Behrens v. Blunk -- supplemental opinion

had a legal right to be in Borst’s home and when it overruled
Borst’s motion to suppress both the physical evidence seized
from Borst’s home and the subsequent tainted statements he
made in the holding cell. Consequently, the Court of Appeals
erred when it affirmed the district court’s ruling on the motion
to suppress. We reverse the decision of the Court of Appeals,
and we remand the cause to the Court of Appeals with direc-
tions to reverse Borst’s convictions and to remand the cause to
the district court for a new trial on both charges.
R eveRsed and Remanded with diRections.
wRight, J., not participating.
BRyan s. BehRens , an individual , et al ., appellants
and cRoss -appellees , v. chRistian R. Blunk ,
an individual , et al ., appellees
and cRoss -appellants.
796 N.W.2d 579
Filed March 18, 2011. 	No. S-10-342.
supplemental opinion
Appeal from the District Court for Douglas County: J. patRick
mullen, Judge. Supplemental opinion: Former opinion modi-
fied. Motion for rehearing overruled.
David A. Domina and Terry A. White, of Domina Law
Group, P.C., L.L.O., for appellants.
Mark C. Laughlin and Patrick S. Cooper, of Fraser Stryker,
P.C., L.L.O., for appellees Christian R. Blunk and Berkshire &
Blunk.
William R. Johnson, of Lamson, Dugan & Murray, L.L.P.,
for appellees Christian R. Blunk and Abrahams, Kaslow &
Cassman, L.L.P.
heavican, c.J., connolly, geRRaRd, stephan, mccoRmack,
and milleR-leRman, JJ.
228 	281 NeBRASKA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

peR cuRiam.
Case No. S-10-342 is before this court on the motion for
rehearing filed by the appellees regarding our opinion reported
at Behrens v. Blunk, 280 Neb. 984, 792 N.W.2d 159 (2010). We
overrule the motion but for purposes of clarification, modify
the opinion as follows:
In 	the 	section 	of 	the 	opinion 	designated 	“pRoceduRal
histoRy,” we withdraw the third paragraph, id. at 988, 792
N.W.2d at 163, and substitute the following:
In November 2009, the defendants again moved to
compel discovery. The court’s docket sheet shows that the
court sustained the motion in part, and in part overruled it,
but the court apparently did not issue a written order. This
order, however, effectively overruled the motion to stay,
and the defendants agree that the court did overrule that
motion. In December, the defendants moved for summary
judgment. They asked for a dismissal, arguing that the
plaintiffs could not “simultaneously maintain this action
while asserting Fifth Amendment rights.” In support of
this motion, the defendants stated only that “Behrens
has asserted his Fifth Amendment rights, has refused to
answer various discovery propounded by Defendants, and
has refused to sit for a deposition in this matter.”
Further, we withdraw the last paragraph in the section of the
opinion designated “ANALySIS,” id. at 996, 792 N.W.2d at
168, and substitute the following:
Because the court’s findings were insufficient to sup-
port an order of dismissal, we reverse the order and
remand the cause for further proceedings. The defendants’
cross-appeal does not alter our conclusion. They moved
for summary judgment solely because of Behrens’ invoca-
tion of his Fifth Amendment rights. Because this was not
a proper ground for summary judgment, the court did not
err in overruling their motion.
The remainder of the opinion shall remain unmodified.
FoRmeR opinion modiFied.
motion FoR ReheaRing oveRRuled.
wRight, J., not participating.
BehReNS v. BLuNK 	229
Cite as 281 Neb. 228