This case concerned attorney Stuart B. Mills' application for reinstatement to the practice of law in Nebraska after completing a two-year suspension imposed in 2003 for professional misconduct, including improperly notarizing documents and filing a false federal estate tax return. Following the suspension, Mills pleaded guilty to a related federal felony under 26 U.S.C. § 7212(a) for obstructing tax laws, received a private reprimand from the disciplinary committee and board, completed probation and community service, and submitted evidence of rehabilitation and community support. The Counsel for Discipline opposed reinstatement solely on the basis of the felony conviction arising from the same conduct. The court granted reinstatement, reasoning that the original suspension already addressed the underlying conduct, the private reprimand had not been appealed, Mills had fully complied with all sanctions and demonstrated he would not repeat the misconduct, and no other disciplinary issues existed.

criminal lawprocedure