Tuesday, January 31, 2006
A reasonable controversy under § 48-125 may exist (1) if there is a question of law previously unanswered by the appellate courts, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act, or (2) if the properly adduced evidence would support reasonable but opposite conclusions by the Nebraska Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or in part. Milliken v. Premier Indus. 13 Neb. App. 330, 691 N.W.2d 855 (2005).
Child support orders are always subject to review and modification. Reinsch v. Reinsch, 259 Neb. 564, 611 N.W.2d 86 (2000)...it is clear that the parties included the provision allowing either party to modify upon certain conditions, not because the trust's payments were for a certain time, but because the length of the trust's payments was uncertain or speculative. The parties' agreement regarding a subsequent modification is an acknowledgement by both parties that if the trust stopped making the payments, or if the payments continued but were inadequate, a material change of circumstances had occurred...At the modification hearing, William testified that he did not have a source of income when he signed the parties' settlement agreement, but, rather, he was supporting himself by liquidating his $1 million share of the marital assets. For these reasons, we conclude that the trial court abused its discretion in finding that a material change in circumstances had not occurred. We go on to modify William's child support obligation accordingly, giving due deference to the best interests of the children.At the time of the modification hearing the father was earning over $500k/year while at the time of the divorce he made nothing (and its tough trying to live off his liquidated share of marital property following the divorce worth a paltry $1million). The court of appeals sets child support based on maxiumum child support guideline income permonth of $10k, as when family income exceeds this, the guidelines allow a discretionary increase. But in this case the court of appeals deviates and orders only $700/month child support, the amount of money the mother states she spends out of pocket every month. Also the trust continued to pay childrens significant expenses:
Given the evidence that the trust is paying all of the major expenses of the minor children, we conclude that it is both equitable and in the children's best interests to deviate from the child support guidelines in setting William's child support obligation. The record clearly shows that ordering William to pay according to his income would be both unjust and inappropriate, given the evidence that the trust pays all of the children's expenses except some minor expenses still being incurred by Karen. Therefore, on this record we set William's child support obligation using the evidence of Karen's expenses for the children. Given that Karen incurred approximately $700 in monthly expenses for the children from December 2003 through December 2004, we order William to pay Karen child support of $700 per month. William should pay this amount until Cody reaches the age of majority under Nebraska law, becomes emancipated, becomes self-supporting, marries, or dies, or until further order of the court.
Friday, January 27, 2006
Pinnacle consistently sought a writ of replevin, stood on its pleading, and proceeded to trial solely on a theory of replevin. But the money consisted of a check that was cashed. Thus, the funds are--or were--either held as cash or in Watkins' bank account. The specific funds were not marked or set aside in a manner that would allow them to be specifically identified. Therefore, the funds were not subject to an action for replevin. Accordingly, the county court should have dismissed Pinnacle's complaint as requested by Watkins in its answer.
Thursday, January 26, 2006
Because Nebraska has a greater material interest in the Agreements and application of Ohio law would violate a fundamental policy of Nebraska law, we holdthe district court correctly applied Nebraska law to the question of the validity and enforceability of the noncompete agreements. See First Nat’l Bank v. Daggett, 497 N.W.2d 358, 363 (Neb. 1993) (disregarding choice-of-law provision because the chosen state had no contacts with the transaction and the parties, and application of the chosen state’s law would offend a strong public policy in the forum state. We conclude the district court properly held the noncompete agreements were overbroad and unenforceable. The district court recognized the noncompete agreements prohibit the former employees from, directly or indirectly, being concerned in any manner with any company in competition with DCS, and from providing contract cleaning services within one hundred miles of any entity or enterprise “having business dealings” with DCS, including attorneys, accountants, delivery services and the like. The breadth of the noncompete agreements effectively put the former employees out of the cleaning business within an extensive region. We hold the district court did not err in concluding Nebraska courts would not enforce such overly broad noncompete agreements. See Rosno, 680 N.W.2d at 186-87 (holding noncompete agreement was overly broad where the agreement prohibited the former employee from soliciting or contacting any of the former employer’s clients and where the former employer could not establish the former employee had done business with or had substantial personal contact with all of the former employer’s clients); Even if the defendants might have been in violation of a reformable noncompete, because Nebraska prohibits reformation of non compete agreements, the Plaintiff's non-compete was completely ineffective
Crowe’s bare bones original complaint only sketches the elements of a CCPA offense. Nonetheless, Crowe’s CCPA claim was dismissed by the trial court on improper grounds. Crowe’s amended complaint and his petition, which flesh out Crowe’s argument that the Azar firm is a "personal injury mill"using its advertising to deceive the public, show that Crowe is capable of asserting a claim that alleges the five elements of the CCPA, elucidated in Walter, and which we have held applicable to attorneys in this opinion. 969 P.2d 224. Therefore, in light of today’s decision, we direct the trial court to permit Crowe to replead his CCPA claim. We also note that in repleading, Crowe must allege facts sufficient to support the inference that Tull and Azar knowingly engaged in a deceptive trade practice which Crowe relied upon. See Martinez, 969 P.2d at 220-22 (medical doctor who misrepresented his ability to diagnose organic brain injury may have committed deceptive trade practice) . Further, if Crowe fails to allege an injury other than a private wrong caused only by the poor advice of his attorney, the injury will lack public impact and will be too narrow in scope to be covered by the CCPA. See id. at 220-23 (CCPA claim dismissed because misrepresentations were made only to patient’s insurer) . The original complaint failed to adequately set forth these elements. Finally, we direct the trial court to reconsider the protective order which shut down discovery related to the Azar firm’s advertising and marketing practices, including the production of its television, radio, and print advertisements, and certain of its operations and practices in serving past clients. These avenues for discovery were closed by the trial court after the CCPA claim was dismissed on improper grounds.
Tuesday, January 24, 2006
The American Bar Association and 39 of the country's largest corporations had urged the justices to take the case to ensure the credibility of judicial elections nationwide. The ABA said the lower court's ruling has thrown judicial elections in 31 states into confusion because they have similar rules to those that were invalidated. The corporations -- including Dow Chemical, General Electric, General Motors, PepsiCo and Wal-Mart -- said they don't want judicial elections to become as polarized as campaigns for other elective offices.
Monday, January 23, 2006
“Even at the close of all the evidence it may be desirable to refrain from granting a motion for judgment as a matter of law despite the fact that it would be possible for the district court to do so. If judgment as a matter of law is granted and the appellate court holds that the evidence in fact was sufficient to go to the jury, an entire new trial must be had. If, on the other hand, the trial court submits the case to the jury, though it thinks the evidence insufficient, final determination of the case is expedited greatly. If the jury agrees with the court’s appraisal of the evidence, and returns a verdict for the party who moved for judgment as a matter of law, the case is at an end. If the jury brings in a different verdict, the trial court can grant a renewed motion for judgment as a matter of law. Then if the appellate court holds that the trial court was in error in is appraisal of the evidence, it can reverse and order judgment on the verdict of the jury, without any need for a new trial. For this reason the appellate courts repeatedly have said that it usually is desirable to take a verdict, and then pass on the sufficiency of the evidence on a post-verdict motion.” 9A Federal Practice §2533, at 319 (footnote omitted).Thus, the District Court’s denial of respondent’s preverdict motion cannot form the basis of respondent’s appeal, because the denial of that motion was not error. It was merely an exercise of the District Court’s discretion, in accordance with the text of the Rule and the accepted practice of permitting the jury to make an initial judgment about the sufficiency of the evidence. The only error here was counsel’s failure to file a postverdict motion pursuant to Rule 50(b)
Friday, January 20, 2006
Here, the district court was correct in formally introducing its prior proceedings into evidence and making such evidence a part of the record. See, In re Interest of C.K., L.K., and G.K., supra; Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990). It should have done so, however, by individually noticing those elements considered relevant and competent for the issues presented. Still, any error committed by the district court is clearly harmless because our review, as will be seen below, presents only questions of law. See Husen v. Husen, 241 Neb. 10, 487 N.W.2d 269 (1992). We need not decide in a de novo review whether to disregard the entire file presented in this case, because the facts contained therein are irrelevant to our analysis.
Furrey: Here, the first complaint correctly stated all of the statutory elements of the offense. It was brought before the judge of the county in whichthe offense was allegedly committed, and it described the offense as a Class Wmisdemeanor. In fact, other than the correction that Furrey was simply within the county and not within the city limits; the setting forth that the deputy county attorney, rather than the special city attorney, was bringing forth the complaint; and the citation to § 60-6,196(2)(a) as the offense, rather than the city ordinance, the two complaints are identical. Despite the fact that Furrey never alleged that he had been prejudiced or misled by the errors of the original complaint, the county court granted Furrey a continuance and allowed him to withdraw his prior plea. Under these circumstances, it cannot be said that the amended complaint either changed the offense charged or prejudiced Furrey's substantial rights. Thus, there was no error in allowing the amended complaint, and the amendment was simply a continuation of a single trial.Dean:
even assuming a biological sample did exist and that Dean's DNA was absent from that sample, on the record before us, it would be mere speculation to conclude that the absence of Dean's DNA on the firearm and ammunition would exclude him as being the person who fired the fatal shot. This is particularly so in view of the persuasive and undisputed trial evidence to the contrary. See State v. Lotter, 266 Neb. at 770, 669 N.W.2d at 448 (holding that "mere speculation" to conclude that absence of murder victim's blood on defendant's clothing and presence on accomplice's clothing would establish that accomplice and not defendant had fired fatal shots). We conclude that the trial court did not abuse its discretion in refusing DNA testing because even if such tests produced the result that Dean predicts, the result would not be exculpatory.
Counting forward 180 days from July 29, 1996, the date the State received Rieger's request for disposition, produces an initial trial date of January 25,1997. Counting forward 6 months from July 30, 1996, and backing up 1 day,pursuant to the 6-month speedy trial rule, produces an initial trial date ofJanuary 29, 1997. This 4-day difference in initial trial dates is crucial in determining whether Rieger was timely tried. As noted, the Court of Appeals relied on article VI of the Agreement to conclude that Nebraska's 6-month speedy trial rule should be applied to determine the expiration of the 180-day time limitation for trial. Thus, the issue presented is whether the language of the Agreement supports that interpretation. The Nebraska Supreme Court finds that treating 6 months as equal to 180 days results in a discrepancy in the time limit defendant had to come to trial. The court should not have substituted the state 6 month time for the IAD 180 days
Although article VI(a)allows the court with jurisdiction to determine whether the 180-day time period in article III has been tolled, it does not authorize a court to alter the time period from days to months. The plain language of article III(a) requires the receiving state to bring a prisoner to trial within 180 days of receiving the prisoner's proper request for final disposition. In contrast, § 29-1207 requires the State to bring a defendant to trial within 6 months. Compare State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981) (rejecting as contrary to plain language of § 29-1207 defendant's contention that Nebraska's 6-month speedy trial rule should be calculated by counting forward 180 days plus any excludable days).Therefore counsel's ineffective error in fighting the detainer issue resulted in Strickland prejudice
The failure of (defense counsel) to create a proper record for appeal from the denial of Rieger's motion to discharge resulted in the Court of Appeals' failure to consider when the time limitation for trial expired. As discussed, a calculation based on 180 days, as extended by the Court of Appeals' excludable time periods, results in a trial deadline of August 4, 1997, and Rieger's trial did not begin until August 18. Under article V(c), Rieger was entitled to an order dismissing the action with prejudice. Given our holding that Rieger's trial was not timely, we conclude that if (def counsel) had shown the 180-day time limitation was triggered, a reasonable probability existed that an appeal or petition for further review from the denial of Rieger's motion to discharge would have resulted in a reversal.
Thursday, January 19, 2006
Tuesday, January 17, 2006
Sunday, January 15, 2006
While § 30-2626(d) does provide that the 90-day temporary guardianship period may be extended for good cause shown, it is hard to imagine what "good cause" could justify a delay of 8 months. Regardless, it cannot be said that the court's summary conclusions as to good cause and its orders extending the temporary guardianship and conservatorship until further court order qualify as a showing of good cause sufficient to circumvent the alleged incapacitated person's right to a speedy resolution of whether, in fact, a need exists to restrict his or her independence to the extent exercised by a temporary guardianship or conservatorship. Here, Larson has clearly asserted that he is not incapacitated, at least not to the extent asserted by the petition for the appointment of a guardian and conservator. Yet the court, under the advice primarily of the GAL, appears to treat Larson's complete incompetence as a foregone conclusion. Without giving Larson the benefit of an evidentiary hearing to determine competency, the court ignored Larson's expressed wishes regarding Looby's not being his guardian and conservator. The court ignored Larson's expressed wishes as to who his attorneys of record should be. The court refused to allow Larson to dismiss Wilson, despite the fact that Wilson had long since ceased to advocate for her client's expressed desires or to pursue Larson's right to an evidentiary hearing. Instead, the court allowed Looby, for an extended period of time, almost unlimited powers as temporary guardian and conservator over Larson's personal liberty and his financial affairs.
It is clear that the failure of the court to follow the statutory mandates with regard to the limited nature of the powers and duties of the temporary guardian and conservator, as well as its failure to follow the mandate of a timely evidentiary hearing on competency, constitutes plain error.
Thursday, January 12, 2006
the Firefighters equate the words "such member's senior" with someone who has greater seniority in length of service. Second, the Firefighters treat the phrase as comparing individuals of the same rank, grade, or class. We consider both of these readings to be inconsistent with the plain meaning of OMC § 23-148. Correctly interpreted, "such member's senior in rank, grade or class" refers to an officer who has a greater or higher rank, grade, or class than the "uniformed member" being compared. See id. This interpretation naturally flows from the paramilitary nature of police and fire organizations. By its terms, OMC § 23-148 applies to the City's police department as well as its fire department. The purpose can be readily understood and easily demonstrated in the more familiar ranks of a typical police department. The ordinance simply contemplates the possibility that for some unspecified reason, a lower ranking officer such as a sergeant might be paid more than a higher ranking officer such as a lieutenant. In that situation, OMC § 23-148 operates to resolve the disparity between rank and pay by increasing the pay of the higher ranking officer. That purpose is completely absent in the instant case. The legislative history for OMC § 23-148--which consists of a very brief letter from an assistant city attorney to the Omaha City Council--paraphrases the language of the ordinance and does not affect our interpretation of the ordinance's plain language.Why ordinance 34398 was not a mere resolution:
The crucial test for determining that which is legislative (ordinance) from that which is administrative or executive (resolution) is whether the action taken was one making a law, or executing or administering a law already in existence.Kubicek v. City of Lincoln, 265 Neb. 521, 529-30, 658 N.W.2d 291, 298 (2003). See, also, Smith v. City of Papillion, 270 Neb. 607, 705 N.W.2d 584 (2005)
Regardless of whether ordinance No. 34398 is a resolution, we find no authority which would forestall us from considering an ordinance conjunctively with a resolution for the purpose of interpreting the ordinance. We consider OMC § 23-148 and ordinance No. 34398 in pari materia and proceed to interpret OMC § 23-148 accordingly.
Wednesday, January 11, 2006
whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.Texas v. McCullough, 475 U.S. 134, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986),suggests that no Pearce presumption of vidictiveness arises when different factfinders impose punishment on remand: The presumption is also inapplicable because different sentencers assessed the varying sentences that [the defendant] received. In such circumstances, a sentence "increase" cannot truly be said to have taken place. .
In the case before us, the procedural history does not support Bruna's position that his successful appeal was the motivation for the greater sentence. The second judge did not have a personal stake in the first sentence or a personal motive for vindication, and like the U.S. Supreme Court in Texas v. McCullough, 475 U.S. 134, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986), we decline to base the presumption on speculations of judicial vindictiveness.Finally on plain error review the Court finds no actual vindictiveness on resentencing. The offending Bible passages that the same District Judge had cited in State v Pattno, another sexual offense case the judge had handled and had the Supreme Court reverse were: Romans 1:21-23: "Ever since the creation of the world his invisible nature, namely, his external power and deity, has been clearly perceived in the things that have been made. So they are without excuse; for although they knew God they did not honor him as God or give thanks to him as God, but they became futile in their thinking and their senseless minds were darkened. Claiming to be wise, they became fools, and exchanged the glory of the immortal God for images resembling mortal man or birds or animals or reptiles. Romans 1:26: "Therefore God gave them up in the lusts of their hearts to impurity, to the dishonoring of their bodies among themselves, because they exchanged the truth about God for a lie and worshiped and served the creature rather than the Creator, who is blessed for ever [sic]. Amen. Romans 1:26: "For this reason God gave them up to dishonorable passions. Their women exchanged natural relations for unnatural, and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in their own persons the due penalty for their error."
Monday, January 09, 2006
Friday, January 06, 2006
Because the State provided no reason why the defendant's identity would be reasonably pertinent to Deidre's diagnosis and treatment and because Settje suggested that it was not, we conclude that Settje's recitation contained inadmissible hearsay. If this testimony is introduced on retrial, it should be excluded as hearsay, not within an exception, unless the defendant's identity is redacted or the State demonstrates that the defendant's identity is reasonably pertinent to Deidre's diagnosis and treatment.Case reversed for a new trial on all counts.
Because the Supreme Court upholds summary judgment for the Hospital on the breach of contract claim it finds the issue of the statute of frauds moot, although it notes the defendant could have made it an issue if its attorneys had done their home work:
To satisfy rule 15(b), evidence to which no objection is raised must be directed solely at the unpleaded issue, in order to provide a clear indication that the opposing party would or should have recognized that a new issue was being injected into the case. The record here simply fails to satisfy that standard. The Court of Appeals erred in concluding that the pleadings in this case had been constructively amended by implied consent pursuant to rule 15(b).
Beatrice conceded, in its appellate brief, that in light of the district court's conclusion that no oral contract existed, the statute of frauds issue was moot. Beatrice has not suggested that the statute of frauds defense applies to a promissory estoppel cause of action where there is no otherwise valid contract. Compare, Rosnick, supra; Farmland Service Coop, Inc. v. Klein, 196 Neb. 538, 244 N.W.2d 86 (1976) (where otherwise binding contract is barred by statute of frauds, promissory estoppel will not lie to circumvent statute of frauds).Supreme Court leaves the door open however to turn many employment at will relationships into promissory estoppel suits: the Nebraska Supreme Court rejects the Restatement rule that promissory estoppel requires a promise sufficiently definite to form a contract if accepted. there is no requirement of "definiteness" in an action based upon promissory estoppel. Rosnick v. Dinsmore, 235 Neb. 738, 457 N.W.2d 793 (1990).the law in Nebraska is that a promissory estoppel action may be based on an alleged promise that is insufficiently definite to form a contract, but upon which the promisee's reliance is reasonable and foreseeable.Whorley v. First Westside Bank, 240 Neb. 975, 485 N.W.2d 578 (1992) Dissenting Justice Stephan, with Connolly argue that opening the door to promissory estoppel claims in employment cases will turn every adverse employment action into a lawsuit J. Stephan, dissenting in Goff-Hamel v. Obstetricians & Gyns., P.C., 256 Neb. 19, 588 N.W.2d 798 (1999)argues that when an employer hires and employee at will, a court should not utilize the principle of promissory estoppel to impose the subjective expectations of either party upon the other. Justices Stephan dn Connolly would affirm the judgment of the district court dismissing the case entirely.
Thursday, January 05, 2006
(it is unlawful to Picket) within one hundred feet of the premises of any location where a funeral is being conducted. For purposes of this section, funeral means the ceremonies, processions, and memorial services held in connection with the burial or cremation of the dead. (2) Unlawful picketing is a Class III misdemeanor. Each 11 violation shall constitute a separate offense
Tuesday, January 03, 2006
Public Law 108-409, which took effect October 30, 2004, prohibits lenders from using refunding and transferring as methods to increase the volume of student loans receiving the 9.5 percent guaranteed yield, but it allows lenders to continue to recycle repayments of existing 9.5 percent loans into new 9.5 percent loans. Those new restrictions are in effect through December 2005President Bush proposed to eliminate the loopholes in 2006, in other words no new sweet subsidized deals. Administration critics, quick to find greased palms in this mess argue the Educatio nDepartment could have closed loopholes with regulations, however the Department responds that its hands were tied, and Congress was better able to close the loopholes (GAO 2004 Report, page 6-7).
Monday, January 02, 2006
We take this opportunity to comment on the Workers' Compensation Court's response to the situation presented by this case. The single judge and majority of the review panel, while noting the provisions of § 48-120(8), nonetheless reasoned that Dawes was controlling. The dissenting member of the review panel, while respectfully acknowledging Dawes, concluded that § 48-120(8) governed the issue. The principled but candid decisions of the single judge and majority of the review panel, and the respectful disagreement of the review panel dissenter, are fine examples of the judicial system working at its best--with civility, collegiality, and professionalism.