Sunday, December 31, 2006

Eighth Circuit gets it: Reverses excessively lenient sentence for Mexican meth dealer; deportation no reason to reduce a sentence especially after defendant ignored deportation orders beforeSentencing law and policy doesn't like the Eighth Circuit's frequent reversals of sentences when it finds the District Court went too far under the guidelines range. Maybe, but the two most recent cases more than justified resentencing for harder time, Kane,(US District Court ED of Mo.) the pimping momma and Morales-Uribe (SD of Iowa) the hard working immigrant drug dealer who had already been deported. The appeals court noted something that escaped the attention of the trial level court: deported aliens too frequently find their way back into the country. "The PSR, to which Defendant did not object, indicates that he has attempted to enter the United States illegally on three separate occasions. Two of these attempts, one being successful, occurred even after the Government deported him on October 27, 1999. This indicates strongly that deportation will not protect the people of the United States from further crimes by Defendant."

Friday, December 29, 2006

Order of the Kneepads update: ”Feminazis?” disbarred Nebraska attorney; “Femifascists?” St Louis trial judge and now bestselling author of legal system’s clever portmanteau for feministsSt Louis today reports that St Louis Circuit Court Judge Robert Dierker has stirred up a hornets’ nest with his forthcoming polemical expose of the legal system in which he condemns the “Femifascists” and the “Cloud Cuckooland of Radical Feminism.” He has titled the book "The Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault." The usual suspects promise to take action against the Judge for exercising his free speech rights, and his colleagues have termed his publication “professional suicide.” How would the good judge fare in Nebraska, where Attorney Beach was disbarred in part for calling a female attorney opposing him on a case a “feminazi bitch.” Perhaps the good judge was more judicious in creating a new portmanteau with fascist and was not just thinking of Rush Limbaugh’s coining “feminazi” first. in a private letter

Sunday, December 24, 2006

Order of the Kneepads update: Nebraska Supreme Court suspends attorney who forged his client's signature and caused a notary to document the forgery for 1 year with probationary conditionsState ex rel. Counsel for Discipline. v. Riskowski, S-05-1168, 272 Neb. 781 Respondent attorney failed to deposit his client's divorce retainer in his trust account; agreed to suspend her temporary alimony with out permission; and submitted a property summary before trial with the client's forged and notarized signature. The referee recommended an 18 month suspension with probationary conditions. The Nebraska Supreme Court in a rare move drops the recommended suspension to one year. Although Respondent received a prior reprimand for mishandling a criminal appeal, he argued for a 90 day suspension. This time the Respondent's counsel's argument that there was no harm done because the Court didn't require the client to sign the exhibit may have carried the day and saved his client the disciplined attorney some suspension time. we find most troubling Riskowski's conduct with regard to preparation of his client's property statement. Riskowski, without his client's consent, forged his client's signature on the property statement and then instructed his secretary to notarize the document. The property statement was then submitted to the court. We have consistently imposed substantial sanctions for conduct of this nature. See, State ex rel. Counsel for Discipline. v. Rokahr, 267 Neb. 436, 675 N.W.2d 117 (2004) (1-year suspension for knowingly filing a back-dated easement); State ex rel. Counsel for Discipline. V. Mills, 267 nab. 57, 671 new 765 (2003) (2-year suspension based, in part, on altering and falsely acknowledging documents filed in county court). Riskowski asserts that his act of signing his client's signature and having the document notarized is in some way less reprehensible because the document would have been valid without the client's signature and notarization. We again disagree. Whether a client's signature and an acknowledgment before a notary are required on a document is irrelevant. The fact remains that Riskowski knowingly filed with the court a document containing a forged signature and an inaccurate notarization. A purposeful misrepresentation to a court is itself a serious violation, and Riskowski jeopardized his client's interest and the integrity of the court by doing so.

Saturday, December 23, 2006

Canadian lawyers: doing the job American attorneys wont do any moreIn re Application of Budman, 272 Neb. 829 Filed December 22, 2006. No. S-34-060001. The Supreme Court admits another bar applicant from Canada,without examination, finding that although the applicant did not have a regular American law degree he could get in under the waiver rules.
Nebraska Supreme Court allows father whom a court had earlier determined him to be the child's father to dispute exgirlfriend's adoption, cant decide whether its a case of statutory interpretation or constitutional lawIn re Adoption of Jaden M., 272 Neb. 789 Filed December 22, 2006. Earlier a court found the defedant to be the child's father and ordered support, which the defendant mostly paid. The mother/exgirlfriend then married and her new husband sought to adopt the child. MOther contended that since the father failed to register with father's registry and he appeared to not meet any other standard in 43-104.22 that require father's consent. Nebraska Supreme Court finds for the father's rights, finding that an adjudicated father is neither a claimed father(§ 43-104.02) or a "claimant-father" (§ 43-104.05.)But then even if Nebraska statute 43-104.22 somehow did exclude the defendant, it is unconstitutional to exclude an adjudicated father from those entitled to consent before adoption. We, however, conclude that § 43-104.22(7) does not apply to a father who has been adjudicated the child's father in a paternity action. Applying § 43-104.22(7) infringes upon Brian's constitutionally protected parental rights. Because he has provided support and established familial ties with his biological child, his interest in personal contact with his child has acquired substantial protection. In re Application of S.R.S. and M.B.S., 225 Neb. 759, 408 N.W.2d 272 (1987). His rights must therefore be determined under the considerations delineated in § 43-104.22, apart from subsection (7). As in White v. Mertens, 225 Neb. 241, 404 N.W.2d 410 (1987), Tracey and Ronald's argument fails because Brian is not "a person claiming to be the father of the child" under § 43-104.02 or a "claimant-father" under § 43-104.05--he is Jaden's biological father. The court erred in applying the registry statutes to circumvent the need for Brian's consent.

Tuesday, December 19, 2006

Owner of easement for sewage disposal since the late 60’s disputed relocation of the lagoons; Court ordered adjacent landowner to rewrite the easement but did not award any other damages or relief; Nebraska Court of Appeals upholds awarding costs to the defending adjacent landownersR & S Investments v. Auto Auctions, 15 Neb. App. 267 Filed December 19, 2006. No. A-04-1098 Technically the easement owner “won” the case but the judge agreed only that it should get a rewritten easement from the landowner who was reconstructing and relocating the lagoons to meet current state environmental regs. The easement owner asked for costs but the court awarded costs to the defendants. Nebraska court of appeals affirms awarding costs to the side that was the nominal losing party R&S asserts that the district court erred in taxing costs of the action to R&S. Neb. Rev. Stat. § 25-1708 (Reissue 1995) provides that "[w]here it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property." Neb. Rev. Stat. § 25-1711 (Reissue 1995) provides, in relevant part, that "[i]n other actions the court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in its discretion it may think right and equitable." In equity actions, taxation of costs rests in the discretion of the trial court. Hein v. M & N Feed Yards, Inc., 205 Neb. 691, 289 N.W.2d 756 (1980); Ehlers v. Campbell, 159 Neb. 328, 66 N.W.2d 585 (1954). A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a substantial right and a just result. City of Lincoln v. Realty Trust Group., 270 Neb. 587, 705 N.W.2d 432 (2005). The present action, of course, is an equity action, and we find no abuse of discretion in the district court's taxation of the costs of this action to R&S

Friday, December 15, 2006

Inmate may not challenge in motion for post conviction relief the trial court’s failure to properly credit his time served pending sentencingState v. Barnes, 272 Neb. 749 Filed December 15, 2006. No. S-06-351. Inmate raised in his motion for post conviction relief alleging primarily ineffective counsel that resulted in his pleading guilty to murder in 1994 in the Pierce County District Court an additional claim that the trial court had failed to credit him enough time served while the inmate waited for sentencing. Supreme Court denies this as a valid ground for post conviction relief : Post conviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations. State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999). An alleged sentencing error with respect to credit for time served does not fall within this narrow category of relief. Moreover, a motion for post conviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal. State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005); State v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004). Because the sentencing issue could have been raised on direct appeal, it is procedurally barred in this action. The district court did not err in denying post conviction relief on this ground
Nebraska Supreme Court: grandparent lacked standing to object to the constitutionality of § 43-1802(1)(c)RRS Neb in paternity action that abated due to the putative father’s death.Bullock v. J.B., 272 Neb. 738 Filed December 15, 2006. No. S-05-636. The Douglas County District Court dismissed the putative father’s PR’s attempt to revive his action to establish his paternity over JB. The PR, apparently the deceased’s mother sought on her own grandparent visitation. The District Court dismissed this claim as well. The case caption does not indicate the PR filed a personal action for grandparent visitation. Supreme Court refuses to consider constitutional challenge to 43-1802 because PR lacked standing The paternity statutes, Neb. Rev. Stat. §§ 43-1401 to 43-1418 (Reissue 2004), make no mention of grandparent visitation. Instead, Neb. Rev. Stat. § 43-1803 (Reissue 2004) provides the procedure for requesting grandparent visitation. The record indicates that Grandparent/PR has not requested grandparent visitation under this section in the case under review. Given the absence of a grandparent visitation claim, Janet lacks standing to challenge the constitutionality of § 43-1802(1)(c) in this case. Standing to challenge the constitutionality of a statute under the federal or state Constitution depends upon whether one is, or is about to be, adversely affected by the language in question; to establish standing, the contestant must show that as a consequence of the alleged unconstitutionality, the contestant is, or is about to be, deprived of a protected right. State v. Cushman, 256 Neb. 335, 589 N.W.2d 533 (1999).

Tuesday, December 12, 2006

Follow up: United States Supreme Court reverses 9th Circuit ruling that found courtroom spectators' wearing large buttons that pictured the "accused" defendant's victim required a new trial; majority opinion by Justice Thomas finds no "clearly established" federal law as Lucky Iromuanya's attorneys would have us believe CAREY, WARDEN v. MUSLADIN, MATHEW No. 05-785. Argued October 11, 2006 -- Decided December 11, 2006 Shades (or buttons) of State of Nebraska v. Lucky Iromuanya(NSBA summary) the Ninth Circuit court of appeals had reversed at habeas level the defendant's conviction because the family members of the victim sat in the front of the courtroom during the trial wearing photograph buttons of the victim depriving the defendant of his right to a fair trial under the Fourteenth Amendment and Sixth Amendment. the United States Supreme Court, Justice Thomas for the majority reverses finding the law on private conduct in the courtroom, aside from mob scene trials, a murky area: the effect on a defendant’s fair-trial rights of the spectator conduct to which Musladin objects is an open question in our jurisprudence. This Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial.2 And although the Court articulated the test for inherent prejudice that applies to state conduct in Estelle v. Williams, 425 U. S. 501, 503–506 (1976 and Holbrook v. Flynn, 475 U. S. 560, 568 (1986), we have never applied that test to spectators’ conduct. Indeed, part of the legal test of Williams and Flynn—asking whether the practices furthered an essential state interest—suggests that those cases apply only to state-sponsored practices. Maybe the Supreme Court will find it less murky on Lucky's pro bono lawyers' cert pet to the Supremes

Monday, December 11, 2006

Nebraska Beef loses appeal in Eighth Circuit Court of Appeals after Minnesota federal court granted summary judgment on its complaint for excessive over-advance fees Wells Fargo charged it061207P.pdf 12/11/06 Nebraska Beef, Ltd. v. Wells Fargo BusinessU.S. Court of AppealsCase No. 06-1207 District of Minnesota. Nebraska Beef before going belly up in 1997 drew advances from Wells Fargo that exceeded its credit limit. Plaintiff sued to recover Wells Fargo's overadvances that totalled $211k; Plaintiff complained that it did not agree to the increased advance charges Wells Fargo was charging it. District Court dismissed case on summary judgment finding the parties properly agreed to a unilateral contract for the increased advance charges, under Minnesota law. "When Nebraska Beef began to withdraw funds through the May 1997 overadvance, it did so fully aware that an extension beyond the agreed line of credit would come at an additional cost. Wells Fargo's "offer" to permit continued overadvances at the stated terms constituted a unilateral contract offer that was accepted by Nebraska Beef's election to access the overadvance. These terms, as reflected in the third amended agreement and the May 23 letter, were sufficiently definite to establish a unilateral contract offer under Minnesota law."

Saturday, December 09, 2006

Nebraska Supreme Court slaps the Sarpy District Court again for mishandling repeat drunk drivers' sentencingsState v. Caniglia, 272 Neb. 662 Filed December 8, 2006. No. S-05-069. Earlier this year in State v Vasquez S-05-1019, 271 Neb. 906 the Supreme Court reversed tthe Court of Appeals for trying to impose a real sentence on a repeat drunk driver from Sarpy County. Too bad the State was unable to challenge that lenient sentence because it was a misdemeanor. This time in State v Caniglia, the Appeals Court wanted to impose an appropriate sentence on the defendant Caniglia who faced resentencing after the court revoked her DWI 4th offense probation. Sarpy County District court however imposed no sentence. The Nebraska supreme Court rules that no sentence is no judgment, and reverses the case to the district court. This time however as a felony the State can appeal any ridiculously lenient sentence Sarpy Countydecides to impose.The district court found that Caniglia violated probation but failed to issue a proper order under § 29-2268. In particular, the district court did not impose a sentence. Because there was no sentence, the Court of Appeals lacked jurisdiction to hear the appeal brought by the prosecuting attorney claiming an excessively lenient sentence under § 29-2320. The Court of Appeals erred when it concluded that it had jurisdiction and thereafter considered the merits. Because the Court of Appeals lacked jurisdiction, we vacate the judgment of the Court of Appeals and remand the cause to the Court of Appeals with directions to vacate the order of the district court and remand the cause to the district court with directions to enter a proper order outlining the consequences resulting from the finding that Caniglia had violated probation.
Nebraska court of appeals affirms Hall district court award of alimony to wife when both spouses were practicing attorneys; although child support guidelines call for averaging 3 years of income for determining child support, the appeals court also approves averaging the husbands income over five yearsWagoner v. Tracy (Not Designated for Permanent Publication) Filed December 5, 2006. No. A-05-301. As the court of appeals notes, but in this unpublished opinion, "The instant case presents an interesting scenario: whether alimony is warranted where a spouse had interrupted his or her career for 8 years, but when the spouse resumed his or her career, the party earned a similar annual income as when the career was interrupted.Both spouses were practicing attorneys however the wife left a Lincoln law firm to move to Grand Island and also took off several years to care for the parties special needs children. The Hall County District Court agreed that the wife's annual income would have been $8K higher with the county attorney's office if she had not taken time off. She also had worked for her father's law firm but didnt like working for him! The husband's income varied widely. In 2000 his Schedule C net was $52k, then it was negative for a few years and finally a plus $446K in 2004. The district court ordered $800 per month alimony to the wife and figured child support based on the father's average income that included 2 positive years and three negative. The court of appeals finally approves awarding $7500 attorneys for the wife for her total bill of $32k from the Remboldt Ludtke law firmthe parties had a lengthy marriage lasting 17 years. Tracy interrupted her career for 8 years to care for the parties' children, including the twins, who required special care, and also cared for Wagoner's parents during their illnesses. Tracy did suffer a loss of earning power, as is evidenced by the fact that she would be earning $53,476.56 instead of $46,320.57 had she worked for the Hall County Attorney during the years that she was a stay-at-home parent. Further, we also note that there is an income disparity between Wagoner and Tracy which may be considered in determining whether alimony is appropriate. Thus, we find that the district court did not abuse its discretion in awarding alimony of $800 per month for a period of 5 years. In the instant case, the district court had available to it Wagoner's income from his law practice, farm rental income, and rental income from his law partner. Although Wagoner's law office showed losses in previous years due to billing inactivity, much of that billing was taking place during the 2004 tax year and was reflected in the $446,961 estimated net Schedule C profit for that year. The district court did not abuse its discretion in using Wagoner's average income in determining his child support obligation.

Thursday, December 07, 2006

Omaha defense attorney James Martin Davis: "We will fight 'tooth and nail' against charges that Westroads grill installer was practicing dentistry without a license." If all you want for Christmas is to gild your front teeth, you may have to buy the bling-bling somewhere other than the Gold Plaza II kiosk at Crossroads Mall. That's because an employee of that shop, Bhavin Dalal, faces a felony charge of practicing dentistry without a license. He's accused of helping customers fit their teeth for glittering mouthpieces known as grills. It's the first such case in Nebraska involving the hot hip-hop fashion accessory. And Dalal and his attorney, James Martin Davis, plan to fight it tooth and nail. Dalal entered a not guilty plea Friday in Douglas County Court. Davis blasted the Nebraska Health and Human Services System for its investigation of Dalal and the charge that resulted. "It's overzealousness on the part of a bunch of bureaucrats" who don't want people to wear grills, Davis said. An HHS spokeswoman said officials acted out of concern for public health, because ill-fitted grills cause problems. "We're not against bling-bling," said spokeswoman Marla Augustine. "It's just when it's applied to the mouth and teeth and causes damage, that's where we're opposed to it." Bling-bling, for the record, is hip-hop slang for jewelry and other accessories. Grills, also known as fronts, are custom-fitted mouthpieces made of gold or platinum, sometimes with diamond inlays. They can be removable or permanent. They can cost hundreds or thousands of dollars. A mold is made of the buyer's teeth, and then the jewelry is manufactured to fit. The state alleges that Dalal did something that only dentists can do in Nebraska - help make an impression of people's teeth, then sell them dental appliances. In May 2005, the Nebraska Board of Dentistry ordered Dalal and another Crossroads kiosk, Treasure Box, to stop their "activities surrounding the sale of gold grills" without a Nebraska dental license. In a letter, the state told Dalal that taking impressions and selling grills was the unlicensed practice of dentistry. Dalal said Friday that he stopped selling grills for a while after receiving the order. But he started selling them again after another lawyer advised him that he could do so as long as he didn't make the dental impressions himself. Then came a bling-bling sting. An undercover operative, working with a state investigator, went to Gold Plaza II last August. Dalal offered to sell him a gold custom grill for $260. Dalal is accused of giving the operative a kit - a dental tray packed with a puttylike substance - to make an impression of his teeth. Dalal told the operative how to make the impression, HHS Investigator Jeff Newman said in an affidavit for an arrest warrant. The warrant was issued after the gold grill came back from Gold II's out-of-state factory. Dalal turned himself in. He is free without bail. Davis said the state is misapplying the law under which his client is charged. He said he'll push for an acquittal. If state officials think grills are unsafe or have a problem with the way they were sold at the kiosk, Davis said, they should make grills illegal or take less severe remedies than a felony criminal charge, such as filing a civil lawsuit. Augustine said the Board of Dentistry interprets the statute differently from Davis - that only a dentist can make an impression of teeth and sell a dental appliance. "The reason (for the case) is that grills, when not properly applied, can cause irreparable damage to the teeth and gums," she said.

Wednesday, December 06, 2006

Eighth Circuit affirms summary judgment against Farmer who caught metal fragments in his eye from pry bar he was hitting with a hammer while he was not wearing safety gogglesKrajewski v. Enderes Tool Company David U.S. Court of Appeals 054031P.pdf 12/04/06 District of Nebraska Farmer hammered on long pry bar to jar loose a stuck sprocket on his combine. Because it was getting dark he removed his "tinted" safety goggles. As he struck the pry bar with a hammer a fragment of metal hit his unprotected eye. Farmer sued. The Federal District Court dismissed on summary judgment. Eighth Circuit Court of Appeals affirms on Nebraska assumption of the risk and proximate cause. Judge Gibson dissenting Assumption of risk is an affirmative defense, and the defendant must show that “(1) the person knew of and understood the specific danger,(2) the person voluntarily exposed himself or herself to the danger, and (3)the personnÂ’s injury or death or the harm to property occurred as a result of his oher exposurere to the danger.” Neb. Rev. Stat. § 25-21,185.12. The doctrine “appa subjectivective standard, geared to the individual plaintiff and his oractual comprehensionnsion and appreciation of the nature of the danger he or she confronts.” Pleiss v. Barnes, 619 N.W.2d 825, 829 (Neb. 2000)... Plaintiff's undisputed testimony, indicates that he knew and understood the specific danger at issue Âwhen hammeringmmering a metal hammer against a tool, there is a danger of chipping metal hitting the eyes.

Sunday, December 03, 2006

Nebraska Supreme Court rules that Sarpy County District court retained jurisdiction over a child custody case even though the mother and the children had moved to Maryland and registered the Sarpy county dissolution decree there.Watson v. Watson, 272 Neb. 647 Filed December 1, 2006. No. S-05-1423. Parties divorced and later the wife won a contested motion to move with the three children to Maryland. The wife then registered the decree in Maryland. When Husband complained that Wife was not allowing visitation, Wife won motions in Maryland and Husband lost his contempt motion in Sarpy County District Court. Sarpy County District Court ruled it had lost jurisdiction to Maryland and in any event Maryland was a more convenient forum. Supreme Court reverses Sarpy County District Court. Holding: Jurisdiction remains in Sarpy county as it was the initial court to assert jurisdiction and one parent continued to reside in the state See Uniform Child Custody Jurisdiction Act § 43-1239. Accord Shanoski v. Miller, 780 A.2d 275 (Me. 2001). Jurisdiction remained in the district court either until jurisdiction was lost under § 43-1239(a) or until the court declined to exercise its jurisdiction under § 43-1244 for the reason of an inconvenient forum.Since the Sarpy County District Court did not lose 43-1239 jurisdiction nor did it properly decline jurisdiction under 43-1244, the District Court erred in dismissing the Husband's contempt proceedings. Under § 43-1239 this jurisdiction would continue unless the district court determined that neither the children, nor the children and one parent, nor the children and a person acting as a parent had a significant connection with this state and that substantial evidence was no longer available in this state concerning the children's care, protection, training, and personal relationshipsExclusive and continuing jurisdiction could be lost only if the children, Jill, and Robert no longer resided in the state. See § 43-1239(a)(2). The district court erred in making such a determination because Robert continued to reside in Nebraska.A court with exclusive and continuing jurisdiction under the UCCJEA may decline to exercise its jurisdiction if it determines that it is "an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." See § 43-1244(a). Although the district court concluded that the Maryland court was the "more appropriate and convenient forum," the district court failed to consider the relevant factors for relinquishing jurisdiction under § 43-1244.Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors§ 43-1244(b). 43-1239 or that a Maryland court was a more convenient forum under § 43-1244.
Nebraska Worker Compensation Court releases summaries for FY 2005-2006 Supreme Court and published Court of Appeals decisions concerning worker compensation lawThe Nebraska Worker Compensation Court's summaries (pdf format) of last fiscal years worker comp decisions are now available.
Nebraska Supreme Court rejects murder defendant's Daubertchallenge to prosecutor's offering cellular telephone records that included the locations of the cell towers from which various cell phone cals had been transmitted.State v. Robinson, 272 Neb. 582 Filed December 1, 2006. No. S-05-107. During a murder trial in Douglas County, the defendant challenged the State's offer of cell phone records from Alltel, Cox and Cricket. The Supreme Court approves admitting computer print outs of the call records and also evidence from the records that identified the towers from which the phone company had transmitted various calls. Although this involved technical issues, the Supreme Court dismisses the Defendantss Daubert/Shafersmann challenge, explaining that the records did not present any opinion evidence. If a witness is not offering opinion testimony, that witness' testimony is not subject to inquiry pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)..Phone company rep's testimony was limited to explaining the data contained in exhibits 112 and 113, and he did not offer any opinions based on that data. Compare Pullin v. State, 272 Ga. 747, 534 S.E.2d 69 (2000) (inquiry into scientific theory required where expert opined, based on cellular telephone location data, that particular telephone calls could not have been made from location asserted by defendant). Since Phone co rep offered no expert opinion, his testimony presented no basis for an inquiry into his reasoning or methodology pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). To the extent that the defendant wanted to raise more general questions about the reliability of the records and the cellular location data, Phone rep was available for cross-examination on those issues.

Wednesday, November 29, 2006

OJ Simpson "dream team" lawyer settles malpractice claim for $ reports that "dream team" lawyer and "Innocence Project" founder Barry Scheck improperly filed a wrongful conviction damages action against the State of New York on behalf of client Lee Long. New York's highest state court, the Court of Appeals ruled in July (Lee Long v State of New York)that although procedurally the former client had a case, he loses because Scheck did not have the client verify his lawsuit. According to a press release, the settlement was to be confidential and no admission of liability.

Friday, November 24, 2006

Shame on Omaha recreational products firm Sportsstuff for not telling boaters that flying on a tethered kite at 30 miles an hour behind a power boat could be hazardous; Omaha personal injury Attorney Ronald Palagi is doing what he can to make boating boring againIn cooperation with the U.S. Consumer Product Safety Commission (CPSC), Sportsstuff, Inc., of Omaha, Nebraska is voluntarily recalling about 19,000 Wego Kite Tubes. According to the CPSC press release Sportsstuff warned boaters, "never Kite higher than you are willing to fall."The tubes were imported and sold through marine distributors, mail order catalogs, and various retailers from approximately October 1, 2005 to July 11, 2006 for about $500 to $600. According to Yahoo news, at least two people have been killed and 39 others injured in accidents linked to an Omaha company's Wego Kite Tubes. That's why four lawsuits have been filed against SportsStuff Inc. and the Wego Kite Tube is no longer available. To get on the slow lawsuit boat to China, go to this site for Kite tube lawsuits.

Wednesday, November 22, 2006

No opinions from the Nebraska Supreme Court, last week or this week
Eighth Circuit Court of Appeals affirms conviction from the District of Nebraska against Defendant for illegally entering the USA after deportation. ICE Department records were not "testimonial" business records, and therefore admissible even under Crawford v Washington; Judge Camp also cured her "prejudicial" comments about coming from Canada. USA v. Urqhart U.S. Court of Appeals Case No. 06-1242 District of Nebraska 061242P.pdf 11/22/06 . State Patrol officers arrested the defendant, a Canadian citizen whom immigration officials had earlier deported on Interstate 80 near Sidney. What do illegal immigrants from Canada like so much about Sidney? Federal prosecutors offered a "Certificate of Nonexistence of a Record" from the defendant's alien-file. Defendant objected that offering this records evidence violated his 6th Amendment rights to confront witnesses, per Crawford v. Washington, 541 U.S. 36 (2004). Eighth Circuit affirms conviction for violating 8 U.S.C. § 1326(a). The "nonexistence certificate" is nontestimonial evidence and its admission in prosecution for illegal reentry after deportation did not violate defendant's confrontation clause rights; further trial judge's statement that defendant was "from Canada" did not require a mistrial in light of the court's curative instruction.

Tuesday, November 21, 2006

Wecome new Nebraska Supreme Court Justice Heavican. Wonder if Hendry retired to avoid the skateboarding protesters who are up in arms about his eliminating political subdivisions from the immunity that the Nebraska Recrational Land Liability Act affords.

Monday, November 20, 2006

Nebraska Court of Appeals agrees with District Court that suicidal motorist's victim in fatal collision had no case against the Lincoln Police Department whose officer had earlier briefly detained the suicidal motoristPoppe v. City of Lincoln, 15 Neb. App. 164 Filed November 14, 2006. No. A-05-289. Suicidal motorist drove the wrong way on interstate 80 colliding with the deceased driver Barbara Poppe, killing Barbara. Earlier a Lincoln Police Department office had stopped Robin Siefker, on warnings that he was suicidal. Police let him go and he proceeded to kill himself by driving the wrong way on the interstate. Barbara's estate sued the City of Lincoln for failing to stop and take Siefker into custody. Nebraska court of appeals upholds District Court's 12b6 dismissal because the complaint did not state a duty the Defendant's officer breached toward the deceased. appellant alleged that the police officer stopped Siefker's vehicle but failed to identify and detain Siefker. The allegations of the complaint imply that the officer was negligent because he failed to "take charge" of Siefker. However, under § 319 (Restatement of Torts) no duty arises from failing to take charge of the third person; rather, the duty to exercise reasonable care to control the third person to prevent harm to another arises only after one has taken charge of the third person. Thus, § 319 requires that we determine whether the traffic stop and brief detention constituted "taking charge" of Siefker.We conclude that the police officer's temporary stop of Siefker did not create a custodial relationship which imposed a duty on the officer to control Siefker's subsequent behavior

Wednesday, November 15, 2006

Plaintiffs attorney in Nebraska wins underinsured motorist case against American Family from 3 vehicle auto accident because he was successful in shaking down 2nd vehicles insurer even though its driver was not at fault Omaha Personal Injury Lawyer Blog. Did you know if you are in a car accident, make sure you sue every driver in sight. In Pogge v American Family Insurance (Nebraska Supreme Court) Plaintiff was injured in a three vehicle accident. The injured plaintiff settled with first vehicle for total amount of liability coverage, plaintiff then settled with second vehicle for less than the liability coverage, with a release stating that the settlement is in compromise of a claim without any admission of liability. Plaintiff sued his own insurer, American Family Insurance, for underinsurance and AmFam denied coverage for failing the exhaust all of the primary coverage. Reversing the Douglas County District Court, the Supreme court rules a settlement is not an admission of liability and to rule as the trial ruled is an error of law. Normally an injured motorist who seeks underinsured motorist coverage must exhaust all available liability policies. Supreme court reverses: Without an admission of liability and without evidence of the second vehicle's driver's negligence, the Supreme Court ruled that the plaintiff's motion for summary judgment should be allowed, that there is no evidence that the liability insurance available to the plaintiff has not been exhausted, and the case is remanded to determine damages.

Friday, November 10, 2006

Nebraska Supreme Court vacates Douglas County divorce case between Canadian spouses, finding the wife who had resided in Nebraska for over three years failed to prove she had the requisite intent to reside permanently in this state. Supreme court however does not foreclose any divorce that a visiting alien might file.Rozsnyai v. Svacek, 272 Neb. 567 Filed November 9, 2006. No. S-05-876. The Douglas county district court granted a marriage dissolution awarded property and attorneys to the wife after overruling the Husband's objections that the court lacked subject matter and personal jurisdiction. the trial court refused to consider the husband's Canadian attorney's affidavit that the parties divorce in British Columbia remained pending. "One who proves that he or she has met the durational residency requirement for jurisdiction in divorce proceedings set out in § 42-349 shall be permitted the inference that such residency was with the intention to make Nebraska a permanent home, absent a showing that the residency was a sham and not bona fide. Rector v. Rector, 224 Neb. 800, 401 N.W.2d 167 (1987). However, when both parties are foreign citizens and the only party to have resided in Nebraska has done so by reason of a visitor's visa, the inference is negated and specific proof of intention is required. The Supreme Court skirts the husband's assertion however that no alien residing in the US on a visitors visa could establish residence here. "A nonimmigrant alien authorized to reside in this country on a visitor's visa does so on a temporary basis and on the condition that he or she is not abandoning his or her foreign residence. 8 U.S.C. § 1101(a)(15)(B); 8 C.F.R. § 214.2(b) (2006). The residency restrictions placed on a nonimmigrant alien residing on a visitor's visa negates the inference that a nonimmigrant alien intends to reside in Nebraska on a permanent basis merely because he or she has resided in this state for more than 1 year. Thus, in the instant case, the inference created by Rozsnyai's testimony that she has lived in Nebraska since 2001 was negated by the fact that she has done so on a visitor's visa. Because an inference did not arise that Rozsnyai has resided in Nebraska with the intention to make it her permanent home, it was necessary for Rozsnyai to put forth evidence establishing that intent. However, the only evidence presented at trial was Rozsnyai's testimony regarding the length of time she had resided in Nebraska at the time of trial. there may be instances where a nonimmigrant alien is able to establish an intention to reside in a state permanently when the alien has offered proof of that intent apart from his or her presence in that state. See, e.g., Alves v. Alves, 262 A.2d 111 (D.C. App. 1970) (holding husband established domicile for purposes of obtaining divorce in that jurisdiction, despite immigration status); Weber v. Weber, 929 So. 2d 1165 (Fla. App. 2006) (holding nonimmigration status does not bar individual's right to establish residency for purposes of obtaining dissolution of marriage in that state and citing Perez v. Perez, 164 So. 2d 561 (Fla. App. 1964), for proposition that alien's nonpermanent immigration status is factor in determining issue of domiciliary intent); Bustamante v. Bustamante, 645 P.2d 40 (Utah 1982) (noting nonimmigrating aliens may form requisite intent to establish permanent residence for purpose of divorce). However, such evidence is not present in this case. "
Follow up: Nebraska Supreme Court agrees with drug dealer that because the Attorney General did not argue to the Court of Appeals that the Leon good faith exception applied, the court of appeals should not have allowed the search to standState v. Tompkins, 272 Neb. 547 Filed November 9, 2006. No. S-05-212 Justice Connolly a one man roving commission against errors only he can find reverses the court of appeals on admittedly flimsy precedent on when the State must raise a Leon issue: "We have found very little case law directly on point regarding how the good faith exception may be raised; however, one case is instructive. In State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805 (1999), after finding no probable cause for the issuance of a warrant, we explicitly stated that we would not address the Leon good faith exception as it was not raised by the State. However, we did not explain the reason for our decision. We now follow our ruling in Ortiz and provide an explanation for why an appellate court on its own motion cannot consider the good faith exception. "

Friday, November 03, 2006

Nebraska Supreme court clarifies when an appellant may seek review of a dissolution action when she accepts some of the judgment; Supreme court overrules earlier cases that limited exceptions to the "acceptance of benefits" rule to child custody and support situationsLiming v. Liming, 272 Neb. 534 November 3, 2006. No. S-06-015. Parties disputed the value of their home and the court also awarded the wife alimony, which the husband paid in a lump sum. While the appeal was pending the wife took the money. The Court of appeals summarily affirmed the trial court based on Shires 240 Neb. 856and Giese 243 Neb. 60, which held that only child support and visitation issues are exceptions to the appellate rule prohibiting appeals of judgments where the appellant accepted the benefit of the ruling. Still the Supreme court affirms the trial court's property division. The husband's lottery winnings were in 1997 and the parties didnt file for divorce until 2004. "To the extent that Shiers v. Shiers, 240 Neb. 856, 485 N.W.2d 574 (1992), and Giese v. Giese, 243 Neb. 60, 497 N.W.2d 369 (1993), limit the exceptions to the acceptance of benefits rule in a dissolution of marriage action to issues affecting the interests and welfare of children, they are disapproved"
Arrested? Dial 1-800-LIAR! Nebraska Supreme court finds plain error when histrionic Prosecutor alleged defense attorneys mislead juries when defending clientsState v. Barfield, 272 Neb. 502 Filed November 3, 2006. No. S-05-973. Revival meeting prosecutor accused drug ring leader of being a "vicious dictator who rules with intimidation and tyranny like a two-headed hydra." The prosecuting attorney went further by complimenting defense counsel's advertising: You know, in 20 years as a prosecutor the hardest thing I think I've had to do is sit there with a straight face when a criminal defense lawyer had to look up the definition of "lie" in a dictionary. Why, I thought that was printed on the back of their business cards. Defense counsel did not object during argument. "Considering the cumulative effect and the egregious nature of the prosecutor's comments presented here, we similarly conclude that to leave such conduct uncorrected would result in damage to the integrity, reputation, and fairness of the judicial process. We again emphasize that the remarks made by the prosecutor, especially the prosecutor's statement to the effect that defense lawyers are liars, are of a very serious nature. In addition, the prosecutor's unacceptable remarks do not reflect a single, isolated instance, but were numerous. Moreover, because the disparaging remark as to defense attorneys was made during rebuttal, defense counsel had no opportunity to respond to and mitigate the last impression left with the jury before deliberations: that defense counsel, like all defense lawyers, was a liar."
Follow up; according to the Omaha World Herald, candidates for Douglas County Attorney are exchanging war stories of who committed bigger snafus. In State v Alba the Supreme Court said the Prosecutor's error led to a child sex predator's plea bargain to Class IV instead of Class II Each candidate had his share of dropped balls, and big city ennui as to street crime. The Alba case stands out because all the sides missed the effective date of the pertinent statutes. The world herald comments: Peter J. Alba case: Mark Rhodes, Dornan's former chief criminal prosecutor, agreed in 2004 to a plea bargain, allowing a convicted sex offender to plead to two counts of sexual assault of a child. Rhodes thought that the counts were punishable by up to 50 years in prison. However, sexual assault on a child carries a maximum term of 20 months to five years in prison. An appeals court overturned Alba's 15- to 25-year sentence. He was sentenced instead to 20 months to five years in prison on each count. (The Supreme court agreed with the Court of appeals that the sentence was excessive but refused to vacate the guilty plea.) Dornan noted that the judge and defense attorney also misunderstood the punishment. He said he will seek to place Alba under parole supervision after Alba's release.

Wednesday, November 01, 2006

Eighth circuit court of appeals reverses death sentence from Dallas county Missouri because the Prosecutor was playing sociologist poorly and the Judge was getting his anthropology wrongHerbert Smulls v. Donald Roper U.S. Court of Appeals Case 052456P.pdf 11/01/2006 U.S. District Court for the Eastern District of Missouri - St. Louis . The eighth circuit issues a rare reversal of a death sentence on Batson grounds. The prosecutor removed the only "dark" person on the jury and his reason was he didnt trust postal workers, even though some of his inlaws were postal workers. The judge during jury selection added to the farce by challenging the defense attorney's assumption that she could pick out black persons from among shades of skin color. Neverthe less the Eighth Circuit reverses and remand for a new Batson hearing at the district court or an outright vacation of the death sentence. The Prosecutor commented on how distrustful postal workers are: "Venire person indicated that she is a mail sorter for Monsanto Company. That she sorts mail for, I believe she said, 5000 people. And her husband works for the post office. And I believe she listed him as a custodian. It's been my experience in the nine years that I've been a prosecutor that I treat people who work as mail sorters and as mailcarriers, letter carriers and people who work for the U.S. Post Office with great suspicion in that they have generally – in my experience in many of the trials that I've had – are very disgruntled, unhappy people with the system and make every effort to strike back. In my experience as a prosecutor, in trying cases where I've had several cases and left mail people on the jury, had them result in a hung jury. The most recent of which was a murder case in this courthouse last September, State versus Dana Ruff (phonetically) where a mail carrier was the holdout for a hung jury in that case. I also have several in-laws who are employees of the postal department and even though they are somewhat relatives, I share the same opinion of them. So I treat them with great suspicion. The trial judge topped this with some brillant anthropology, worth of Gunnar Myrdal: I don't know what it is to be black. I don't know what constitutes black. And I never, in this Court,no matter what any appellate court may say, I never take judicial notice that anybody is black or that only one person or four persons or eightpersons are black. That to me is something that I don't think this Courtis wise enough or any other appellate court is wise enough unless thereis direct evidence as to who is black and who is white and who is orange and who is purple. I do not under any circumstances in this division ever take judicial notice of the number of people who are black. And Ibelieve that's counsel's responsibility to prove who is black and who isn'tor who is a minority and who isn't. There were some dark complexionedpeople on this jury. I don't know if that makes them black or white. As I said, I don't know what constitutes black. Years ago they used to sayone drop of blood constitutes black. I don't know what black means. Cansomebody enlighten me of what black is? I don't know; I think of themas people. I listened to the responses of Ms. Sidney. I watched her attitude very briefly as it may have been, and I'm not going to sit hereand say to you that Ms. Sidney is not black. But I'm not going to makea judgment as to whether anybody else on the panel was, so in any event,I'm merely telling you that for the record. I'd rather not even discuss it onthe record. But, in any event, I'm going to deny your motion for amistrial on the basis stated. Are we ready to proceed

Sunday, October 29, 2006

In another Eihusen dissolution of marriage action, the Nebraska supreme Court denies ex wife's request for a jury trial on her action to set aside dissolution settlement agreementRobert G. Eihusen, appellee, v. Linda K. Eihusen, appellant. Eihusen v. Eihusen, 272 Neb. 462 Filed October 27, 2006. No. S-05-523. Wife of Chief Industries Robert Eihusen agreed to sign a divorce settlement agreement before consulting an attorney. Then she complained that her exhusband robert had undervalued the debenture Chief owed to him by $3.5 million dollars. She claimed the debentures option price of $100 per share should equal the parties ESOPS which allowed option exercising at $167. Supreme Court denies her request for jury trial. And affirms District Court judgment against her. Apples dont fall far from the tree so Mrs. Eihusen could have taken some cues from Virgils maneuvering. The existence of the statutory right to vacate a judgment can be traced to 1867, prior to the adoption of the Nebraska Constitution. See Rev. Stat. § 602 (1867). The statutory provision as it read then is substantially similar to the version now in effect. Since 1867, that provision, as now codified at § 25-2001, has bestowed upon a district court the power to vacate or modify its own judgment for one of nine enumerated reasons, including fraud. Since its enactment, the nature of this action has been equitable. As we described it in In re Estate of West, 226 Neb. 813, 833, 415 N.W.2d 769, 783 (1987), an action under § 25-2001 is "equitable in character, available or administered on equitable principles, and extended on equitable terms." Moreover, the relief provided by this statute--the vacation or modification of a judgment--is not legal in nature, but, rather, is equitable. See, e.g., In re Estate of West, supra. We conclude, therefore, that an action to set aside a judgment or order under § 25-2001 invokes the equitable powers of the court, for which there exists no constitutional right to a jury trial. Similarly, the evidence here reveals that during the settlement negotiations and throughout the subsequent divorce proceeding, Linda was aware of the existence of the debenture. Prior to signing the settlement agreement, Linda sought the advice of an accountant who, in turn, advised her to seek legal advice before signing the agreement. Linda elected not to do so.

Friday, October 27, 2006

Nebraska Supreme Court allows Pakistani "arranged (maybe forced) marriages to emancipate underage girls, relieving father of child supportMillatmal v. Millatmal, 272 Neb. 452 Filed October 27, 2006. No. S-05-237. Husband and wife, as well as their two daughters, Nelam and Naheed, are U.S. citizens. Nelam was born June 25, 1985, and was married via an arranged marriage in Pakistan in late 2002. She currently resides in Omaha, Nebraska, with her husband. Naheed was born November 18, 1986, and in the summer of 2002 was also married via an arranged marriage in Pakistan. Naheed resides in Omaha with Parveen and attends school. Naheed's husband still lives in Pakistan. According to the record, there are currently no divorce actions pending in either the United States or Pakistan with respect to these marriages. Wife claims Husband should pay child support until the girls each reached age 19. Nebraska Supreme court recognizes a valid foreign marriage as a cause to emancipate minor children, relieving the father of child support. See 42-117 RRS Neb. There is no indication from the record that the marriage was invalid under Pakistani law. Thus, under the plain language of § 42-117, we must deem Naheed's marriage valid in Nebraska. Although Parveen's brief claims that in a marriage where consent was obtained by force or fraud, the marriage is voidable, the record does not reflect that either Naheed or Parveen have taken any steps to void this marriage. Thus, the marriage is not, for purposes of our analysis, void. Given that Naheed's Pakistani marriage is considered valid in Nebraska, we conclude that Naheed is emancipated. As a result of her emancipation, the district court abused its discretion in ordering Taj to pay child support to Parveen. Accordingly, we vacate the district court's award of child support.

Tuesday, October 24, 2006

Nebraska Court of Appeals reverses modified worker compensation award when trial court added workers depression as a compensable disability without finding the depression was due solely to the injured workers injuryHubbart v. Hormel Foods Corp., 15 Neb. App. 129 Filed October 24, 2006. No. A-06-096 The appeals court interprets Sec48-141 RRS Neb. to require that the additional disability be solely due to an increase in disability related to the initially awarded condition. Here although the company did not treat the injured worker well in refusing to pay for her carpal tunnel syndrome, the depression was not solely due to this, as the injured worker also had been arrested unemployed and on drugs. To obtain a modification, an applicant must prove, by a preponderance of evidence, that the increase or decrease in incapacity was due solely to the injury resulting from the original accident. Bronzynski v. Model Electric, 14 Neb. App. 355, 707 N.W.2d 46 (2005). The applicant must prove there exists a material and substantial change for the better or worse in the condition--a change in circumstances that justifies a modification, distinct and different from the condition for which the adjudication had previously been madeWe find that the trial court evaluated Hubbart's application to modify based on her depression using an incorrect standard. In its November 5, 2004, award, the trial court noted the following: "It is not necessary [Hubbart] establish that her depression was caused solely or exclusively by her physical injuries, loss of function and pain syndrome. The evidence does establish her injuries to be a significant, contributing cause of her depression which at present renders her temporarily totally disabled." However, as noted above, in order to obtain a modification to a prior award, an applicant must prove that the increase in his or her incapacity was due solely to the injury resulting from the original accident. Therefore, we find that the portion of the trial court's award finding Hubbart to be temporarily totally disabled as a result of her depression must be reversed and that the cause must be remanded to the review panel for remand to the trial court for evaluation of the claim using the proper standard.

Wednesday, October 18, 2006

Second hand smoke? DIAL 911! Tobacco Analysis Blog scoffs at new Omaha indoor smoking ordinance, especially its exceptions for Keno parlors and Horsemen's Park simulcast facilityTobacco Analysis Blog. Omaha anti smoking activists have requested on citizens to call 911 emergency response system to report smoking ban violations, but if an anti-smoking group is going to that citizens use this system to enforce a law, he I would think that all can agree that whether an establishment allows Keno or not or simulcasts horseracing or not has no bearing on the nature of the secondhand smoke hazard.

Tuesday, October 17, 2006

WE'RE 44! Nebraska among 10 least favorable states for their tax climates, says the Tax foundationKCBusiness JournalThe Washington-based nonprofit said in a release that it ranks the states using five component indexes that measure corporate, individual income, sales, unemployment and property taxes. "The SBTCI is designed to measure the competitiveness of each state’s tax system so lawmakers, the media and the public alike can gauge how their state compares to other states. They can also use the SBTCI to pinpoint specific changes that will increase the competitive standing of their state. Good state tax systems levy low, flat rates on the broadest bases possible, and they treat all taxpayers the same. Variation in the tax treatment of different industries favors one economic activity or decision over another. The more riddled a tax system is with these politically motivated preferences the less likely it is that business decisions will be made in response to market forces." Look at the neighboring states who managed to hit the top rung as well as the bottom: This year's index names the 10 best states as Wyoming (No. 1), South Dakota (No. 2), Alaska (No. 3), Nevada (No. 4), Florida (No. 5), Texas (No. 6), New Hampshire (No. 7), Montana (No. 8), Delaware (No. 9) and Oregon (No. 10). The 10 worst states, according to this year's index, are Minnesota (No. 41), Maine (No. 42), Iowa (No. 43), Nebraska (No. 44), California (No. 45), Vermont (No. 46), New York (No. 47), New Jersey (No. 48), Ohio (No. 49) and Rhode Island (No. 50).

Sunday, October 15, 2006

Omaha distributor of heating and air conditioning equipment loses $3.3 million verdict in dispute with Houston A federal jury in Houston has ordered an Omaha company and its Kansas City, Kan., affiliate to pay $3.3 million to a heating and air conditioning equipment manufacturer. Asha Distributing Co. of Omaha and Asha Distributing of K.C. Inc., both owned by Trace Smith of Omaha, lost the verdict to Goodman Manufacturing Co. of Houston. Asha has filed for a new trial, to set aside the verdict or to reduce the verdict. Goodman alleged it had dealt with Asha since 1999 under agreements that allowed it to ship its heating and air conditioning units to warehouses based on Asha's estimated sales. The warehouses stored the units until Asha sold them to customers, and Asha could return unsold units according to specific rules, according to the lawsuit.Disputes between the two companies over the delivery and payment for the units began in 2000 and 2001. The details involve a complex system of receiving, selling and shipping the units, some of which had been owned by another distributor.Goodman's lawsuit said Asha overforecast sales of some of the units but accepted delivery anyway. Asha later tried to reject some of the equipment, but Goodman argued that the rejection was late and for improper reasons, such as units being an incorrect color.Goodman also alleged that Asha sold some equipment but didn't pay Goodman for it. Goodman terminated Asha as a distributor on March 21, 2005, and the two companies could not agree whether Asha should pay for the units that were in storage at the time.In reply, Asha argued that it had complied with its business arrangements with Goodman but that Goodman didn't deliver some units in a timely and accurate manner. Asha said it repeatedly informed Goodman about misshipments and rejected units that were obsolete, damaged or otherwise "non-saleable."Asha also said Goodman shipped units that Asha hadn't ordered, incorrectly counted some units as belonging to Asha and double-billed for some shipments.Goodman said it was owed more than $4 million. Asha asked the court for $924,000 in damages. The jury awarded Goodman $3,587,989 and Asha $288,888, requiring a net payment by Asha to Goodman of $3,299,101, plus 4.97 percent annual interest until the amount is paid.Attorneys for Goodman also requested $550,000 in fees.In asking for a new trial, attorneys for Asha argued, among other things, that in some parts of the dispute the jury awarded more than Goodman had requested and that the jurors ignored payments Goodman had received from Asha.
Nebraska supreme court does not release any opinions this week. Nebraska court of appeals affirms district court's denying arbitration defense to former director of the failed Amwest Insurance Company in suit the Nebraska Department of Insurance broughtState ex rel. Wagner v. Kay, 15 Neb. App. 85 October 10, 2006. No. A-05-130. to affirm or disavow any contracts to which the insurer is a party." The Liquidator in the present case is not seeking to enforce the agreements; but instead, he is disavowing them, which is one of his express powers. There is nothing in the record to indicate that the Liquidator adopted any of the agreements or expressly assumed the liabilities contained therein. To allow Scheiner to have her action "'decided privately and separately from [her] fellow officers when the [L]iquidator has disavowed the [agreements] is contrary to the interests of insureds, claimants, creditors, and the public generally.'

Saturday, October 07, 2006

In domestic assault case, Double jeopardy did not bar State's prosecuting the Defendant for accompanying felonies after the defendant plead guilty to lesser included misdemeanors State v. Humbert, 272 Neb. 428 Filed October 6, 2006. No. S-05-1221. Defendants estranged wife, Mayra Humbert (Mayra), claimed that Defendant stabbed her and tied her up in their former Bellevue home to secure her cell phone. After Humbert returned to the residence, he untied Mayra. She escaped from the residence and was later treated at an Omaha hospital for her injuries. Def told police that he and Mayra had argued on April 27, 2005. In order to scare Mayra, he picked up a "ceremonial type" knife that was on a counter in the residence. Humbert said that as Mayra approached him, she "walked into the knife." Humbert saw blood on Mayra's pants, but he did not ask her if she was hurt. Humbert was charged by complaint in county court with four felonies: first degree false imprisonment, second degree assault (domestic violence), terroristic threats, and use of a weapon to commit a felony. After he was bound over to district court, an information was filed charging Humbert with the same four felony counts and two additional misdemeanors: second degree false imprisonment and third degree assault (domestic violence). the court overruled his plea in bar to continued prosecution for the felonies after the def plead to the misdemeanors. The supreme court affirms. Following Ohio v. Johnson, 467 U.S. 493, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984). "While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting [the defendant] for such multiple offenses in a single prosecution." Ohio v. Johnson, 467 U.S. at 500.The State is not seeking a subsequent prosecution of Humbert for a greater offense after he had previously been tried for the lesser-included offense. There has been no trial on any of the charges. Humbert has pleaded no contest to the above-described misdemeanors, but he has not been sentenced and he has not been subjected to a trial on the felony charges. Therefore the trial may proceed.
For once the Nebraska supreme court upholds a summary dismissal of a frivolous lawsuit: Plaintiff burned while burning yard waste sued textile company that made his t shirt. Manufacturer demonstrated enough evidence on summary judgment to show that someone bought the shirt more than 10 years before the accidentMarksmeier v. McGregor Corp., 272 Neb. 401Filed October 6, 2006. No. S-05-423. the Nebraska statute of repose, Neb. Rev. Stat. § 25-224(2)(a)(ii) (Cum. Supp. 2004)borrows the statute of repose that belongs to the state of manufacture,in this case Tennessee's. Tenn. Code. Ann. § 29-28-103(a) (2000). Just think way back around 1990 someone made clothing in the United States! Following the 7th Circuit decision Schamel v. Textron-Lycoming, 1 F.3d 655 (7th Cir. 1993) the defendant moving for summary judgment does not have to prove how long the items stayed on their inventory shelves. Rather the defendant need only prove that it stopped distributing the item at a time outside the repose period, then the Plaintiff must rebut.

Sunday, October 01, 2006

Order of the knee pads update: Nebraska Supreme Court disbars attorney for committing lese majeste of the Court the Bar and especially the counsel for disciplineState ex rel. Counsel for Dis. v. Beach, S-04-1399, S-05-1116, 272 Neb. 337 Attorney faced disciplinary charges for suggesting that her ex husband kill himself, for disclosing confidential information about her and drinking with her while the client was on probation. The referee recommended a six month suspension. Then the attorney mistakenly sought to editorialize his feelings about the court and the counsel for discipline as follows: About the former clients new attorney: "The practice was more enjoyable before feminazi bitches like you came on the scene." The attorneys offensive comments about the attorney disciplinary process which seems to have benefited some attrorneys who have stroked the system to avoid more serious sanctions: "Your rules suck in situations like this. I didn't try to screw her or steal her money. The letter I wrote to her disgusting husband had to be written and [J.N.] needed a couple of [sic] beers on occasion to balance her wacky head." On July 14, relator notified respondent that it had filed a grievance against him regarding his conduct in sending the aforementioned letters. In grand language with magnificent circular reasoning the supreme court states it will uphold a bar of strokers who dare not challenge their cabal: "Hostile, threatening, and disruptive conduct reflects on an attorney's honesty, trustworthiness, diligence, and reliability and adversely reflects on one's fitness to practice law. State ex rel. Counsel for Dis. v. Janousek, 267 Neb. 328, 674 N.W.2d 464 (2004); State ex rel. Counsel for Dis. v. Lopez Wilson, 262 Neb. 653, 634 N.W.2d 467 (2001). An attorney's conduct which includes progressively abusive language, demeanor, and threats violates disciplinary rules that prohibit engaging in conduct prejudicial to the administration of justice and engaging in conduct that adversely reflects on one's fitness to practice law. State ex rel. Counsel for Dis. v. Lopez Wilson, supra." Ie, behavior we dont like adversely reflects on an attorneys fitness to practice law. Dear Supreme Justices: "hostile threatening etc reflects on honesty trustworthiness diligence and reliability." Is this a rule of law or a conclusion you drew as amateur psychologists, ala Brown v board of education?

Tuesday, September 26, 2006

In the wake of the City Council's decision to seek TIF bonds for development near North 56th Street and Interstate 80, the developers must have taken their cues from Cabela's successful exploitation of TIF's to open stores in TexasReason Magazine earlier this year chided Fort Worth municipal officials for giving away millions of development funds to Cabela's so it could build a spanking new sporting goods store that would out-do the Alamo as a draw. Apparently another Cabela's 120 miles away was going to do just as well.

Friday, September 22, 2006

Please reassign me to defending terrorist suspects: Military appeals court disqualifies Senator Lindsey Graham from service as an appeals judgeSCOTUSBlog: The highest court in the military judiciary, the U.S. Court of Appeals for the Armed Forces, on Wednesday barred a U.S. senator from sitting on a military appeals court that decides criminal cases. By a vote of 4-1, the Court found unconstitutional the dual role of Lindsey O. Graham as a senator (Republican from South Carolina) and as a reserve officer sitting on the Air Force Court of Criminal Appeals. The decision is Lane v. U.S. (CAAF docket 05-260)
Nebraska Supreme Court allows parental rights termination appeal to proceed after court of appeals had dismissed the appellants notice of appeal because he signed his poverty affidavit in Utah before a Utah licensed notaryIn re Interest of Fedalina G., 272 Neb. 314 September 22, 2006. No. S-06-235. § 25-1245 and rule 28(b) (Nebraska rules of discovery) provide that an affidavit may be used in support of a motion in a court of this state if the affidavit is made and authenticated, out of state, before a person authorized to administer oaths in the place where the affidavit is made. A notary public is authorized to administer oaths. A notary public of the State of Utah is authorized to administer oaths in Utah. See Utah Code Ann. § 46-1-6(4) (Supp. 2006). Because the affidavit in this case was duly authenticated in Utah by a person authorized to administer oaths in the State of Utah, it may be submitted in support of a motion made in a Nebraska court. The Court of Appeals erred in concluding otherwise.
Taking that old time religion is a good strategy sometimes. Follow up: Supreme Court took case on further review, but affirms without comment the trial court's harsher resentencing after the Defendant won a reversal of his first sentence because the judge quoted bible verses to him. State v. Bruna, S-05-529, 272 Neb. 313 Sept 22 2006. Having reviewed the briefs and record and having heard oral arguments, we conclude on further review that the decision of the Nebraska Court of Appeals in State v. Bruna, 14 Neb. App. 408, 710 N.W.2d 329 (2006), is correct and accordingly affirm the decision of the Court of Appeals.

Tuesday, September 19, 2006

Maxwell T's father went back to prison on parole violations and his mother checked herself into alcohol treatment because she drank over a quart of vodka a day; The Nebraska court of Appeals holds that the Sarpy County Juvenile Court properly exercised emergency jurisdiction over the child even though the father had custody through a South Dakota divorce decreeIn re Interest of Maxwell T., 15 Neb. App. 47 September 19, 2006. No. A-05-1477.The juvenile court properly exercised temporary emergency jurisdiction in this case, but that the court must immediately communicate with the South Dakota court as required by the UCCJEA before proceeding further with this matter. Further, the juvenile court is without jurisdiction to render a permanent custody order unless the South Dakota court affirmatively declines jurisdiction or fails to take appropriate action. the applicable statutory scheme is the UCCJEA, Neb. Rev. Stat. §§ 43-1226 through 43-1266 (Reissue 2004), rather than the Nebraska Child Custody Jurisdiction Act (NCCJA), because the first petition in this child custody proceeding was made in January 2005, well after the date the UCCJEA became operative, January 1, 2004. See §§ 43-1226(Supp. 2003; LB148 2003-2004)...the juvenile court, unaware of the South Dakota divorce decree, initially assumed original jurisdiction under Neb. Rev. Stat. §43-248 (Reissue 2004) when it granted the January 21, 2005, order for temporary custody. The court later adjudicated Maxwell under § 43-247J, with respect to Marsha, on May 4. It was not until June 27 that the court was informed of the prior out-of-state custody determination. Maxwell was subsequently adjudicated with respect to Lloyd on November 3...the juvenile court properly exercised jurisdiction under § 43-1241 at the time of the filing and adjudication of the supplemental petition. This holding is subject to the jurisdictional limitation set forth below...Because the South Dakota court has entered a child custody decree and Lloyd still lives in South Dakota, the South Dakota court retains continuing jurisdiction to make any permanent changes in custody. The juvenile court must immediately communicate with the South Dakota court as required by § 43-1241(d). Further, the juvenile court is without jurisdiction to render a permanent custody order unless the South Dakota court affirmatively declines jurisdiction or fails to take appropriate action.

Friday, September 15, 2006

"Essentially the same" is not "substantially the same": the Nebraska Supreme Court denies efforts of casino gambling promoters to place new casino constitutional initiative on the 2006 ballot because it would be "essentially" the same as the defeated 2004 initiative, and so contrary to the Nebraska Constitution "resubmission" clauseState ex rel. Lemon v. Gale, S-06-909, 272 Neb. 295. The resubmission clause, "Article III sec 2 states: "The same measure, either in form or in essential substance, shall not be submitted to the people by initiative petition, either affirmatively or negatively, more often than once in three years" The Nebraska Supreme Court finds that barring constitutional initiatives that are "essentially" the same for three years meant that the 2006 casino initiative to introduce one casion per congressional district was essentially the same as the 2004 defeated initiative that would have permitted the legislature to introduce gambling legislation. The district court had erroneously equated "esentially" with "substantially." New Jersey had permitted successive ballot initiatives in the 1970s to reintroduce casino gambling because the second measure was not "substantially " the same as the earlier defeated one. Young v. Byrne, 144 N.J. Super. 10, 364 A.2d 47 (1976). We conclude that the essential substance of the 3 Casinos Initiative submitted for 2006 and Initiative 417 submitted to the electorate in 2004 is the same: amending the constitution to authorize enactments permitting the operation of games of chance. We therefore determine that the district court erred in ruling that inclusion of the 3 Casinos Initiative on the 2006 general election ballot would not violate the resubmission clause and in ordering Gale to proceed with signature verification and to submit the measure to the Attorney General for ballot title preparation.
Lets outsource all the lawyers! The american legal profession may catch the next wave of professional services' outsourcingLegal Business Development Blog: The recent Business Week article “Let’s offshore the lawyers?” (9/18/06, p. 42) notes that corporate pioneer in lawyer cost cutting Dupont has started sending legal research to Asia. Business Week argues, “few industries seem more ripe for radical restructuring than legal services...DuPont’s hiring of 30 Filipino lawyers and 50 staff to digitize, index, and analyze documents from a number of cases. "it is inevitable that some percentage of US legal work will go offshore. The only question is what percent. Business Week quotes an estimate from consulting firm Hildebrandt International that US firms “can save 25% to 35% by farming legal work to Asia.”

Sunday, September 10, 2006

Kenny is no fan of the peoples seldom used right to recall judges who go their own way and not theirs; never mind that in Nebraska it happened once and hasn't since. Still its an undignified assault on judicial "independence/"Kenny's Blog. Justice Lanphier was the first and only victim of a successful judicial retention election against a sitting supreme Court justice. Those who tried to bring him down hardly ambushed him. As it turns out each side spent roughly equal amounts of money on the campaign. Although the Nebraska accountability and disclosure commission unsuccessfully sought to compel the anti lamprey forces to comply with the elections regulations act, now they must according to legislative amendments. 49-1405 REARS The People also defeated a constitutional amendment to require supreme court retention elections take place statewide. 1998. The other measures to remove a judge from office are Iimpeachment and a decision from Nebraska Judicial Qualifications Commission. That is hardly a sign that the independence of judges is at stake, assuming we must endure independent judges.

Friday, September 08, 2006

Norfolk bank robbers death penalty appeal of finding him smart enough for execution is not a final order State v. Vela, S-06-595, 272 Neb. 287 The Nebraska Supreme Court dismisses Eric Vela's appeal from the Court's ruling that he was smart enough to face execution for participating in the 2002 Norfolk bank robbery. The right at issue in the instant case is both statutory and constitutional. See, § 28-105.01(2); Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). However, both the statutory mandate and constitutional rule are based on the determination that "mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes," but "[b]ecause of their disabilities in areas of reasoning, judgment, and control of their impulses . . . they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct." Atkins, 526 U.S. at 306. See, also, Introducer's Statement of Intent, L.B. 1266, Judiciary Committee, 95th Leg., 2d Sess. (Feb. 13, 1998).Because it neither affected a substantial right nor was made in a special proceeding, the court's order overruling the defendant's motion to preclude imposition of the death sentence because of mental retardation was not a final, appealable order. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the tribunal from which the appeal is taken. In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006). When an appellate court is without jurisdiction to act, the appeal must be dismissed. State v. Dunlap, 271 Neb. 314, 710 N.W.2d 873 (2006).

Thursday, September 07, 2006

Eighth Circuit denies appeal of drug conviction where suspect resisted arrest and tried to flee; police had independent grounds to arrest search and seize contraband from suspect even if no probable cause existed for intial pat downUS v Sledge aka Fowler. Parties disputed whether police had probable cause to search suspect stopped for active broadcasts and presence in car where suspected minor inpossession transaction took place. Suspect did run from police and when apprehended the police seized crack and $229. Eighth Circuit affirms. Resistance to an illegal arrest can furnish grounds for a second, legitimate arrest.” United States v. Schmidt, 403 F.3d 1009, 1016 (8th Cir. 2005);“When a defendant commits a new and distinct crime during an unlawful detention, the Fourth Amendment’s exclusionary rule does not bar evidence of the new crime.” United States v. Hunt, 372 F.3d 1010, 1012, (8th Cir. 2004). Neb. Rev. Stat. § 28-906(1). The mere act of running away from law enforcement officers constitutes physical interference or obstacle within the meaning of this provision. In re Interest of Richter, 415 N.W.2d 476, 478 (Neb. 1987)