Hale McCown

This case involves a post-divorce child custody modification dispute concerning a young daughter. The father petitioned for custody, alleging changed circumstances, while the mother and maternal grandparents jointly counter-petitioned for joint custody with the grandparents on best-interests grounds. The trial court awarded physical custody to the grandparents. On de novo review, the Nebraska Supreme Court reversed that award, holding that the evidence did not establish parental unfitness or forfeiture and that the original custody decree in favor of the mother should be reinstated, while affirming the modified visitation schedule.

family law

In Plettner v. Sullivan, adjoining landowners disputed title to a strip of real estate and use of a shared access road after a 1979 survey revealed that the true boundary placed part of the road and adjacent land on the Sullivans' property, which the Plettners had used since 1962. The trial court found that the Plettners had acquired title by adverse possession to land west of a line 10 feet from certain chickenhouses and had obtained reciprocal prescriptive easements over the road. On appeal, the Nebraska Supreme Court affirmed the adverse possession ruling as modified but held that the Plettners could not acquire title to the road area itself because their possession was not exclusive, given the Hatchery's joint use; however, the court found that the Plettners had satisfied the elements for a prescriptive easement over the road through open, continuous, and adverse use for more than 10 years under a claim of right, and it reversed the reciprocal easement portion of the decree. The core reasoning centered on the distinct requirements for adverse possession (requiring exclusive possession excluding all others) versus a prescriptive easement (requiring exclusive use that need not exclude the owner but excludes the public at large).

property

This case involved a personal injury lawsuit in which plaintiff Charles Frahm, injured in a 1978 car accident, sued defendant David Carlson after signing a release for $3,550 that covered "all injuries, known and unknown." Frahm later developed a herniated cervical disc requiring surgery and claimed the release was invalid due to mutual mistake, as both parties believed at signing that his injuries were limited to minor, known symptoms like headaches. The trial court denied the defendant's motion for directed verdict, instructed the jury on mutual mistake under Nebraska precedent from Simpson v. Omaha & C.B. Street R. Co., and entered a $35,000 jury verdict for Frahm. The appellate court affirmed, holding that the release did not bar recovery for wholly unknown injuries where the evidence supported mutual mistake and the jury instructions were proper. The core reasoning applied the majority rule allowing avoidance of releases for unknown injuries absent clear intent to settle all possible claims.

torts & liabilityprocedure

This case was a paternity action under Nebraska law in which Margaret Gail Gregory sought to establish that Willie L. Davis was the father of her child born in November 1979. The District Court, trying the matter without a jury, found Davis to be the father based on evidence of their sexual relationship and supporting testimony, and ordered child support. Davis appealed only the paternity determination. The Nebraska Supreme Court affirmed, applying the preponderance-of-the-evidence standard and requiring corroboration of the mother's testimony; it held that the trial court's findings on credibility, opportunity, and inclination were not clearly wrong and were supported by corroborating evidence from other witnesses.

family law

The case concerned the dissolution of a partnership formed in 1976 between Sadallah Badran and Virginia Bertrand to sell gift items, with both parties seeking an accounting and distribution of remaining assets. The trial court awarded all assets to Bertrand as the sole contributor of capital, and the Nebraska Supreme Court affirmed on de novo review. Badran claimed his sales expertise and services amounted to a capital contribution of property under the agreement, but the court held that the written partnership agreement required contributions of cash or property, that Badran provided none, and that his services were compensated separately rather than treated as capital. Evidence showed Bertrand supplied over $113,000 while Badran contributed no funds, leading to assignment of the remaining inventory valued at approximately $65,600 to her after settling partnership debts.

business & regulatoryproperty

This case involved an appeal by real estate salesperson Louis Weiner from a Nebraska district court judgment affirming a one-year suspension (with nine months stayed on probation) of his broker's license by the State Real Estate Commission. The commission found that Weiner violated Neb.Rev.Stat. § 81-885.24(23) by failing to promptly place in his employing broker's custody two commission payments—one for $34,500 on a Music Box property sale and another for $896 on a Century 21 Wear Co. transaction—after receiving them in 1980. The Supreme Court of Nebraska affirmed, holding that the statute unambiguously requires a salesperson to turn over all such funds, including commissions, to the employing broker; that substantial evidence supported the commission's factual findings of the violations; and that the sanction was not arbitrary or capricious under the applicable standard of review.

business & regulatory

The case involves the County of Knox suing the City of Creighton to enforce the city's own zoning and development regulations after the city built an industrial storage building without a permit in violation of those rules. The trial court dismissed the county's petition for failing to state a cause of action, but the appellate court reversed, holding that the petition sufficiently alleged facts that, if true, could support injunctive relief. The court reasoned that precedents exempting municipalities from zoning via eminent domain powers do not apply on the face of the petition, as the city's condemnation authority was not established, and other potential exemptions or defenses could not be resolved at the pleading stage. It further noted that mandatory injunctions are available to correct zoning violations when necessary and practicable.

propertyprocedure

This case involved a state appeal from a district court order suppressing evidence of cocaine found in a vehicle during a search following the driver's arrest for marijuana possession. The Nebraska Supreme Court reversed the suppression, holding that an officer's plain-view observation of a marijuana cigarette in the ashtray, combined with the driver's evasive response, established probable cause for arrest. Because the arrest was lawful, the subsequent search of the passenger compartment and glove compartment was permissible as a search incident to arrest under New York v. Belton. The court determined that the district court's contrary finding on probable cause and the applicability of the search-incident doctrine was erroneous.

criminal lawprocedure

The case involved a negligence claim brought by plaintiff Wakenight against the State of Nebraska under the State Tort Claims Act after he was struck by a car while walking across a bridge at night. A state trooper had earlier stopped the plaintiff for illegal hitchhiking on the interstate, issued a warning, and dropped him off near the bridge, where the plaintiff proceeded to cross despite poor lighting and lack of sidewalks. The trial court found the state negligent in failing to maintain tower lights but also found the plaintiff contributorily negligent in walking on the wrong side of the road and failing to keep a proper lookout; it concluded that the plaintiff's negligence was more than slight in comparison and therefore barred recovery. On appeal, the Nebraska Supreme Court affirmed the dismissal, holding that the trial court's findings were not clearly wrong and were supported by the evidence.

torts & liability

This case involved a dispute over a 1962 family settlement agreement arising from claims against an estate, in which Irma Kramer agreed not to discriminate against her granddaughters (plaintiffs) in her will or property distributions, with an exception for up to $50,000 to her daughter. After Irma's death, her will left her entire residuary estate to her daughter, prompting the granddaughters to sue the estate's representative for breach and seek specific performance by impressing a trust on the assets. The trial court sustained the defendants' demurrers and dismissed the petition, finding the agreement too indefinite and uncertain to enforce. The Nebraska Supreme Court reversed, holding that the petition alleged sufficient facts, including the agreement's terms and intent for equal division after equalization, to state a cause of action in equity for enforcement of the contract to make a will.

family lawproperty

In State v. Hubbard, the defendant was convicted after a jury trial of first-degree felony murder for fatally shooting a victim during an attempted robbery and was sentenced to life imprisonment. He appealed, contending that the trial court erred by refusing to instruct the jury on second-degree murder and manslaughter as lesser-included offenses. The Nebraska Supreme Court affirmed the conviction, ruling that when a killing is charged as occurring during the perpetration of robbery under the felony murder statute, second-degree murder and manslaughter are not lesser-included offenses. The court explained that felony murder requires no proof of a specific mental state for the killing itself beyond the intent to commit the underlying felony, unlike other first-degree murder charges where the defendant's mental state determines the degree of the offense.

criminal lawprocedure

The case involved a boundary dispute between owners of the north and south halves of a quarter section of farmland in Hall County, Nebraska, where the plaintiff sought to quiet title to her south half and restrain alleged encroachments, while the defendants cross-petitioned under Neb. Rev. Stat. § 34-301 to establish the line. The district court dismissed the plaintiff's action and fixed the boundary on the line shown by a May 2, 1979 survey. The Nebraska Supreme Court affirmed after a de novo review, holding that the evidence did not contradict the survey, establish any different original government boundary, or support a claim of adverse possession because the plaintiff failed to prove actual, continuous, exclusive, notorious, and adverse possession of a sufficiently described area for ten years.

property

This case involved a prospective buyer suing a real estate broker (agent for the seller) for negligence in presenting her offer to purchase a leasehold interest, alleging failure to inform the seller about the timing and details of competing offers. The trial court ruled in favor of the plaintiff, finding negligence and awarding damages. On appeal, the court reversed, determining that a real estate broker's duty to a prospective purchaser is limited to timely and truthfully submitting the offer, without an obligation to convey all underlying facts and circumstances regarding multiple offers. The judgment was reversed and the case remanded for dismissal.

business & regulatorypropertytorts & liability

This case was a declaratory judgment action brought by state and federal savings and loan associations challenging whether Article XI, section 1 of the Nebraska Constitution bars subdivisions of the state from depositing public funds in savings and loan associations, except as permitted by Article XV, section 17(2). The district court held that such deposits are prohibited, and the Nebraska Supreme Court affirmed. The court reasoned that the constitutional provision forbids any state subdivision from acquiring a proprietary or ownership interest in a private corporation or association; because depositors in mutual savings and loan associations become members with voting rights and claims on assets, a deposit creates such an interest. The court further concluded that the provision applies equally to federal and state-chartered associations and does not violate the U.S. Constitution.

business & regulatory

This case involved a challenge to the admission of Joseph L. McGowan's will to probate by his nieces and nephews, who alleged lack of testamentary capacity and undue influence by the principal beneficiary, Thomas F. McGowan. The county court admitted the will, a jury in district court found for the proponent on both issues, and the district court entered judgment accordingly. On appeal, the Nebraska Supreme Court affirmed, holding that no true presumption of undue influence arises to shift the burden of proof in will contests and that the burden of persuasion remains on the contestants throughout the trial. The court reasoned that prior references to such a presumption in Nebraska case law actually referred only to permissible inferences or prima facie showings sufficient to reach a jury, not a formal burden-shifting presumption under the evidence rules. Because the jury instructions correctly placed the burden on the contestants and the evidence supported the verdict, the judgment admitting the will was upheld.

family lawpropertyprocedure

This is a workers' compensation case in which employee Alex Salinas claimed he suffered a back injury from slipping and falling while working on packer bins for Cyprus Industrial Minerals Co. The Workmen's Compensation Court en banc awarded him temporary total disability benefits and medical costs, with permanent partial disability to be determined later. The employer appealed, arguing there were no objective symptoms of injury at the time of the accident and that the evidence did not support the award. The Nebraska Supreme Court affirmed the award, holding that under the applicable statute the Compensation Court's findings of fact after rehearing have the force of a jury verdict and must be upheld if supported by sufficient competent evidence viewed in the light most favorable to the employee.

labor & employmentprocedure

This case involved an action on a guaranty agreement in which plaintiff Custom Leasing sought payment from defendant Carlson Stapler & Shippers Supply after the lessee, Creative Buildings, defaulted on payments for leased equipment and entered bankruptcy. The District Court entered judgment for the defendant, and the Nebraska Supreme Court affirmed after a trial to the court. The court found that the plaintiff's assignee improperly filed a financing statement in Illinois and granted the lessee a low-price purchase option at lease end without the guarantor's knowledge; these affirmative acts were negligent, triggered bankruptcy litigation and delay, and caused a sharp drop in equipment value, releasing the guarantor from liability to the extent of the resulting injury under principles governing impairment of security.

business & regulatorytorts & liability

The case involved a defendant who pleaded guilty to knowingly delivering a controlled substance and was sentenced to five years in prison under the statute in effect at the time of his plea and sentencing in 1973. While his appeal was pending, the legislature enacted a new law reducing the minimum penalty for first-time offenders to one year, though it did not specify whether it applied retroactively. Relying on prior decisions, the court determined that an amendatory statute mitigating punishment applies to any case in which judgment is not yet final unless the legislature provides otherwise. The court affirmed the conviction but vacated the original sentence and remanded the case for resentencing under the new statute.

criminal law

This case involved a dispute over the cost of relocating a beauty shop tenant whose lease was not disclosed when the Yancey Hotel property changed hands. Plaintiff Grand Island Hotel Corporation, as lessee under a 25-year lease from Second Island Development Company, sued Boss Hotels Company (the original seller via warranty deed) for breach of title covenants after discovering and having to buy out the prior undisclosed lease to Vera Coons. The District Court dismissed the claims, but the Nebraska Supreme Court reversed, holding that the plaintiff, as a long-term lessee, qualified as an "assignee" entitled to enforce the covenants of title from the prior deed under state statute, and directing judgment for the plaintiff in the amount of $6,998.40 against Boss Hotels. The court also upheld jurisdiction over Boss based on its prior ownership of the property.

property

This case involved appeals by eight Nebraska counties challenging orders by the State Board of Equalization and Assessment that increased the 1969 assessed valuations of real property for tax purposes. The core issues were whether a uniform constitutional standard of valuation was applied consistently across counties and whether the counties were properly equalized relative to each other. The court affirmed the board's order for Gage County, which had undergone a recent statutory scientific reappraisal, because the board's restoration of the original appraisal values aligned with its treatment of similar reappraisals in other counties. For the remaining seven counties, the court reversed the orders, finding that the board relied on inconsistent valuation methods—such as assessment-sales ratios versus reappraisals—without necessary correlation, resulting in arbitrary adjustments that violated the requirement of uniform and proportionate valuation under the Nebraska Constitution.

taxesproperty