Friday, September 30, 2005

US District Judge Smith-Camp tosses one Initiative 300 corporate farming suit

Federal Judge Smith Camp tosses DeCamp's suit challenging Nebraska Corporate farming ban (Initiative 300), second case against corporate farming amendment still alive. Decamp missed a deadline--No way-- and failed to demonstrate injury. Omaha World Herald Former State Sen. John DeCamp's lawsuit challenging Nebraska's ban on corporate farming has been given the boot by a judge. But another lawsuit challenging the ban is still pending.U.S. District Judge Laurie Smith Camp issued an order late Wednesday throwing out DeCamp's lawsuit. Smith Camp said DeCamp missed a filing deadline and failed to prove he has been harmed by the ban.DeCamp owns farmland in several Nebraska counties and hog businesses. He noted that his lawsuit spurred the filing of the second. "I started the fire. . . . I'm happy and in hog heaven," DeCamp said. The ban, widely known as Initiative 300, was added to the State Constitution through a petition drive spearheaded by the Farmers Union in 1982. I-300 generally prohibits corporations and certain other business entities from owning farmland or engaging in agricultural activity, although there are numerous exceptions. Decamp's suit alleged that I-300 interferes with interstate commerce and violates the U.S. Constitution's equal protection clause. The second lawsuit was filed by former State Sen. Jim Jones and others and claims that I-300 violates the Americans With Disabilities Act because it requires at least one family member who owns the farm to be engaged in day-to-day physical activities on the farm. The ban exempts family owned and operated farms, nonprofit corporations, American Indian tribal corporations, land used for seed or nursery purposes and land used for research or experimental purposes. Potential violators can come into compliance by divesting of their agricultural activity or changing their ownership structure from a corporation or limited liability company to a general partnership. Last year, the U.S. Supreme Court refused to hear an appeal of a decision declaring South Dakota's ban on corporate farming unconstitutional. That ruling, from the 8th U.S. Circuit Court of Appeals, said the South Dakota amendment interferes with interstate commerce and is unconstitutional. The appeals court also said there was little evidence that a ban on corporate farming could help preserve the family farm or protect the environment.

Supremes step in to resolve piping hot pizza dispute

When the Nebraska Bar pushed through creating the Nebraska court of Appeals in 1991, our pocket lining civic leaders said the Supreme Court as the only appellate level court was overburdened with routine appeals that an intermediate appeals court could better handle. Most appeals go through the Court of Appeals but dissatisfied parties may seek discretionary review from the Supreme Court for most types of case. Still the Nebraska Supreme Court retained exclusive jurisdiction of some cases and also retained the discretion to pull pending cases from the Appeals court to the Supreme court in order to "regulate" the dockets of each court. The current Chief Justice employs law clerks to review all pending court of appeals cases that might interest the Supremes. The Supremes must have been hungry this time because they pulled the Douglas county case Magistro v. J. Lou, Inc., 270 Neb. 438 September 30, 2005. No. S-04-138, a dispute between former pizza business partners who spit and accused each other of failing to pay royalties and of stealing trade secrets of pizza production. On February 4, 1994, Magistro and Nolan entered into a contract under which Nolan was to operate a Don Carmelo's Pizzeria at 117th and Blondo Streets in Omaha (the Blondo Street restaurant). In return for $50,000, it was agreed that Nolan could use Magistro's information, methods, trade name, and trade secrets. The trade secrets, which Magistro's petition defined as "an entire array of information starting with the ingredients that go into the Don Carmelo's pizza, strombli [sic], calzone and other Italian dishes," were to be used only in the operation of the Blondo Street restaurant and any subsequent Don Carmelo's Pizzeria licensed by Magistro. Magistro claimed that after licensing the Blondo Street restaurant, he spent months instructing Nolan as to the proper methods to prepare the menu items. Magistro and Nolan entered into a second contract in 1995 for a Don Carmelo's Pizzeria at 76th and Dodge Streets in Omaha (the Dodge Street restaurant). Nolan agreed to pay royalties equal to 5 percent of the gross sales for this restaurant. In April 1996, Nolan changed the name of the Dodge Street restaurant to "Giavonni Santino's Pizzeria" and ceased paying royalties to Magistro. Nolan later began licensing restaurants using the name "Giavonni Santino's Pizzeria." Magistro sued Nolan, alleging that Nolan's failure to pay royalties was a breach of contract. Magistro also claimed that Nolan had entered into a course of advertising to make it appear that Don Carmelo's Pizzeria and Giavonni Santino's Pizzeria were "essentially the same business" and that these deceptive trade practices were intended to confuse customers as to the relationship between the two restaurants. Magistro sought, inter alia, an accounting of royalties due while Nolan operated the Dodge Street restaurant; liquidated damages of $200,000, as called for by the contracts; an injunction against further violation of the Uniform Deceptive Trade Practices Act and the Trade Secrets Act; and attorney fees. The trial court concluded that Magistro had failed to prove his claims and that Nolan's counterclaim had no merit. On November 18, 2003, the court entered an order dismissing Magistro's amended petition and Nolan's counterclaim. Magistro filed a motion for new trial, which was overruled. The definition of a "trade secret" is a question of law. Home Pride Foods v. Johnson, 262 Neb. 701, 634 N.W.2d 774 (2001). When reviewing questions of law, an appellate court has an obligation to resolve the question independently of the conclusion reached by the trial court. Douglas Cty. Sch. Dist. 0001 v. Johanns, 269 Neb. 664, 694 N.W.2d 668 (2005). Magistro testified that the dough recipe used in Don Carmelo's Pizzerias was a recipe that his family created in Sicily before the family moved to the United States. When his father opened a pizza restaurant in New Jersey, only family members were privy to the recipes. Magistro moved to Omaha in 1980 and opened his first pizzeria. Magistro said he protected the family recipes by putting the ingredients into packets that were sealed and refrigerated until needed. An employee would then add water to make the sauce and the dough. Magistro's brother Carman Magistro testified that only members of his family created and prepared the recipes and that no one outside the family knew the recipes. Carman claimed that Don Carmelo's pizza was superior because the dough and sauce recipes were his father's personal recipes. We conclude that the recipes Nolan acquired from Magistro were trade secrets. The recipes derived independent economic value from not being known to other persons, and Magistro and his family made reasonable efforts under the circumstances to maintain their secrecy. The trial court correctly determined that the recipes were trade secrets. The trial court stated, "[T]here's no way to show, in my opinion, that . . . Nolan is still using the same recipes." Although the recipes furnished by Magistro for the dough, sauce, and meatballs were trade secrets, the evidence supported Nolan's contention that he no longer used those recipes. The court stated that it could not find by the greater weight of the evidence that Nolan was using the trade secrets in his business or the restaurants that he had franchised. We agree with the trial court that Magistro failed to show that Nolan was still using Magistro's trade secrets. Magistro testified to his knowledge concerning the operation of a pizza restaurant and the secret family recipes. Magistro was not able to testify that he personally knew Nolan was still using the recipes in his new restaurants, nor did the evidence support that contention. Nolan testified that when he opened the Blondo Street restaurant, Magistro provided him with a dough recipe, a sauce recipe, and a meatball recipe and that no other recipe-related information was given to him. After the Dodge Street restaurant opened in the spring of 1995, Nolan paid royalties to Magistro on that restaurant until April 1996. The restaurant was subsequently relocated to Cass Street, and the names of both restaurants were changed to Giavonni Santino's Pizzeria. Nolan testified that the name change occurred only after Magistro had terminated the contracts by demanding that Nolan cease using the Don Carmelo's Pizzeria trade name, trade secrets, and recipes. Nolan stated that he understood this request to mean that "our contract was over and [Magistro] was going to go ahead and license somebody else in that zone." Nolan also testified that upon attending a pizza convention in early 1996, he discovered that there were recipes for "anything you wanted: [p]izza sauce, pizza dough" and that the convention included demonstrations "to teach you how to do all of this type of thing." He said he then realized that "there were no secrets" because the people at the convention were willing to share information. He stated that he was given a recipe for thin crust New York-style pizza which produced the same type of crust that Magistro claimed was a family secret. Nolan said that when he returned from the convention, he began using the recipe in his restaurants. He testified that he no longer prepared his own meatballs and that they were being purchased commercially, already rolled and precooked. He also changed the sauces by using prepackaged spice mixes to ensure consistency. He stated that these mixtures were different from the recipes provided by Magistro. There was no evidence that Nolan was still using the trade secrets furnished to him by Magistro. Thus, the trial court's finding that Magistro failed to prove that Nolan was using Magistro's trade secrets in violation of the contracts was not clearly wrong. We next address Magistro's claim that Nolan engaged in an advertising campaign with the intent to deceive customers, in violation of the Uniform Deceptive Trade Practices Act. We will not disturb the factual findings of the trial court unless we find them to be clearly wrong. See Par 3, Inc. v. Livingston, 268 Neb. 636, 686 N.W.2d 369 (2004). Magistro claimed that several advertisements could confuse customers or mislead them into believing that Don Carmelo's Pizzeria and Giavonni Santino's Pizzeria were operated by the same parties. Magistro's evidence consisted of photocopies of the yellow pages from a telephone directory. One page listed Don Carmelo's Pizzeria and Giavonni Santino's Pizzeria at the same Blondo Street address and the same telephone number. Magistro claimed that Nolan tried to associate his restaurants with Magistro by calling them "family owned & operated." The Uniform Deceptive Trade Practices Act provides in relevant part: (a) A person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable. Proof of monetary damage, loss of profits, or intent to deceive is not required. Relief granted for the copying of an article shall be limited to the prevention of confusion or misunderstanding as to source. § 87-303. A person engages in a deceptive trade practice when, in the course of his business, vocation, or occupation, he: "(2) Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services; (3) Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another." § 87-302. The trial court found no basis upon which it could rule in Magistro's favor on the issue of deceptive trade practices. We cannot say that the trial court was clearly wrong.
Another liability crisis casualty: Omaha Airport Runway Safety Tool Shelved for Liability concerns, and also from Air Traffic controllers' oppositionSeptember 29th, 2005 Omaha World-Herald via Airport news. The Omaha Airport Authority will end testing and marketing of a system it says is capable of preventing runway collisions and saving lives. Concerns about insurance liability, coupled with opposition from the National Air Traffic Controllers Union, persuaded authority board members and staff to abandon efforts to test and sell the device. "Unfortunately, it might take an accident to get the ball rolling," said Don Smithey, the airport authority's chief administrator. "We're in the business of operating the airport. This was done as a contribution to aviation safety." Even if the authority sold the device, the purchaser would have to agree to indemnify the authority. Otherwise, as the patent holder, the airport authority would not be able to afford the liability insurance premiums that would protect it in case the device ever failed, board members were told Tuesday during their regular monthly meeting. "Park it," said David Sokol, board chairman. "Don't expose the authority to this liability." The board instructed staff, though, to write a letter to the Federal Aviation Administration, reminding the agency that the system was available for testing, at no charge, in exchange for protecting the airport authority from liability. The invention resulted from an FAA request in 2001 for help with a top priority: preventing runway collisions. The National Transportation Safety Board lists preventing runway incursions on its priority list. NTSB's acting chairman, Mark Rosenker, said this month that the FAA's newest system is not adequate to prevent serious runway collisions. Citing several recent near-collisions in which the system -- the Airport Movement Area Safety System -- did not perform, Rosenker said the situations instead were resolved by luck and flight crew actions bordering on the heroic. "That is not good enough," he said Sept. 13 at the American Association of Airport Executives' Runway and Airport Safety Summit. Recent near-accidents included one June 9 at Boston's Logan International Airport and another July 6 at New York City's John F. Kennedy International Airport, where the safety system had been disabled to prevent nuisance alerts or it provided the alert too late. In the JFK near-miss, an ABX DC-8 cargo plane pulled up just in time to avoid hitting an Israir Boeing 767 with 262 people aboard. The jets came within 45 feet of colliding in heavy rain after the 767 mistakenly taxied onto a runway where the DC-8 was taking off. The Airport Movement Area Safety System uses radar to detect when something or someone is on a runway. Radar is expensive, Smithey said, and does not work properly in rain, snow or wind. The system that Smithey and his employees devised uses inexpensive microwave technology that is readily available and impervious to bad weather. The system does not require monitoring by someone in the control tower as traditional radar does, Smithey said. The system consists of a microwave sensor placed near an intersection that detects when a plane or equipment is moving toward a runway. That activates a voice recording in the tower to warn controllers of a potential collision. The system also can send alerts to pilots via a common radio frequency. Incursions are not always reported when they happen at small airports with no air traffic controllers. The Omaha system is simple and inexpensive enough, Smithey said, to be used at those airports, as well. Each unit would cost from $1,800 to $2,500. The system performed well enough in 2001 FAA tests in Omaha that an FAA official, in a strongly worded 2002 memo, lamented the lack of an FAA response. Dennis Lawson, runway safety manager for the FAA central region, called the situation "a crying shame" and said it "borders on negligent." Lawson wrote: "Any product that qualifies as 'Cheap, Fast and Effective' is unusual and certainly worth a look-see by senior Agency/Department decision makers. . . . This one could also very well qualify as that elusive silver bullet all the 'experts' say does not exist. "Heaven help us when we have the fatal runway collision absent this kind of known technology and achievable capability in place. We, the FAA, have not done right by the flying public -- again." Lawson was not available Tuesday to comment on the Omaha board's decision to stop testing or marketing the system. FAA actions to reduce runway collisions have included implementing the Airport Movement Area Safety System in 34 airports nationwide since 2001, a spokeswoman said. Deployment is beginning for a supplement to that system, called Airport Surface Detection Equipment Model X, which would detect movement on runways. The FAA has recorded a 40 percent decrease in the past four years in the most serious runway incursions, spokeswoman Rebecca Trexler said. No one from the National Air Traffic Controllers Union was immediately available Tuesday to comment on why the union opposed testing the system. The authority had been close to completing arrangements for the device to be tested in Cheyenne, Wyo., by the Department of Defense. The commercial airport there is controlled by the Defense Department and its military air traffic controllers. Those plans will be scrapped now. Smithey said he hasn't given up hope that the system someday will be used, but he said that probably will happen outside the United States. "It's certainly disappointing, and it's been very frustrating," Smithey said. Lawson predicted in his 2002 memo that the system would first be used in another country: "If we ever wake up and make it happen here, we'll be paying a lot for what would have been essentially free."

Supremes say 2002 Special Session amendments to first degree murder beyond scope of Unicameral purpose

Nebraska Supreme Court reverses sentence for double murderer convicted of Class IA felony first degree murder; Defendant murdered his parents after the effective date of the 2002 Special Session revisions to the death penalty that SCOTUS Ring v. Arizona, required {jury trials for aggravating circumstances}; Supremes find that amending alternate first degree murder sentence from "life imprisonment" to "life imprisonment without parole" went beyond the subject of the special legislative session and finding plain error, vacate the sentences for life without parole to order 2 consecutive "life" sentencesState v. Conover, 270 Neb. 446 September 30, 2005. No. S-04-576. The district court for Adams County sentenced Louis M. Conover II to two consecutive sentences of life imprisonment without parole after accepting his pleas of no contest to two counts of first degree murder charged as Class IA felonies. In this direct appeal, Conover contends that his sentences are erroneous because an amendment to the statute defining the penalty for a Class IA felony enacted during a 2002 special session of the Nebraska Legislature violated Neb. Const. art. IV, § 8. We find merit in this contention, and therefore, we vacate the sentences and remand the cause to the district court with directions for resentencing Supreme Court will consider plain error as to constitutionality of state statute The constitutional issue presented in this appeal was not asserted by Conover's trial counsel in the district court at the time of sentencing. Generally, a constitutional question not properly raised in the trial court will not be considered on appeal. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000); State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154 (1996). However, where the constitutional invalidity of a statute is plain and such determination is necessary to a reasonable and sensible disposition of the issues presented, we are required by necessity to notice the plain error. See State v. Goodseal, 186 Neb. 359, 183 N.W.2d 258 (1971). In response to the decision of the U.S. Supreme Court in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), the Nebraska Legislature amended Nebraska's capital sentencing statutes by passing L.B. 1 during a special session of the Legislature in 2002. See 2002 Neb. Laws, L.B. 1, 3d Spec. Sess. (Nov. 22, 2002). Even assuming for the sake of argument that the Legislature was merely attempting to clarify what it believed to be existing law when it amended § 28-105(1) in the 2002 special session, we conclude that the amendment was not related to or germane to any of the purposes for which it was called and had no natural connection to such purposes. The Governor's proclamation was narrow and specific, authorizing consideration of changes to existing statutes pertaining to the death penalty. There is no language in the proclamation which can reasonably be construed as authorizing the Legislature to amend a statute pertaining to life imprisonment, whether for purposes of clarification or substantive change. Thus, the 2002 amendments to §§ 28-105(1) and 29-2520(1), which insert the phrase "without parole" after "life imprisonment" contravene the constitutional directive that the "Legislature shall enter upon no business except that for which they were called together" in a special session. See Neb. Const. art. IV, § 8. We therefore conclude that whatever its intent, the Legislature lacked constitutional authority to amend the language of the statutory penalty for a Class IA felony during the 2002 special session. the Legislature lacked constitutional authority to add the phrase "without parole" to § 28-105(1) during the 2002 special session, it also lacked authority to repeal the version of the statute then in existence which prescribed the penalty for a Class IA felony as life imprisonment. Thus, at the time of Conover's sentencing, the district court had statutory authority to impose a sentence of life imprisonment on each of the two counts of first degree murder, but it lacked authority to add the phrase "without parole." Consequently, the sentences were erroneous but not void. See State v. Rouse, 206 Neb. 371, 293 N.W.2d 83 (1980), and Draper v. Sigler, 177 Neb. 726, 131 N.W.2d 131 (1964) (both holding that indeterminate sentence imposed for crime, where not authorized by statute, is erroneous but not void). See, also, State v. Alford, 6 Neb. App. 969, 578 N.W.2d 885 (1998).

Wednesday, September 28, 2005

New "Monica" defense wins an appeal: NCA reverses juvenile adjudication for unlawful sexual contact where the state failed to prove that the defendant's intent for the contact was "sexual"In re Interest of Kyle O., 14 Neb. App. 61September 27, 2005. No. A-04-1477. The county court for Burt County, sitting as a juvenile court, adjudicated Kyle O. under Neb. Rev. Stat. § 43-247(1) (Reissue 2004) for sexual contact with another child, in violation of Neb. Rev. Stat. § 28-320 (Reissue 1995). Kyle appeals. Because we conclude that (1) the trial court did not abuse its discretion in excluding an exhibit that was only partially admissible and (2) the State presented insufficient evidence to establish that "sexual contact" occurred, we reverse, and remand with direction to dismiss. Pursuant to Neb. Rev. Stat. § 43-279(2) (Reissue 2004), when an adjudication is based upon § 43-247(1), the allegations must be proved beyond a reasonable doubt. In re Interest of Cory P., 7 Neb. App. 397, 584 N.W.2d 820 (1998). The State sought adjudication on the basis that Kyle committed a sexual assault. Section 28-320(1) states that [a]ny person who subjects another person to sexual contact (a) without consent of the victim, or (b) who knew or should have known that the victim was physically or mentally incapable of resisting or appraising the nature of his or her conduct is guilty of sexual assault in either the second degree or third degree. Because the State does not assert that Kyle caused serious personal injury to S.S., the alleged sexual assault in the instant case would "be in the third degree and [be] a Class I misdemeanor." Section 28-320(3).Neb. Rev. Stat. § 28-318(5) (Cum. Supp. 2004) defines "sexual contact." Because Kyle's argument does not address or contest the physical touching portion of the definition, we confine our attention to that portion of the definition which states "[s]exual contact shall include only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party." Id.In State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995), though not discussing Hulshizer, the Nebraska Supreme Court rejected the "accused's rule," which is the principle from Hulshizer upon which Kyle relies. In Pierce, the Supreme Court "again overrule[d] those cases espousing the accused's rule as an appropriate standard of review." 248 Neb. at 548, 537 N.W.2d at 330. The Supreme Court adhered to the better rule that "'one accused of a crime may be convicted on the basis of circumstantial evidence if, taken as a whole, the evidence establishes guilt beyond a reasonable doubt.'" Id. at 546, 537 N.W.2d at 329-30, quoting State v. Evans, 215 Neb. 433, 338 N.W.2d 788 (1983). In our view, the decision in Pierce rejects the principle from Hulshizer that Kyle seeks to invoke. [9] However, Kyle also contends that "[t]here was no evidence offered to show whether either party to this alleged incident was sexually gratified or aroused by what happened." Brief for appellant at 4. Citing State v. Berkman, 230 Neb. 163, 430 N.W.2d 310 (1988), the State correctly responds that in proving "sexual contact," as defined in § 28-318(5), the State need not prove sexual arousal or gratification, but only circumstances and conduct which could be construed as being for such purpose. The only question is whether that conduct "can be reasonably construed as being for the purpose of sexual arousal or gratification of either party." We agree with the Illinois appellate court that no bright-line rule applies regarding the age of the child actor. In the instant case, Kyle pulled down S.S.' pants, grabbed S.S.' penis, and made a remark to the other children about the small size of the penis. There may have been another charge that would not have required that the conduct be for the purpose of sexual arousal or gratification; however, as charged in this case, the State had the burden to prove beyond a reasonable doubt that Kyle's actions could be reasonably construed as being for such purpose. The State's only witness testified that he did not know whether it appeared that Kyle was seeking sexual gratification. There is no evidence that Kyle was sexually aroused, and we are left looking to the circumstantial evidence in an attempt to glean Kyle's intent. Significantly, the act occurred outside during the daytime, in the presence of others, and lasted approximately 2 seconds. While Kyle's subsequent nonverbal response manifested an attempt to convey the impression that he had been doing nothing wrong, given that Kyle's actions were wrong on a more basic level, as an offensive touching contrary to the common law, Kyle's response does not provide sufficient proof that Kyle's conduct was for the purpose of his sexual gratification. Although some jurisdictions criminalize sexual contact for the purpose of humiliating or degrading a person, Nebraska does not.It is a function of the Legislature and not of this court to include within the definition of "sexual contact" conduct which can reasonably be construed as being for the purpose of humiliation or abuse. Because the Nebraska definition does not include such conduct and because, upon our de novo review, we cannot find that Kyle's conduct can reasonably be construed for the purpose of sexual arousal or gratification, we find that the State failed to satisfy its burden of proving the elements of the offense beyond a reasonable doubt.
NCA upholds consecutive sentences for 2 counts of sexual assault; defendant had pled guilty but attorney did not appeal. NCA disapproves of Trial court's limiting direct appeal to sentencing issues only; even though the defendant did not appeal this limitation in the trial cour's order, the appeal court finds that it could have found plain error. However record was sufficient to determine other issues of counsel effectivenessState v. Belk, 14 Neb. App. 53 Filed September 27, 2005. No. A-04-1141. The district court for Lancaster County, Nebraska, granted Joshua Belk's motion for postconviction relief, granting Belk the right to a new direct appeal. Belk has now appealed his convictions and sentences stemming from his pleas of no contest to two counts of sexual assault of a child. For the reasons set forth herein, we affirm Belk's convictions and sentences. The court concluded that Belk's trial attorney "failed to act reasonably regarding [Belk's] right to file an appeal because he did not file the requested appeal re excessive sentence and he did not provide information to [Belk] regarding [Belk's] right to request in forma pauperis status regarding an appeal." Therefore, the court held that Belk's "motion for postconviction relief is sustained for the reasons set forth above" and ordered that "[Belk] is hereby granted a new direct appeal re the issue of excessive sentence." The district court appointed the Lancaster County public defender's office to represent Belk in his direct appeal, and Belk has timely appealed to this court.the district court's order granting Belk's motion for postconviction relief limited the direct appeal to "the issue of excessive sentence." Belk has not appealed from the district court's order granting his motion for postconviction relief. We note that since postconviction proceedings are special proceedings, and because the district court's decision affected a substantial right of Belk's, the district court's order was a final and therefore appealable order. See State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998). Despite the fact that Belk failed to appeal from the district court's order limiting the issues of his direct appeal to the matter of excessive sentences, we note that an appellate court always reserves the right to note plain error which was not complained of at trial. State v. Davlin, supra. Plain error exists where there is error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. Id. The Nebraska Supreme Court has previously noted the following regarding the district court's power to grant postconviction relief: Although the district court has the implicit authority to grant a new direct appeal in a postconviction action, we are unable to find any authority that grants a district court the power to limit the issues of that direct appeal, and we determine that in a postconviction action, the district court does not possess the power to limit the issues when it grants a new direct appeal. Therefore, we find that it was plain error for the district court to limit the direct appeal granted to Belk to the issue of excessive sentences. If a judgment is entered without jurisdiction of the person or the subject matter or in excess of the court's power, it is void and may be collaterally impeached. In re Interest of William G., 256 Neb. 788, 592 N.W.2d 499 (1999). Because that portion of the district court's order limiting Belk's direct appeal was in excess of the court's power, it is void. As a result, Belk is entitled to a full direct appeal. After examining the record and each of Belk's allegations of ineffective assistance of counsel, it is clear to us that the record before us is not sufficient to properly address his allegations.
Follow up: NCA upholds dismissing action against already deceased Lutheran High School Teacher in Seward for sexual abuse plaintiff alleged occurred in the early 70's. NCA finds the "continuing tort" tolling doctrine applicable to professional negligence cases did not apply where the defendant intermittently wrote letters to the Plaintiff over the years. Finally even if the Plaintiff suffered from a mental disorder the court requires proof of Plaintiff's mental incapacity to protect her legal rights before allowing her cause of action to toll. Anonymous v. St. John Lutheran Church, 14. Neb. App. 42 September 27, 2005. No. A-04-275.Anonymous filed suit against St. John Lutheran Church of Seward, Nebraska, a Nebraska corporation, and Gary Lewien and John Doe 1 through 2,300 (real names unknown), doing business as St. John Lutheran Congregation, an unincorporated religious association (collectively St. John); the Nebraska District of the Lutheran Church-Missouri Synod, a Nebraska corporation, and the Lutheran Church-Missouri Synod, a Missouri corporation (subsequently dismissed as parties); and the estate of David Mannigel, deceased (Estate of Mannigel), based upon allegations of sexual abuse perpetrated by Mannigel in the early 1970's when Anonymous was between the ages of 10 and 12. Finding that Anonymous' claims were barred by the statute of limitations, the district court granted summary judgment and dismissed the petition. We affirm.Neb. Rev. Stat. § 25-207(3) (Reissue 1995) sets forth a 4-year statute of limitations for "an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated." Neb. Rev. Stat. § 25-213 (Reissue 1995) provides that if a person entitled to bring any action mentioned in this chapter . . . is, at the time the cause of action accrued, within the age of twenty years, a person with a mental disorder, or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this chapter after such disability is removed. [3-5] The alleged abuse occurred in 1971 and 1972, when Anonymous was between the ages of 10 and 12. Because the alleged abuse occurred when Anonymous was "within the age of 20 years," see § 25-213, Anonymous had 4 years from the time she became 21 years of age to file suit. See Brown v. Kindred, 259 Neb. 95, 100, 608 N.W.2d 577, 580 (2000) ("'within the age of 20 years'" means until one becomes 21 years old). Contrary to the district court's finding that Anonymous attained the age of majority in 1981, we observe that Anonymous turned 21 in 1982Anonymous did not file the petition until after the death of Mannigel.Although Anonymous argues that she suffered from a mental disorder that prevented her from instituting legal action, such assertion is unsupported by the evidence, even when viewed in the light most favorable to Anonymous. Continuing Tort doctrine in applicableNebraska law does recognize that a continuous relationship may toll the statute of limitations but requires that there be a continuity of the relationship and services for the same or a related subject matter after the alleged professional negligence. See Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999). A "continuing tort doctrine" is inapplicable in the case before us. The alleged sexual abuse ceased in 1972. Although a counselor explained that each time Mannigel corresponded with Anonymous it was like "tearing the scab off of a wound," Mannigel's contact with Anonymous after that point--such as sending Anonymous cards and money and seeing her at her parent's house--was not wrongful conduct in the legal sense and does not rise to the level needed to be actionable as an intentional infliction of emotional distress.Anonymous attempts to define the continual ill effects of the original violations as continuing unlawful acts. Construing Mannigel's subsequent contacts as unlawful--and thus equating them with the earlier acts of sexual abuse--would throw open the doors to permit filing of such actions at any time. A chance encounter on a city street would be given the same legal effect as the despicable acts of sexual abuse which were alleged to have occurred during the 1970's. We decline to apply the continuing tort doctrine in such fashion.Mental Disorder. Anonymous also argues that § 25-213--which tolls the time for bringing an action if the claimant "is, at the time the cause of action accrued . . . a person with a mental disorder"--applies in the case before us. In Vergara v. Lopez-Vasquez, 1 Neb. App. 1141, 510 N.W.2d 550 (1993), this court determined that the substitution of the phrase "a person with a mental disorder" for the word "insane" in § 25-213 did not change the legal standard involved. We found that a person with a mental disorder is one who suffers from a condition of mental derangement which actually prevents the sufferer from understanding his or her legal rights or from instituting legal action. Vergara, supra. A mental disorder within the meaning of § 25-213 is an incapacity which disqualifies one from acting for the protection of one's rights. Vergara, supra.(Plaintiff's experts witnesses affidavits fail to state an admissible opinion that her mental disorders were of this severity to allow tolling the statute of limitations.)Viewed in the light most favorable to Anonymous, this evidence does not establish an issue of fact concerning the existence of a mental disorder within the meaning of § 25-213.

Sunday, September 25, 2005

Iowa Attorney General and Smithfield Foods agree to drop suit AG brought againstSmithfield for packer's acquiring forward contracts to purchase livestock for slaughter. 8th Circuit had remanded Southerndistrict of Iowa Federal Court's ruling finding the Iowa law against packer ownership of livestock violated federal dormant commerce clause. Iowa legislature had amended portions of its anti-packer integration law after the federal district court ruling, but ultimate decisionwas still up in the air. This follows recent 11th circuit ruling that IBP/Tyson had not violated the FEderal Packers and Stockyards act for carrying out similar trade practices. Senators Harkin and Grassley find common ground in proposing a federal law similar to the IOwa anti-packer integration law.Iowa Farmer Today DES MOINES -- After a tough six-year game of legal football, the Iowa Attorney General's office and attorneys from Smithfield Foods agreed to call it a tie and go home.At least that's the way some might describe the settlement announced late last week of a lawsuit over the state's ban on packer ownership of livestock. "I think it reflects the reality of the situation," says Roger McEowen, associate professor of agricultural law at Iowa State University. "In a perfect world, this would be settled. . . . It's not a perfect world." Instead, the settlement announced Sept. 16 will allow Smithfield to continue owning packing plants and contracting for hogs with Iowa producers in exchange for the company dropping its challenge to Iowa's ban on packer ownership of livestock. The company also will agree to a number of requirements for treatment of farmers who have contracts with it. The law stays on the books, but the state will not enforce it against Smithfield. That, McEowen says, may be the best attorneys from both sides could hope for. To continue with the case would require time and money, and the outcome would still be in doubt. The case began in 1999, when the state attorney general sought to block Smithfield Foods from buying Murphy Family Farms, a North Carolina-based company that contract fed hogs and had several hundred producers in Iowa under contract. Smithfield already owned packing plants in Iowa. State law bans packers from owning livestock. The company later sued in federal court to have the law overturned. It won the first round when U.S. District Court Judge Robert Pratt ruled in January 2003 the Iowa law violated the commerce clause of the U.S. Constitution. The clause says states cannot regulate business that operates across state lines. Iowa Attorney General Tom Miller appealed that ruling to the Eighth Circuit U.S. Court of Appeals in St. Louis. The court of appeals threw out the ruling and sent the case back to Pratt, who was then scheduled to hear arguments on the case in May 2006. The Sept. 16 announcement of a settlement makes that unnecessary. Describing the case as "difficult," Miller says pushing it would be an "uphill" battle that would require time and money. With that in mind, both sides began to talk about a settlement. "Frankly, a good settlement is more satisfying than a court decision," says Richard Poulson, executive vice president and general counsel of Smithfield. "We have to do this together." The settlement was approved by Gov. Tom Vilsack and legislative leaders of both political parties. It says if Smithfield abides by its part of the agreement, the state will not enforce the ban on packer ownership or control of hogs against the company for 10 years. In return Smithfield agrees to a number of measures, most regarding its dealings with farmers, including: > For two years, at least 25 percent of the hogs collectively slaughtered at its Iowa plants and its Sioux Falls, S.D., plant will be purchased on the open market from sellers other than Smithfield affiliates. >The company has informed the attorney general it intends to keep its Iowa plants and its Sioux Falls plant open and agrees to provide 90 days notice of any plant closure to the attorney general. >Smithfield will spend $100,000 a year for 10 years to fund environmental programs at Iowa State University that will train the company's pork producers in environmental practices. >Smithfield will spend $100,000 a year for 10 years on a grant program for Iowa citizens and organizations pursuing innovative programs to advance swine production in the state. >The company will not coerce, retaliate against or discriminate against a contract producer who exercises producer rights. That would include termination of contracts. >Smithfield would not require contract producers to make capital investments in addition to what is already stipulated in the contract unless fair compensation is paid to the producer. >Smithfield would not require producers to use binding arbitration to resolve disputes. >Smithfield must not finish hogs in company-owned facilities for at least five years. The only exception to this would be in cases where the company needs to replace producers who decide they do not wish to continue finishing hogs under the same or better economic terms. >"Whistleblowers" will not be punished and contract producers will be allowed to join associations, use contract producer liens and to publicly discuss and disclose the terms of their contracts. Poulson says the company has no qualms about those requirements. "Smithfield growers already have those rights," he says. "We do not mistrust our farmers." Miller has been pushing to make many of those producer rights provisions state law under a proposed "Producer Protection Act." But, after several years, the proposed act has not been passed by the Legislature. The governor and legislative leaders from both parties issued statements after the settlement was announced saying they support the agreement. A news release from Iowa Citizens for Community Improvement said the settlement does not help farmers get a fair price or reverse the corporate takeover of the livestock industry. Sen. Tom Harkin, D-Iowa, issued statement saying the settlement came in part because federal courts in recent years have not been kind to state laws governing commerce. Because of that, he said, the federal government needs to enforce the Packers and Stockyards Act and anti-trust laws. "Federal enforcement of these laws has been virtually nonexistent in recent years," he said. Harkin and Sen. Charles Grassley, R-Iowa, have pushed federal legislation to ban packer ownership of livestock. They also have supported a national version of the producer protection act and have urged the Iowa Legislature to pass the state version of that proposal.

Will $18+milliion verdict against GM stand up in the Supremes?

Neb Supremes hear GM appeal of $18.6 million rollover verdict Associated Press; Supreme Court website case summary cites GM's alleged error in seat belt instructions and evidence of other roll-overs. General Motors wants the Nebraska Supreme Court to vacate an $18.6 million award to a Lincoln woman who was paralyzed from the neck down in a rollover crash. The high court will hear arguments Oct. 7 in a case involving Penny Shipler, 38, of Lincoln, who was paralyzed in 1997 when the Chevrolet Blazer in which she was riding left U.S. Highway 34 near Lincoln and rolled several times. Her attorneys argued at trial that Shipler would have escaped such serious injury had General Motors’ Chevrolet division built the 1996 Blazer with a sturdier roof. “In that single moment, Shipler turned from a vibrant 30 year-old woman, actively caring for her three young children, to a wheelchair-bound invalid facing a future of helpless paralysis and continuing debilitating pain and depression,” said Shipler’s lawyers, Dan McCord and Michael Piuze, in briefs submitted in the case. On appeal, GM argues that the jury award “resulted from passion and prejudice.” GM also argues that Lancaster County District Judge Steven Burns committed several errors, including refusing to allow the jury hear evidence that the driver of the Blazer, Kenneth Long, had been drinking before the accident. GM argues that Shipler was negligent for knowingly riding with him. GM also says that Burns erred by allowing Shipler’s lawyers to introduce evidence of approximately 40 other Blazer rollover accidents that happened under markedly different circumstances. GM also says that when the jury was deadlocked after several days of deliberations, Burns told them “a deadlock would be disappointing and a waste and reminded them that only 10 jurors need agree.” “Three days later, the jury, 10-2, returned a nearly $20 million verdict,” said GM lawyer Frank Hinman in briefs submitted in the case. GM also argues that Burns erred in the jury instruction used in the case. “It was all improper under Nebraska law and constitutionally out-of-bounds,” Hinman said. “The case went to the jury with erroneous, inconsistent, confusing instructions, and deteriorated from there.” In a friend-of-the court brief filed by the Nebraska Association of Trail Attorneys, lawyer Jeffry Patterson discounted GM’s argument that Shipler should have been held partially negligent for riding with Long because she knew he had been drinking. He said that conflicts with state law and “GM’s duty to produce a reasonably crashworthy vehicle.” “Given the proof at trial as to the enormity of Penny Shipler’s loss, it is simply impossible to conclude that the jury reached its decision by way of something other than the evidence,” Patterson said. In another friend-of-the-court brief, the Product Liability Advisory Counsel argues that Shipler should be held partially responsible for her injuries. “This court has held on several occasions that when a plaintiff such as Shipler knew or should have known that the driver was intoxicated, the plaintiff’s choice to ride with the driver violates her duty of care and is a proximate cause of her injuries resulting from an accident,” wrote attorney Mark Olson. Shipler also sued Long. The award was made jointly against General Motors and Long. Long sustained broken ribs and other injuries. Authorities later charged him with driving while intoxicated. The Nebraska Supreme Court case summary outlines the errors as: FRIDAY, OCTOBER 7, 2005, subject to call at 9:00 a.m. S-03-1472, Penny Shipler (Cross-Appellant) v. General Motors Corporation (Appellant) and Kenneth Long Lancaster County, Judge Steven D. Burns Attorneys: Jeanelle R. Lust, Rodney M. Confer (Knudsen Berkheimer) and Frank M. Hinman, Thomas S. Hixson, Mary Lee, Rianne E. Nolan, Marc R. Bruner, David M. Heilbron (Bingham McCutchen LLP (for Appellant General Motors Corporation) ---Dan L. McCord (McCord Burns) and Michael J. Piuze (for Penny Shipler) Gail S. Perry, Jenny L. Panko (Baylor Evnen Curtiss Grimit & Witt LLP) (for Kenneth Long) --- Jeffry D. Patterson (Bartle Geier) (Amicus Curiae Nebraska Association Trial Attorneys) --- Gregory D. Barton (Harding Schultz & Downs) and Mark S. Olson (Oppenheimer Wolff) (Amicus Curiae Product Liability Advisory Council, Inc.) Civil: Tort--Product Liability Proceedings below: A jury returned a verdict in favor of Shipler against GM and Long, jointly and severally, in the amount of $19,562,000. The trial court reduced the verdict by 5% to $18,583,900. The court ordered GM to pay pre-judgment interest of 7.052% per year. Issues: The trial court erred in (1) effectively directing a verdict for Shipler against GM, Long or both; refusing to give GM’s proposed defense verdict form; and denying without notice to counsel, the jury’s subsequent request for a defense verdict form; (2) instructing the jury orally, not in open court and without notice to counsel; (3) giving an Allen v. United States, 164 U.S. 492 (1896) “dynamite” instruction to the jury; (4) barring GM’s contributory negligence defense and the evidence relevant to it; (5) refusing to permit the jury to allocate liability for non-economic damages in proportion to percentage of fault; (6) excluding evidence of Long’s intoxication relevant to his comparative fault and Shipler’s negligence in riding with him; (7) excluding evidence of Shipler’s seatbelt misuse, relevant to contributory negligence and injury causation; (8) admitting evidence of dissimilar incidents; (9) admitting opinions of an advocate on GM’s supposed intent to undermine Federal Motor Vehicle Safety Standard 216 for standards for roof strength; (10) giving improper and misleading jury instruction that FMVSS 216 is a federal regulation without explanation that compliance is required by law; (11) failing to strike the award for future wage loss; (12) giving the instruction regarding Shipler’s collateral source benefits; and (13) upholding the jury’s verdict. Issues by Appellee Long: The trial court erred in (1) giving a limiting instruction to the jury regarding Shipler’s quadriplegia and in refusing to permit the jury to allocate damages between Long and GM based on which injuries were caused by the conduct of each; (2) denying Long’s multiple motions to dismiss; (3) instructing the jury as to the possible verdicts that could be rendered and in failing to provide the jury with a defense verdict form; (4) failing to strike the award for future wage loss; (5) in giving a limiting instruction regarding Shipler’s collateral source benefits; and (6) upholding the jury’s verdict. Shipler’s Cross-Appeal: The trial court erred in reducing the jury’s award by five percent.

Friday, September 23, 2005

Supremes uphold quo warranto removal of county board member who submitted resignation letter then retracted it. When disgruntled Boone County commissioner Randolph Little signed a resignation letter, he told the Commissioner Chairman Henry Thieman to do what was necessary to effect his resignation. When Little changed his mind he tried to stay in office. Supremes uphold Boone County attorney's quo warranto action to remove Little from office, finding that Commissioner Little's handing the resignation letter to the chairman amounted to giving the chairman apparent authority to carry out the steps to have Little resign from the Boone County Board. Little also alleged mutual mistake because neither he nor Thiemann board chairman followed proper procedures. Supremes hold this error waived. State ex rel. Medlin v. Little, 270 Neb. 414 September 23, 2005. No. S-04-830. Connolly, Justice: § 32-562(5) RRS Neb(Reissue 2004) provides the procedure to follow when a county commissioner resigns from office. It states that a resignation becomes effective when accepted by the county clerk. The appellant, Randolph C. Little, drafted and signed a letter of resignation and delivered it to Henry R. Thieman, the chairman of the Boone County Board of Commissioners. Thieman delivered the resignation to the Boone County clerk. Little claims that Thieman lacked authority to deliver the resignation letter. After the county attorney filed a quo warranto action, the district court found that Little had resigned and ousted him from office. Little appeals. We affirm because, in our de novo review, we find that Thieman had apparent authority to deliver the resignation to the county clerk. "Although an agency relationship existed between Little and Thieman, we look to whether Thieman acted within the scope of the agency. The scope of an agent’s authority is a question of fact. Oddo v. Speedway Scaffold Co., 233 Neb. 1, 443 N.W.2d 596 (1989). When establishing agency, a fact finder must consider the facts and circumstances of the case, the parties’ relationship, their usual course of dealing, any instructions given, the parties’ conduct, and the nature of the transaction. See Goldfein v. Continental Ins. Co., 125 Neb. 112, 249 N.W. 78 (1933)." Apparent or ostensible authority gives a professed agent the power to affect the principal’s legal relationships with third parties. The power arises from, and is limited to, the principal’s manifestations to those third parties about the relationships. See Franksen v. Crossroads Joint Venture, 245 Neb. 863, 515 N.W.2d 794 (1994). Said another way, apparent authority is such authority as the agent seems to have by reason of the authority she or he actually has. Double K, Inc. v. Scottsdale Ins. Co., 245 Neb. 712, 515 N.W.2d 416 (1994). in order for the principal to incur responsibility for the acts of an agent with apparent authority, the authority must be traceable to the principal’s own conduct; it cannot be established only by the agent’s acts, declaration, or conduct. Double K, Inc. v. Scottsdale Ins. Co., 245 Neb. 712, 515 N.W.2d 416 (1994). Apparent authority to perform an act exists when a principal’s conduct causes a third person to reasonably believe that the principal agreed that the person purporting to act for him or her could do so. See First Nat. Bank of Omaha v. Acceptance Ins. Cos., 12 Neb. App. 353, 675 N.W.2d 689 (2004) By drafting the letter, signing it, delivering it to Thieman, and then instructing him to “do what you have to do,” Little clothed Thieman with apparent authority. Aware of these facts, the county clerk could reasonably believe that Thieman had the authority to tender Little’s resignation. Moreover, Little’s nonchalant instruction carelessly set off the chain of events leading to the county clerk’s acceptance of the letter.
Caution to home sellers who allow purchasers to move in early. Supremes agree that seller bears risk of loss until closing unless the parties specifically agree to the contrary; in this case a requirement that the purchaser moving in early should reimburse the seller for damage did not ovverride specific agreement that the seller would maintain fire insurance on property until closing.Seller may not pursue equitable subrogation action against prospective purchaser Hans v. Lucas, 270 Neb. 421 Filed September 23, 2005. No. S-04-1179. Seller of home, Jayme Hans, brought equitable subrogation action against the buyer of a home, Penny Lucas. The action was filed as a result of damage sustained to the home in a fire. At the time of the fire, Hans and Lucas had entered into a purchase agreement, but closing had not yet occurred. The purchase agreement contained provisions permitting Lucas to reside in the home pending closing. Hans alleged that Lucas’ conduct caused the fire and damages. The legal issue, presented to the district court upon both parties’ filing motions for summary judgment and agreeing to a stipulation of facts, was whether Hans could maintain a subrogation action against Lucas given the relationship between Hans and Lucas created by the purchase agreement. The district court determined that Hans bore the risk of loss under the purchase agreement and was therefore precluded from seeking subrogation against Lucas. Upon the court’s dismissal of Hans’ motion for summary judgment and granting of Lucas’ motion for summary judgment, Hans appeals.The Supreme Court affirms the District court's summary judgment. "Lucas contractually agreed to bear the risk of fire, noting that in the addendum, Lucas agreed to accept liability for any damages over and above normal wear and tear. However, we agree with the district court that this provision was not an agreement to bear the risk of damages caused by fire. First, as the district court noted, the addendum also stated that Hans’ reimbursement for such damages would be deducted from the earnest money deposit, refuting any purported intent to hold Lucas liable for material damages caused by fire. Second, Hans’ argument is inconsistent with her specific agreement to carry fire insurance. See Krzycki v. Genoa Nat. Bank, 242 Neb. 819, 496 N.W.2d 916 (1993) (specific contractual provisions control over related general provisions)."" Applying the reasoning in Midwest Lumber Co. v. Dwight E. Nelson Constr. Co., 188 Neb. 308, 196 N.W.2d 377 (1972), we determine that because Hans contractually assumed Lucas’ risk of loss by fire, Lucas was an implied coinsured for the limited purpose of defeating Hans’ subrogation claim. See Employers Reins. Corp. v. Santee Pub. Sch. Dist. No. C-5, 231 Neb. 744, 438 N.W.2d 124 (1989) Although an insurance company has the right to recover against a wrongdoer whose conduct has subjected the insurance company to liability, no right of subrogation can arise in favor of an insurer against its own insured. Jindra v. Clayton, 247 Neb. 597, 529 N.W.2d 523 (1995)."

Wednesday, September 21, 2005

NCA finds that Douglas County District Court failed to apply Schumann rule to analyzing marital/non-marital property. Spouses voluntarily revoked their pre-nup agreement before filing divorce, however, this does not automatically alter the characteristics of property they designated as marital or non-marital; Court failed to apply Schuman rule 265 Neb. 459 2003, in which the Nebraska Supreme Court held just 4 months before the divorce trial that in analyzing whether property is marital or not, the actual titling of the property does not automatically determine its marital or non marital nature. Husband failed to allege Schuman error as to one item of property; wife was entitled to some credit on premarital asset because loans she took out helped make payments on it; NCA holds that non expert witness, in this case the wife could testify as to real estate value. NCA also allows court to consider wife's post separation pension contributions to a retirement plan as her own. Nygren v. Nygren. 14 Neb. App. 1 Filed September 20, 2005. No. A-03-1042.Richard R. Nygren appeals the decree of the Douglas County District Court dissolving his marriage to Cheryl A. Nygren and dividing the parties' property. On appeal, he essentially argues that the trial court erred in classifying certain items and assets as marital property and in dividing the marital estate. We hold that the trial court incorrectly applied the rule from Gerard-Ley v. Ley, 5 Neb. App. 229, 558 N.W.2d 63 (1996), that was specifically disapproved in Schuman v. Schuman, 265 Neb. 459, 658 N.W.2d 30 (2003), prior to the trial court's decision. We also hold that the trial court abused its discretion in characterizing some of Richard's nonmarital property as marital property, and we affirm as modified.Richard contends that the evidence does not support a finding that he gifted his premarital assets, including the farmland and farm equipment, to the marital estate. We begin by recalling a basic principle: Property owned by a party at the time of marriage is not marital property. Smith v. Smith, 9 Neb. App. 975, 623 N.W.2d 705 (2001). "At the time the parties made their antenuptial agreement, public policy in Nebraska prohibited enforcement of a provision in such an agreement purporting to forfeit property rights in the event of a divorce. See Mulford v. Mulford, 211 Neb. 747, 320 N.W.2d 470 (1982) (generally, antenuptial agreements providing that in event of divorce or separation, each spouse should forfeit his or her rights in property of other, are contrary to public policy and void as tending to promote divorce). Thus, such agreements were enforceable only in accordance with testamentary dispositions or other transfers taking effect at death. In finding that the parties had gifted their premarital assets to the marriage, the trial court was apparently relying upon Gerard-Ley v. Ley, 5 Neb. App. 229, 558 N.W.2d 63 (1996), in which this court held that when a husband and wife take title to a property as joint tenants, even though one pays all the consideration therefor, a gift is presumed to be made by the spouse furnishing the consideration to the other. However, approximately 4 months before the trial court filed its decree in this case, the Nebraska Supreme Court expressly disapproved Gerard-Ley in Schuman v. Schuman, supra, which held that the manner in which property is titled or transferred by the parties during a marriage does not restrict the trial court's determination of how the property will be divided in an action for dissolution of marriage. Therefore, we conclude that the trial court applied the wrong rule in determining that the parties had gifted their premarital assets to the marriage. Although we agree with the trial court's determination that the parties agreed to revoke their antenuptial agreement, it does not follow that they also agreed to convert their sole property to jointly owned property. Had they intended to do so, the portion of Richard's will providing that Cheryl would receive a one-half interest in the farm upon Richard's death would have been superfluous, because Cheryl would have already owned a one-half interest in the farm. Thus, the will does not support the notion that the parties intended to gift their premarital interests to each other; instead, it lends support to the opposite conclusion." Because it is undisputed that Richard owned the 40 acres in question prior to the marriage, the initial issue is whether the Van Newkirk exception applies so that the property should be included in the marital estate. The antenuptial agreement, assuming it was ever effective, had been revoked by the parties, and any funds Cheryl earned before the marriage were her separate property, while any funds she earned during the marriage were marital property. See Tyma v. Tyma, 263 Neb. 873, 644 N.W.2d 139 (2002). Therefore, pursuant to Van Newkirk v. Van Newkirk, 212 Neb. 730, 325 N.W.2d 832 (1982), and Tyler v. Tyler, 253 Neb. 209, 570 N.W.2d 317 (1997), we conclude that Cheryl's contributions of not more than $5,200 from her separate property were not so significant as to garner Cheryl an interest in Richard's farm. "Although we conclude that Cheryl never acquired an interest in the farm, the revocation of the antenuptial agreement did operate to allow Cheryl to acquire an interest in the contributions she made to the Wahoo State Bank loan--whether from premarital or marital funds. Therefore, Cheryl is entitled to be compensated in full for her contributions from premarital funds and to receive one-half of the remainder, which came from marital funds. However, Cheryl did not present evidence of the value of her premarital contribution. She testified that she contributed not more than $5,200 in premarital funds, that amount being an estimate of her assets at the time she signed the prenuptial agreement. We consider this estimate upon an estimate to be insufficient evidence of the value of Cheryl's contribution from premarital funds, and we therefore consider her entire contribution of $21,959.29 to be from marital funds and conclude that she is entitled to compensation for half of that sum, or $10,979.65." "First Baptist Church v. State, 178 Neb. 831, 834-35, 135 N.W.2d 756, 758-59 (1965), sets forth the general rule for lay witnesses without ownership testifying about the value of land: It is necessary only to show that he has the means of forming an intelligent opinion derived from an adequate knowledge of the nature and kind of property in controversy, and of its value"we conclude that Cheryl demonstrated an acquaintance with the land and the state of the market and that the trial court did not err in allowing her opinion as to the value of the land, over Richard's objections. Although Neb. Rev. Stat. § 42-366(8) (Reissue 2004) requires that any pension plans, retirement plans, annuities, and other deferred compensation benefits owned by either party be included as part of the marital estate, the plain language of the statute does not require that such assets be valued at the time of dissolution; the expression "at the time of dissolution" in § 42-366(8) qualifies the date at which the marital estate is divided but does not provide that pension-type property must be valued on such date. Hosack v. Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004). The ultimate test in determining the appropriateness of the division of property is fairness and reasonableness as determined by the facts of each case. Tyma v. Tyma, 263 Neb. 873, 644 N.W.2d 139 (2002). Based on this authority, we conclude that the trial court was reasonable and did not abuse its discretion in allowing Cheryl to subtract her postseparation contributions from the value of her annuity. She and Richard were no longer supporting each other at that time, and Cheryl logically accounted for the amount of those contributions. Omaha properties: Cheryl also argues that the parties' first house in Omaha constitutes a marital asset because it was titled in joint tenancy However, at no time does Richard argue or assign that the trial court erred in including the net value of the duplex, which was eventually purchased from the proceeds of the sale of the first Omaha house, in the marital estate. Therefore, we need not consider the classification of these houses further. See Schnell v. Schnell, 12 Neb. App. 321, 673 N.W.2d 578 (2003) (alleged errors must be specifically assigned and specifically argued in order to be considered by appellate court). On our de novo review, we hold that the trial court applied an incorrect standard in determining the marital estate, that the trial court abused its discretion in including some of Richard's farm equipment in the marital estate, and that Cheryl should receive compensation for contributions she made to the farm debt. Therefore, we affirm the trial court's decree, as modified. .

Enviros fault Scotus ruling for wetlands' draining

Enviros criticize Army Corps decision to open Tracts of Wetlands to Development following SCOTUS decision from 4 years ago; but if they want more landing areas for ducks, they can go to Congress to change the law September 20, 2005 — Duluth News-TribuneDespite continued government pledges to protect wetlands, the U.S. Army Corps of Engineers has opened thousands of acres of wetlands to development in recent months across the United States. That's the finding of a report released Thursday by the Environmental Integrity Project, a Washington, D.C.-based environmental group. It used the Corps' own regional district reports that show more than 11,000 acres have been opened to draining during the past 18 months across 15 states -- including Minnesota, Wisconsin and the Dakotas. Those wetlands were deemed by the Corps as outside federal protection based on a 2001 U.S. Supreme Court decision SOLID WASTE AGENCY OF NORTHERN COOK CTY. V.ARMY CORPS OF ENGINEERS (99-1178) 531 U.S. 159 (2001) . Justices ruled the federal Clean Water Act doesn't protect wetlands that aren't attached to navigable waterways. 33 USC 1362(7). The Corps says it has closely followed that decision and that most of its lower court challenges have been upheld. Because of the exemption, none of the acres would need to be replaced by developers or farmers filling or draining them. It's not known how many have actually been filled or drained. The 11,000 acres is likely a low number, the group said, and doesn't include wetlands covered by federal protection for which a permit to fill or drain was issued. In some cases, the Corps didn't list the number of acres exempted in a project. Eric Schaeffer, Environmental Integrity Project director, said the Corps was going beyond the Supreme Court decision by allowing wetlands to be developed that still should be protected. In some cases, he said, the Corps was ignoring the Endangered Species Act by allowing wetlands holding endangered species to be filled. Schaeffer also blamed President Bush and Congress for pledging to protect wetlands but failing to act strongly. "We have a president who has pledged no net loss of wetlands, but we are still losing thousands of acres under his leadership," Schaeffer said. "Congress has failed to act to shore up wetlands protections after the Supreme Court decision... And as bad as the Supreme Court decision was, the Army Corps has made it worse by going further than the opinion required." The group found that several corporations will benefit from recent Corps decision to allow wetland filling, including a Wal-Mart in Texas, a titanium sand mine in Georgia, a peat mine in Florida and, in several states, housing subdivisions and golf courses. Candy Walters, spokeswoman for the Corps headquarters in Washington, D.C., said lower courts have upheld eight of nine challenges to Corps wetlands decisions in recent years, indicating the Corps is interpreting the Supreme Court decision correctly. "We have an exceptional record when jurisdiction has been challenged," Walter said, adding that the Corps has made no effort to tally the acres of wetlands lost since the 2001 Supreme Court decision. "We're focusing on protecting wetlands that we do have jurisdictional authority over," she said. Schaeffer said the report was released as Senate confirmation hearings were under way for U.S. Chief Justice nominee John Roberts in Washington. "This shows the courts have huge power over natural resource protections," Schaeffer said, noting people should be able to learn Roberts' views on environmental protection. Wetlands are considered critical for many wildlife species such as migratory waterfowl but also to buffer against floods and to help cleanse stream water and groundwater. The EPA estimates nearly a third of all endangered species spend all or most of their time in wetlands. The Corps has been especially busy allowing projects in the most critical waterfowl habitat. In North Dakota, since April 2004, the Corps approved draining or filling wetlands in 69 of 77 requests. In South Dakota, 54 of 125 projects were allowed. Nebraska had nearly 3,000 acres exempted. "If this trend continues, and you're a migratory bird flying over the Dakotas, you're going to need to carry your own water," Schaeffer said. Dave Zentner, a Duluth Izaak Walton League activist and organizer of last spring's wetlands rally at the Minnesota state Capitol, said government is sending mixed messages about wetlands. For example, the Bush administration issued an executive order to agencies requiring that the 2001 Supreme Court decision be interpreted broadly to allow wetland draining. Then, under pressure from conservation groups, he issued a less powerful decree saying the decision should be interpreted narrowly. But the original order still has not been rescinded, Zentner noted. Some state politicians joined thousands of wetland supporters at the Capitol rally last spring but then failed to pass any meaningful wetlands protections. "We need to find out if no net loss of wetlands really means that. This is a huge issue," Zentner said. "The bottom line is that we continue to slide the wrong direction." The United States has lost more than half its original wetlands over the past200 years. Wetland losses averaged 300,000 acres each year in the late 1970s and early 1980s, according to the U.S. Fish and Wildlife Service, but slowed to about 60,000 acres a year in the late 1990s under Clean Water Act protections -- before the Supreme Court decision. The report, including state listings, can be seen at

Nelson likely a "yes" for Scotus Chief Roberts

MSNBC reports that Nelson is likely to vote yes for SCOTUS Chief Justice Roberts. Chief justice nominee John Roberts seems to be headed for the Supreme Court with the vote on his confirmation set for next week on the Senate floor, but the question of the moment in Washington is which Democrats will vote “yes.” A couple of centrist Democrats, Sen. Ben Nelson of Nebraska and Sen. Mark Pryor of Arkansas, have already signaled they'll probably vote for Roberts. Even apart from Roberts's impeccable credentials and self-assured testimony, "aye" votes would make sense, given the political coloration of Nebraska and Arkansas. But the most intense focus is on potential Democratic presidential contenders Sens. Joe Biden, Evan Bayh, Hillary Clinton, and Russ Feingold. Would the risks they’d run in voting for Roberts outweigh any gain from voting "yes"? Sarah Binder, a political analyst at the Brookings Institution, a Washington think tank, said Democratic senators “are thinking twice about what position they want to take here, lest they be accused of obstructionism… by voting against Roberts.” Democrats, she said, are “thinking carefully that they need to improve or sustain their ability to be critical of the next nominee and it may cause them to say okay, and we're going to go ahead and vote for Roberts….” There’s a lot at stake for the minority party. For Democrats, the Supreme Court is the last remaining stronghold of constitutional protection of abortion, gay rights, and environmental laws. Intense interest in blogosphere Bob Brigham, a Democratic blogger who writes for said Democratic activists are following the Roberts battle more closely than they did the 1991 Clarence Thomas saga. “With the decentralization of politics and the blogs, there are a lot more people paying attention. The Democratic base is following this very closely,” Brigham said. If he is confirmed, Brigham predicted, “Roberts is going to have a chance to hand down some serious decisions before the 2008 presidential race heats up. And every bad decision he makes will be blamed on any Democratic senator who votes for him. Democratic senators will be held accountable individually for the bad decisions he makes between now and 2008.” Senators face a dilemma: Bush seems unlikely to reveal whom he will choose for the Sandra Day O’Connor spot on the court before the Roberts vote. Democrats won't know if the next nominee will be more palatable or less palatable, from their point of view, than Roberts is. And it is not as if the Democrats have much leverage over the choice of the next nominee: Bush can listen politely to their suggestions, but need not nominate a "moderate" such as O'Connor in order to get his nominee confirmed. The 55 Republicans in the Senate give the president leeway to work with: he can afford to lose a few of them and still end up winning. The next nominee could do as Roberts did and refrain from making any commitment to uphold the Roe v. Wade abortion decision, the crucial issue for many Democrats. Roberts said that Roe was a precedent “entitled to respect under principles of stare decisis,” which means it could be overturned if the constitutional foundations of the ruling “had been eroded by subsequent developments.” If Democrats vote to confirm Roberts, how could they then turn around and use the filibuster (endless debate) to block a confirmation vote on the next nominee, if, as expected, that nominee, like Roberts, refrains from explicitly endorsing Roe v. Wade? Dean calls for Roberts rejection The Democratic Party’s leader, Howard Dean, urged Democratic senators Friday to reject Roberts. The nominee “missed his opportunity to disavow, back away from or explain the litany of right-wing views on key Constitutional freedoms he has advocated against throughout his career,” Dean said. “This is not the time for a Chief Justice bent on rolling back the progress we have made over the past fifty years….” And the nation’s leading voice of liberal opinion, the New York Times, also called on senators to reject Roberts. “He has not met the very heavy burden of proving” he has the qualities to be chief justice, the Times said in an editorial Sunday, citing his refusal to endorse abortion, church-state separation, gay rights, and the right of illegal immigrant children to attend public school. The Democratic Party’s most powerful constituencies — gays, feminists, African-Americans, environmentalists — would be chagrined to see Democratic senators join the Republican majority to give Bush a landmark victory by confirming Roberts. Even before Roberts testified, the gay rights lobbying group, the Human Rights Campaign opposed him. “With Judge Roberts on the Court, we can envision a day when the landmark Lawrence v. Texas case is overturned and millions of Americans lose the right to privacy in our own homes,” HRC said. And in fact during last week’s testimony, Roberts did not make a commitment to uphold Lawrence v. Texas, the 2003 decision that gave constitutional protection to same-sex sexual relations, even though he did endorse the predecessor of that decision, the 1965 ruling in Griswold v. Connecticut, which gave protection to marital couples’ use of contraceptives. Biden dissatisfied with Roberts's answers Of the potential 2008 contenders, Biden’s vote seems the easiest to predict. The Delaware senator was entirely unsatisfied with the answers Roberts gave during his testimony before the Judiciary Committee. Biden dismissed as “preposterous” Roberts’s argument that if he gave a senator an answer on a specific case that might come before him, he’d be making a commitment to vote a particular way in exchange for the senator’s vote. After all, Biden argued, whatever answer Roberts might give now isn’t binding on him because “he’s entitled to change his mind” if he gets confirmed and joins the Court. Given how scornful Biden was of Roberts’s testimony, it is hard to imagine him voting for Roberts. Biden also voted against Republican Supreme Court nominees Clarence Thomas in 1991, William Rehnquist in 1986, and Robert Bork in 1987. Here’s a look at the other potential contenders and how they might line up on Roberts: Bayh: The conventional wisdom is that the Indiana senator will be the centrist in the Democratic race and that he therefore must move to the left between now and 2008 to align himself with Democratic primary voters, who skew to the left of the general electorate. Bayh supports Roe v. Wade, but voted for the 2003 ban on the procedure known as partial-birth abortion. He has already tracked left by voting against the nomination of Alberto Gonzales to be attorney general, as well as voting “no” on Bush appeals court nominees William Pryor, Janice Rogers Brown, and Priscilla Owen. Clinton: A “yes” vote would disappoint her fans among pro-abortion rights and gay rights groups, but would show that she has enough self-assurance to move to the right with an eye on the 2008 general election. It would be a declaration of independence from Dean, the New York Times, and the liberal consensus. Like Bayh, she voted “no” on the nominations of Gonzales, Pryor, Brown, and Owen. Feingold: Unlike Bayh and Clinton, Feingold serves on the Judiciary Committee and got a chance to show his skills as an interrogator by grilling Roberts last week. Feingold implied strongly that he thought Roberts ought to have recused himself from hearing the appeal of Guantanamo prisoner Salim Hamdan because his work on the Hamdan case coincided with his interviews by White House officials for a Supreme Court opening and thus may have created a conflict of interest. Feingold, too, voted “no” on the nominations of Gonzales, Pryor, Brown, and Owen, but he is capable of surprise: in 2001 he was one of the few Democratic senators to vote to confirm John Ashcroft as attorney general. But in the 2008 Democratic field, right now he’s the darling of the left and if he wants to run for the presidential nomination he will need to consolidate his base supporters, not alienate them even before the 2008 battle has begun.

Friday, September 16, 2005

Local North Platte Webnewsite reviews current and past FELA cases from North Platte Area: FELA cases are basically worker compensation cases for interstate railroads; Interesting the featured case from 30 years ago had the most serious injuries. North Platte Bulletin G. Keith Richardson was 23 years old when a simple air hose lying near a Union Pacific Railroad track set in motion a chain of events that would change his life forever. It was Oct. 7, 1971, and Richardson was putting a train together at Bailey Yard. “We’d just begun using radios in the yard,” Richardson said. “It was new technology. Otherwise I’d have been riding on a top of a boxcar with my lantern giving signals.” Richardson said he lit a fuzee, a colored flare used as a warning signal for trains, to light up the car and began walking. “The foreman told the train to go ahead and start shoving west,” Richardson said. As Richardson took a step, he felt something like an air hose underneath his foot. It made him lose his balance, and he fell into the oncoming train. Richardson’s right leg slid underneath the train and was cut off, but he managed to grab hold of the moving grain hopper. “I hung on for dear life,” Richardson said. “The train was dragging me but I was afraid if I let go, I would slide underneath the train and be killed.” Richardson swung himself as far to the side as he could just as he lost his grip. The train wheel cut off his right arm cleanly, four inches below his shoulder. The good news was that Richardson managed to clear the train. The bad news was that he was bleeding to death.“As the foreman ran up, I told him to tell my wife and little boy that I loved them,” Richardson said. “But he wasn’t having any of that.”The forearm told Richardson he would not let him die. Coworkers tied tourniquets around Richardson’s arm and leg. He stayed conscious until an ambulance arrived, and for the ride down Front Street, up Willow, then east down Avenue B all the way to St. Mary’s Hospital.“I remember hitting the dips on Front Street and asking, ‘Can’t this ambulance go any faster?’” Richardson said. The last thing he remembered was the nurse putting in an IV. He awoke three days later. Richardson had lost his right arm and right leg. His left foot, pulled off when the train dragged him, had been reattached but had to be amputated 28 days later.Richardson said his injuries took some getting used to, but he doesn’t remember feeling sorry for himself.“If you ask my family, they might tell you I did, but I honestly don’t recall it,” Richardson said. “I’m so glad to be alive and have lived through such a terrible accident that I’m grateful every day.” Like other injured railroad workers, Richardson filed negligence lawsuit against UP under the Fedeal Employees Liability Act. The suit was settled in 1973 for $750,000.“I only got to keep about $500,000 of it after attorneys’ fees and other expenses,” Richardson said. A dirty job and sometimes it's downright dangerous Today, there are about 31 personal injury lawsuits against Union Pacific Railroad filed by residents of Lincoln County from 2003 to the present in U.S. District Court and Lincoln County District Court. Not all railroad injury lawsuits filed by Lincoln County residents are filed here, though. There are still a few winding their way through Colorado courts and an unknown number in Douglas County. One of the most famous, a $6 million judgment to Frank Aloi of North Platte awarded by a Colorado jury, may have to be retried. The Colorado Supreme Court is reviewing the case now.Aloi, a freight conductor, said he suffered a mild brain injury and other injuries in an early-morning fall Aug. 17, 1998. Aloi had boarded a train bound for Iowa, and as he descended the stairs on the locomotive cab to get off the train and cut off a number of cars, his foot caught on the edge of a rubber mat on the stair’s risers, causing him to fall down the stairs and twist sharply as he fell into the metal door at the bottom of the stairs. Aloi said he was unable to see the mat because the stairs were dark.UP denied responsibility, noting that the fall was unwitnessed, claiming that it could not have happened as alleged, and arguing that Aloi was exaggerating his injuries.Before trial, UP offered Aloi $750,000, according to his attorneys.After an eight-day trial in Denver, a six-person jury deliberated for approximately two hours in September 2002 before finding the railroad entirely negligent in the fall and awarding Aloi one of the largest personal injury verdicts in history to a UP employee. The vast majority of FELA cases don’t go to trial. Most are settled out of court. Here are cases local UP employees have filed since 2003: Darcy L. Pfortmiller, filed in U.S. District Court April 21, 2005: Pfortmiller, an electrician, said he was changing a vertical bus bar on a locomotive and injured his back June 5, 2003. The case is currently active. No trial date has been set. Chad J. Hunt, filed in U.S. District Court Oct. 25, 2004: Hunt was an electrician with UP and was working in a “very cramped, confined area” stepping over some pipes to get to an electrical panel to adjust the pressure switch on a soap pump in the pump house when he slipped on the soapy water on the floor, injuring his left arm, elbow, left leg, hips and lower back Oct. 21, 2003. The case is active, no trial date set. Kelly R. Bailey, filed in U.S. District Court April 11, 2005: A UP employee since 1978, and having served as a switchman, brakeman and conductor, Bailey says riding on the caboose seats and locomotive seats without adequate support subjected his whole body to vibrations, extensions and lateral movements that contributed to his degenerative spinal condition. He also claims that on July 14, 2003, he injured his back removing a piece of channel iron that had fallen through the wood plank deck of the car and lodged between the axles. The case is active, no trial date set. Hyrum S. Johnson, filed in U.S. District Court Aug. 1, 2005: Johnson, a trainman, said he was struck and knocked unconscious by a freight car rolling down a track in Bailey Yard on June 2, 2002, at 2 a.m. He said he suffered permanent injuries to his neck, head, shoulders, left knee and other parts of his body. The case is active, no trial date set. Matthew M. Keefe, filed in U.S. District Court Aug. 8, 2005: A conductor and switchman, Keefe said he was attempting to release a handbrake on a bulkhead flatcar at the west end receiving track when the brake platform he was standing on gave way, causing him to fall and break his right ankle. He said he suffers serious and permanent injuries to his right ankle, foot, muscles, tissues, tendons and ligaments and other parts of his body. The case is active, no trial date set. Dean Alan Rogge, filed U.S. District Court Aug. 20, 2003: As a laborer, Rogge was dumping the trash and tried to lift a can he thought contained paper products. Instead, it contained sludge and other foreign matter, injuring him permanently. Settled April 5, 2004. Jed A. McKenney, filed in U.S. District Court Aug. 26, 2003: A fireman/oiler, McKenney said he injured his neck, head and upper back but failed to say how or why. Settled Jan. 18, 2005. Justin Barraclough, filed in Lincoln County District Court Jan. 8, 2004: An engineer, Barraclough was injured when the leg band he was required to wear caught on a lever of the engineer’s chair, causing him to fall. Settled Feb. 10, 2005. Daniel L. Deniesse, filed in Lincoln County District Court March 26, 2004: An engineer, Deniesse said he was injured when he slipped and fell on the steel floor of the restroom of the locomotive he was on. The floor did not contain non-skid tape, Deniesse said. Settled, Jan. 18, 2005. August R. Torrez Jr., filed in Lincoln County District Court Jan. 14, 2003: Torrez said he was injured when he stepped into a locomotive and fell through a hole Nov. 9, 1999. Flooring was removed in the darkness and the hole wasn’t lit, according to Torrez. Settled, Nov. 30, 2004. Rocky L. Halcott, filed in Lincoln County District Court April 25, 2003: Halcott was a conductor when he was walking down a set of stairs in the West Hump building on Nov. 11, 2000. He said he slipped on melted snow and fell, and he further lost his balance on a loose and inadequately secured handrail. Settled, Sept. 12, 2003. Chad C. Franzen, filed in Lincoln County District Court May 29, 2003: Franzen was an East Rack pilot on Jan. 30, 2001, when his supervisor directed him to place chain-like devices on his work boots. While walking on a metal grating, the chains on the boots became lodged, causing Franzen’s knee to twist jarringly. Settled, Aug. 4, 2004. Alonzo Portfiria, filed in Lincoln County District Court May 20, 2003: Portfiria was a machinist from March 1979 until October 2002 and said he suffered carpal tunnel syndrome from repetitive work with welding tools, machine tools, lathes, grinders, drills and press punches. Settled Sept. 2, 2003. Vince R. Harper, filed in Lincoln County District Court Sept. 10, 2004: Harper, an engineer, suffered an injury while attempting to set a handbrake. The handbrake broke and didn’t operate as usual, causing injury on Oct. 21, 2002. Settled June 27, 2005. Steven L. Clouatre, filed in Lincoln County District Court June 4, 2004: Clouatre was a conductor/switchman on Nov. 11, 2000, when he slipped and fell on snow and ice covered steps from the van yard office. Settled April 8, 2005. Joseph L. Layton, filed in Lincoln County District Court Jan. 4, 2005: As a dispatcher from 1981 until 2001, Layton said he was exposed to dangerous levels of noise, which caused permanent injuries to his ears. Transferred to Douglas County. Larry W. Handlin, filed in Lincoln County District Court June 22, 2005: Handlin said he injured his back and suffered numbness in his extremities, a headache and dizziness while responding to a derailment on June 30, 2003. Case is active, no trial date set. Marco Vieyra, filed in Lincoln County District Court Oct. 14, 2004: A maintenance employee, Vieyra’s work involved lifting, spiking, jack hammering and other activities. In September 2001, he experienced back pain but continued to work. In August 2004, he experienced hip pain and underwent a hip replacement. Case active, no trial date. Terry L. Osborne, filed in Lincoln County District Court Feb. 23, 2005: Osborne was a conductor/brakeman working between Sutherland and Paxton on March 10, 2002, when he inhaled fumes the caused burning eyes, irritated throat and headaches. Case active, no trial date. Laverne L. Golden, filed in Lincoln County District Court Oct. 25, 2004: Golden was working as an engineer on March 12, 2001, and on Jan. 19, 2002, when he breathed in toxic fumes and gases. Cases active, no trail date. Edmund E. Dailey, filed in U.S. District Court June 1, 2004: While riding in a company van on Aug. 22, 2002, the van driver drove across a railroad crossing in Bailey Yard and struck a hole, causing the van to lurch and bounce. Dailey said he was “tossed about” in the van and suffered injuries to his neck, lower back, knees, left arm, right shoulder and other parts. Settled Jan. 18, 2005. Jose J. Caudillo, filed in U.S. District Court May 26, 2004: An engineer, Caudillo said he breathed noxious fumes on Sept. 29, 2002, that caused his nose to burn and caused blisters to form on his vocal chords and other respiratory problems. Settled Jan. 18, 2005. John E. Wilnes, filed in U.S. District Court Feb. 5, 2004: A conductor, Wilnes was walking to his train on Oct. 22, 2002, when he slipped on ice or another slippery surface, fell and injured his right hand and forefinger, both knees, his left elbow and lower back. Settled Jan. 18, 2005. Daren Fourtner, filed in U.S. District Court Nov. 17, 2003: Fourtner was a pipefitter on Nov. 2, 2002, when he slipped on a running board while replacing an O ring on an engine. His head was braced against an S pipe when he slipped, injuring his neck. Settled, Aug. 23, 2004. Vaughn F. Meyer, filed in U.S. District Court Sept. 4, 2003: Meyer, working as a pipefitter, was using a pry bar to pull down a pipe to remove the rear train line valve when the pry bar slipped, injuring his left shoulder. Settled, Oct. 19, 2004. John Casillas, filed in U.S. District Court April 26, 2004: While performing an inspection of an engine as a machinist on March 4, 2003, Casillas slipped and fell on the locomotive walkway. Case active, no trial date. James L. Deidel, filed in U.S. District Court March 11, 2004: An employee since 1968, Deidel said he has been a sheet metal worker and operated a lift truck and wheel crane. The equipment caused repetitive jarring, bouncing, bending and twisting of his neck and required him to maintain his neck in an awkward position for extended periods, causing permanent damage to his spine. Settled June 2, 2005.
Nebraska Supremes hold Fairbury Schools must provide for special education student’s schooling because he was not a ward of the state at the time he was enrolled, reverses Lancaster County District Court. Jefferson Cty. Bd. of Ed. v. York Cty. Bd. of Ed270 Neb. 407 September 16, 2005. No. S-03-1190. The Education board hearing officer ordered Fairbury to pay for the childs education while the District Court reversed holding that York should pay. Section 79-1127 provides that “[t]he board of education of every school district shall provide or contract for special education programs and transportation for all resident children with disabilities who would benefit from such programs.” (Emphasis supplied.) Whether Fairbury or York is obligated to provide or contract for C.G.’s 2002-03 education depends on whether C.G. was a resident of Fairbury or York during that school year. The answer to that question lies within § 79-215, which provides in relevant part: (1) Except as otherwise provided in this section, a student is a resident of the school district where he or she resides or any school district where at least one of his or her parents reside and shall be admitted to any such school district upon request without charge. . . . . (7) When a student as a ward of the state or as a ward of any court (a) has been placed in a school district other than the district in which he or she resided at the time he or she became a ward . . . the student shall remain a resident of the district in which he or she resided at the time he or she became a ward. (8) When a student is not a ward of the state or a ward of any court and is residing in a residential setting located in Nebraska for reasons other than to receive an education . . . the student shall remain a resident of the district in which he or she resided immediately prior to residing in such residential setting. . . . The resident district for a student who is not a ward of the state or a ward of any court does not change when the student moves from one residential setting to another. (Emphasis supplied.) Supreme Court agrees that under the statutes the child was a Fairbury resident and so Fairbury had to pay the cost of educating him: Section 79-215(7) plainly applies only to wards of the state or court. It is undisputed that C.G. was not a state ward at any time during the 2002-03 school year, the only year for which Fairbury sought a determination of its obligation to provide for C.G.’s education. Meanwhile, the plain language of § 79-215(8) applies in all respects. C.G. was not a ward of the state or any court during the 2002-03 school year, and he was residing in the described residential setting in Nebraska for reasons other than to receive an education. Fairbury’s view that § 79-215(8) can apply only to minor students is unfounded. It is clear that some individuals may reach the age of majority, yet still remain a “student” entitled to a free education in Nebraska. See, Neb. Const. art. VII, § 1 (“[t]he Legislature shall provide for the free instruction in the common schools of this state of all persons between the ages of five and twenty-one years”); Neb. Rev. Stat. § 43-245(1) (Cum. Supp. 2002) (for purposes of Nebraska Juvenile Code, age of majority means nineteen years of age). Furthermore, the permissive language of § 79-215(8), “request by a parent or legal guardian,” describes only a process for the contracting of a student’s education. It does not affect a student’s residency determination and therefore does not narrow the scope of the section to minor students only. There is no such evidence in our record indicating York claimed C.G. as a resident student during that year. In addition, Fairbury alleged in its petition for a declaratory order that York received an increased amount of special education reimbursement funds by listing C.G. as one of its students in the 1998 report.