CONTACT US AT:

635 S.14th Street
P.O. Box 81809
Lincoln, NE 65801

ph. (402) 475-7091
(800) 927-0117
fx. (402) 475-7098

NSBA Web Site

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 March 16, 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:

• Adjudication, Appeal and Error
• Appeal and Error, Equity
• Evidence, Expert Testimony, Medical Opinions, "Magic Words"
• Evidence, Prior Acts (Rule 404), Child Abuse
• Partnership, Dissolution, Buy-out Agreement, Timeliness of Exercise
• Partnership, Property
• Statutes, Criminal Law, Stalking

These Bar Events links give you information about upcoming programs and activities:

• March 27, 2007 - Live Webcast: Winning with Ethics and Integrity
  Information and Registration
• April 4, 2007 - NCLE Lunch and Learn: Academic Freedom Issues Facing Institutions Today
• April 28, 2007 - 3rd Annual Barristers' Ball - "An Evening on the Orient Express" - Contact Sam Clinch for more information
  Buy Tickets Online
• May 18, 2007 - 4th Annual Greater Nebraska Golf Scramble - Bayside Golf Club in Brule
  Information & Golfer Registration

For more information about LUNCH & LEARN SEMINARS and LIVE WEBCASTS contact Kathryn Bellman.

SPRING WEBCAST SCHEDULE

These links provide you with information on existing Member Benefits:

• Avis Car Rentals
• LegalSpan
• LegalStaff.com
• Marsh AGS
• National Car Rental
• Office Depot
• Premiere Global Service

Back to ShortCuts

Where the Nebraska Court of Appeals had reversed a decision of a juvenile court, adjudicating a juvenile as a delinquent for stalking another juvenile, the Nebraska Supreme Court reverses the Court of Appeals decision and affirms the juvenile court's adjudication. Reviewing the "stalking" statute the Court finds in its de novo review that the juvenile had stalked the victim.

Supreme Court Headnotes

Juvenile Courts:

- [Appeal and Error.] Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the lower courts' findings.

- [Proof.] When an adjudication is based upon Neb. Rev. Stat. § 43-247(1) (Reissue 2004), the allegations must be proved beyond a reasonable doubt.

Statutes.

- Statutory language is to be given its plain and ordinary meaning.

- [Legislature:] (Appeal and Error.) In reading a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

Criminal Law:

- [Statutes.] Although penal statutes are strictly construed, they are given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served. ••• Nebraska's stalking statutes focus both on the behavior of the perpetrator and on the experience of the victim. (Legislature: Intent.) Given the language of Nebraska's stalking statutes and the purpose announced by the Legislature for enacting the statutes, an objective construction of the statutes is appropriate, and the victim's experience resulting from the perpetrator's conduct should be assessed on an objective basis.

Circumstantial Evidence:

- [Intent:] (Proof.) Although a perpetrator's state of mind is a question of fact, such fact may be proved by circumstantial evidence.

Date Filed and Case No.: March 16, 2007. No. S-05-1033.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar16/s05-1033.pdf

Court Appealed From: Petition for further review from the Nebraska Court of Appeals, Inbody, Chief Judge, and Irwin and Carlson, Judges, on appeal thereto from the Separate Juvenile Court of Douglas County, Vernon Daniels, Judge.

Attorneys for the Appeal: Thomas C. Riley and David J. Tarrell for Jeffrey K.., appellant. Stuart J. Dornan, Amy Schuchman, and Kris Morgan and Stacy Jo Ferrel, Senior Certified Law Students, for State of Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Miller-Lerman, J.

Summary: On 04/15/05 the State filed a petition in juvenile court alleging that Jeffrey K. (d.o.b. 07/20/88) was within the meaning of § 43-247(1) alleging that from September through November 4, 2004, Jeffrey willfully stalked a fellow student at Omaha Westside High School, with the intent to injure, terrify, threaten, or intimidate her, in violation of § 28-311.03. The juvenile court found that Jeffrey K. had committed the offense and adjudicated Jeffrey under § 43-247(1). Jeffrey appealed the adjudication order. The Nebraska Court of Appeals determined that there was not sufficient evidence to support a finding that Jeffrey had violated Nebraska's stalking statutes and reversed. In re Interest of Jeffrey K., 14 Neb. App. 818, 717 N.W.2d 499 (2006). In a divided decision, the Court of Appeals determined that the evidence did not support the juvenile court's finding that Jeffrey was "stalking" the victim, as that term was used in Nebraska's stalking statutes. The majority determined that Jeffrey's conduct did not demonstrate stalking, but, rather, that the conduct was carried out for Jeffrey's "own juvenile amusement." Id. at 825, 717 N.W.2d 506. The Court of Appeals reversed the decision of the juvenile court. One judge dissented and stated that the "fact that Jeffrey found his behavior amusing does not justify the conclusion that Jeffrey did not intend to intimidate the victim." Id. at 826, 717 N.W.2d at 506. The State petitioned for further review from the Court of Appeals' decision which the Nebraska Supreme Court granted.

Did the Court of Appeals erroneously determine that there was insufficient evidence to support a finding that Jeffrey violated § 28-311.03 and, therefore, erred in reversing the order of adjudication? On further review, the State claimed that the Court of Appeals erroneously determined that there was insufficient evidence to support a finding that Jeffrey had violated § 28-311.03 and, therefore, erred in reversing the order of adjudication entered by the juvenile court.

The Legislature has stated its intent with respect to the stalking statutes as follows:

(1) It is the intent of the Legislature to enact laws dealing with stalking offenses which will protect victims from being willfully harassed, intentionally terrified, threatened, or intimidated by individuals who intentionally follow, detain, stalk, or harass them or impose any restraint on their personal liberty and which will not prohibit constitutionally protected activities. § 28-311.02(1).

Initially, the Court noted that Nebraska's stalking statutes focus both on the behavior of the perpetrator (§§ 28-311.02(2)(a) and 28-311.03)(the acts complained of must be done "willfully" and "harass" is defined as the perpetrator "engaging in a knowing and willful course of conduct directed at a specific person") and on the experience of the victim (§ 28-311.02(2)(a)). Here the Court said there is no real dispute on appeal that Jeffrey's actions were intentional. In addition § 28-311.03 requires that the perpetrator intend to either "injure, terrify, threaten, or intimidate" the victim. In reversing the juvenile court's adjudication order in this case, the Court of Appeals determined that there was "no evidence in the record which would support a finding that Jeffrey intended to injure, terrify, or threaten the victim." Id. at 825, 717 N.W.2d 505.

"We do not agree" wrote the Court. "Contrary to the observation of the Court of Appeals, the cumulative effect of Jeffrey's words and actions, and the extensive, ongoing, and escalating nature of his conduct. . . clearly show that Jeffrey intended to intimidate the victim in this case." Although a perpetrator's state of mind is a question of fact, such fact may be proved by circumstantial evidence, which given the evidence (reviewed de novo) the Court determined that the State did adduce sufficient evidence from which the juvenile court could properly find beyond a reasonable doubt that Jeffrey intended to intimidate the victim.

Given the language of Nebraska's stalking statutes and the purpose announced by the Legislature for enacting the statutes, the Court concluded that an objective construction is appropriate and that the victim's experience resulting from the perpetrator's conduct should be assessed on an objective basis. Viewing Jeffrey's actions by an objective standard, the Court said it is readily apparent that a reasonable person would be seriously intimidated by Jeffrey's conduct. The juvenile court correctly found the allegations of stalking in the petition to be true beyond a reasonable doubt and adjudicated Jeffrey a child as defined by § 43-247(1). "The Court of Appeals erred in reversing the adjudication. Accordingly, we reverse the decision of the Court of Appeals and remand the cause with directions to affirm the decision of the juvenile court."

Conclusion: Based upon its de novo review of the record, the Court determined that Jeffrey's conduct in this case violated Nebraska's stalking statute, § 28-311.03, and that the juvenile court did not err in adjudicating Jeffrey as a child within the meaning of § 43-247(1). REVERSED AND REMANDED WITH DIRECTIONS.

Back to ShortCuts

The Nebraska Supreme Court here affirms a district court judgment that the exercise of a buy-out provision of a partnership was untimely. This following a judgment a year earlier in the district court that a judicial dissolution of the partnership agreement could not be made because said agreement contained a buy out provision. The decision herein shows that timing is everything. The district court judgment was affirmed but the decision modified as to property (and debt therein) owned by the partnership.

Specific Performance:

- [Equity:] (Appeal and Error.) An action for specific performance sounds in equity, and on appeal, an appellate court decides factual questions de novo on the record and will resolve questions of fact and law independently of the trial court's conclusions.

Declaratory Judgments:

- [Equity:] (Appeal and Error.) In reviewing an equity action for a declaratory judgment, an appellate court decides factual issues de novo on the record and reaches conclusions independent of the trial court. But when credible evidence is in conflict on material issues of fact, the court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.

Equity:

- [Estoppel:] (Fraud: Limitations of Actions.) Equitable estoppel is not limited to circumstances of fraud but may also be applied to prevent an inequitable resort to a statute of limitations. And a defendant may, by his or her representations, promises, or conduct, be so estopped where the other elements of estoppel are present.

Partnerships:

- [Statutes.] Nebraska's Uniform Partnership Act of 1998 governs when property is considered partnership property.

- [Property:] (Title: Presumptions.) The presumption in Neb. Rev. Stat. § 67-412(3) (Reissue 2003) can apply when the partnership provides only a portion of the purchase price, and it can apply even though a third party who is not a partner to the firm holds title. ((Intent.)) A presumption of prima facie individual ownership of real property exists in the titleholder, but the inference concerning the partners' intent from the use of partnership funds outweighs any inference from the state of the title. (Presumptions: Intent.) In determining whether a party has rebutted the presumption in Neb. Rev. Stat. § 67-412(3) (Reissue 2003), no single factor or combination of factors is dispositive. Ultimately, the partners' intentions control whether property belongs to the partnership, at least among the partners themselves.

Date Filed and Case No.: March 16, 2007. No. S-05-879.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar16/s05-879.pdf

Court Appealed From: District Court for Boone County: Michael Owens , Judge.

Attorneys for the Appeal: Galen E. Stehlik for Keith Mogensen, appellant and cross-appellee. Cathy S. Trent-Vilim and, on brief, Barry D. Geweke for Steven Mogensen appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Connolly, J.

Summary: Keith Mogensen sued Steven Mogensen to force him to sell his partnership interest in Mogensen Bros. Land & Cattle Company (Mogensen Bros.), a farming operation. For several years, tension had been building between Steven and his brothers. Brian, Keith, and Steven attempted to reach an agreement in dissolving and winding up the partnership, but those attempts failed and on 10/03/02, Steven sued Mogensen Bros., Keith, and Brian, seeking to have the partnership dissolved and its assets liquidated under the Uniform Partnership Act of 1998. The district court, however, found that under § 67-404(1), judicial dissolution was inappropriate. The court found that under § 67-404(1), the partnership agreement governs relations between partners. Because the Mogensen Bros. partnership agreement provides a method for a partner to withdraw from the partnership, the court found the partnership agreement governs the partnership dissolution and on 07/28/03, the court granted summary judgment against Steven. Steven did not appeal.

In this case, on 03/29/04, Keith sought to enforce the buyout provision in the partnership agreement. Steven counterclaimed against Keith and third-party defendants, Opal Mogensen (their mother) and third-party defendant, Sandra Mogensen (Keith's wife), seeking a declaration that two real estate parcels which Opal and Keith owned were partnership properties. This time, in Keith's claim, the district court found that under the partnership agreement, Keith failed to exercise the buyout within 90 days as provided in the partnership agreement. In Steven's counterclaim, the court found that Opal's property (DeWulf Place) was partnership property, but denied Steven's claim that Keith's property (Mahoney Place) was partnership property. Keith and Opal appealed, assigning that the district court erred in (1) holding that Keith did not timely exercise the buy-sell provision of the partnership agreement and (2) determining that DeWulf Place is a partnership asset. On cross-appeal, Steven assigned that the court erred in determining that Mahoney Place is not a partnership asset.

Did the district court err when it determined that Keith's exercise of the option to purchase Steven's partnership interest under the buyout provision was untimely? Keith argued that he complied with the timeframe because he gave notice of his intention to buy out Steven's partnership interest within 90 days of the date of the summary judgment order in Steven's prior lawsuit. The Court had not previously addressed the issue of when a lawsuit for dissolution of a partnership triggers a buy-sell provision. Drawing upon the decisions in other jurisdiction, the Court concluded that service of the complaint on Keith, rather than either the summary judgment order or the filing of the lawsuit, provided notice of Steven's intent to withdraw and dispose of his interest. "Although the record does not show the date of service, it does show that Keith moved for summary judgment on May 20, 2003, which indicates he had at least received notice by that date. Keith's first letter of intent to purchase Steven's interest in the partnership, dated August 25, 2003, was outside the 90-day limitation period" they said. The Court affirmed the district court's order denying specific performance.

Is Steven equitably estopped from asserting the 90-day time period as a defense? Throughout this litigation, Steven denied that he invoked the partnership agreement's buy-sell provision when he sued to dissolve the partnership. Keith contended it is inequitable for Steven to now gain protection from the same partnership provision he has attempted to avoid through this litigation. While Keith asserted that Steven's conduct in filing his lawsuit and denying that he provided notice of his intent to withdraw created a basis for equitable estoppel, the Court disagreed. Steven did not make any promise or representation, or engage in any conduct, that would have led Keith to delay sending notice of his intent to purchase Steven's shares. The Court said it was unclear how filing a lawsuit or denying Keith's claims could cause Keith to act to his detriment. If anything, the initiation of litigation against Keith should have alerted him of the need to diligently protect his interests. This argument is without merit.

Did the Court err in declaring DeWulf Place partnership property? The Court noted that property is presumed to be partnership property if purchased with partnership assets, even if not acquired in the name of the partnership or of one or more partners with an indication in the instrument transferring title to the property of the person's capacity as a partner or of the existence of a partnership. Here, the district court found that "the evidence clearly shows that .. . DeWulf [P]lace was acquired solely with partnership assets." Although the record reflected that DeWulf Place was not acquired solely with partnership assets, the Court found that the presumption statutory presumption (§ 67-412(3)) applies because Mogensen Bros. supplied at least part of the purchase price. Here, although some evidence indicated an ownership interest in Opal, it was not enough to overcome the presumption in § 67-412(3). The use of partnership funds in the purchase and the other evidence suggested that Opal owns DeWulf Place in name only. However, equity dictated that Opal should not be liable for the debt on DeWulf Place--real estate she no longer owns. "Once we acquire equity jurisdiction, we can adjudicate all matters properly presented and grant complete relief to the parties" said the Court. "We hold that DeWulf Place is partnership property, subject, however, to Mogensen Bros.' paying the balance of the indebtedness owed to Ranch and Farm (The brothers were also the shareholders in a family construction company called Ranch and Farm Agricultural Systems, Inc.)

Did the district court err in not determining the Mahoney Place is partnership property? The Court found that the evidence shows that the presumption in § 67-412(3) does not apply. Instead, the opposite presumption applies (§ 67-412(4)) applies in that property acquired in the name of one or more of the partners, without an indication in the instrument transferring title to the property of the person's capacity as a partner or of the existence of a partnership and without use of partnership assets, is presumed to be separate property, even if used for partnership purposes. Here, Keith is the title owner of Mahoney Place, with no indication in the deed that he owns it in his capacity as a partner. Keith purchased it solely with his funds, and he is liable for the loan payments. "Thus, the presumption in § 67-412(4) applies. Further, no significant evidence exists that would overcome the presumption" wrote the Court. "The district court did not err in finding that Mahoney Place is not partnership property."

Conclusion: The Court concluded that Keith did not timely exercise the buy-sell provision of the partnership agreement. DeWulf Place is partnership property subject to Mogensen Bros.' paying the balance of the indebtedness owed to Ranch and Farm, and Mahoney Place is not partnership property. AFFIRMED AS MODIFIED.

Back to ShortCuts

The Nebraska Supreme Court here affirms that the conviction of the defendant for child abuse by a jury, over claims of error that the district court erred in (1) overruling her objections to medical testimony; (2) allowing evidence of prior bad acts; (3) ordering defendant to pay certain deposition expenses; (4) instructing the jury; (5) overruling her motion to dismiss or, in the alternative, for a directed verdict; (6) allowing impeachment of a defense witness; and (7) imposing an excessive sentence.

Supreme Court Headnotes

Rules of Evidence.

- 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 discretion a factor in determining admissibility.

Expert Witnesses:

- Four factors govern the admissibility of expert testimony: (1) whether the witness is qualified as an expert, (2) whether the testimony is relevant, (3) whether the testimony will assist the trier of fact, and (4) whether the probative value of the testimony, even if relevant, is outweighed by the danger of unfair prejudice or other considerations.

- [Appeal and Error.] The standard for reviewing the admissibility of expert testimony is abuse of discretion.

- [Physicians and Surgeons.] The preferred form of establishing the certainty of a medical expert's opinion is to ask for the opinion in terms of a reasonable degree of certainty or probability. ••• An expert's opinion is to be judged in view of the entirety of the opinion

and is not validated or invalidated solely on the presence or lack of the words "reasonable degree of medical certainty or probability."

Trial:

- [Expert Witnesses.] Whether an expert's opinion is too speculative to be admitted is a question for the trial court's discretion.

- [Testimony:] (Appeal and Error.) The scope of cross-examination of a witness rests largely in the discretion of the trial court, and its ruling will be upheld on appeal unless there is an abuse of discretion.

- [Witnesses.] The right of cross-examination is an essential and fundamental requirement of a fair trial. (Testimony: Appeal and Error.) When the object of the cross-examination is to collaterally ascertain the accuracy or credibility of the witness, some latitude should be permitted, and the scope of such latitude is ordinarily subject to the discretion of the trial judge, and, unless abused, its exercise is not reversible error.

- [Evidence:] (Witnesses.) A ruling on evidence of a collateral matter that is intended to affect the credibility of a witness comes within the discretion of a trial court.

Rules of Evidence:

- [Other Acts.] Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), prohibits the admission of evidence of other bad acts for the purpose of demonstrating a person's propensity to act in a certain manner. ••• Evidence of other crimes which is relevant for any purpose other than to show the actor's propensity is admissible under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995). ••• The admissibility of evidence under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), must be determined upon the facts of each case and is within the discretion of the trial court. ••• Evidence of other bad acts falls into two categories under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), according to the basis of the relevance of the acts: (1) evidence which is relevant only to show propensity, which is not admissible, and (2) otherwise relevant (nonpropensity) evidence, which is admissible.

- [Other Acts:] (Appeal and Error.) An appellate court reviews the admission of other bad acts evidence under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), by considering (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted.

Criminal Law:

- [Evidence:] (Intent: Proof.) Evidence of other crimes which are similar to the crime charged is relevant and admissible when it tends to prove a particular criminal intent which is necessary to constitute the crime charged.

Negligence:

- [Intent:] (Minors.) When a defendant asserts that a child's injuries were accidental, the defendant has placed in issue whether the injuries were indeed the result of an accident.

Convictions:

- [Appeal and Error.] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.

Appeal and Error.

- An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.

Sentences:

- [Appeal and Error.] Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

- [Probation and Parole.]When a court sentences a defendant to probation, it may impose any conditions of probation that are authorized by statute.

Date Filed and Case No.: March 16, 2007. No. S-05-888.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar16/s05-888.pdf

Court Appealed From: Appeal from the District Court for Madison County: Robert B. Ensz, Judge.

Attorneys for the Appeal: George H. Moyer for Denise Kuehn, appellant. Jon Bruning and Kimberly A. Klein for State of Nebraska, appellee.

Justices: Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Not Participating: Heavican, C.J.

Authored By: Wright, J.

Summary: Denise Kuehn provided childcare in her home in Norfolk, Nebraska. On 08/04/04, 10-month-old Cameron Lampert was seriously injured at Kuehn's home. Kuehn was charged with child abuse and at trial testified that as she began to lift Cameron out of a playpen, he arched his back, fell, and hit his head on the corner of the playpen. She said he landed on his back on the floor of the playpen, striking his head a second time. The playpen had a padded base and fabric sides with netting that covered the collapsible frame. In an interview with police, Kuehn stated that she may have shaken Cameron once as she picked him up but that he then fell out of her arms and hit his head on the playpen. After the fall, Cameron began fussing and trying to get out of the playpen. He stood up and fell backward. Kuehn said Cameron "didn't seem right," his eyes were almost completely closed, and he was limp. When Cameron's father, Brian Lampert (Lampert), arrived, Kuehn suggested he take Cameron to the hospital or a doctor. Lampert testified that Cameron was lethargic and limp, and his eyes had rolled back in his head. He knew immediately that something was wrong, and he took Cameron to the hospital and Cameron was then taken by helicopter to Children's Hospital in Omaha, Nebraska. There it was determined that he had a subdural hematoma. Cameron also sustained retinal hemorrhages in all four quadrants of each eye.

Medical experts testified that Cameron's injury was caused when the two hemispheres of his brain were moved violently back and forth inside the skull. Dr. Jeffrey DeMare, medical director of the children's advocacy team at Children's Hospital, testified that Cameron's injury was entirely consistent with a child's being violently shaken and was not caused by a fall and blow to the skull, as described by Kuehn.

A jury acquitted Kuehn of intentional child abuse but convicted her of negligent child abuse. She was sentenced to 24 months' probation (with 90 days in jail, including 30 days immediately and the balance at the end of her probation), fined $1,000, and ordered to pay court costs of $1,519.56. She was ordered not to provide any type of childcare program without first obtaining a state childcare license. She appealed.

Did the trial err in admitting the testimony of the physicians who treated Cameron? The standard for reviewing the admissibility of expert testimony is abuse of discretion. Considering whether the district court abused its discretion in admitting the medical testimony the Nebraska Supreme Court noted that throughout the medical testimony, Kuehn interposed objections based on lack of foundation, speculation, conjecture, and a violation of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S. Ct. 2786,125 L. Ed. 2d 469 (1993). These objections were overruled and on appeal, Kuehn claimed the district court improperly overruled her objections based on speculation and conjecture. The Court interpreted her argument as a complaint that the medical testimony should not have been admitted because the physicians did not couch their opinions in terms of "reasonable medical certainty." The Court said its well-known preference for the use of the phrases "reasonable degree of medical certainty" or "reasonable degree of probability" is an indication to courts and parties of the necessity that the medical expert opinion must be stated in terms that the trier of fact is not required to guess at the cause of the injury. However they have stated that although expert medical testimony need not be couched in the magic words, it must be sufficient as examined in its entirety to establish a crucial causal link between a victim's injuries and a defendant's actions. An expert's opinion is to be judged in view of the entirety of the opinion and is not validated or invalidated solely on the presence or lack of the magic words. Instead, the expert's opinion must be sufficiently definite and relevant to provide a basis for the fact finder's determination of an issue or question. Here, the principal witnesses on the issue of causation both stated that Cameron's injuries were caused by inflicted or nonaccidental trauma to the brain. The physicians did not speculate as to the cause of Cameron's injury. The Court concluded that the "four factors" governing the admissibility of expert testimony were satisfied and the district court did not abuse its discretion in admitting the testimony elicited from the medical experts.

Was there a violation of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) in admitting the medical testimony?

In a Daubert challenge, the initial task falls on the party opposing expert testimony to sufficiently call into question the reliability of some aspect of the anticipated testimony, and then the proponent of the expert testimony has the burden of showing that the testimony is reliable. The Court did not consider one of the doctor's testimony to be Daubert evidence, but, rather, an attempt to impeach the medical evidence presented by the State.

Did the district court err in failing to sustain a hearsay objection regarding a statement made by an emergency room physician, to a police investigator. The Court's review of the record showed that Kuehn initiated the line of questioning concerning statements made by the emergency room physician to the investigator and the district court did not abuse its discretion in allowing the testimony on redirect.

Was there error by the district court under Neb. Evid. R. 404 in allowing in evidence of earlier incidents involving Cameron? Kuehn asserted that the district court erred in giving a limiting instruction to the jury during the trial and at the close of the trial and in refusing to grant a mistrial because of the instruction. Evidence was presented during the trial that Cameron had suffered prior injuries while in Kuehn's care on June 15 and 28, 2004. The court instructed the jury that evidence received concerning those injuries was received to help the jury determine whether the August 4 injury was the result of an absence of mistake or accident. The Court noted cases in other jurisdictions that previous abuse of a child is admissible under rule 404(2) because it is probative of a material issue other than character; that is, it was evidence of malice and absence of accidental death. Here, the evidence of prior incidents in which Cameron was injured or ill while in Kuehn's care was properly admitted. Evidence of other bad acts which is relevant for any purpose other than to show the actor's propensity to commit the act is admissible under rule 404(2). At the rule 404 hearing, the district court found that Kuehn had inflicted injuries upon Cameron on June 15 and 28, 2004. The jury was properly instructed regarding the evidence of the June 15 and 28 incidents, and the court did not err in refusing to give Kuehn's proposed instruction. Kuehn also claimed that errors related to the rule 404 evidence occurred during the State's opening statement and its closing argument. Having determined that the evidence of the prior incidents was admissible, the Court concluded that this assignment of error is without merit.

Did the district court err in denying Kuehn motion to dismiss or, in the alternative, for a directed verdict which she made at the close of the State's case? The Court found the evidence was sufficient to support the conviction, and the district court did not err in failing to sustain the motion to dismiss or for a directed verdict made at the end of the trial.

Whether the district court erred in overruling Kuehn's objections to certain questions of a physician who testified on her behalf? The Court said that Kuehn had not demonstrated that the district court abused its discretion in refusing to sustain her objections to the cross-examination of the doctor (Plunkett.) "The State's questioning was not intended to impeach Plunkett on collateral matters, but, rather, was intended to question his credibility" said the Court.

Was it alright for the Court to order Kuehn to pay deposition expenses? The record in this case included only a journal entry indicating that a telephone conference hearing had been held concerning fees to be paid in advance to three physicians for depositions. The record does not include a transcript of the telephonic hearing. Kuehn filed an interlocutory appeal from the district court's order, and the appeal was dismissed for lack of jurisdiction by the Nebraska Court of Appeals because there was no final, appealable order. The Court interpreted Kuehn's complaint to be that she was directed to pay the witnesses for their depositions. A state statute

does not provide for the taking of depositions at county expense in advance of the trial. Defendant was entitled to an order entitling him to take the depositions of witnesses, but when he coupled with it a demand that it be done at the expense of the county, he was not entitled to have his motion sustained. There was no error in the district court's order. Kuehn did not seek status as an indigent, and the Court found no authority to suggest that she should not have been required to pay the expenses associated with depositions taken for her case.

Finally, did the district court err in imposing an excessive sentence? The Court found no abuse of discretion in the sentence imposed.

Conclusion: Finding no merit to Kuehn's assigned errors, the judgment of conviction and sentence was affirmed by the Nebraska Supreme Court. AFFIRMED.

Back to ShortCuts

The Nebraska Supreme Court here affirms that the conviction of the defendant for child abuse by a jury, over claims of error that the district court erred in (1) overruling her objections to medical testimony; (2) allowing evidence of prior bad acts; (3) ordering defendant to pay certain deposition expenses; (4) instructing the jury; (5) overruling her motion to dismiss or, in the alternative, for a directed verdict; (6) allowing impeachment of a defense witness; and (7) imposing an excessive sentence.

Supreme Court Headnotes

Rules of Evidence.

- 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 discretion a factor in determining admissibility.

Expert Witnesses:

- Four factors govern the admissibility of expert testimony: (1) whether the witness is qualified as an expert, (2) whether the testimony is relevant, (3) whether the testimony will assist the trier of fact, and (4) whether the probative value of the testimony, even if relevant, is outweighed by the danger of unfair prejudice or other considerations.

- [Appeal and Error.] The standard for reviewing the admissibility of expert testimony is abuse of discretion.

- [Physicians and Surgeons.] The preferred form of establishing the certainty of a medical expert's opinion is to ask for the opinion in terms of a reasonable degree of certainty or probability. ••• An expert's opinion is to be judged in view of the entirety of the opinion

and is not validated or invalidated solely on the presence or lack of the words "reasonable degree of medical certainty or probability."

Trial:

- [Expert Witnesses.] Whether an expert's opinion is too speculative to be admitted is a question for the trial court's discretion.

- [Testimony:] (Appeal and Error.) The scope of cross-examination of a witness rests largely in the discretion of the trial court, and its ruling will be upheld on appeal unless there is an abuse of discretion.

- [Witnesses.] The right of cross-examination is an essential and fundamental requirement of a fair trial. (Testimony: Appeal and Error.) When the object of the cross-examination is to collaterally ascertain the accuracy or credibility of the witness, some latitude should be permitted, and the scope of such latitude is ordinarily subject to the discretion of the trial judge, and, unless abused, its exercise is not reversible error.

- [Evidence:] (Witnesses.) A ruling on evidence of a collateral matter that is intended to affect the credibility of a witness comes within the discretion of a trial court.

Rules of Evidence:

- [Other Acts.] Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), prohibits the admission of evidence of other bad acts for the purpose of demonstrating a person's propensity to act in a certain manner. ••• Evidence of other crimes which is relevant for any purpose other than to show the actor's propensity is admissible under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995). ••• The admissibility of evidence under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), must be determined upon the facts of each case and is within the discretion of the trial court. ••• Evidence of other bad acts falls into two categories under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), according to the basis of the relevance of the acts: (1) evidence which is relevant only to show propensity, which is not admissible, and (2) otherwise relevant (nonpropensity) evidence, which is admissible.

- [Other Acts:] (Appeal and Error.) An appellate court reviews the admission of other bad acts evidence under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 1995), by considering (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted.

Criminal Law:

- [Evidence:] (Intent: Proof.) Evidence of other crimes which are similar to the crime charged is relevant and admissible when it tends to prove a particular criminal intent which is necessary to constitute the crime charged.

Negligence:

- [Intent:] (Minors.) When a defendant asserts that a child's injuries were accidental, the defendant has placed in issue whether the injuries were indeed the result of an accident.

Convictions:

- [Appeal and Error.] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.

Appeal and Error.

- An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.

Sentences:

- [Appeal and Error.] Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

- [Probation and Parole.]When a court sentences a defendant to probation, it may impose any conditions of probation that are authorized by statute.

Date Filed and Case No.: March 16, 2007. No. S-05-888.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar16/s05-888.pdf

Court Appealed From: Appeal from the District Court for Madison County: Robert B. Ensz, Judge.

Attorneys for the Appeal: George H. Moyer for Denise Kuehn, appellant. Jon Bruning and Kimberly A. Klein for State of Nebraska, appellee.

Justices: Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Not Participating: Heavican, C.J.

Authored By: Wright, J.

Summary: Denise Kuehn provided childcare in her home in Norfolk, Nebraska. On 08/04/04, 10-month-old Cameron Lampert was seriously injured at Kuehn's home. Kuehn was charged with child abuse and at trial testified that as she began to lift Cameron out of a playpen, he arched his back, fell, and hit his head on the corner of the playpen. She said he landed on his back on the floor of the playpen, striking his head a second time. The playpen had a padded base and fabric sides with netting that covered the collapsible frame. In an interview with police, Kuehn stated that she may have shaken Cameron once as she picked him up but that he then fell out of her arms and hit his head on the playpen. After the fall, Cameron began fussing and trying to get out of the playpen. He stood up and fell backward. Kuehn said Cameron "didn't seem right," his eyes were almost completely closed, and he was limp. When Cameron's father, Brian Lampert (Lampert), arrived, Kuehn suggested he take Cameron to the hospital or a doctor. Lampert testified that Cameron was lethargic and limp, and his eyes had rolled back in his head. He knew immediately that something was wrong, and he took Cameron to the hospital and Cameron was then taken by helicopter to Children's Hospital in Omaha, Nebraska. There it was determined that he had a subdural hematoma. Cameron also sustained retinal hemorrhages in all four quadrants of each eye.

Medical experts testified that Cameron's injury was caused when the two hemispheres of his brain were moved violently back and forth inside the skull. Dr. Jeffrey DeMare, medical director of the children's advocacy team at Children's Hospital, testified that Cameron's injury was entirely consistent with a child's being violently shaken and was not caused by a fall and blow to the skull, as described by Kuehn.

A jury acquitted Kuehn of intentional child abuse but convicted her of negligent child abuse. She was sentenced to 24 months' probation (with 90 days in jail, including 30 days immediately and the balance at the end of her probation), fined $1,000, and ordered to pay court costs of $1,519.56. She was ordered not to provide any type of childcare program without first obtaining a state childcare license. She appealed.

Did the trial err in admitting the testimony of the physicians who treated Cameron? The standard for reviewing the admissibility of expert testimony is abuse of discretion. Considering whether the district court abused its discretion in admitting the medical testimony the Nebraska Supreme Court noted that throughout the medical testimony, Kuehn interposed objections based on lack of foundation, speculation, conjecture, and a violation of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S. Ct. 2786,125 L. Ed. 2d 469 (1993). These objections were overruled and on appeal, Kuehn claimed the district court improperly overruled her objections based on speculation and conjecture. The Court interpreted her argument as a complaint that the medical testimony should not have been admitted because the physicians did not couch their opinions in terms of "reasonable medical certainty." The Court said its well-known preference for the use of the phrases "reasonable degree of medical certainty" or "reasonable degree of probability" is an indication to courts and parties of the necessity that the medical expert opinion must be stated in terms that the trier of fact is not required to guess at the cause of the injury. However they have stated that although expert medical testimony need not be couched in the magic words, it must be sufficient as examined in its entirety to establish a crucial causal link between a victim's injuries and a defendant's actions. An expert's opinion is to be judged in view of the entirety of the opinion and is not validated or invalidated solely on the presence or lack of the magic words. Instead, the expert's opinion must be sufficiently definite and relevant to provide a basis for the fact finder's determination of an issue or question. Here, the principal witnesses on the issue of causation both stated that Cameron's injuries were caused by inflicted or nonaccidental trauma to the brain. The physicians did not speculate as to the cause of Cameron's injury. The Court concluded that the "four factors" governing the admissibility of expert testimony were satisfied and the district court did not abuse its discretion in admitting the testimony elicited from the medical experts.

Was there a violation of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) in admitting the medical testimony?

In a Daubert challenge, the initial task falls on the party opposing expert testimony to sufficiently call into question the reliability of some aspect of the anticipated testimony, and then the proponent of the expert testimony has the burden of showing that the testimony is reliable. The Court did not consider one of the doctor's testimony to be Daubert evidence, but, rather, an attempt to impeach the medical evidence presented by the State.

Did the district court err in failing to sustain a hearsay objection regarding a statement made by an emergency room physician, to a police investigator. The Court's review of the record showed that Kuehn initiated the line of questioning concerning statements made by the emergency room physician to the investigator and the district court did not abuse its discretion in allowing the testimony on redirect.

Was there error by the district court under Neb. Evid. R. 404 in allowing in evidence of earlier incidents involving Cameron? Kuehn asserted that the district court erred in giving a limiting instruction to the jury during the trial and at the close of the trial and in refusing to grant a mistrial because of the instruction. Evidence was presented during the trial that Cameron had suffered prior injuries while in Kuehn's care on June 15 and 28, 2004. The court instructed the jury that evidence received concerning those injuries was received to help the jury determine whether the August 4 injury was the result of an absence of mistake or accident. The Court noted cases in other jurisdictions that previous abuse of a child is admissible under rule 404(2) because it is probative of a material issue other than character; that is, it was evidence of malice and absence of accidental death. Here, the evidence of prior incidents in which Cameron was injured or ill while in Kuehn's care was properly admitted. Evidence of other bad acts which is relevant for any purpose other than to show the actor's propensity to commit the act is admissible under rule 404(2). At the rule 404 hearing, the district court found that Kuehn had inflicted injuries upon Cameron on June 15 and 28, 2004. The jury was properly instructed regarding the evidence of the June 15 and 28 incidents, and the court did not err in refusing to give Kuehn's proposed instruction. Kuehn also claimed that errors related to the rule 404 evidence occurred during the State's opening statement and its closing argument. Having determined that the evidence of the prior incidents was admissible, the Court concluded that this assignment of error is without merit.

Did the district court err in denying Kuehn motion to dismiss or, in the alternative, for a directed verdict which she made at the close of the State's case? The Court found the evidence was sufficient to support the conviction, and the district court did not err in failing to sustain the motion to dismiss or for a directed verdict made at the end of the trial.

Whether the district court erred in overruling Kuehn's objections to certain questions of a physician who testified on her behalf? The Court said that Kuehn had not demonstrated that the district court abused its discretion in refusing to sustain her objections to the cross-examination of the doctor (Plunkett.) "The State's questioning was not intended to impeach Plunkett on collateral matters, but, rather, was intended to question his credibility" said the Court.

Was it alright for the Court to order Kuehn to pay deposition expenses? The record in this case included only a journal entry indicating that a telephone conference hearing had been held concerning fees to be paid in advance to three physicians for depositions. The record does not include a transcript of the telephonic hearing. Kuehn filed an interlocutory appeal from the district court's order, and the appeal was dismissed for lack of jurisdiction by the Nebraska Court of Appeals because there was no final, appealable order. The Court interpreted Kuehn's complaint to be that she was directed to pay the witnesses for their depositions. A state statute

does not provide for the taking of depositions at county expense in advance of the trial. Defendant was entitled to an order entitling him to take the depositions of witnesses, but when he coupled with it a demand that it be done at the expense of the county, he was not entitled to have his motion sustained. There was no error in the district court's order. Kuehn did not seek status as an indigent, and the Court found no authority to suggest that she should not have been required to pay the expenses associated with depositions taken for her case.

Finally, did the district court err in imposing an excessive sentence? The Court found no abuse of discretion in the sentence imposed.

Conclusion: Finding no merit to Kuehn's assigned errors, the judgment of conviction and sentence was affirmed by the Nebraska Supreme Court. AFFIRMED.

Back to ShortCuts

The Nebraska Supreme Court here affirms a district court judgment that the exercise of a buy-out provision of a partnership was untimely. This following a judgment a year earlier in the district court that a judicial dissolution of the partnership agreement could not be made because said agreement contained a buy out provision. The decision herein shows that timing is everything. The district court judgment was affirmed but the decision modified as to property (and debt therein) owned by the partnership.

Specific Performance:

- [Equity:] (Appeal and Error.) An action for specific performance sounds in equity, and on appeal, an appellate court decides factual questions de novo on the record and will resolve questions of fact and law independently of the trial court's conclusions.

Declaratory Judgments:

- [Equity:] (Appeal and Error.) In reviewing an equity action for a declaratory judgment, an appellate court decides factual issues de novo on the record and reaches conclusions independent of the trial court. But when credible evidence is in conflict on material issues of fact, the court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.

Equity:

- [Estoppel:] (Fraud: Limitations of Actions.) Equitable estoppel is not limited to circumstances of fraud but may also be applied to prevent an inequitable resort to a statute of limitations. And a defendant may, by his or her representations, promises, or conduct, be so estopped where the other elements of estoppel are present.

Partnerships:

- [Statutes.] Nebraska's Uniform Partnership Act of 1998 governs when property is considered partnership property.

- [Property:] (Title: Presumptions.) The presumption in Neb. Rev. Stat. § 67-412(3) (Reissue 2003) can apply when the partnership provides only a portion of the purchase price, and it can apply even though a third party who is not a partner to the firm holds title. ((Intent.)) A presumption of prima facie individual ownership of real property exists in the titleholder, but the inference concerning the partners' intent from the use of partnership funds outweighs any inference from the state of the title. (Presumptions: Intent.) In determining whether a party has rebutted the presumption in Neb. Rev. Stat. § 67-412(3) (Reissue 2003), no single factor or combination of factors is dispositive. Ultimately, the partners' intentions control whether property belongs to the partnership, at least among the partners themselves.

Date Filed and Case No.: March 16, 2007. No. S-05-879.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar16/s05-879.pdf

Court Appealed From: District Court for Boone County: Michael Owens , Judge.

Attorneys for the Appeal: Galen E. Stehlik for Keith Mogensen, appellant and cross-appellee. Cathy S. Trent-Vilim and, on brief, Barry D. Geweke for Steven Mogensen appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Connolly, J.

Summary: Keith Mogensen sued Steven Mogensen to force him to sell his partnership interest in Mogensen Bros. Land & Cattle Company (Mogensen Bros.), a farming operation. For several years, tension had been building between Steven and his brothers. Brian, Keith, and Steven attempted to reach an agreement in dissolving and winding up the partnership, but those attempts failed and on 10/03/02, Steven sued Mogensen Bros., Keith, and Brian, seeking to have the partnership dissolved and its assets liquidated under the Uniform Partnership Act of 1998. The district court, however, found that under § 67-404(1), judicial dissolution was inappropriate. The court found that under § 67-404(1), the partnership agreement governs relations between partners. Because the Mogensen Bros. partnership agreement provides a method for a partner to withdraw from the partnership, the court found the partnership agreement governs the partnership dissolution and on 07/28/03, the court granted summary judgment against Steven. Steven did not appeal.

In this case, on 03/29/04, Keith sought to enforce the buyout provision in the partnership agreement. Steven counterclaimed against Keith and third-party defendants, Opal Mogensen (their mother) and third-party defendant, Sandra Mogensen (Keith's wife), seeking a declaration that two real estate parcels which Opal and Keith owned were partnership properties. This time, in Keith's claim, the district court found that under the partnership agreement, Keith failed to exercise the buyout within 90 days as provided in the partnership agreement. In Steven's counterclaim, the court found that Opal's property (DeWulf Place) was partnership property, but denied Steven's claim that Keith's property (Mahoney Place) was partnership property. Keith and Opal appealed, assigning that the district court erred in (1) holding that Keith did not timely exercise the buy-sell provision of the partnership agreement and (2) determining that DeWulf Place is a partnership asset. On cross-appeal, Steven assigned that the court erred in determining that Mahoney Place is not a partnership asset.

Did the district court err when it determined that Keith's exercise of the option to purchase Steven's partnership interest under the buyout provision was untimely? Keith argued that he complied with the timeframe because he gave notice of his intention to buy out Steven's partnership interest within 90 days of the date of the summary judgment order in Steven's prior lawsuit. The Court had not previously addressed the issue of when a lawsuit for dissolution of a partnership triggers a buy-sell provision. Drawing upon the decisions in other jurisdiction, the Court concluded that service of the complaint on Keith, rather than either the summary judgment order or the filing of the lawsuit, provided notice of Steven's intent to withdraw and dispose of his interest. "Although the record does not show the date of service, it does show that Keith moved for summary judgment on May 20, 2003, which indicates he had at least received notice by that date. Keith's first letter of intent to purchase Steven's interest in the partnership, dated August 25, 2003, was outside the 90-day limitation period" they said. The Court affirmed the district court's order denying specific performance.

Is Steven equitably estopped from asserting the 90-day time period as a defense? Throughout this litigation, Steven denied that he invoked the partnership agreement's buy-sell provision when he sued to dissolve the partnership. Keith contended it is inequitable for Steven to now gain protection from the same partnership provision he has attempted to avoid through this litigation. While Keith asserted that Steven's conduct in filing his lawsuit and denying that he provided notice of his intent to withdraw created a basis for equitable estoppel, the Court disagreed. Steven did not make any promise or representation, or engage in any conduct, that would have led Keith to delay sending notice of his intent to purchase Steven's shares. The Court said it was unclear how filing a lawsuit or denying Keith's claims could cause Keith to act to his detriment. If anything, the initiation of litigation against Keith should have alerted him of the need to diligently protect his interests. This argument is without merit.

Did the Court err in declaring DeWulf Place partnership property? The Court noted that property is presumed to be partnership property if purchased with partnership assets, even if not acquired in the name of the partnership or of one or more partners with an indication in the instrument transferring title to the property of the person's capacity as a partner or of the existence of a partnership. Here, the district court found that "the evidence clearly shows that .. . DeWulf [P]lace was acquired solely with partnership assets." Although the record reflected that DeWulf Place was not acquired solely with partnership assets, the Court found that the presumption statutory presumption (§ 67-412(3)) applies because Mogensen Bros. supplied at least part of the purchase price. Here, although some evidence indicated an ownership interest in Opal, it was not enough to overcome the presumption in § 67-412(3). The use of partnership funds in the purchase and the other evidence suggested that Opal owns DeWulf Place in name only. However, equity dictated that Opal should not be liable for the debt on DeWulf Place--real estate she no longer owns. "Once we acquire equity jurisdiction, we can adjudicate all matters properly presented and grant complete relief to the parties" said the Court. "We hold that DeWulf Place is partnership property, subject, however, to Mogensen Bros.' paying the balance of the indebtedness owed to Ranch and Farm (The brothers were also the shareholders in a family construction company called Ranch and Farm Agricultural Systems, Inc.)

Did the district court err in not determining the Mahoney Place is partnership property? The Court found that the evidence shows that the presumption in § 67-412(3) does not apply. Instead, the opposite presumption applies (§ 67-412(4)) applies in that property acquired in the name of one or more of the partners, without an indication in the instrument transferring title to the property of the person's capacity as a partner or of the existence of a partnership and without use of partnership assets, is presumed to be separate property, even if used for partnership purposes. Here, Keith is the title owner of Mahoney Place, with no indication in the deed that he owns it in his capacity as a partner. Keith purchased it solely with his funds, and he is liable for the loan payments. "Thus, the presumption in § 67-412(4) applies. Further, no significant evidence exists that would overcome the presumption" wrote the Court. "The district court did not err in finding that Mahoney Place is not partnership property."

Conclusion: The Court concluded that Keith did not timely exercise the buy-sell provision of the partnership agreement. DeWulf Place is partnership property subject to Mogensen Bros.' paying the balance of the indebtedness owed to Ranch and Farm, and Mahoney Place is not partnership property. AFFIRMED AS MODIFIED.

Back to ShortCuts

The Nebraska Supreme Court here affirms a district court judgment that the exercise of a buy-out provision of a partnership was untimely. This following a judgment a year earlier in the district court that a judicial dissolution of the partnership agreement could not be made because said agreement contained a buy out provision. The decision herein shows that timing is everything. The district court judgment was affirmed but the decision modified as to property (and debt therein) owned by the partnership.

Specific Performance:

- [Equity:] (Appeal and Error.) An action for specific performance sounds in equity, and on appeal, an appellate court decides factual questions de novo on the record and will resolve questions of fact and law independently of the trial court's conclusions.

Declaratory Judgments:

- [Equity:] (Appeal and Error.) In reviewing an equity action for a declaratory judgment, an appellate court decides factual issues de novo on the record and reaches conclusions independent of the trial court. But when credible evidence is in conflict on material issues of fact, the court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.

Equity:

- [Estoppel:] (Fraud: Limitations of Actions.) Equitable estoppel is not limited to circumstances of fraud but may also be applied to prevent an inequitable resort to a statute of limitations. And a defendant may, by his or her representations, promises, or conduct, be so estopped where the other elements of estoppel are present.

Partnerships:

- [Statutes.] Nebraska's Uniform Partnership Act of 1998 governs when property is considered partnership property.

- [Property:] (Title: Presumptions.) The presumption in Neb. Rev. Stat. § 67-412(3) (Reissue 2003) can apply when the partnership provides only a portion of the purchase price, and it can apply even though a third party who is not a partner to the firm holds title. ((Intent.)) A presumption of prima facie individual ownership of real property exists in the titleholder, but the inference concerning the partners' intent from the use of partnership funds outweighs any inference from the state of the title. (Presumptions: Intent.) In determining whether a party has rebutted the presumption in Neb. Rev. Stat. § 67-412(3) (Reissue 2003), no single factor or combination of factors is dispositive. Ultimately, the partners' intentions control whether property belongs to the partnership, at least among the partners themselves.

Date Filed and Case No.: March 16, 2007. No. S-05-879.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar16/s05-879.pdf

Court Appealed From: District Court for Boone County: Michael Owens , Judge.

Attorneys for the Appeal: Galen E. Stehlik for Keith Mogensen, appellant and cross-appellee. Cathy S. Trent-Vilim and, on brief, Barry D. Geweke for Steven Mogensen appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Connolly, J.

Summary: Keith Mogensen sued Steven Mogensen to force him to sell his partnership interest in Mogensen Bros. Land & Cattle Company (Mogensen Bros.), a farming operation. For several years, tension had been building between Steven and his brothers. Brian, Keith, and Steven attempted to reach an agreement in dissolving and winding up the partnership, but those attempts failed and on 10/03/02, Steven sued Mogensen Bros., Keith, and Brian, seeking to have the partnership dissolved and its assets liquidated under the Uniform Partnership Act of 1998. The district court, however, found that under § 67-404(1), judicial dissolution was inappropriate. The court found that under § 67-404(1), the partnership agreement governs relations between partners. Because the Mogensen Bros. partnership agreement provides a method for a partner to withdraw from the partnership, the court found the partnership agreement governs the partnership dissolution and on 07/28/03, the court granted summary judgment against Steven. Steven did not appeal.

In this case, on 03/29/04, Keith sought to enforce the buyout provision in the partnership agreement. Steven counterclaimed against Keith and third-party defendants, Opal Mogensen (their mother) and third-party defendant, Sandra Mogensen (Keith's wife), seeking a declaration that two real estate parcels which Opal and Keith owned were partnership properties. This time, in Keith's claim, the district court found that under the partnership agreement, Keith failed to exercise the buyout within 90 days as provided in the partnership agreement. In Steven's counterclaim, the court found that Opal's property (DeWulf Place) was partnership property, but denied Steven's claim that Keith's property (Mahoney Place) was partnership property. Keith and Opal appealed, assigning that the district court erred in (1) holding that Keith did not timely exercise the buy-sell provision of the partnership agreement and (2) determining that DeWulf Place is a partnership asset. On cross-appeal, Steven assigned that the court erred in determining that Mahoney Place is not a partnership asset.

Did the district court err when it determined that Keith's exercise of the option to purchase Steven's partnership interest under the buyout provision was untimely? Keith argued that he complied with the timeframe because he gave notice of his intention to buy out Steven's partnership interest within 90 days of the date of the summary judgment order in Steven's prior lawsuit. The Court had not previously addressed the issue of when a lawsuit for dissolution of a partnership triggers a buy-sell provision. Drawing upon the decisions in other jurisdiction, the Court concluded that service of the complaint on Keith, rather than either the summary judgment order or the filing of the lawsuit, provided notice of Steven's intent to withdraw and dispose of his interest. "Although the record does not show the date of service, it does show that Keith moved for summary judgment on May 20, 2003, which indicates he had at least received notice by that date. Keith's first letter of intent to purchase Steven's interest in the partnership, dated August 25, 2003, was outside the 90-day limitation period" they said. The Court affirmed the district court's order denying specific performance.

Is Steven equitably estopped from asserting the 90-day time period as a defense? Throughout this litigation, Steven denied that he invoked the partnership agreement's buy-sell provision when he sued to dissolve the partnership. Keith contended it is inequitable for Steven to now gain protection from the same partnership provision he has attempted to avoid through this litigation. While Keith asserted that Steven's conduct in filing his lawsuit and denying that he provided notice of his intent to withdraw created a basis for equitable estoppel, the Court disagreed. Steven did not make any promise or representation, or engage in any conduct, that would have led Keith to delay sending notice of his intent to purchase Steven's shares. The Court said it was unclear how filing a lawsuit or denying Keith's claims could cause Keith to act to his detriment. If anything, the initiation of litigation against Keith should have alerted him of the need to diligently protect his interests. This argument is without merit.

Did the Court err in declaring DeWulf Place partnership property? The Court noted that property is presumed to be partnership property if purchased with partnership assets, even if not acquired in the name of the partnership or of one or more partners with an indication in the instrument transferring title to the property of the person's capacity as a partner or of the existence of a partnership. Here, the district court found that "the evidence clearly shows that .. . DeWulf [P]lace was acquired solely with partnership assets." Although the record reflected that DeWulf Place was not acquired solely with partnership assets, the Court found that the presumption statutory presumption (§ 67-412(3)) applies because Mogensen Bros. supplied at least part of the purchase price. Here, although some evidence indicated an ownership interest in Opal, it was not enough to overcome the presumption in § 67-412(3). The use of partnership funds in the purchase and the other evidence suggested that Opal owns DeWulf Place in name only. However, equity dictated that Opal should not be liable for the debt on DeWulf Place--real estate she no longer owns. "Once we acquire equity jurisdiction, we can adjudicate all matters properly presented and grant complete relief to the parties" said the Court. "We hold that DeWulf Place is partnership property, subject, however, to Mogensen Bros.' paying the balance of the indebtedness owed to Ranch and Farm (The brothers were also the shareholders in a family construction company called Ranch and Farm Agricultural Systems, Inc.)

Did the district court err in not determining the Mahoney Place is partnership property? The Court found that the evidence shows that the presumption in § 67-412(3) does not apply. Instead, the opposite presumption applies (§ 67-412(4)) applies in that property acquired in the name of one or more of the partners, without an indication in the instrument transferring title to the property of the person's capacity as a partner or of the existence of a partnership and without use of partnership assets, is presumed to be separate property, even if used for partnership purposes. Here, Keith is the title owner of Mahoney Place, with no indication in the deed that he owns it in his capacity as a partner. Keith purchased it solely with his funds, and he is liable for the loan payments. "Thus, the presumption in § 67-412(4) applies. Further, no significant evidence exists that would overcome the presumption" wrote the Court. "The district court did not err in finding that Mahoney Place is not partnership property."

Conclusion: The Court concluded that Keith did not timely exercise the buy-sell provision of the partnership agreement. DeWulf Place is partnership property subject to Mogensen Bros.' paying the balance of the indebtedness owed to Ranch and Farm, and Mahoney Place is not partnership property. AFFIRMED AS MODIFIED.

Back to ShortCuts

Where the Nebraska Court of Appeals had reversed a decision of a juvenile court, adjudicating a juvenile as a delinquent for stalking another juvenile, the Nebraska Supreme Court reverses the Court of Appeals decision and affirms the juvenile court's adjudication. Reviewing the "stalking" statute the Court finds in its de novo review that the juvenile had stalked the victim.

Supreme Court Headnotes

Juvenile Courts:

- [Appeal and Error.] Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the lower courts' findings.

- [Proof.] When an adjudication is based upon Neb. Rev. Stat. § 43-247(1) (Reissue 2004), the allegations must be proved beyond a reasonable doubt.

Statutes.

- Statutory language is to be given its plain and ordinary meaning.

- [Legislature:] (Appeal and Error.) In reading a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

Criminal Law:

- [Statutes.] Although penal statutes are strictly construed, they are given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served. ••• Nebraska's stalking statutes focus both on the behavior of the perpetrator and on the experience of the victim. (Legislature: Intent.) Given the language of Nebraska's stalking statutes and the purpose announced by the Legislature for enacting the statutes, an objective construction of the statutes is appropriate, and the victim's experience resulting from the perpetrator's conduct should be assessed on an objective basis.

Circumstantial Evidence:

- [Intent:] (Proof.) Although a perpetrator's state of mind is a question of fact, such fact may be proved by circumstantial evidence.

Date Filed and Case No.: March 16, 2007. No. S-05-1033.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar16/s05-1033.pdf

Court Appealed From: Petition for further review from the Nebraska Court of Appeals, Inbody, Chief Judge, and Irwin and Carlson, Judges, on appeal thereto from the Separate Juvenile Court of Douglas County, Vernon Daniels, Judge.

Attorneys for the Appeal: Thomas C. Riley and David J. Tarrell for Jeffrey K.., appellant. Stuart J. Dornan, Amy Schuchman, and Kris Morgan and Stacy Jo Ferrel, Senior Certified Law Students, for State of Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Miller-Lerman, J.

Summary: On 04/15/05 the State filed a petition in juvenile court alleging that Jeffrey K. (d.o.b. 07/20/88) was within the meaning of § 43-247(1) alleging that from September through November 4, 2004, Jeffrey willfully stalked a fellow student at Omaha Westside High School, with the intent to injure, terrify, threaten, or intimidate her, in violation of § 28-311.03. The juvenile court found that Jeffrey K. had committed the offense and adjudicated Jeffrey under § 43-247(1). Jeffrey appealed the adjudication order. The Nebraska Court of Appeals determined that there was not sufficient evidence to support a finding that Jeffrey had violated Nebraska's stalking statutes and reversed. In re Interest of Jeffrey K., 14 Neb. App. 818, 717 N.W.2d 499 (2006). In a divided decision, the Court of Appeals determined that the evidence did not support the juvenile court's finding that Jeffrey was "stalking" the victim, as that term was used in Nebraska's stalking statutes. The majority determined that Jeffrey's conduct did not demonstrate stalking, but, rather, that the conduct was carried out for Jeffrey's "own juvenile amusement." Id. at 825, 717 N.W.2d 506. The Court of Appeals reversed the decision of the juvenile court. One judge dissented and stated that the "fact that Jeffrey found his behavior amusing does not justify the conclusion that Jeffrey did not intend to intimidate the victim." Id. at 826, 717 N.W.2d at 506. The State petitioned for further review from the Court of Appeals' decision which the Nebraska Supreme Court granted.

Did the Court of Appeals erroneously determine that there was insufficient evidence to support a finding that Jeffrey violated § 28-311.03 and, therefore, erred in reversing the order of adjudication? On further review, the State claimed that the Court of Appeals erroneously determined that there was insufficient evidence to support a finding that Jeffrey had violated § 28-311.03 and, therefore, erred in reversing the order of adjudication entered by the juvenile court.

The Legislature has stated its intent with respect to the stalking statutes as follows:

(1) It is the intent of the Legislature to enact laws dealing with stalking offenses which will protect victims from being willfully harassed, intentionally terrified, threatened, or intimidated by individuals who intentionally follow, detain, stalk, or harass them or impose any restraint on their personal liberty and which will not prohibit constitutionally protected activities. § 28-311.02(1).

Initially, the Court noted that Nebraska's stalking statutes focus both on the behavior of the perpetrator (§§ 28-311.02(2)(a) and 28-311.03)(the acts complained of must be done "willfully" and "harass" is defined as the perpetrator "engaging in a knowing and willful course of conduct directed at a specific person") and on the experience of the victim (§ 28-311.02(2)(a)). Here the Court said there is no real dispute on appeal that Jeffrey's actions were intentional. In addition § 28-311.03 requires that the perpetrator intend to either "injure, terrify, threaten, or intimidate" the victim. In reversing the juvenile court's adjudication order in this case, the Court of Appeals determined that there was "no evidence in the record which would support a finding that Jeffrey intended to injure, terrify, or threaten the victim." Id. at 825, 717 N.W.2d 505.

"We do not agree" wrote the Court. "Contrary to the observation of the Court of Appeals, the cumulative effect of Jeffrey's words and actions, and the extensive, ongoing, and escalating nature of his conduct. . . clearly show that Jeffrey intended to intimidate the victim in this case." Although a perpetrator's state of mind is a question of fact, such fact may be proved by circumstantial evidence, which given the evidence (reviewed de novo) the Court determined that the State did adduce sufficient evidence from which the juvenile court could properly find beyond a reasonable doubt that Jeffrey intended to intimidate the victim.

Given the language of Nebraska's stalking statutes and the purpose announced by the Legislature for enacting the statutes, the Court concluded that an objective construction is appropriate and that the victim's experience resulting from the perpetrator's conduct should be assessed on an objective basis. Viewing Jeffrey's actions by an objective standard, the Court said it is readily apparent that a reasonable person would be seriously intimidated by Jeffrey's conduct. The juvenile court correctly found the allegations of stalking in the petition to be true beyond a reasonable doubt and adjudicated Jeffrey a child as defined by § 43-247(1). "The Court of Appeals erred in reversing the adjudication. Accordingly, we reverse the decision of the Court of Appeals and remand the cause with directions to affirm the decision of the juvenile court."

Conclusion: Based upon its de novo review of the record, the Court determined that Jeffrey's conduct in this case violated Nebraska's stalking statute, § 28-311.03, and that the juvenile court did not err in adjudicating Jeffrey as a child within the meaning of § 43-247(1). REVERSED AND REMANDED WITH DIRECTIONS.