Wednesday, April 26, 2006

Trespassing sewer lines were too "imperceptibly" stinky to merit injunctive relief: Justce Stephan, Nebraska Supreme Court finds that property owners who connected their sewer line to public that that was then connected to another private sewer trespassed against the end owners but the Plaintiffs would not win an injunction against the plaintiffsLambert v. Holmberg, 271 Neb. 443 Filed April 21, 2006. No. S-04-1334. although the trespass in this case was repeated and continuous, we conclude that equity requires a balancing of the degree to which it impaired the Lamberts' property rights against the public interest in proper disposition of sewage in order to determine whether the trespass should be enjoined. The trespass, while real, was largely imperceptible. Unlike the circumstances in Atkinson Trust & Sav. Bank and Kittrell, there is no proof that the infusion of the Holmbergs' sewage comingled with that originating in the two sanitary and improvement districts would overload or even threaten the capacity of the private sewerline. Also, the record reflects that the Holmbergs have always stood ready to pay connection fees and a proportionate share of future maintenance costs on the same basis as homeowners in SID's 5 and 9, a pledge repeated by their counsel during oral argument of this appeal. Thus, the nature of the trespass at issue here results in only minimal interference with the Lamberts' possessory interest in their property. On the unique facts of this case, we conclude on de novo review that injunctive relief for the continuous and repeated trespass is not proper. Any failure of the Holmbergs to pay connection fees and a proportionate share of future maintenance costs can be adequately remedied by an action at law. The same is true with respect to the Lamberts' allegations that the Holmbergs' connection reduces by one the number of currently undeveloped lots which can eventually be connected to the sewer system. Here, the legal remedy available to the Lamberts is at least as "plain and complete and as practical and efficient to the ends of justice and its prompt administration" as the remedy of injunctive relief. Standard Oil Co. v. O'Hare, 122 Neb. 89, 93, 239 N.W. 467, 469 (1931).
Eighth Circuit affirms bankruptcy court judgment that provider of contract labor to physical therapy clinics who overcharged his clients by $376K would not be able to discharge this debt Judith O. Letrud v. Timothy M. Kurmel 053449U.pdf 04/26/06 After a bench trial, the state court found that Kurmel had "violated the trust placed in him by the plaintiffs", that there was "overwhelming" evidence Kurmel used Partners as an "alter ego", and that "it is apparent that Mr. Kurmel violated his fiduciary duties" to the plaintiffs. It entered judgment against Kurmel in the amount of $378,386.30. Subsequent to the ruling, Kurmel filed for bankruptcy protection. Under 11 U.S.C. § 523(a)(4), a debt is nondischargeable if it is for "fraud or defalcation while acting in a fiduciary capacity". After de novo review, see Kasper v. Federated Mut. Ins. Co., 425 F.3d 496, 502 (8th Cir. 2005), we conclude that the debt is nondischargeable under § 523(a)(4) for the reasons explained by the district court.

Sunday, April 23, 2006

Survey of worker compensation index premium cost per $100 of payroll shows Nebraska about in the middle for insurance costs for job accidents the 2004 Oregon Workers’ Compensation Premium Rate Ranking Summary, compares premium costs by state. Nebraska and Missouri are in the $2.00 to $2.99 range; surprisingly Iowa and Kansas are in the lowest quartile with costs under $2.00 per $100 of payroll. So why to lawyers scramble to get into the Iowa comp system if they have a chance?
A commendable "my bad" from the Eighth Circuit Court of Appeals as it recognizes that although conspirators may be merely slightly involved in a criminal conspiracy to be guilty, the government still must prove that slightness beyond a reasonable doubtDecision of the day blog commends the Eighth Circuit for clairfying that even defendants in federal criminal conspiracy trials are guilty only when the state proves its case beyond a reasonable doubt.
U.S. v. Lopez, 04-2254 (8th Cir., Apr. 17, 2006) over time,the court's application of the slight evidence standard has become careless, migrating away from the reasonable doubt requirement. Accordingly, the Court decides to join the First, Fourth, Fifth, Seventh, Ninth and Eleventh Circuits in rejecting the slight evidence standard. the government must prove beyond reasonable doubt that a defendant is a member of a conspiracy. Such a principle is of course irreconcilable with the long-accepted burden of proof in criminal cases, see In re Winship, 397 U.S. 358, 361-64 (1970), and it is particularly unwarranted in conspiracy law, where the government has the ability to hold relatively small players responsible for a wide range of criminal conduct. See United States v. Martinez de Ortiz, 883 F.2d 515, 524 (7th Cir. 1989) (Easterbrook, J., concurring), reh'g granted and judgment vacated on other grounds, 897 F.2d 220 (7th Cir. 1990).

Saturday, April 22, 2006

ScOTUS reinstates Disabilities Act suit against the Nebraska Department of Health UNITED STATES v. NE DEPT. OF H&HS FIN. & SUPPORT (61335) Order dated: 04/17/06 Docket number: 05-777. Disabled individuals sued the Nebraska Department of Health and Human Services, alleging violations of their rights under federal law by denying them inhome medicaid services. They alleged the denied services made them likely to require instituionalization. The Eighth Circuit Court of Appeals dismissed the suit on eleventh amendment grounds. Bill M v. Nebraska Dept of Health, etal. The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of United States v. Georgia, 546 U.S. ___ (2006).

Friday, April 21, 2006

Plaintiff who alleged doctors at UNMC negligently performed a gastric bypass operation while he was a minor must file his professional negligence action within 2 years after he reached majority age (per 25-513 21 years); Nebraska Supreme Court Hannon, Judge, Retired rules that since negligence occurred during plaintiff's minority, the "discovery rule" was not available to extend the pL's statuteCarruth v. State, 271 Neb. 433 Filed April 21, 2006. Nos. S-04-1305, S-04-1422. when a plaintiff is under the age of 21 years at the time his or her claim accrues, the statute of limitations period runs from the plaintiff's 21st birthday, and that when the injury is discovered within the 2-year limitations period, the discovery principle does not apply to toll the applicable statutes of limitation. Supreme Court affirms summary judgment as Pl's cases were not timely filed
Nebraska Supreme Court (McCormack, J.): Defendant who brought facial challenge to Nebraska child enticement law (§ 28-320.02) waived constitutional challenge when he failed to bring demurrer or motion to quash instead of pleading not guilty to enticing a police officer who posed as an online child; Court notes that signing 29-4206 form does not allow conditional not guilty pleas.State v. Liston, 271 Neb. 468 Filed April 21, 2006. No. S-05-1046. Defendant signed a form entitled "Written Arraignment and Waiver of Physical Appearance," which was filed with the court on January 25, 2005. The Def. marked "plea in abatement" and "motion to quash." The district court's journal entry for February 3, 2005, shows that pursuant to this waiver, the court entered Liston's not guilty plea "subject to any pretrial motions noted therein." The defendant's subsequent motion to quash was overruled. The cour tof appeals dismissed that appeal for lacking a final order and a jury convicted the defendant. The Defendant on appeal sought to challenge the constitutional validity of the child enticement law. Supreme Court affirms Pursuant to Neb. Rev. Stat. § 29-1812(Reissue 1995), once a defendant has entered a plea, or a plea is entered for the defendant by the court, the defendant waives all facial constitutional challenges to a statute unless that defendant asks leave of the court to withdraw the plea and thereafter files a motion to quash. State v. Kubin, 263 Neb. 58, 638 N.W.2d 236 (2002). Section29-4206does not, however, authorize district courts to accept pleas of not guilty on a conditional basis. Moreover, such an interpretation would be inconsistent with the Legislature's statement of intent in Neb. Rev. Stat. § 29-4201(Cum. Supp. 2004). A preamble or policy statement in a legislative act is not generally self-implementing, but may be used, if needed, for assisting in interpreting the legislative intent for the specific act of which the statement is a part. State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004). Section 29-4201provides: "It is the intent and purpose of sections 29-4201 to 29-4207 to authorize . . . certain district court arraignments by writing in criminal proceedings consistent with the statutory and constitutional rights guaranteed by the Constitution of the United States and the Constitution of Nebraska." (Emphasis supplied.) The language of § 29-4201demonstrates that the Legislature did not intend to allow written arraignments to supersede Nebraska's criminal procedure statutes. Relevant here, the waiver of defects statute, § 29-1812, specifically provides: "The accused shall be taken to have waived all defects which may be excepted to by a motion to quash, or a plea in abatement, by demurring to an indictment or pleading in bar or the general issue." (Emphasis supplied.) A defendant's waiver of defects under § 29-1812is mandatory and does not permit a district court to entertain his or her facial challenge to a statute raised in a motion to quash so long as the defendant's plea to the general issue still stands. Nothing in Section29-4206contravenes the language of§ 29-1812, nor did the Legislature alter § 29-1812at the time that Neb. Rev. Stat. §§ 29-4201 to 29-4207 (Cum. Supp. 2004) were enacted. Thus, the Legislature is presumed to have retained the requirement under§ 29-1812that a defendant must withdraw his or her plea to the general issue before filing a motion to quash, even if the defendant's plea is entered pursuant to a written arraignment. See State v. Neiss, 260 Neb. 691, 701, 619 N.W.2d 222, 229-30 (2000) ("where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court's determination of the Legislature's intent"). A district court does not have authority to permit a defendant to file a motion to quash challenging the facial validity of a statute unless the defendant first obtains leave to withdraw his or her plea of not guilty.

Tuesday, April 18, 2006

Follow up: Supreme Court accepts further review of pedophile's harsher resentencing in Sarpy County after change of judgesNo. S-05-529: State v. Bruna, 14 Neb. App. 408 (2006) petition for further review sustained 4-12.

Sunday, April 16, 2006

Nebraska Supreme Court refuses to expand negligent emotional distress claims beyond existing case law that requires either 1) close family relationship with victim of negliegence or 2) presence in the "zone of danger" along with victim of physical injury Catron v. Lewis, 271 Neb. 416 Filed April 14, 2006. No. S-04-1212. Nebraska's own Jerry Spence Maren Chaloupka took up to the Supremes her claim that emotional distress claims could apply to just about anybody who experienced shock after a horrible accident. Her client attemtped to save a victim of a boating accident involving careless jet skiers and claimed he expereienced distress after pulling the severely injured swimmer from the water. The District Court granted summary judgment on the ground the conduct was not distressful enough. Supremes reverse on other grounds, sticking to the existing "zone of danger" rule; interesting that the Supreme Court would not discuss what kinds of accidents might lead to zone of danger distress claims The plaintiff seeking to bring an action for negligent infliction of emotional distress who has not been impacted or injured must show either (1) that he or she is a reasonably foreseeable "bystander" victim based upon an intimate familial relationship with a seriously injured victim of the defendant's negligence or (2) that the plaintiff was a "direct victim" of the defendant's negligence because the plaintiff was within the zone of danger of the negligence in question. See, Hamilton v. Nestor, 265 Neb. 757, 659 N.W.2d 321 (2003); James v. Lieb, 221 Neb. 47, 375 N.W.2d 109 (1985). In addition, such plaintiffs whose only injury is an emotional one must show that their emotional distress is medically diagnosable and significant and is so severe that no reasonable person could have expected to endure it. See Hamilton v. Nestor, supra This court has extended the class of potential plaintiffs to "bystanders" outside the zone of danger who have a close familial relationship with a seriously injured victim because, as the court in Migliori v. Airborne Freight Corporation, 426 Mass. 629, 637, 690 N.E.2d 413, 418 (1998), explained, "[p]ersons bearing close 'familial or other relationship' to the directly injured third person comprise a discrete and well-defined class, membership in which is determined by preexisting relationships." For witnesses having no such close relationship with the victim, however, we limit recoverability to those persons who are within the zone of danger of the negligent conduct which resulted in the incident in question.

Thursday, April 13, 2006

Bob Bennie Investments prevails on appeal against Design Data and Old Cheney LLC's claim for additional contributions for 14th & Old Cheney office park's upkeep; Appeals court agreed with Lancaster County District Court that BobBennie and Design Data had an equal say in the development's upkeep Bob Bennie Properties v. Design Data (Not Designated for permanent publication) Filed April 11, 2006. No. A-04-1096. Appeal from the District Court for Lancaster County: Steven D. Burns, Judge. Affirmed in part as modified, and in part reversed. Design Data CEO Jim Dager developed area around 14th & Old Cheney in Lincoln for an office park. Bob Bennie Investments acquired some property for an office building. Originally the development's association bylaws gave each lot owner one vote over association business (3 lots total) and required a 2/3 vote of the owners to approve changes. On its own Design Data amended the bylaws to charge association upkeep by the owners' square footage, which increased Bennie's costs considerably. further the Association charge Bennie a 10% surcharge for overall Association costs and required upkeep of a golf hole. Bennie sued in Lancaster County District court and the trial court finds the amendments were invalid because each party had an equal say in agreeing to amendments. The appeals court further reverses in favor of Bennie however on the common area and golf hole issue, finding the Association could not charge him for its upkeep nor for the gross associations cost. (here there were) only two lot owners, not three, and construing section 31 to mean that Design Data can amend the covenants merely because it still owns two of the three lots would in essence make the temporary voting rights set out in section 5 meaningless. Section 5 does not grant Design Data one vote per lot; rather, it limits Design Data to one vote regardless of whether one or two lots remain unsold. Similarly, the lack of provisions about subsequent owners does not make the covenants ambiguous. Rather, as discussed above, the covenants read as a whole show that section 5 should be given its plain meaning, which is that Design Data and BBP are each entitled to one vote in the Association until Design Data sells one of the two remaining lots to an unrelated party. Any other construction would contradict the plain meaning of the covenants read as a whole. we find that Design Data's amendments breached the restrictive covenants and that the amendments have no force or effect. We also find that the Association is obligated to pay for the costs to maintain the golf hole located on Lot 2 and for the costs to maintain the area within 15 feet of each building. We reverse the portion of the court order assessing BBP a 10-percent overhead charge on all of the Association's maintenance costs, given that such assessment is not supported by the record. In all other respects the judgment is affirmed as modified.
Nebraska court of appeals: temp worker who fell outside common area that employer used with other businesses was not injured in the scope and course of employmentRasch v. Remedy Intelligent Staffing (Not Designated for Permanent Publication) Filed April 11, 2006. No. A-05-838. Temp worker fell while leaving work in an area the trial court judge determined was outside the employer's premises and the common area the employer shared with other businesses. The court of appeals upholds this fact issue ruling and upholds the dismissed case. Distinguishing Zoucha v. Touch of Class Lounge, 269 Neb. 89, 690 N.W.2d 610 (2005), the appeals court found that the employee who fell while exiting work did not fall in an area like a shopping center parking lot provided for the convenience of, and use by, employees of the businesses located in the center which the court would consider a part of the premises of an employer located in the center.
The trial court made a factual determination that the area where Rasch fell was outside of the "dock area," and upon our appellate review, we cannot say that this determination is clearly wrong. Rasch did not prove that he was injured on the premises of Moore Wallace; nor did Rasch prove a distinct causal connection between an employer-created condition and the cause of his injury. Accordingly, the review panel did not err in affirming the trial court's dismissal of Rasch's petition.

Tuesday, April 11, 2006

Attorneys: make sure your judges fill out their child support orders completely!Nebraska court of appeals dismisses appeal of modified child support order in paternity case where the trial court left blank the father's new monthly child support obligation Goeser v. Allen, 14 Neb. App. 656 Filed April 11, 2006. No. A-05-658. The Appeals court also overrules State v. Engleman, 5 Neb. App. 485, 560 N.W.2d 851 (1997) to the extent that case purported to rule on any issues presented in a case lacking appellate jurisdiction.
(here) the trial court ordered modification of the child support obligation, but it did not ascertain Alvin's monthly obligation. Instead, as shown above, the court left unfilled blanks in the order. Because no specific sums for child support were included in the trial court's order, and because the rights and liabilities of the parties could not be ascertained without going beyond the record, the order was not a final, appealable order. Accordingly, this court is without jurisdiction to consider.(father's) appeal, and it must be dismissed

Sunday, April 09, 2006

Nebraska Supreme Court rules that whistleblowers' retaliatory discharge claims are subject to the general four year statute of limitations and not the 300 day limitations for fair employment practices claims; court allows mental suffering damages without proof of accompanying medical diagnoses because the whistleblower's cause of action is an intentio Wendeln v. Beatrice Manor, 271 Neb. 373 Filed April 7, 2006. No. S-05-188. We agree that a public policy-based retaliatory discharge claim is based in tort. Accordingly, such a claim is governed by the general 4-year statute of limitations period found in § 25-207. Wendeln's claim is not barred by the applicable statute of limitations. a public policy exception to the employment-at-will doctrine applies to allow a cause of action for retaliatory discharge when an employee is fired for making a report of abuse as mandated by the APSA. Having made such a determination, we examine Beatrice Manor's remaining assignments of error regarding "good faith" and noneconomic damages.nal tort As in the tort of battery considered in Kant v. Altayar, supra, and unlike the torts of negligent or intentional emotional distress, severe emotional distress is not an element of the tort of retaliatory discharge in contravention of public policy. Accordingly, there is no threshold limitation based upon the degree of severity of the mental suffering, nor is it necessary to show that the plaintiff sought medical treatment or counseling for the mental suffering in order for it to be recoverable as past and present damages. We find that mental suffering is simply an aspect of providing full recovery for the wrong, where present, and there is no rational reason to confine such full recovery to those former employees whose mental suffering has been severe.

Nebraska Supreme Court dismisses Sarpy County Attorney's appeal from Juvenile Court's throwing out manslaughter charges from accidental shooting In Re Sean H The Sarpy county attorney charged a juvenile with manslaughter after the boy accidentally shot and killed his friend. Following the delinquency trial, the Sarpy County Juvenile Court dismissed the more serious charge and the prosecutor sought an appeal directly to the Nebraska Court of appeals. The Nebraska Supreme Court dismisses the county attorney's appeal for lack of jurisdiction The county attorney sought direct appeal to the court of appeals, as the Sarpy County Juvenile court is a separate court from the county courts. However the prosecutor may appeal rulings of the juvenile court only in accordance with Section 43-2,106.01 (1) Any final order or judgment entered by a juvenile court may be appealed to the Court of Appeals in the same manner as an appeal from district court to the Court of Appeals. The appellate court shall conduct its review within the same time and in the same manner prescribed by law for review of an order or judgment of the district court . . . . (2) An appeal may be taken by: . . . . (d) The county attorney or petitioner, except that in any case determining delinquency issues in which the juvenile has been placed legally in jeopardy, an appeal of such issues may only be taken by exception proceedings pursuant to sections 29-2317 to 29-2319 Since the county attorney failed to follow this procedure for appealing the results of the delinquency trial, to which jeopardy had attached, the court dismisses the appeal.

Tuesday, April 04, 2006

Eighth circuit takes on Seibert issue

Eighth Circuit rules that interrogation is custodial if suspect appears for police questioning under coercion of probable parole violation; Following Missouri v. Seibert, 542 U.S. 600(2004), State must prove that confessions following midstream Miranda warnings were voluntaryDecision of the Day: Interesting Mid-Stream Miranda Case Eighth Circuit Court of Appeals reverses Iowa Southern District opinion and rules that parolees appearance at police station was not voluntary, therefore police had to give miranda warnings. United States v Ollie No. 05-2503 Southern District of Iowa, 3-31. Eighth Circuit finds a parolee must give statements to police or else face parole violations. Eighth circuit also decides that under Seibert, the state has the burden to prove statements following a midstream Miranda warning was voluntary, assuming that Justice Kennedy's concurring view would apply {purposefuly circumvention of Miranda using two step interrogation}: "The parole officer testified that it would have been a violation of his parole for Mr. Ollie to refuse to go to the meeting and that a refusal could have led to Mr. Ollie's parole being revoked, and Mr. Ollie testified that because of this order he felt that he had no choice but to meet with Chief McNeill. Faced with such pressures, we think that Mr. Ollie had little choice but to comply. hold that the failure to advise Mr. Ollie of his rights pursuant to Miranda requires the suppression of his initial oral confession to Chief McNeill." On Seibert issue, court would follow Justice Kennedy's concurring view and suppress post-warning statements only where the police intentionally used the two-step interrogation technique to render the Miranda warnings ineffective. Such statements would be inadmissible unless the police took curative measures thatwould ensure that a reasonable person would understand his or her rights. Id. at 621-22 (Kennedy, J., concurring in the judgment). when a defendant moves to suppress a post-warning statement that he contends was given as part of a question-first interrogation, the prosecution must prove, by a preponderance of the evidence, that the officer's failure to provide warnings at the outset of questioning was not part of a deliberate attempt to circumvent Miranda. Placing that burden on the prosecution is consistent with prior Supreme Court decisions that require the government to prove the admissibility of a confession before it may come into evidence.

Saturday, April 01, 2006

Nebraska Supreme Court (J. Connolly) rules out evidence of doctor's disciplinary history in malpractice case alleging uninformed consentCurran v. Buser, 271 Neb. 332 Filed March 31, 2006. No. S-04-1303. District Court dismissed med mal case where plaintiff alleged his surgery was without informed consent because the doctor had not disclosed his disciplinary history. Supreme Court rejects this"material risk" theory of informed consent, that is what are particular risks as to the doctor, and favors the "professional risk" doctrine of informed consent, that is what the standard of care would be for similary situated doctors in that locality. The Nebraska medical hospital liability act adopts the "professional theory" for its standard of care and the evidence required to prove the standard of care and it adopts a two-prong test for causation. The first prong uses an objective standard to evaluate the plaintiff's decision to forgo the surgery, while the second requires proof that the lack of informed consent proximately caused the injury and damages. Although our statutory framework is somewhat unique, we note that other professional theory jurisdictions also use objective standards for causation. See, e.g., Funke v. Fieldman, 212 Kan. 524, 512 P.2d 539 (1973). Under §§ 44-2816 and 44-2820, consent is informed when a doctor advises a patient of the risks in the same manner as doctors in similar localities and under similar circumstances ordinarily would. However, before a plaintiff may recover any damages sustained, the plaintiff must prove by a preponderance of the evidence that a reasonably prudent person in the plaintiff's position would not have undergone the treatment if he or she were "properly informed" and that his or her injuries were proximately caused by the lack of informed consent. Although § 44-2820 does not define proper information, when read in conjunction with § 44-2816, a patient must be properly informed under § 44-2816. Under this framework, the Plaintiff must first had to prove by expert testimony that doctors in similar locations and situations would ordinarily disclose their disciplinary history. After establishing the standard of care, thePlaintiff must next prove that Defendant deviated from that standard. To prove causation, Plaintiff must prove both that a reasonable person in their situation would have refused the surgery if Defendant had properly informed them under the standard and that the lack of information proximately caused the injury sustained and damages alleged. The statute's requirements are cumulative; thus, in order to proceed to the next step, the plaintiff must prove the one before it.