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The NE Law Express is available to members of the Nebraska State Bar at no additional charge.

Nebraska State Bar Association NE Law Express for January 30, 2007

Use our Short Cuts to link to the area of today's
NE Law Express that interests you.

Cases affecting the following practice areas are summarized in today's NE Law Express:

Appeal, Excessive Leniency, Affirmation
Annexation, Standing
Annexation, Statute of Limitations
Parental Rights, Termination, 15 or More of Most Recent 24
Partition Action, Appeal and Error
Sentencing, Change of Improper/Void Sentence
Summary Judgment, Appeal and Error
Workers' Compensation, Judgment, Conditional Judgment
Workers' Compensation, Medicare set-aside account
Workers' Compensation, Waiting Time Penalties

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Feb. 22, 2007 - Teleseminar - Choice of Entity for Non-Profits
Feb. 23, 2007 - NCLE LUNCH & LEARN: Workers' Compensation
Feb. 28, 2007 - Teleseminar - Ethical Issues in ADR
March 6, 2007 - NCLE LUNCH & LEARN: Employment Law (Roseland Case on Vacation Pay)
March 7, 2007 - NCLE LUNCH & LEARN: Veterans' Law
March 13, 2007 - NCLE LUNCH & LEARN: Employment Law (Current Issues)
March 16, 2007 - NCLE LUNCH & LEARN: Ethics Law
March 16, 2007 - Young Lawyers Section Practice Seminar
INFORMATION & REGISTRATION FORM
March 23, 2007 - Construction Law Seminar

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Case Summaries

Appeal, Excessive Leniency, Affirmation

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Here, where the State appealed as excessively lenient sentencing where convictions for three armed robberies (pled to by defendant) resulted in a sentence of Intensive Supervised Probation, the Court finds that given defendant’s history the sentences were not an abuse of discretion. The Court did however reverse and remand because two sentences for use of a Weapon to Commit a Felony were not set consecutively.

State v. Colpitts (Not Designated for Permanent Publication)

ELaw Headnotes (Not Prepared by Court)

Sentencing:

- [Appeal and Error:] Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court's discretion. State v. Rice, 269 Neb. 717, 695 N.W.2d 418 (2005).

- [Discretion by Sentencing Court:] A sentencing court is not limited in its discretion to any mathematically applied set of factors. State v. Fields, 268 Neb. 850, 688 N.W.2d 878 (2004). The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. Id. But there also must be some reasonable factual basis for imposing a particular sentence. Id.

- [Excessively Lenient:] When the State challenges a sentence as excessively lenient, the appellate court should consider (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence imposed (a) to afford adequate deterrence to criminal conduct, (b) to protect the public from further crimes of the defendant, (c) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, and (d) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (4) any other matters appearing in the record which the appellate court deems pertinent. State v. Rice, supra. See Neb. Rev. Stat. § 29-2322 (Reissue 1995). ••• Further, the decision whether to sentence an offender to intensive supervision probation shall be guided by the criteria for withholding a sentence of imprisonment as set forth in Neb. Rev. Stat. § 29-2260(2) and (3) (Reissue 1995). See Neb. Rev. Stat. § 29-2262.03 (Reissue 1995). Section 29-2260(2) provides that a court may withhold a sentence of imprisonment unless, having regard to the nature and circumstances of the crime and the history, character, and condition of the offender, the court finds that imprisonment is necessary for protection of the public because (a) the risk is substantial that during the period of probation the offender will engage in additional criminal conduct, (b) the offender is in need of correctional treatment that can be provided most effectively by commitment to a correctional facility, or (c) a lesser sentence will depreciate the seriousness of the offender's crime or promote disrespect for law. (Probation:) Section 29-2260(3) states: The following grounds, while not controlling the discretion of the court, shall be accorded weight in favor of withholding sentence of imprisonment: The crime neither caused nor threatened serious harm; The offender did not contemplate that his or her crime would cause or threatenserious harm; The offender acted under strong provocation; Substantial grounds were present tending to excuse or justify the crime, thoughfailing to establish a defense; The victim of the crime induced or facilitated commission of the crime; The offender has compensated or will compensate the victim of his or her crimefor the damage or injury the victim sustained; The offender has no history of prior delinquency or criminal activity and has leda law-abiding life for a substantial period of time before the commission of the crime; (h) The crime was the result of circumstances unlikely to recur; (i) The character and attitudes of the offender indicate that he or she is unlikely to commit another crime; (j) The offender is likely to respond affirmatively to probationary treatment; and (k) Imprisonment of the offender would entail excessive hardship to his or her dependents.

- [Appellate Court:] An appellate court has the power on direct appeal to remand a cause for the imposition of a lawful sentence where an erroneous one has been pronounced. See State v. Robinson, supra. In Robinson, the Nebraska Supreme Court found plain error in the imposition of a sentence of life imprisonment without parole and therefore remanded with directions that the trial court resentence the defendant to life imprisonment on the first degree murder conviction.v

Plain Error:

- An appellate court always reserves the right to note plain error which was not complained of at trial or on appeal. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006). Although it is generally within the trial court's discretion to direct that sentences imposed for separate crimes be served concurrently or consecutively, § 28-1205(3) does not permit such discretion in sentencing, because it mandates that a sentence for the use of a deadly weapon in the commission of a felony be served consecutively to any other sentence imposed. See, State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004); State v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995). ••• Plain error will be noted only where an error is evident from the record, prejudicially affects a substantial right of a litigant, and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).

Date Filed and Case No.: January 30, 2007. No. A-06-554.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/january/jan30/a06-554.pdf

Court Appealed From: District Court for Douglas County: Marlon A. Polk, Judge.

Attorneys for the Appeal: Stuart J. Dornan and William H. Ouren for State of Nebraska, appellant. Bill Bracker for Thomas F. Colpitts, appellee.

Judges: Sievers, Carlson, and Cassel, Judges.

Authored By: Cassel, Judge.

Summary: In an amended information, the State charged Thomas F. Colpitts with three counts of robbery and three counts of use of a deadly weapon to commit a felony. The information alleged that the robberies occurred at Cash Advance on 10/24/05 at Advance America Cash Advance Center (Advance America) on October 26, and at American National Bank on October 27. On 03/10/06, Colpitts pled guilty to three counts of robbery and two counts of use of a weapon to commit a felony; the State dismissed one count of use of a deadly weapon.

The court held a sentencing hearing and Colpitts' counsel represented that because Colpitts had been unable to make bond, Colpitts had served 6 months in the county jail—-the equivalent of 1 year in prison. Counsel said that Colpitts cooperated fully with the police and that Colpitts confessed to the robberies of the cash advance businesses when there was not evidence to point to him as the culprit. The district court commented at length which was quoted in the opinion. The district court also stated that if gambling was the root of the problem, it appeared as though Colpitts understood that and had taken steps to deal with the problem. The court observed that the presentence report (PSR) showed that Colpitts was an eligible candidate for intensive supervision probation.

The district court sentenced Colpitts to intensive supervision probation for 1 year on each of the three counts of robbery, to run concurrently, and 1 year for each of the two counts of use of a deadly weapon, to run consecutively to the robbery sentences but to run concurrently with each other. The court ordered Colpitts to pay restitution of $150 to Advance America and $426 to Cash Advance. The court further ordered Colpitts to enter the "Work Ethic Camp" on 05/15/06 and, pending his admission to the camp, to remain in the Douglas County jail. The order of probation prohibited Colpitts from entering casinos and gambling establishments.

The State appealed the sentences, as authorized by Neb. Rev. Stat. § 29-2320 (Cum. Supp. 2006) to the Nebraska Court of Appeals. The State's sole assignment of error was that the district court abused its discretion in imposing an excessively lenient sentence.

The Court noted that robbery is a serious crime however, fortunately, no one in this case suffered any physical injury. “At first blush, a sentence not containing a term of imprisonment for three robbery convictions and two convictions for use of a deadly weapon to commit a felony appears untenable” said the Court. “But, a sentence should fit the offender and not merely the crime. State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).” The Court thereafter reviewed the record of Colpitts background.

According to the PSR, Colpitts had served 189 days in jail. As part of his intensive supervision probation, Colpitts must submit to electronic monitoring for a period of, apparently, 90 days (the court ordered Colpitts to pay $3 per day for electronic monitoring, for a total of $270). He was also ordered to pay restitution to the cash advance businesses for the money he stole. “This court routinely reviews sentences, and more often than not, the offender's criminal history spans more than one page” said the Court. “We find it significant that this is Colpitts' first introduction to the criminal justice system and that it did not occur until age 37. Certainly, Colpitts cannot characterize his actions as youthful indiscretions, but the lack of prior criminal acts at his age shows that he has not chosen a life of criminal activity. He is likely to respond favorably to probation, and he does not appear likely to reoffend.”

The Court went on to note in the opinion, other matters appearing in record which it deemed pertinent. “It is evident from the record that the district court considered the nature and circumstances of the crimes and Colpitts' history and characteristics. The district court was also aware that by the time of the sentencing hearing, Colpitts had served what would be roughly the equivalent of 1 year in jail for the crimes at issue. We cannot say that the district court's reasons for imposing sentences of intensive supervision probation were untenable; therefore, we cannot find an abuse of discretion by the district court in its sentences for the robbery convictions.”

The Court did, however, find error in the sentences for the use of a deadly weapon convictions. Because the statute mandates that the sentences imposed for the use of a weapon be consecutive to any other sentence, the district court did not have authority to order that the sentences on the two counts of use of a deadly weapon run concurrently to each other. The Court therefore vacated the sentences imposed for the use of a deadly weapon convictions and remanded the cause with directions that the district court resentence Colpitts such that the sentences for the use of a deadly weapon convictions run consecutively to the sentences on the robbery convictions and run consecutively to each other. AFFIRMED IN PART, AND IN PART VACATED AND REMANDED WITH DIRECTIONS FOR RESENTENCING.

Annexation, Standing

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This annexation case which was dismissed on a motion by the city for summary judgment, is here affirmed by the Nebraska Court of Appeals.

Heeren v. City of Hastings (Not designated for Permanent Publication)

ELaw Headnotes (Not Prepared by Court)

Summary Judgment:

- A summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. SID No. 57 v. City of Elkhorn, 248 Neb. 486, 536 N.W.2d 56 (1995), disapproved on other grounds, Adam v. City of Hastings, 267 Neb. 641, 676 N.W.2d 710 (2004). Thus, the question at issue in a summary judgment motion is not how a factual issue is to be decided, but whether any real issue of material fact exists. Id.

- [Appeal and Error:] To review a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Id.

Annexation:

- [Limitation of Actions:] Neb. Rev. Stat. § 18-1718 (Reissue 1997) provides in part: "Any action or proceeding of any kind or nature, whether legal or equitable, which is brought to contest any annexation of property ... by any city or village, must be brought within one year from the effective date of the annexation or the same shall be forever barred." The evidence adduced at the hearing on the City's motion for summary judgment specifically indicates that no legal challenges to the Copple Plat were ever filed by anyone. This court will not disturb an unchallenged annexation on which the statute of limitations has run. See SID No. 57 v. City of Elkhorn, supra.

- [Standing:] Standing is the legal or equitable right, title, or interest in the subject matter of the controversy which entitles a party to invoke the jurisdiction of the court. Adam v. City of Hastings, supra. In Adam v. City of Hastings, the Nebraska Supreme Court held that proximity to land subject to an annexation ordinance, alone, is insufficient to establish standing upon a plaintiff to challenge the annexation. In that case, the plaintiffs seeking to challenge the annexation were immediately challenging an annexation ordinance and asserting that the City's annexation of the subject property could make possible the annexation of the plaintiffs' property at some future date. The Supreme Court held this interest to be insufficient to confer standing.

- [Legislative Function:] The annexation of land to cities and towns is a legislative function, and it is for their governing bodies to determine the facts which authorize the exercise of the power granted. Cornhusker Pub. Power Dist. v. City of Schuyler, 269 Neb. 972, 699 N.W.2d 352 (2005); Johnson v. City of Hastings, 241 Neb. 291, 488 N.W.2d 20 (1992). (Boundaries:) However, a municipal corporation has no power to extend or change its boundaries otherwise than provided by constitutional enactment or as it is empowered by the Legislature by statute to do. Id. The power delegated to municipal corporations to annex territory must be exercised in strict accord with the statute conferring it. Id. The power of a municipality to annex territory is, under the specific provisions of § 16-117, limited to annexing contiguous or adjacent land. Cornhusker Pub. Power Dist. v. City of Schuyler, supra; Johnson v. City of Hastings, supra.

- [Words and Phrases:] The issue in this case is whether the landowners' property is contiguous or adjacent to the City's existing corporate limits. In this regard, the terms "contiguous" and "adjacent" are used synonymously and interchangeably, and if the territory sought to be annexed is not contiguous to the municipality, the proceedings are without legal effect. Id. The Nebraska Supreme Court has defined "contiguity" and "adjacency" as used in this context, albeit in a somewhat circuitous fashion, as follows: “‘[C]ontiguity means that the two connecting boundaries should be substantially adjacent.' . . . 'Substantial adjacency' exists when ‘"‘a substantial part of the boundary thereof is adjacent to a segment of the boundary of the city or village. Adjacent . . . means contiguous or coexistent with.’"’" Swedlund v. City of Hastings, 243 Neb. at 611, 501 N.W.2d at 305. Accord Cornhusker Pub. Power Dist. v. City of Schuyler, supra.

- [Strip or Corridor Annexation:] The Nebraska Supreme Court has specifically disapproved of the practice known as "strip" or "corridor" annexation, in which an annexation of land is joined to a city only by a narrow stem of land. See, Cornhusker Pub. Power Dist. v. City of Schuyler, supra; Johnson v. City of Hastings, supra. In Cornhusker Pub. Power Dist. v. City of Schuyler, the municipality attempted to reach a piece of property for annexation by annexing a strip of land 30 feet wide and over 4,000 feet long reaching out from the municipality and angling around other property the municipality was unable to annex. In Johnson v. City of Hastings, the municipality attempted to reach a piece of property for annexation by annexing a 120-foot-wide strip of land reaching out from the municipality like a finger. In both cases, the Supreme Court held that the attempted annexation did not comply with § 16-117 and that the boundary of the land sought to be annexed was not substantially adjacent to the municipality's existing corporate limits.

Date Filed and Case No.: January 30, 2007. No. A-05-732.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/january/jan30/a05-732.pdf

Court Appealed From: District Court for Adams County: Terri Harder, Judge.

Attorneys for the Appeal: Mark A. Beck for Brenda L. Heeren and Ross A. Heeren, husband and wife, and James R. Zeeck, appellants. Robert M. Sullivan for The City of Hastings, Nebraska, a municipal corporation, appellee.

Judges: Inbody, Chief Judge, and Irwin and Moore, Judges.

Authored By: Irwin, Judge.

Summary: Brenda L. Heeren. and Ross A. Heeren, husband and wife, and James R. Zeeck (collectively the landowners) appeal an order of the district court for Adams County, Nebraska, granting the City of Hastings (the City), a municipal corporation, summary judgment on the landowners' challenge to the City's annexation of the landowners' property.

On 05/05/04, the landowners filed a complaint challenging the City's annexation of the landowners' property. The landowners alleged that the landowners' property was not contiguous to the City's existing corporate limits, that the annexation provided no benefits and only harmed the landowners, and that there were no adequate remedies at law. The City filed an answer and soon thereafter filed a motion for summary judgment.

The evidence adduced at the hearing on the City's motion for summary judgment pertained to three separate annexations of property, including the current annexation. On 05/11/05 the district court entered an order granting the City summary judgment. The court found no genuine issue of material fact, granted the City's motion for summary judgment, and dismissed the landowners' complaint. This appeal to the Nebraska Court of Appeals followed with the landowners assigning as error that the district court’ granting the City's motion for summary judgment.

The landowners first challenged the annexation of their property by challenging the validity of the City's annexation of one of those separate annexations (the Copple Plat in 1999.) The Court found that the landowners are barred from challenging the validity of the Copple Plat, both because of the statute of limitations and because they would have lacked standing to challenge that annexation within the limitations period. As such, we find no merit to the landowners' attempted challenge to the Copple Plat.

The landowners also challenged the City's annexation of the landowners' property by asserting that the property is not contiguous to the City's existing corporate limits. Because the Court found that the record demonstrated that the landowners' property is substantially adjacent to the City's existing corporate limits and does not constitute an improper strip annexation, it found no merit to this argument of the landowners. AFFIRMED.

Annexation, Statute of Limitations

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This annexation case which was dismissed on a motion by the city for summary judgment, is here affirmed by the Nebraska Court of Appeals.

Heeren v. City of Hastings (Not designated for Permanent Publication)

ELaw Headnotes (Not Prepared by Court)

Summary Judgment:

Annexation:

Date Filed and Case No.: January 30, 2007. No. A-05-732.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/january/jan30/a05-732.pdf

Court Appealed From: District Court for Adams County: Terri Harder, Judge.

Judges: Inbody, Chief Judge, and Irwin and Moore, Judges.

Authored By: Irwin, Judge.

Parental Rights, Termination, 15 or More of Most Recent 24

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The Nebraska Court of Appeals here affirms the decision of a juvenile court to terminate the parental rights of parent.

In re Interest of Tabbitha H. & Joshua K. (Not Designated for Permanent Publication)

ELaw Headnotes (Not Prepared by Court)

Appeal and Error:

- [Juvenile Court:] Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court's findings. In re Interest of Jagger L., 270 Neb. 828, 708 N.W.2d 802 (2006); In re Interest of Heather R. et al., 269 Neb. 653, 694 N.W.2d 659 (2005). When the evidence is in conflict, however, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other. Id.

Termination of Parental Rights:

- For a juvenile court to terminate parental rights under § 43-292, it must find that termination is in the child's best interests and that one or more of the statutory grounds listed in this section have been satisfied. In re Interest of Jagger L., supra; In re Interest of Shelby L., 270 Neb. 150, 699 N.W.2d 392 (2005).

- [Standard of Proof:] The State must prove these facts by clear and convincing evidence. Id. Clear and convincing evidence is that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved. In re Interest of Jagger L., supra. See In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005).

- [Scope of Appeal:] If an appellate court determines that the lower court correctly found that termination of parental rights is appropriate under one of the statutory grounds set forth in § 43-292, the appellate court need not further address the sufficiency of the evidence to support termination under any other statutory ground. In re Interest of Jagger L., supra. See In re Interest of DeWayne G. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002).

- [43-292(7) 15 or More of Most Recent 24] Section 43-292(7) provides for termination of parental rights when "[t]he juvenile has been in an out-of-home placement for fifteen or more months of the most recent twenty-two months." Thus, in order to terminate parental rights under § 43-292(7), the State must prove by clear and convincing evidence that the child has been in out-of-home placement for 15 or more of the most recent 22 months and that termination of parental rights is in the best interests of the child. In re Interest of Jagger L., supra. See In re Interest of Aaron D., supra. Along with proof of best interests, § 43-292(7) is satisfied if the evidence shows the requisite number of months of out-of-home placement and, unlike the other subsections of the statute, does not require the State to adduce evidence of any specific fault on the part of a parent. In re Interest of Jagger L., supra. See In re Interest of Aaron D., supra.

- [Suspension in Foster Care:] Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity. In re Interest of Phoenix L., 270 Neb. 870, 708 N.W.2d 786 (2006); In re Interest of Sunshine A. et al., 258 Neb. 148, 602 N.W.2d 452 (1999). When a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child require termination of the parental rights. In re Interest of Phoenix L., supra; In re Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997).

Date Filed and Case No.: January 30, 2007. No. A-06-756.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/january/jan30/a06-756.pdf

Court Appealed From: Separate Juvenile Court of Douglas County: Douglas F. Johnson, Judge.

Attorneys for the Appeal: Steven M. Renteria for Toni H., appellant. Stuart J. Dornan, Eric Strovers, Martin J. Conboy IV, and Kathleen Tiaden, Senior Certified Law Student, for State of Nebraska, appellee.

Judges: Sievers, Carlson, and Cassel, Judges.

Authored By: Carlson, Judge.

Summary: Toni H. appeals from an order of the separate juvenile court of Douglas County terminating her parental rights to two children, Tabbitha H. and Joshua K., pursuant to Neb. Rev. Stat. § 43-292(2), (4), (6), and (7) (Reissue 2004). For the reasons set forth below, we affirm the termination of Toni's parental rights.

On 06/06/03, the State filed a petition to adjudicate Tabbitha (d.o.b. 05/08/94) and Joshua (d.o.b. 12/03/98) as children within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2002). The petition alleged the children lacked proper parental care by reason of the faults or habits of Toni in that on or about 04/29/03, Joshua's father, with whom Toni and the children were living, subjected Tabbitha to inappropriate and excessive physical discipline; in that Toni failed to protect Tabbitha and Joshua; in that Toni and Joshua's father had a history of domestic violence in the presence of Tabbitha and Joshua; in that on or about April 9, law enforcement personnel found Joshua in a restaurant parking lot without proper supervision; and in that due to the above allegations, Tabbitha and Joshua were at risk for harm. On the same date that the petition to adjudicate was filed, the State filed a motion for temporary custody. Based on that motion, the court issued an order for immediate custody removing Tabbitha and Joshua from Toni's care and placing them in the custody of the Nebraska Department of Health and Human Services (DHHS). Neither Tabbitha nor Joshua has returned to Toni's home since they were removed on 06/06/03.

At an adjudication hearing on 08/18/03 Toni admitted the allegations in the petition that there was a history of domestic violence in the presence of the children and that such violence places the children at risk for harm. The State dismissed the remaining allegations. The court accepted Toni's plea of admittance and found that by a preponderance of the evidence, Tabbitha and Joshua are children within the meaning of § 43-247(3)(a), and that the children should remain in the custody of DHHS. A disposition hearing was held, a case plan prepared by DHHS was entered into evidence by the State, and the court adopted the plan, with the exception of a recommendation that Toni undergo a chemical dependency evaluation. The court subsequently issued an order finding that a chemical dependency evaluation was a reasonable requirement. Four review and permanency hearings were held over the next two years, and case plans required Toni, among other things, to attend Alcoholics Anonymous (AA) meetings at least once a week or on a regular basis, and those plans required her to not possess or ingest any alcohol and/or controlled substances. Later case plans required Toni to obtain and maintain safe, stable, and adequate housing for herself and her children.

On 06/27/05 the State filed a motion to terminate, alleging that Toni's parental rights to Tabbitha and Joshua should be terminated pursuant to § 43-292(2)(4) & (6) because following a determination that Tabbitha and Joshua are juveniles as described in § 43-247(3)(a), reasonable efforts to preserve and reunify the family have failed to correct the conditions leading to the determination; and pursuant to § 43-292(7) because Tabbitha and Joshua have been in an out-of-home placement for 15 or more of the most recent 22 months. The motion to terminate also alleged that terminating Toni's parental rights would be in the best interests of Tabbitha and Joshua. Trial was held after which the juvenile court entered an order on 05/22/06, terminating Toni's parental rights. The juvenile court found that the State presented clear and convincing evidence to terminate Toni's parental rights pursuant to § 43-292(2), (4), (6), and (7) and presented clear and convincing evidence that termination was in Tabbitha's and Joshua's best interests. Toni filed a motion for new trial which was denied and Toni appealed to the Nebraska Court of Appeals.

Toni assigned 10 errors that the Court restated as 2 errors. Toni claims, restated, that the juvenile court erred in finding that there was clear and convincing evidence to terminate her parental rights under § 43-292(2), (4), (6), and (7) and that the termination of Toni's parental rights was in the best interests of Tabbitha and Joshua.

In this case, the juvenile court found that four statutory grounds for termination had been proved--§ 43-292(2), (4), (6) and (7). The Court determined that the evidence clearly and convincingly demonstrated that § 43-292(7) has been satisfied in that Tabbitha and Joshua have been in out-of-home placement continuously since June 2003, which was 24 months at the time the motion to terminate was filed and 35 months at the time the juvenile court's termination order was entered. Accordingly, the evidence was sufficient to terminate Toni's parental rights pursuant to § 43-292(7).

Having determined that termination was appropriate under § 43-292(7), the Court said it need not address whether the State presented clear and convincing evidence to terminate under § 43-292(2), (4), or (6). However, the Court had to determine whether the State proved by clear and convincing evidence that termination of Toni's parental rights is in Tabbitha's and Joshua's best interests. The Court was cognizant that the Nebraska Supreme Court has emphasized that an appellate court, when proceeding solely under § 43-292(7), should be particularly diligent in its de novo review of whether termination is in the best interests of the child.

The evidence demonstrated that Toni has failed to improve her parenting abilities after nearly 3 years of services by the State, specifically in regard to controlling Joshua's behavior. Based on its analysis, the Court concluded that the State proved by clear and convincing evidence that termination of Toni's parental rights is in Tabbitha's and Joshua's best interests. AFFIRMED.

Partition Action, Appeal and Error

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The Nebraska Court of Appeals affirms a district court’s judgment regarding this partition action with a slight modification.

Hutchinson v. DeMuth (Not Designated for Permanent Publication)

ELaw Headnotes (Not Prepared by Court)

Partition:

- A partition action is an action in equity and is reviewable by an appellate court de novo on the record. Channer v. Cumming, 270 Neb. 231, 699 N.W.2d 831 (2005); Gustafson v. Gustafson,239 Neb. 448, 476 N.W.2d 819 (1991).

- [Appeal and Error:] On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the conclusion reached by the trial court. Channer v. Cumming, supra; Detter v. Miracle Hills Animal Hosp., 269 Neb. 164, 691 N.W.2d 107 (2005). However, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Burk v. Demaray, 264 Neb. 257, 646 N.W.2d 635 (2002).

Pleadings:

- Pleadings frame the issues upon which the cause is to be tried and advise the adversary as to what the adversary must meet. Spanish Oaks v. Hy-Vee, 265 Neb. 133, 655 N.W.2d 390 (2003);Keenan Packaging Supply v. McDermott, 13 Neb. App. 710, 700 N.W.2d 645 (2005). The issues in a given case will be limited to those which are pled. Spanish Oaks v. Hy-Vee, supra; Keenan Packaging Supply v. McDermott, supra.

Evidence:

- [Relevance:] Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence, or the evidence tends to establish a fact from which the existence or nonexistence of a fact in issue can be directly inferred. Blanchette v. Keith Cty. Bank & Trust Co., 231 Neb. 628, 437 N.W.2d 488 (1989); Nolan v. Campbell, 13 Neb. App. 212, 690 N.W.2d 638 (2004).

- [Appeal and Error:] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. State v. Haltom, 264 Neb. 976, 653 N.W.2d 232 (2002); State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). The exercise of judicial discretion is implicit in determinations of relevancy, and a trial court's decision regarding it will not be reversed absent an abuse of discretion. State v. Haltom, supra; State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).

Real Property:

- [Improvements:] A prospective heir's improvement of property under a bona fide, but mistaken, claim of ownership could be grounds for compensation if the testator acquiesced in the improvement or engaged in inequitable or misleading conduct. Schmeckpeper v. Koertje, 222 Neb. 800,388N.W.2d51(1986).

Date Filed and Case No.: January 30, 2007. No. A-05-452.

Internet Address: http://court.nol.org/opinions/2007/january/jan30/a05-452.pdf

Court Appealed From: District Court for Adams County: Stephen Illingworth, Judge.

Attorneys for the Appeal: Patrick J. Nelson for Joanne M. Seberg, appellant. Thomas G. Lieske for Jerry O. DeMuth, appellee.

Judges: Inbody, Chief Judge, and Irwin and Moore, Judges.

Authored By: Inbody, Chief Judge.

Summary: Joanne M. Seberg appeals the decision of the district court for Adams County confirming the shares and interests in certain real property, ordering partition of the real property, finding that Jerry R. DeMuth (DeMuth) does not owe rent, finding that DeMuth owned the improvements located on the property, and setting aside as DeMuth's sole and separate property an acreage on which DeMuth's house, outbuildings, and improvements are located.

The instant case involved a disagreement between siblings over the ownership of real property and improvements located thereon. On 12/16/02, Seberg and two siblings filed a petition alleging that each of them owned an undivided one-fourth interest in the subject property and that DeMuth owned an undivided one-fourth interest in the subject property. The petition further alleged that DeMuth is a lessee of an undivided three-fourths interest in the subject property. The petition prayed for the shares and interests of owners and lessees in the subject property to be confirmed; for the partition of the subject property and, if partition could not be accomplished without great prejudice to the owners, for the subject property to be sold and the proceeds thereof be divided; and for further relief as the court deemed just and equitable. The petition was later amended to add the allegations that DeMuth had been in possession of all the improvements from and after 11/17/01 and that he should be required to account for the fair rental value of the improvements from and after that date and to pay to Hutchinson, Seberg, and John three-fourths of such fair rental value.

DeMuth answered, setting forth that he has been in possession of all the improvements from and after 11/17/01 but that his possession of said improvements was pursuant to Joseph's transfer of title to him by bill of sale and quitclaim deed dated 11/19/99. DeMuth further denied that he should be required to account for the fair rental value of the improvements.

Trial in this matter was held and the district court allowed the parties leave to withdraw their rests for the specific purpose of offering into evidence a written stipulation setting forth that following trial on this matter, DeMuth purchased the other petioner’s one-fourth interests in the subject property, creating a three-fourths undivided interest in joint tenancy in DeMuth in the subject property. As a result of the conveyances, Seberg has a one-fourth interest in fee simple in the subject property, DeMuth has a three-fourths interest in fee simple in the subject property, and the other original two petitoners have no interest in the subject property. The court received the stipulation into evidence.

The district court confirmed the shares and interests in the subject property in the amount of an undivided one-fourth interest in Seberg and an undivided three-fourths interest in DeMuth and directed that partition be made accordingly by appointed referee. The court further found that all of the improvements located on the subject property are owned by DeMuth and that DeMuth "made all the improvements on said property at his own expense and by virtue of that does not owe . . . Seberg, any rental value for said improvements." The court directed the referee to determine the acreage on which DeMuth's house, outbuildings, and improvements are located and then set aside said acreage, not to exceed 5 acres, to DeMuth as his sole and separate property. The court further found that if partition in kind could not be made without great prejudice to the owners, the referee shall report to the court, at which time the court will consider directing the referee to sell the subject property and divide the proceeds. Seberg appealed to the Nebraska Court of Appeals.

On appeal, Seberg contended that the district court erred (1) in receiving, over her relevancy objections, evidence regarding DeMuth's maintenance, improvements, and repairs made to the residence and outbuildings; (2) in finding that DeMuth owned the improvements and made the improvements at his own expense; (3) in failing to require DeMuth to account for the fair rental of the improvements from and after November 17, 2001, and to pay Seberg one-fourth of such fair rental value; (4) in ordering that the portion of the subject property on which the improvements are located was to be set aside and allocated to DeMuth as his sole and separate property.

Re contention (1): The Court said that, although not pled, the issue of improvements and the costs thereof was relevant to the court's determination of the request for partition because the court, in determining this partition action, necessarily had to determine the owner of the improvements located upon a portion of the property, as we discuss in the next section of our analysis. “A partition is an equitable action, and thus that evidence could be considered by the court in making its equitable determination. Consequently, the district court did not abuse its discretion in receiving evidence regarding DeMuth's maintenance, improvements, and repairs made to the residence and outbuildings.

Re contention (2 & 3): The Court said based upon the facts of this case, the only equitable remedy is to set off the buildings and other improvements to DeMuth as sole owner. It follows that, since DeMuth owned the improvements, he is not required to account for the fair rental value of the improvements, nor is he required to pay Seberg one-fourth of such fair rental value.

Re contention (4) Although the Court agreed that the acreage upon which DeMuth's house, outbuildings, and improvements are located is to be awarded to him as part of the partition in kind, it did not agree that the acreage should be set aside to DeMuth separately before the subject property is partitioned. “To do so effectively awards DeMuth more of the subject property than he is entitled to. Thus, we modify the district court's decision to reflect that the referee is directed to partition the subject property, one-fourth to Seberg and three-fourths to DeMuth, with the land upon which the house, outbuildings, and improvements are located to be included in DeMuth's portion of the property.” If the referee finds that partition in kind cannot be made without great prejudice to the owners, the referee shall report to the district court. AFFIRMED AS MODIFIED.

Sentencing, Change of Improper/Void Sentence

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A court’s oral pronouncement of a sentence, which failed to attach a consecutive sentence for a “Use of Weapon” conviction, but which was later corrected by the trial court is affirmed by the Nebraska Court of Appeals. The Court notes that if an original sentence is invalid, it is of no effect and a court may then impose any sentence which could have been validly imposed in the first place.

State v. Short (Not Designated for Permanent Publication)

ELaw Headnotes (Not Prepared by Court)

Sentencing:

- [Oral Pronouncement:] The court's oral sentence given that an oral pronouncement trumps a written order. See State v. Erb, 6 Neb. App. 672, 576 N.W.2d 839 (1998), and State v. Herngren, 8 Neb. App. 207, 590 N.W.2d 871 (1999).

- [Invalid Original Sentence:] If an original sentence is invalid, it is of no effect and a court may then impose any sentence which could have been validly imposed in the first place. State v. Blankenship, 195 Neb. 329, 237 N.W.2d 868 (1976).

- [Use of A Weapon:] Although it is within the trial court's discretion to direct that sentences imposed for separate crimes be served consecutively, the statute proscribing use of a weapon to commit a felony does not permit such discretion in sentencing; rather, the statute's use of the word "shall" mandates that a sentencing court require a sentence for use of a firearm in commission of a felony to be served consecutively to any other sentence imposed. See, Neb. Rev. Stat. § 28-1205(3) (Reissue 1995); State v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995). In State v. Sorenson, the Supreme Court noted error in the trial court's failure to impose consecutive sentences for use of a firearm and a knife to commit felonies, but stated that the court had remedied such error by a written journal entry correctly stating that the defendant would serve his sentences on the use convictions consecutively to his other sentences.

Date Filed and Case No.: January 30, 2007. No. A-06-332.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/january/jan30/a06-332.pdf

Court Appealed From: District Court for Douglas County: James T. Gleason, Judge.

Attorneys for the Appeal: James Walter Crampton for Marvin D. Short, appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.

Judges: Inbody, Chief Judge, and Sievers and Carlson, Judges.

Authored By: Carlson, Judge.

Summary: Marvin D. Short appeals from an order of the district court sentencing him to prison after Short pled guilty to two counts of robbery and one count of use of a weapon to commit a felony. After Short pled guilty, the trial court accepted Short's pleas and found him guilty. The trial court sentenced Short to “a period of six to ten years in the Nebraska Department of Correctional Services on each count. The sentences to run concurrently; that means at the same time. What that means sir, is that you are eligible for parole in three years. You'll be mandatorily released in five years.” In a subsequent written order, the court referenced only the two robbery convictions, stating that Short was to serve 6 to 10 years on each count, to be served concurrently. The court's order did not mention Short's conviction for use of a weapon to commit robbery. Neither the State nor Short appealed from that order.

On 02/21/06, a hearing was held in which the trial court stated, “This matter was last here for sentencing ... at which time [Short] was sentenced on two of the three counts [of] which he was convicted. And the Court through inadvertence and error, I guess I might say, I neglected to impose a sentence on the third count[--use of a weapon].” Short objected, stating that the court had already entered a final order and was without jurisdiction to proceed further. Over Short's objection, the trial court sentenced Short to 2 to 2 years' imprisonment on the use conviction, to be served consecutively to the sentences for the robbery convictions. Short appealed to the Nebraska Court of Appeals. On appeal, Short contended that the court erred in (1) entering a second final order sentencing him to an additional consecutive punishment and (2) imposing an excessive sentence.

On appeal, Short contended that the trial court erred in sentencing him more than once on the use of a weapon conviction and that by doing so, the court imposed an excessive sentence. Initially, the Court said it had to decide whether the original sentence pronounced by the court was a sentence on all three of the convictions, rather than a sentence on only the two robbery convictions. “Given the court's language at the hearing, sentencing Short to 6 to 10 years' imprisonment on ‘each count,’ such sentences to be served concurrently, we consider this sentence to be what it says, a sentence on each of the three counts, including the use count” they wrote. “Furthermore, it is not dispositive that the court's subsequent written order conflicts with the court's oral sentence given that an oral pronouncement trumps a written order.”

The Court noted, however, that the trial court's original sentence in regard to Short's use conviction was invalid because the trial court did not make Short's sentence on the use conviction consecutive to Short's sentences for robbery. Here, the trial court corrected the invalidity in Short's original sentence by sentencing Short to 2 to 2 years' imprisonment on the use conviction, to be served consecutively to the robbery sentences. “Given that this was a sentence which could have been validly imposed in the first place,” ruled the Court “the trial court did not err in reimposing Short's sentence, nor was Short's sentence excessive. For these reasons, Short's assignments of error are without merit.” AFFIRMED.

Summary Judgment, Appeal and Error

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This annexation case which was dismissed on a motion by the city for summary judgment, is here affirmed by the Nebraska Court of Appeals.

Heeren v. City of Hastings (Not designated for Permanent Publication)

ELaw Headnotes (Not Prepared by Court)

Summary Judgment:

Annexation:

Date Filed and Case No.: January 30, 2007. No. A-05-732.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/january/jan30/a05-732.pdf

Court Appealed From: District Court for Adams County: Terri Harder, Judge.

Judges: Inbody, Chief Judge, and Irwin and Moore, Judges.

Authored By: Irwin, Judge.

Workers' Compensation, Judgment, Conditional Judgment

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As the judgment of this workers’ compensation court was conditioned upon and subject to the requirement for a “Medicare Set Aside Agreement” at the time it was ordered by the trial court, it was a “conditional judgment” and therefore ineffective and void.

Garcia v. Platte Valley Constr. Co., 15 Neb. App. 357 (2007)

Court of Appeals Headnotes

Workers' Compensation:

- [Appeal and Error.] Pursuant to Neb. Rev. Stat. § 48-185 (Reissue 2004), an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. ••• Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong.

Judgments:

- A conditional judgment is wholly void because it does not "perform in praesenti" and leaves to speculation and conjecture what its final effect may be.

- [Final Orders:] (Words and Phrases.) A "judgment" is a court's final consideration and determination of the respective rights and obligations of the parties to an action as those rights and obligations presently exist. Orders purporting to be final judgments, but that are dependent upon the occurrence of uncertain future events, do not operate as "judgments" and are wholly ineffective and void as such. ••• "Conditional judgments" are not final determinations of the rights and obligations of the parties as they presently exist, but, rather, look to the future in an attempt to judge the unknown.

Date Filed and Case No.: January 30, 2007. No. A-06-490.

Internet Address: http://court.nol.org/opinions/2007/january/jan30/a06-490.htm

Court Appealed From: Nebraska Workers' Compensation Court.

Attorneys for the Appeal: Samuel W. Segrist for Jose Angel Garcia, appellant. John K. Sorensen for Platte Valley Construction Co. and United States Fidelity and Guaranty Company, appellees.

Judges: Inbody, Chief Judge, and Irwin and Moore, Judges.

Authored By: Inbody, Chief Judge.

Summary: Jose Angel Garcia appealed from the judgment of the review panel of the Nebraska Workers' Compensation Court affirming the trial court's denial of his motion for waiting-time penalties and attorney fees. Garcia injured his back while working for Platte Valley Construction Co. (Platte Valley) on 08/07/95. Following negotiations on 12/17/04, an "Application for Approval of Compromise and Final Lump Sum Settlement" was filed in the compensation court. The application indicated that the parties had jointly stipulated and agreed that Garcia would accept payment in the amount of $135,000 "in a lump sum, in full and complete satisfaction and payment of any and all claims for compensation or benefits which [Garcia] has or may have or may claim to have." Paragraph 9 of the stipulation indicated that Garcia was a Medicaid recipient and that the "lump sum settlement [would be] subject to the requirement for a Medicare Set Aside Agreement and set aside allocation in the amount of $8,487.05." This sum was to be paid from the $135,000 lump sum received by Garcia. Paragraph 9 of the application also indicated that Garcia had "received, and will execute an agreement setting forth the terms and conditions for beneficiary administered Medicare set-aside account, and provide a copy of the same to [the Centers for Medicare & Medicaid Services]." On 01/12/05, the compensation court entered an order approving the parties' lump-sum settlement application.

On 03/14/05, Garcia filed a motion for waiting-time penalties and attorney fees claiming that not until a great deal or correspondence had been undertaken between the parties, checks were not delivered by Platte Valley until 02/23/05. Platte Valley filed an objection to Garcia's motion for waiting-time penalties and attorney fees asserting that the parties' application to approve the lump-sum settlement "included a provision obligating [Garcia] to execute a Medicare set-aside agreement, and to provide the same to the Centers for Medicare and Medicaid Services . . . for . . approval" and that "[p]aragraph IX of the [application] specifically made these requirements part of the [application]." The objection further stated, "By letter dated February 16, 2005, [Garcia's] counsel sent to [Platte Valley's] counsel a copy of the set-aside agreement and other documents to be executed by [Garcia]. The set-aside agreement contained blanks and was purportedly signed by [Garcia] on September 24, 2004." Platte Valley asserted that it had not received documentation from Garcia regarding approval by the Centers for Medicare & Medicaid Services (CMS) of the set-aside agreement in a timely fashion, that it received this documentation on 02/22/05, and that payment was provided to Garcia on February 23.

After a hearing on Garcia's motion for waiting-time penalties and attorney fees, the trial court entered an order overruling Garcia's motion. Specifically, the trial court held

“That correspondence from CMS provided in bold-face ‘Approval of this WCMSA is not effective until a copy of the final executed workers' compensation settlement agreement, which must include this approved WCMSA amount, is received by CMS at the following address[.]" Counsel for [Platte Valley] forwarded the application and order approving the lump sum settlement, which included the approved WCMSA amount, to CMS on February 22, 2005 . . . . [Platte Valley's] counsel then caused the settlement checks to be hand-delivered to [Garcia's] counsel's office on February 23, 2005 . . . I find the Order Approving Compromise and Final Lump Sum Settlement of January 12, 2005, was a "conditional order" because it was "subject to" approval of the WCMSA by CMS. (Citations omitted by Elaw) Even if it were creatively argued that [that] order was an exception to the general rule because it was based upon a future condition which was met, the condition--approval by CMS--was not met until February 17, 2005, and payment occurred February 23, 2005, well within 30 days of the occurrence of the condition which made the conditional order final. Either way, [Garcia's] Motion for Waiting Time Penalty, Attorney Fee, and Interest is denied.

The review panel for the Nebraska Workers' Compensation Court affirmed the judgment of the trial court and Garcia appealed to the Nebraska Court of Appeals.

The Court found that the trial court's reading of the parties' application for approval of their lump-sum settlement was not clearly wrong. The application contained conditional language in that it indicated that "this lump sum settlement will be subject to the requirement for a Medicare Set Aside Agreement" and that Garcia "has received, and will execute an agreement setting forth the terms and conditions for beneficiary administered Medicare set-aside account, and provide a copy of the same to CMS." The record clearly indicates that this set-aside agreement was not completed by the time the 01/12/05 order was entered. “In fact,” said the Court “it does not appear that the set-aside agreement was completed until more than a month after the January 12 order was entered. In a letter dated February 17, 2005, CMS indicated that CMS had ‘determined that $8,487.00 adequately considers Medicare's interests.’ There is nothing in the record to indicate that CMS had approved the set-aside agreement prior to February 17.”

Accordingly, the Court found that the trial court’s finding that the order approving the parties' lump-sum settlement application was a conditional order. Because that order did not "perform in praesenti," the Court further found that the January 12 order was wholly void. “That order does not operate as a final judgment, and it is wholly ineffective as such. Therefore, we find that the instant appeal must be dismissed for lack of a final, appealable order and that the proper resolution is to remand to the review panel for remand to the trial court for entry of a final order in this case.” APPEAL DISMISSED, AND CAUSE REMANDED WITH DIRECTIONS.

Workers' Compensation, Medicare set-aside account

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Garcia v. Platte Valley Constr. Co., 15 Neb. App. 357 (2007)

Court of Appeals Headnotes

Workers' Compensation:

Judgments:

- A conditional judgment is wholly void because it does not "perform in praesenti" and leaves to speculation and conjecture what its final effect may be.

Date Filed and Case No.: January 30, 2007. No. A-06-490.

Internet Address: http://court.nol.org/opinions/2007/january/jan30/a06-490.htm

Court Appealed From: Nebraska Workers' Compensation Court.

Attorneys for the Appeal: Samuel W. Segrist for Jose Angel Garcia, appellant. John K. Sorensen for Platte Valley Construction Co. and United States Fidelity and Guaranty Company, appellees.

Judges: Inbody, Chief Judge, and Irwin and Moore, Judges.

Authored By: Inbody, Chief Judge.