Norman Krivosha

The case involved an appeal by the owners of an apartment building in Gering, Nebraska, from a district court judgment affirming a State Fire Marshal order under Neb. Rev. Stat. § 81-513 directing demolition of the building due to 29 specified fire hazards and dilapidated conditions making it especially liable to fire. The owners challenged the sufficiency of the evidence, the marshal's authority to order immediate vacation, the lack of an engineer or architect certificate, and the constitutionality of the statutes, but the Nebraska Supreme Court affirmed the demolition order. The court held that constitutional issues were waived by not being raised below, the certificate requirement did not apply to fire-prevention orders, and vacation-order challenges were waived by stipulation. It further reasoned that the owners had stipulated to make repairs by a deadline but failed to do so, allowing demolition under the statute and precedent when repairs are not completed. The decision rested on de novo review of evidence supporting the hazards, including the trial court's inspection of the premises.

propertyprocedurebusiness & regulatory

This case involved taxpayers in non-high-school districts in Scotts Bluff County challenging the constitutionality of Neb. Rev. Stat. § 79-4,102 (Cum. Supp. 1984), which authorized a property tax levy to fund tuition for nonresident students attending high schools in other districts. The trial court granted summary judgment to the plaintiffs, ruling the statute unconstitutional in full due to an improper delegation of legislative power to receiving school districts without adequate standards. On appeal, the Nebraska Supreme Court reversed in part, holding that the delegation provision could be severed, that the remaining statutory formula for tuition charges was not discriminatory or violative of uniform taxation requirements, and that the taxation-without-representation claim lacked merit because the State Board of Education is elected; the court affirmed the denial of injunctive relief for the 1986-87 school year, vacated the injunction for 1987-88, and remanded the case.

taxesprocedure

In this case, plaintiff Karen Bard sued the City of Omaha and Cox Cable under the Uniform Declaratory Judgments Act, seeking to void a 15-year community antenna television franchise granted to Cox Cable or, alternatively, to have the court declare the cable rates excessive and unreasonable. Bard alleged that Cox Cable fraudulently induced the franchise by promising an interactive service called INDAX that did not exist and was never delivered, and that the approved rates were 10 to 30 percent higher than comparable services elsewhere. The district court sustained demurrers and dismissed the petition, finding that Bard lacked capacity to sue, the court lacked subject matter jurisdiction, and no cause of action was stated. The Nebraska Supreme Court reversed and remanded, holding that Bard had capacity to challenge the rates, the state court had jurisdiction to review rates charged before December 29, 1986, under the Cable Communications Policy Act of 1984, and the petition stated a due process claim because the facts supported an inference that subscribers were charged for undelivered services, rendering the rates arbitrary and confiscatory.

business & regulatoryprocedure

In Graff v. Burnett, horse breeders Dennis and Yelda Graff sued horse owner Gary Burnett to foreclose an agister’s lien and a stallion service lien under Nebraska statutes for unpaid stud fees and care costs on several mares and a purchased mare named She’s Rocky One, after the parties’ oral agreements for breeding services. Burnett counterclaimed, alleging wrongful detention of his horses after he offered partial payment. The district court awarded Graffs monetary judgments totaling $687 plus prejudgment interest, authorized lien foreclosure if unpaid, and denied the counterclaim. On appeal, the Nebraska Supreme Court affirmed, holding that the liens were valid, Graffs were entitled to retain possession until full payment, the charges were reasonable and undisputed, the amount was liquidated, and no proper tender had been made to support a conversion claim.

propertytorts & liability

The case concerned an application by the Central Nebraska Public Power & Irrigation District to the Department of Water Resources seeking recognition of incidental underground water storage formed by seepage from its canal irrigation system in three Nebraska counties. Numerous overlying landowners objected to the application on grounds including constitutionality of the governing statute, lack of findings on irrigation use, recognition of pre-statute storage, and applicability of interbasin transfer statutes. The director of DWR approved the application in part, modifying existing appropriations to include the storage without altering priority dates or diversion rates. On appeal, the Nebraska Supreme Court affirmed, holding that the movement of water was natural seepage rather than a purposeful interbasin diversion or transportation requiring additional statutory approval, and that other statutory requirements had been satisfied.

environmentproperty

This case was an appeal by a father living in Nebraska from a district court order requiring him to pay child support for his daughter Wendy, who lived in Iowa with her mother, in a proceeding initiated under Iowa's version of the Uniform Reciprocal Enforcement of Support Act (URESA) and transferred to Nebraska. The Nebraska Supreme Court affirmed the order, ruling that the district court had authority to find a support duty for Wendy and order payments even though the Iowa divorce decree had not mentioned her or imposed support for her. The court reasoned that URESA allows enforcement of duties of support that are imposable by common or statutory law, not only those established by prior court orders from the initiating state, and that the responding state's law governs the age of majority for support purposes.

family law

In Jones v. Malloy, plaintiff Imogene Jones sued chiropractor Dr. James Malloy alleging battery for performing a pelvic manipulation without consent and negligence for failing to obtain informed consent regarding risks, particularly given her prior back surgery and explicit instructions not to treat her lower back. The trial court directed a verdict for the defendant on the battery claim, and the jury found for the defendant on the informed consent claim. On appeal, the Nebraska Supreme Court affirmed, holding that the professional standard of care applies to informed consent claims against chiropractors, requiring expert testimony to establish the duty to disclose risks. The court determined that expert evidence created factual issues for the jury on whether the standard was breached, whether a reasonable patient would have proceeded with treatment, and causation, so directed verdicts were properly denied. The decision adopted the statutory professional theory of informed consent for uniformity with medical malpractice cases.

torts & liabilityhealthcare

The case involved two religious organizations appealing the Lancaster County Board of Equalization's placement of their real property on the 1984 tax rolls after they failed to file required applications for tax exemption. The Nebraska Supreme Court affirmed the district court's decisions upholding the board, finding that the churches' property lost its exempt status under Neb. Rev. Stat. §§ 77-202.01 and 77-202.03 despite continued religious use. The core reasoning was that state law mandates timely applications to obtain or renew exemptions for religious property, with prior exemptions expiring after four years absent compliance, and no statutory provision excuses filing failures or allows revival based on unchanged use or county notices.

religious libertytaxesproperty

This case involved a landowner who sued a real estate auctioneer and broker for negligently failing to sell his property at auction under their contract, seeking damages for the lower price he later obtained. The trial court granted summary judgment to the defendant on the ground that the claim was barred by the two-year statute of limitations for professional negligence under Neb. Rev. Stat. § 25-222. The Nebraska Supreme Court reversed, holding that real estate brokers are not professionals within the meaning of the statute, so the shorter limitations period did not apply. The court further concluded that the statute was unconstitutional because it failed to define the protected class, improperly delegating legislative classification power to the courts in violation of separation of powers under the state constitution.

proceduretorts & liabilitypropertybusiness & regulatory

This case is an appeal from a district court decree dissolving a marriage in Sarpy County, Nebraska, in which the husband challenged the amounts set for child support and the division of property. The Nebraska Supreme Court reviewed the record de novo to assess whether the trial court had abused its discretion in those determinations. Under that standard, the court gives weight to the trial judge's opportunity to observe witnesses when evidence conflicts. After review, the court concluded there was no abuse of discretion. It therefore affirmed the district court's decree.

family law

The case involved a products liability claim by Clayton Rahmig against Mosley Machinery Company for injuries sustained while cleaning a guillotine metal scrap shear known as the Monster, manufactured by Mosley and used at his employer's scrap yard. Rahmig's fingers were amputated when the machine's movable blade unexpectedly descended while he was inside the discharge chute, despite the controls being set to keep the blade raised. The trial court entered judgment on the jury verdict in Rahmig's favor, and the Nebraska Supreme Court affirmed. The court held that a plaintiff in a negligent design products liability case need not prove the existence of a reasonable alternative safer design, overruled prior precedent requiring such proof, and aligned the negligence standard with the user-contemplation test under Restatement (Second) of Torts §402A to avoid conflicts with evidentiary rules on subsequent remedial measures.

torts & liability

The case involved defendant Casey J. Slezak's appeal of his convictions for attempted possession of a controlled substance (cocaine) and driving while intoxicated, with the latter enhanced to a third offense based on two prior DWI convictions. Following guilty pleas, the trial court enhanced the DWI sentence after an enhancement hearing where the State introduced records of the prior convictions, one of which occurred in 1982. The Nebraska Supreme Court affirmed the conviction and sentence on the possession count but reversed the DWI enhancement and remanded for further proceedings. The core reasoning was that while the State need only prove the defendant had or waived counsel for a prior conviction to be valid for enhancement, the record here failed to show that the defendant personally entered the guilty plea in the 1982 case, as it was entered by his attorney without indication of the defendant's presence or ratification.

criminal lawprocedure

This case involved a family dispute over two parcels of farmland in Nebraska (Sections 29 and 21) originally owned by Martin and Marie Koch. The grandparents had entered contracts to transfer the land to their son Gerald Koch and his minor children, but after family conflicts arose, multiple lawsuits led to a court stipulation that awarded Section 29 to Gerald and his wife as joint tenants while returning Section 21 to the grandparents and leaving the minors with no interest. The district court denied motions to vacate the resulting decree. The Nebraska Supreme Court affirmed the decree as to Section 29, finding no error in upholding the stipulation, but reversed as to Section 21. It held that the minor children were necessary parties who had not been properly represented due to an apparent conflict of interest with their father serving as trustee, requiring joinder, appointment of a guardian ad litem, and further litigation of their interests.

family lawpropertyprocedure

This case involved plaintiff Richard K. Turner appealing a directed verdict for defendants Dennis E. Welliver and related companies in a libel and slander action arising from statements made about Turner's practices in selling and transferring federal all-risk crop insurance policies through NARCC and other entities. The district court found that certain allegedly defamatory statements regarding Turner's certification status, unethical conduct, and document handling were either true or lacked evidence of harm, and the Nebraska Supreme Court affirmed, holding that a conditional privilege applied to communications among parties with shared business interests in the insurance customers. The court reasoned that Turner failed to prove actual malice to overcome the privilege, that some statements were supported by the record (such as his lack of certification for direct FCIC insurance and admissions of improper practices), and that evidentiary rulings and findings did not warrant reversal. The appeal challenged the trial court's interpretation of defamation law, its fact-finding, and evidence admissibility, but the judgment was upheld in full.

torts & liabilitybusiness & regulatory

This case involves the termination of parental rights of T.C., the father of C.C., a child born in 1983 who was adjudicated as lacking proper parental care due to allegations of abuse, neglect, and medical issues. The juvenile court ordered a rehabilitation plan for the parents, including therapy and parenting classes, but T.C. failed to comply with it. On appeal, the Nebraska Supreme Court reviewed the record de novo and affirmed the termination under Neb. Rev. Stat. § 43-292(6), finding clear and convincing evidence that T.C. did not correct the conditions leading to the adjudication and that termination was appropriate as a last resort in the child's best interests. The court also upheld the denial of a motion for new trial, finding no abuse of discretion.

family law

Hughes sued Enterprise Irrigation District, a political subdivision, seeking damages and an injunction after alleging that the district's low diversion dam in the North Platte River caused repeated flooding of their adjacent cropland in 1983 and 1984. The district court ruled for the irrigation district on both the tort claim under the Political Subdivisions Tort Claims Act and any other theories, finding no causation. The Nebraska Supreme Court affirmed, holding that Hughes failed to prove the dam was the proximate cause of the overflow; expert testimony showed the river's flow would overtop the 30-inch dam before backing up 1,400 feet to flood the farm, and historical seasonal flooding occurred independently of the structure. The court noted the district court's credibility assessment of the competing experts was not clearly erroneous.

propertytorts & liabilityprocedure

The case involved the City of Lincoln's eminent domain action to take a strip of land from International Moving & Storage, Inc., for a bridge overpass and street widening project on North 27th Street that eliminated direct vehicular access to the property. After a board of appraisers awarded $70,660 and a jury awarded $75,000, International appealed, claiming error in the exclusion of specific traffic count evidence and in jury instruction No. 7 on reasonable access. The Nebraska Supreme Court affirmed the judgment, ruling that landowners have no vested right to any particular traffic flow and that the instruction, when read in full with other instructions, correctly stated the law on compensation for loss of reasonable ingress and egress.

property

Plaintiffs Gary and Diane Frerichs sued Nebraska Harvestore Systems and A.O. Smith Harvestore Products for damages after purchasing a grain silo and feeder system intended for high-moisture corn storage and dairy feeding. Their fourth amended petition alleged breach of express and implied warranties, negligence in design and installation, and fraud based on misrepresentations about the system's performance and safety. The trial court granted partial summary judgment dismissing the implied warranty and negligence claims as barred by the statute of limitations, denied a continuance, and directed a verdict for defendants after plaintiffs refused to present evidence on the remaining express warranty and fraud claims. On appeal, the Nebraska Supreme Court affirmed the dismissals of the warranty and fraud claims and the procedural rulings but reversed the summary judgment on the negligence claim, remanding it for further proceedings because genuine issues of material fact existed regarding when the cause of action accrued.

proceduretorts & liabilitybusiness & regulatory

This case concerned the proper valuation for property tax purposes of irrigated cropland in Banner County, Nebraska, for the 1986 tax year under the state agricultural land valuation manual. After public hearings, the county board of equalization reduced the values assigned to several subclasses of irrigated land, finding that the manual overstated actual value due to sandy soil, erosion, and inadequate water supply and that the resulting figures failed to equalize with neighboring counties. The State Board of Equalization and Assessment rejected the county's adjustments. The court reversed the state board's order, concluding that the evidence supported the county board's recalculations as necessary to reflect true value and achieve uniform taxation of similar property.

taxesproperty

This case was a declaratory judgment action brought by the Nebraska Attorney General challenging the constitutionality of L.B. 1129, a 1986 law that established a retirement system providing monthly pension benefits to members of the Nebraska Legislature after five years of service. The Nebraska Supreme Court held that the law was invalid and unenforceable, enjoining state officials from implementing it. The court's reasoning centered on Neb. Const. art. III, § 7, which limits legislators to a salary of no more than $400 per month plus actual travel expenses and prohibits any other "pay" or "perquisites"; the court concluded that retirement allowances constituted additional compensation beyond these limits, drawing on prior precedent interpreting those terms and rejecting arguments based on legislative intent or historical practices in other states.

labor & employment