Order of the Kneepads Update: Nebraska Supreme Court suspends for six months attorney who neglected child custody matter, failed to refund unearned fees, had been privately reprimanded in the past for neglecting cases, and failed to timely respond to the Counsel for Discipline inquiries. State ex rel. Counsel for Dis. v. Smith, S-08-1333, 278 Neb. 899 "Because Smith neither responded to the Counsel for Discipline regarding Johnson’s grievance nor filed a pleading, we have no basis for considering any factors that mitigate in Smith’s favor. Furthermore, this behavior indicates disrespect for our disciplinary jurisdiction and a lack of concern for the protection of the public, the profession, and the administration of justice. Considering that Smith has previously been privately reprimanded for similar neglect and that he has failed to communicate with the Counsel for Discipline in a timely or meaningful fashion, we conclude that a 6-month suspension from the practice of law is necessary to protect the public and maintain the reputation of the bar. We also order Smith to return any fees collected from Johnson."

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Nebraska Supreme Court upholds Internet enticement law and rejects defendant's challenge to Section § 28-320.02 RRS Neb. on equal protection, free speech, over breadth and vagueness grounds. State v. Rung, S-08-878, 278 Neb. 855 "Defendant appeals his conviction for use of a computer to entice a child or a peace officer believed to be a child for sexual purposes, a violation of Neb. Rev. Stat. § 28-320.02 (Reissue 2008). Defendant challenges the constitutionality of § 28-320.02 and asserts that his sentence is excessive. We reject Defendant’s constitutional challenges, and we affirm his conviction and sentence. Defendant asserts no suspect classification and because the statute does not jeopardize a fundamental right, the classification in § 28-320.02 is subject to a rational basis review for equal protection purposes. When a classification created by state action does not jeopardize the exercise of a fundamental right or categorize because of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.§ 28-320.02, is geared toward enticement of minors to engage in sexual conduct that would violate specified statutes, and as such, § 28-320.02 does not jeopardize the fundamental right recognized in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). Defendant argued that § 28-320.02 is over broad because it targets speech regarding acts that would not otherwise be illegal. This argument, similar to his other arguments, is based on his misreading of the statute. Defendant lacks standing to challenge § 28-320.02 for vagueness

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Case overruled: Nebraska Supreme Court allows Defendant facing retrial after a trial court ordered a deadlocked jury mistrial to file a plea in bar motion to contest whether double jeopardy would bar the retrial. Although the court should have had counsel and the defendant present while declaring the mistrial, the error was harmless. State v. Rubio, 261 Neb. 475, 623 N.W.2d 659 (2001) is overruled to the extent it suggests the plea in bar procedure is not available to challenge a mistrial. State v. Williams, S-08-1220, 278 Neb. 841 A mistrial entered without manifest necessity is the equivalent of an acquittal for purposes of double jeopardy analysis in that each terminates jeopardy without a finding of guilt. Abney v. United States, 431 U.S. 651, 660, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). a plea in bar pursuant to § 29-1817 may be filed to assert any nonfrivolous double jeopardy claim arising from a prior prosecution, including a claim that jeopardy was terminated by entry of a mistrial without manifest necessity. To the extent that language in State v. Rubio, 261 Neb. 475, 623 N.W.2d 659 (2001). is inconsistent with this holding, it is disapproved. We conclude that although the judge erred in not having the parties and counsel present during his colloquy with the jury regarding its inability to reach a verdict, the court did not abuse its discretion in ordering the mistrial. Accordingly, jeopardy did not terminate and retrial is not barred by principles of double jeopardy.

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Used car dealers now must inspect even "as-is" cars for sale for "patent" safety defects. Wilke v. Woodhouse Ford, S-08-807, 278 Neb. 800 The Nebraska Supreme Court holds "patent" defects the responsibility of the dealer, such as steering and brakes, but in this case the defect was the loose play in the gearshift that allowed a child to take the parked car out of park. "Applying our risk-utility test for the existence of a legal duty to use reasonable care, we conclude that there is a relatively great magnitude of risk of injury in the circumstance where an unknowing buyer drives off the dealer’s lot in a used vehicle which has a patent safety defect, such as defective brakes or steering. " "a commercial dealer of used vehicles intended for use on public streets and highways has a duty to conduct a reasonable inspection of the vehicle prior to sale in order to determine whether there are any patent defects existing at the time of sale which would make the vehicle unsafe for ordinary operation and, upon discovery of such a defect, to either repair it or warn a prospective purchaser of its existence. The dealer has no duty to disassemble the vehicle to discover latent defects or to anticipate the future development of safety defects which do not exist at the time of sale. The tort duty we recognize today is not affected by a valid disclaimer or exclusion of U.C.C. warranties, because such contractual provisions do not absolve a seller from exercising reasonable care to prevent foreseeable harm."

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Laid off Pamida worker drops her WARN act suit. Journalstar.com A woman who sued an Omaha-based regional retailer arguing she and others weren't properly notified before being laid off has dropped her legal fight. Cynthia Zych sued Pamida Stores Operating Co. in April. Her lawsuit alleged the company violated a federal law aimed at protecting workers during certain mass layoffs and plant closings. She said she was one of 54 people laid off in January. The law can be triggered in several ways, including when more than 50 employees are cut and they make up at least 33 percent of the employer's active workforce. Zych's attorney, Bob O'Connor Jr., said Friday he asked the court to dismiss the suit earlier this month because Pamida's layoffs didn't meet that requirement and therefore didn't violate the law.

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Bankruptcy sale of former Husker lineman's trophies nets $28,500. Journal star.com. "A court-ordered auction of former Nebraska football player Aaron Taylor's championship hardware has brought in $28,500. It took about 30 minutes to sell Taylor's seven championship rings and his Outland Trophy on Saturday morning in Scottsbluff. Bids were taken in person and online. The trophy netted the highest bids, selling for $6,800. The rings sold for $2,000 to $5,900. The auction was forced by the failure of the Husker-themed Scarlet and Cream Letter Club restaurant Taylor started in Omaha with other former NU players and his resulting bankruptcy."

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Nebraska Supreme Court allows award for loss of earning power to injured truck driver who had previously received Social Security Disability Income benefits but returned to work under the Social Security Administration "Ticket to Work" program. Manchester v. Drivers Mgmt., S-09-062, 278 Neb. 776 Because Plaintiff had an earning power to lose, her receipt of Social Security benefits based on an earlier determination of total disability did not prevent her from recovering workers’ compensation benefits. ..the existence of the Social Security rehabilitative programs indicates that an individual once assessed by the Social Security Administration to be totally disabled is not expected to be forever unable to work. See 42 U.S.C. § 422 (2006).. Plaintiff participated in the "Ticket to Work" program and was working her way off Social Security disability. Because Plaintiff was able to resume gainful employment and had worked for Drivers Management for 13 months before the accident, the Social Security Administration’s determination that at one point in time she was totally disabled does not logically prevent her from later recovering workers’ compensation benefits for her loss of earning capacity due to a disability incurred in the course of her employment

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Nebraska Court of Appeals finding plain error, revises QDRO to require wife to receive half of husband's state patrol retirement plan based either upon his choice of a refund or annuity, the marital share of the patrol retirement fund is that share of the fund that the time of the marriage divided by total service represents. Klimek v. Klimek, A-09-023, 18 Neb. App. 82. The Appeals Court further awards half of the wife's defined contribution 401k to the husband.

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Nebraska Court of Appeals admonishes trial judges to better supervise QDRO preparation after they rule in divorce cases. Court of Appeals adds judgment interest of over $27000 to wife's judgment for almost $183000 from husband's 401k plan that was worth over $600000 when the husband took almost two years to file an acceptable QDRO. Fry v. Fry, A-09-011, 18 Neb. App. 75 "Ultimate responsibility for assuring that a proper decree is entered, and for entry of a QDRO if the court determines that the situation so requires, rests upon the trial judge. While the judge may call upon the assistance of counsel, the decree and the QDRO are orders of a court and not mere agreements of the parties. we encourage trial courts to implement procedures to ensure that their responsibility to enter QDRO’s is fulfilled at the same time as the decree is entered, bearing in mind that in practice, the drafting of a QDRO may require approval by the retirement plan administrator, which counsel can secure prior to submitting the QDRO to the court. Even though more than 2 years passed following entry of an unappealed decree, we conclude that the district court had jurisdiction to enter the QDRO in accordance with the terms of the decree, because a QDRO is merely an enforcement device. Based upon Kullbom v. Kullbom, 215 Neb. 148, 337 N.W.2d 731 (1983), we conclude that the court did not err in awarding judgment interest on Janet’s share of the profit-sharing plan accruing from the date of the divorce decree."

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Order of the Kneepads Update: Nebraska Supreme Court reinstates attorney who was addicted to crack and crack hoes. No. S-07-718: State ex rel. Counsel for Dis. v. Hubbard. Respondent reinstated to the practice of law, subject to the conditions of reinstatement set forth in the court’s judgment entered November 21, 2008.

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Nebraska Supreme Court reverses Cass County Court probate order to sell estate property at a public sale; Supreme Court, J Wright, allows private listing with commercial real estate broker first before heirs can ask county court judge to order public auction. In re Estate of Failla, S-09-170, 278 Neb. 770 "The evidence supports the conclusion that Diana should first attempt to sell the property by listing it at its appraised value. The county court is given discretion to determine how long the listing should continue. If this method of sale does not prove satisfactory, the court should direct that the property be sold at a public sale.?

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Nebraska Supreme Court finds that meatpackers' payments to cleaning companies were subject to sales taxes, reverses Lancaster County District Court that hand found Department of Revenue regulations that required packers to pay the sales taxes went beyond revenue statute § 77-2701.16(4)(a). Swift & Co. v. Nebraska Dept. of Rev., S-08-1095 through S-08-1099, 278 Neb. 763 Specialized cleaning services for meatpackers cleaned all the equipment fixtures, areas of the plants and the packers paid sale taxes on the services. Packers sought refunds and sued in Lancaster County District Court when the Department of Revenue denied their refund claims. The District Court Judge found Reg. 1-098.03A unlawfully expands the definition of services covered by § 77-2701.16(4)(a). Supreme Court, CJ Heavican reverses: "the Department did not exceed the scope of its rule making authority. Although other sections of the statute specifically mention personal property, those situations are distinguishable... also Reg. 1-098.03A contemplates that the cleaning of tangible personal property must be incidental to cleaning the building. As pointed out by the Department, most cleaning contracts contemplate at least some cleaning of personal property located within the building...Therefore..Reg. 1-098.03A did not exceed the Department’s rule making authority and that the taxpayers are not entitled to a refund ."

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Nebraska Supreme Court scolds attorney who handled a deceased's revised estate plans on eve of her death for not acting independently from the deceased's son whom the Supreme Court found to have exercised undue influence over her. In re Estate of Hedke, S-08-980, 278 Neb. 727. Supreme Court Justice William Connolly reverses finding from the District Court of no undue influence when he found likely collusion between deceased's son and his personal attorney who took over deceased mother's estate planning and drafted a will and trust that benefited the son over the mother's daughter who lived in Arizona. Glad to see the Supreme Court ruling against children who decide to stay on the farm so that the child who moved out to a warm weather state could get a fair break. Also even though the mother and son lived in a sparsely populated area of the state, the Court suggests that they should go to greater lengths to find the lawyer who did the mother's first will instead of using the lawyer the son used for other legal work. Charles and Rogers also failed to provide Leona with information that would have permitted her to compare her new estate plan with her previous intentions in her earlier will. Rogers’ billing statements and Charles’ testimony showed that Charles was involved in the planning of Leona’s new estate plan. Yet, he admitted that he did not explain to Leona that her new estate plan would effectively disinherit Dolores. Rogers told Leona that her medical expenses could deplete her cash assets if she lived a long time. But he did not discuss the money in her accounts at that time. Most important, neither Charles nor Rogers informed Leona that Charles had found her old will and that there were substantial differences. Nor did Leona have independent legal advice from an attorney solely dedicated to her interests. Despite her age, her infirmity, and allegations of Charles’ theft, Rogers did not attempt to determine whether a conservatorship might be in Leona’s best interests. He admitted that he did not explain to Leona that Dolores believed Charles was misappropriating her assets. And, at trial, Charles admitted that that he had used trust funds for his benefit without authorization. We note that Rogers now represents Charles in this appeal. He argued Charles’ case before this court. Rogers also failed to independently verify Leona’s competency by asking her questions about her assets or speaking to her physician to determine if a guardianship or conservatorship was necessary. To the contrary, he successfully continued the competency hearing scheduled for December 15, 2004, until January 12, 2005, after Leona had executed new estate plan documents. Although Leona had told Rogers that she wanted to divide her property as her father had and that she did not know where her earlier will was, he did not verify that the differences in the new will represented her wishes. On this record, Rogers’ testimony that Leona was not mentally impaired rings hollow. The evidence was sufficient to support a judgment for Dolores if unrebutted. The evidence clearly showed that Leona was subject to Charles’ undue influence and that he had the opportunity to exercise such influence. The court’s finding that Charles had engaged in self-dealing while he was Leona’s attorney in fact and trustee established his disposition to exercise such influence. Finally, even if Leona could have understood that she was disinheriting Dolores, the evidence showed that she would not have done so but for Charles’ ability to turn Leona against Dolores.

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Three Hispanic former employees sue Willsie Cap and Gown Company for discriminatory treatment and retaliation. Omaha.com Willsie Cap & Gown routinely offered better hours, more desirable work, more breaks and even better lighting to non-Hispanic employees.

The lawsuits also say Hispanic employees were prohibited from speaking Spanish in the plant, but non-Hispanic employees were allowed to speak their native languages.

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Excavating company's efforts to remove beaver dams from path of pipeline caused fuel leaks in 2007 and a lawsuit. Omaha.com

Mid-America Pipeline LLC filed a federal lawsuit against Wilson Excavating this week.

The lawsuit says Wilson Excavating caused the pipeline leak while trying to remove beaver dams in eastern Nebraska.

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Increased bankruptcy filings for 2008 and so far this year. Omaha.com

Filings are up all over

Bankruptcy statistics for Nebraska, Iowa and nationwide for the first eight months of this year and for all of 2008: January-August 2009 Nebraska bankruptcy filings up 13 percent from the same period last year, to 5,051 Iowa up 30 percent, to 6,702 Nationally, up 34 percent to 921,659 For 2008 Nebraska bankrutpcy filings up 25 percent from 2007, to 6,715 Iowa up 15 percent to 7,853 Nationally, up 33 percent to 1.064 million. Sources: U.S. Bankruptcy Court District of Nebraska; National Bankruptcy Research Center

Nebraska bankruptcies

Statistics on Nebraska bankruptcies for all of 2008 and the first eight months of 2009: Filing type: 2008 Through Aug. Omaha office Chapter 7: 2,126 1,560 Chapter 9: 0 2 Chapter 11: 18 9 Chapter 12: 1 1 Chapter 13: 1,287 834 Total: 3,432 2,406 Lincoln office Chapter 7: 2,592 2,138 Chapter 9: 0 0 Chapter 11: 9 18 Chapter 12: 16 14 Chapter 13: 666 475 Total: 3,283 2,645 Nebraska totals Chapter 7: 4,718 3,698 Chapter 9: 0 2 Chapter 11: 27 27 Chapter 12: 17 15 Chapter 13: 1,953 1,309 Total: 6,715 5,051 Source: U.S. Bankruptcy Court District of Nebraska

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Nebraska Court of Appeals in an opinion not designated for permanent publication reverses Washington County District Court ruling that gave divorced husband credit for income tax he paid on retirement plan benefits he kept because the parties failed to file a qualified domestic relations order, QDRO, for nearly three years after the court's divorce decree. Sears v. Sears, A-09-378Parties divorced in 2005 and the court ordered a QDRO to deal with the husband's retirement plan. The parties appealed the divorce but did not deal with the retirement assets, so the court's award to the wife of the retirement funds became the law of the case. For nearly three years however without a QDRO the husband continued to receive the full retirement check. Wife sought an accounting for those amounts. Nebraska Court of Appeals rules in her favor and reverses the husband's credit for taxes he paid on the full amount. Blaine v. Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008), holds that an accounting is appropriate to address the monetary balancing required by the delayed entry of a QDRO required by a divorce decree. If and when the judgment is paid, the tax consequences are between the parties and the IRS. To the extent that the record supports a conclusion about taxability, Sonderup‟s testimony was clear that the judgment would not be income to Donna. Accordingly, the award of a credit of $7,458 for husbands income taxes is reversed.

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Order of the Kneepads Update: Nebraska Supreme Court disbars attorney who practiced law while she was suspended for not paying bar dues, for multiple dui and driving while suspended convictions, and for not responding to complaints. Attorney had a prior private reprimand for practicing law while suspended for non-payment of dues. State ex rel. Counsel for Dis. v. Carbullido, S-08-1203, 278 Neb. 721. The evidence establishes that Carbullido has repeatedly violated the law, court orders, and the Nebraska Rules of Professional Conduct. Cumulative acts of attorney misconduct are distinguishable from isolated incidents, and they justify more serious sanctions. Indeed, we have said that ordinarily, cumulative acts of misconduct can, and often do, lead to disbarment. In this case, Carbullido demonstrates a continued pattern of disregard for the rules she must abide by as a lawyer and as a law-abiding citizen. She has continued to flaunt these rules after being given multiple warnings and less severe punishments. We order that Carbullido be disbarred from the practice of law in the State of Nebraska, effective immediately. Carbullido is directed to comply with Neb. Ct. R. § 3-316, and upon failure to do so, she shall be subject to punishment for contempt of this court. Carbullido is further directed to pay costs and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2007) and § 3-310(P) and Neb. Ct. R. § 3-323 within 60 days after an order imposing costs and expenses, if any, is entered by the court.

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Nebraska Supreme Court reverses summary judgment in nursing home negligence case holding that son did not have apparent authority to agree to binding arbitration for his mother's treatment. Koricic v. Beverly Enters. - Neb., S-08-1167, 278 Neb. 713 "The appellant, Frank Koricic (Frank), lived with his elderly mother, Manda Baker (Manda), and assisted her in her daily affairs. When her health declined, she was admitted to Beverly Hallmark, a nursing home in Omaha, Nebraska. At Manda’s admission, Frank signed several documents for her. One of the documents was an optional arbitration agreement. This appeal presents the issue whether Frank had authority to act as Manda’s agent and to enter into the arbitration agreement for her. The district court determined that because Frank had actual authority to enter into the arbitration agreement, the agreement bound her estate. Although we agree that Frank had authority to sign the mandatory paperwork for admission, we conclude that Frank did not have authority to sign the arbitration agreement because it was not a condition of admission. We reverse the district court’s order dismissing Frank’s complaint."

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Nebraska Supreme Court affirms robbery conviction from Gage County; denies defendant's appeal to allow testimony of other inmates that another suspect committed the robberies; denies appeal on prosecutors closing arguments; denies appeal on other crimes evidence; denies appeal on evidence of prior convictions.State v. Epp, S-08-331, 278 Neb. 683Miller-Lerman-J."William A. Epp appeals his convictions and sentences for robbery and possession of a deadly weapon by a felon. Epp was found to be a habitual criminal and was sentenced to imprisonment for 60 to 60 years on each of the two convictions, with the sentences ordered to be served consecutively. We affirm Epp’s convictions and sentences."Whether or not the district court erred in refusing to admit the portions of Mick’s testimony at issue, the guilty verdict rendered against Epp was surely unattributable to such error. The court refused portions of Mick’s testimony in which he denied that he committed the Wymore Casey’s robbery and denied that he told Blessing and Forney that he committed a robbery. Such testimony did not support, and instead refuted, Epp’s defense that it was Mick and not Epp who committed the robbery. Epp presented other evidence raising the possibility that Mick rather than Epp robbed the Wymore Casey’s. The jury apparently rejected such evidence.

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Nebraska Supreme Court dismisses appeal from plaintiff's motion seeking an independent medical examiner to determine whether she required further medical treatment for work injury award from 1995. Judge's denying independent medical examiner was not a final order.Miller v. Regional West Med. Ctr., S-09-100, 278 Neb. 676 "The order of the single judge denying her request for an independent medical examination does not foreclose Miller’s ability to file a petition pursuant to § 48-173 seeking workers’ compensation benefits for her shoulder surgery...Because the requested independent medical examination is not a prerequisite to the filing of a petition under § 48-173 seeking benefits for the proposed shoulder surgery on this record, the denial of the request did not affect a substantial right and is therefore not a final, appealable order."

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