Motions to Dismiss: Appeal and Error.
district court's grant of a motion to dismiss is reviewed
When reviewing an order dismissing a complaint, an appellate
court accepts as true all facts which are well pled and the
proper and reasonable inferences of law and fact which may be
drawn therefrom, but not the plaintiff's conclusions.
Motions to Dismiss: Pleadings.
prevail against a motion to dismiss for failure to state a
claim, a plaintiff must allege sufficient facts, accepted as
true, to state a claim to relief that it plausible on its
Judgments: Jurisdiction: Claim Preclusion.
preclusion bars relitigation of any right, fact, or matter
directly addressed or necessarily included in a former
adjudication if (1) the former judgment was rendered by a
court of competent jurisdiction, (2) the former judgment was
a final judgment, (3) the former judgment was on the merits,
and (4) the same parties or their privies were involved in
doctrine of claim preclusion bars relitigation not only of
those matters actually litigated, but also of those matters
which might have been litigated in the prior action.
The doctrine of claim preclusion rests on the necessity to
terminate litigation and on the belief that a person should
not be vexed twice for the same cause.
from the District Court for Sheridan County: Travis P.
H. Friedman and Stephen A. Sael, of Friedman Law Offices,
P.C., L.L.O., for appellant.
Neb. 218] Douglas J. Peterson, Attorney General, and Danielle
Rowley for appellee.
I. Schwartz, of George Washington University Law School,
Sarah P. Newell, of Nebraska Criminal Defense Attorneys
Association, and Amy Miller, of American Civil Liberties
Union of Nebraska Foundation, for amici curiae Professor
Joshua I. Schwartz et al.
HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, FUNKE, AND
Marie filed a claim for damages under the Nebraska Claims for
Wrongful Conviction and Imprisonment Act (Act).That claim was
denied. Marie appeals. At issue on appeal is whether Marie
can show that she was innocent of the crimes, as required by
§ 29-4603(3). We affirm.
was convicted in 1999 for use of a deadly weapon to commit a
felony and terroristic threats. She was sentenced to 2 to 15
years' imprisonment for the use conviction and 2 to 5
years' imprisonment for the terroristic threats
conviction. The alleged victim of her crimes was Marie's
husband, Kurt Oldenburg.
appealed her sentences as excessive, and the Nebraska Court
of Appeals agreed and resentenced her to 1 year's
imprisonment on each conviction. Because Marie had already
served 2 years' imprisonment, she was
released. Marie was later pardoned by the Nebraska
Board of Pardons on October 3, 2016.
Neb. 219] Marie then filed a petition seeking damages under
the Act. In that motion, Marie alleged that she was
convicted, sentenced, served part of her sentence, and was
pardoned and that she did not commit or suborn perjury,
fabricate evidence, or knowingly make a false statement to
cause her own conviction or the conviction of others.
alleged that she was "actually innocent of the crimes
for which she was wrongfully charged, convicted, sentenced,
and imprisoned [and that she] did not threaten to commit any
crime of violence with the intent to terrorize." She
further alleged that Oldenburg "lunged toward [her] and
[as] she attempted to move the gun away[, he] grabbed [her]
arm and the gun . . . discharged, injuring . . . Oldenburg
[which] forced [her] to take the actions that she did."
State filed a motion to dismiss. At issue before the district
court was whether Marie had, or could, show that she was
innocent of the crimes for which she was charged, as required
by § 29-4601(3). The Sheridan County District Court
concluded that Marie could not ...