Sunday, May 28, 2006
Incident exceptions such as the Snow, ice,weather condition exceptions to the Nebraska Political Subdivision Tort Claim Act limit the Acts waiver of sovereign immunity; accident that occurred while Omaha School District van driver collided with vehicle on rain slickened street was still subject to the filing requirements of the political subdivision tort claim actWise v. Omaha Public Schools, 271 Neb. May 26, 2006. No. S-05-491. Exceptions to the PSTCA are affirmative defenses, and inappropriate for Rule 12b motion; however court will treat motion as motion for summary judgmentThe issue of noncompliance with the notice provisions of the PSTCA must be raised as an affirmative defense specifically expressing the plaintiff's noncompliance. Kuchar v. Krings, 248 Neb. 995, 540 N.W.2d 582 (1995). It is not one of the enumerated defenses which can be asserted by a motion to dismiss pursuant to rule 12(b), as OPS and Kelley incorrectly sought to do in this case. Supreme Court affirms summary judgment as Plaintiff failed to comply with political subdivision tort claim act filing requirements. Section 13-908, which provides that in suits brought pursuant to the PSTCA, "the political subdivision shall be liable in the same manner . . . as a private individual under like circumstances," sets forth a general waiver of sovereign immunity subject to certain limited exceptions stated in § 13-910. McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (2002) The exceptions set forth in § 13-910 are affirmative sovereign immunity defenses to claims brought pursuant to the PSTCA. Harris v. Omaha Housing Auth., 269 Neb. 981, 698 N.W.2d 58 (2005). If a claim falls within one of the exceptions stated in § 13-910, it fails based upon sovereign immunity. Even if § 13-910(10) were applicable, it would not provide a basis for a claim against OPS or Kelley independent of the PSTCA. In Harris v. Omaha Housing Authority, supra, we specifically rejected an argument that the requirements of the PSTCA do not apply to claims that fall within one or more of the exceptions stated in § 13-910. We reasoned that because the exceptions were affirmative sovereign immunity defenses to claims brought pursuant to the PSTCA, a finding that a claim fell within one or more of the exceptions would require dismissal of the complaint.
Posted by stan_sipple at 6:11 AM
Nebraska Supreme Court vacates district court contempt order in trade secret case that included additional equitable remedies and attorney fees because contempt finding did not state a sanction for non-compliance and the lack of a sanction did not allow habeas relief to defendantSmeal Fire Apparatus Co. v. Kreikemeier, S-03-354, S-05-407, 271 Neb.616HTML In trade secret case the District Court found the defendant in contempt for continuing to use the plaintiff's trade secrets. The District Court fashioned a equitable remedies and awarded attorney fees and costs to the Plaintiff. The Nebraska Court of Appeals dismissed the appeal with respect to the district court's finding of contempt, but nonetheless affirmed the allowance of $73,500 in attorney fees and costs. The Defendants also sought habeas corpus in the Supreme Court to challenge the District Court's contempt finding. The Supreme Court orders the appeals dismissed altogether as the district court lacked jurisdiction to order equitable relief as a condition to purging its finding of contempt and that the remaining condition of the purge plan was not accompanied by a threatened sanction and was not reviewable on appeal. For those reasons, the Supreme Court vacates the equitable elements of the purge plan, vacates the related award of fees and costs, and dismisses the appeal in its entirety. We vacate those aspects of the district court's order affording equitable relief to Smeal, because they exceed the district court's jurisdiction in a contempt action. The remaining condition of the purge plan, payment of attorney fees and costs, is not subject to a sanction for noncompliance and is not appealable, but we also vacate the award of attorney fees and costs, as it is inextricable from the court's order affording equitable relief.
Posted by stan_sipple at 5:50 AM
Wednesday, May 24, 2006
Bankruptcy Code 11 usc 523(a)1(B) (old law) may allow debtor to discharge tax debt even if debtor filed returns only after IRS had assessed the debtor's tax liability on its own; Eighth Circuit contributes to circuit court split rulingsDecision of the Day blog. The Eighth Circuit Court of Appeals rules that the IRS assessment before the debtor filed his tardy returns did not automatically disqualify the debtor from discharging otherwise eligible tax debts. Colsen v. Internal Revenue Service, 05-2476 (8th Cir., May 4, 2006). The Seventh Court, J. Posner held to the contrary. J. Easterbrook dissented in that case, taking the 8th Circuit's position.
Posted by stan_sipple at 2:57 PM
Students who attend school full time but on working adult schedules may claim unemployment compensation even though § 48-628(7)RRS Neb. disqualifies full time students Lecuona v. Cramer, 14 Neb. App. 770 Filed May 23, 2006. No. A-05-822. Unemployment claimant enrolled for full time courses at Bellevue University that held classes on Saturdays. The Department of Labor denied unemployment comp because the claimant was enrolled full time. The Court of Appeals disagrees and rules that the full time student disqualification applies to workers who are attending classes during regular working hours. In this case, Cramer attended classes only on Saturdays from 8 a.m. to 12 p.m. We find that unlike a more traditional course of study, wherein students registered for 12 or more credit hours attend classes held throughout the week during the day, Cramer's particular educational program allowed her to be "available for work." In fact, the Bellevue catalog states that the accelerated programs are offered to "working adult students," and the fact that classes are held on Saturday mornings certainly seems to accommodate a full-time job. Cramer herself testified that she was seeking full-time employment and that she was willing to work full time. Cramer would not have had to place restrictions on her job search because of her status as a student. Nor did Cramer's work appear to be subordinate to and geared around her enrollment in the accelerated program. Cramer would have been able to work a full-time job with her school commitments.
Posted by stan_sipple at 2:40 PM
Saturday, May 20, 2006
In second do-over this year, Nebraska Supreme Court grants rehearing from a McCormack decision and withdraws significant part of ruling: Supremes find in favor or Bergan Mercy Hospital's peer review immunity defense in dispute with suspended surgeon. McLeay v. Bergan Mercy Health Sys., 271 Neb. 602 Filed May 19, 2006. No. S-04-117. McLeay II. Appeal from the District Court for Douglas County: Joseph S. Troia, Judge. On motion for rehearing, reargument granted. See 270 Neb. 693, 708 N.W.2d 592 (2005) McLeay I, for original opinion. Original opinion withdrawn. Affirmed in part, and in part reversed and remanded for further proceedings. Earlier this year J. Stephan authored the Court's opinion in McCray II that allowed sex offenders who had obtained expunged convictions reconsideration for lower sex offender risk category scoring, after J. McCormack for the Court ruled that the sex offender would not get reconsideration. This week the Court J. Connolly withdraws J. McCormack's earlier opinion that Bergan Mercy could not win on summary judgment with its peer review immunity defense against a suspended surgeon who claimed its findings were unreasonable.
Posted by stan_sipple at 1:14 AM
Wednesday, May 17, 2006
Nebraska Court of Appeals finds that Sarpy County District Court properly found disputed boundary line that possessors claimed by mutual recognition and acquiescence Campagna v. Higday, 14 Neb. App. 749 Filed May 16, 2006. No. A-04-1251. To claim a boundary by acquiescence, both parties must have knowledge of the existence of a line as the boundary, and therefore, the mere establishing of a line by one party and the taking by that party of possession up to that line is insufficient. In order to claim a boundary line by acquiescence, both parties must have knowledge of the existence of a line as the boundary, and therefore, the mere establishing of a line by one party and the taking by that party of possession up to that line is insufficient. Kraft v. Mettenbrink, supra. As in adverse possession cases, the burden of proof is preponderance of the evidence for mutual recognition and acquiescence claims. See Nye v. Fire Group Partnership, 265 Neb. 438, 657 N.W.2d 220 (2003). The fence separating the properties was the boundary line by the evidence the owners offered that the neighboring owner accepted it.
Posted by stan_sipple at 3:02 PM
Saturday, May 13, 2006
Alabama trial lawyer who won millions from class action settlement lost almost all of it day trading but convinces the US Tax Court to allow him to set off his attorney fees with all his losses TAX COURT GIVES CLASS-ACTION MAGNATE AND DAY-TRADER A MULLIGAN Alabama class action plaintiff's attorney Lanny Vines won millions in 1999 from a class action settlement. He closed his office and started full time day trading. He promptly lost most of his money when the Nasdaq tanked in 2000. He and his accountants didnt know about the IRS election to count those losses as ordinary gains (475 f elections) . Otherwise Lanny would be taking the maximum $3000 capital loss deduction for the next few centuries. When he tried to file it late, the IRS refused. Finally the tax court let him go file the election. Now hes back to litigating and shaking down defendants.
Posted by stan_sipple at 8:24 AM
Nebraska Supreme Court issues two contract dispute decisions where it refuses to find ambiguities in an underinsured motorist insurance policy and a purchase agreement for a landfillHillabrand v. American Fam. Mut. Ins. Co., S-05-049, 271 Neb. 585 and Kluver v. Deaver, S-05-104, 271 Neb. 595 In Hillabrand the Supreme Court refuses to extend underinsured motorist coverage that a company's owner purchased for business vehicles to his personal automobile while he was conducting business. How could a businessman let his personal vehicle coverage go for only the minimum and did he also make an executive waiver of worker comp? In Kluver, the plaintiff made a deal with Waste Management to sell it a dump site for Omaha trash that according to the royalties deal ended when the landfill filled to capacity. The Supreme Court found no problem with the royalties deal when Waste Management promptly started using adjacent land for a landfill. It will be very hard to find written contracts "ambiguous" from now on.
Posted by stan_sipple at 2:17 AM
Tuesday, May 09, 2006
Eighth Circuit Court of Appeals affirms dismissal of perennial litigant Lloyd Trackwell legal malpractice suit against criminal defense counsel David Domina because Trackwell did not properly seek to stay the civil proceedings while his criminal case was pendingLloyd R. Trackwell v. David Domina #05-2974 District of Nebraska [UNPUBLISHED] [Per Curiam - Arnold, Lay and Colloton, Circuit Judges]The Federal District court did not err in finding Nebraska's two-year statute of limitations for legal malpractice was not tolled during the pendency of Trackwell's criminal proceedings. Trackwell was convicted in District Court but the Nebraska court of appeals reversed. ON remand, the State did not retry the plainitff. The reversal took place before the 2 year period would have run.
Posted by stan_sipple at 3:01 PM
Sunday, May 07, 2006
More El Salvadoran family values in Nebraska Supreme Court decision State v. Molina, 271 Neb. 488 Filed May 5, 2006. No. S-04-1230. Germai R. Molina from ElSalvador was convicted of second degree murder and child abuse resulting in death, arising out of the death of his 2-year-old daughter, Diana Molina. Molina was sentenced to a term of imprisonment of not less than 80 years to life on each conviction, sentences to be served consecutively. Molina appeals from his convictions and sentences. Interesting facts; I dont believe them because all immigrants are only here to do jobs Americans refuse to do and to make a better life for their families; plus I think we could be a little less judgmental of the values of other cultures: Molina explained in the interview that when he and his wife moved from El Salvador. Molina admitted in the interview that he had "spanked" Diana with a belt each of the four times she had urinated in the bedroom, striking five or six blows each time. Diana had, according to Molina, been "spanked" in that way twice in the 2 or 3 days preceding the interview. Molina also admitted that he had "got kind of mad" when Diana urinated in bed and hit her a bit more that time. Molina also said that Diana had defecated in her pants about a week before the interview and had been "spanked" with a belt about six times on that occasion. Molina said that he had not shaken Diana or struck her with anything other than a belt. Molina admitted that he picked Diana up once by her hair, about 3 or 4 days before the interview, and told her to clean up where she had urinated. Diana's hair came out, and Molina said it was the last time he had done that. Molina explained that because Diana was 2, almost 3, years old, he told Diana when he punished her that she was old enough to know not to urinate in her room.on July 22, 2003, approximately 24 hours before Diana's death. Molina was awake and with Diana. Mrs. Molina said that Diana "was naked and her arms were raised and she was standing on top of something that looked like a white bucket." Diana's hair was wet, and there were marks on her body from a belt. Molina was sitting on the edge of the bed with the belt in his hand, telling Diana not to fall asleep, and that if she put her hands down, he was going to hit her with the belt. Mrs. Molina testified that Molina told her that he was punishing Diana because she had urinated in her crib. Mrs. Molina said that Molina kept Diana there for about 3 hours and hit her with the belt five times during that period. Mrs. Molina said she told Molina to let Diana go to sleep, but he refused, saying that Diana could not go to sleep because "she was always peeing and that she was filthy and that she was being punished." When Diana fell asleep and fell over, Molina put her back on her feet in the same position. Eventually, Molina put Diana in her crib. Mrs. Molina testified that when she woke up around 10 a.m., Diana was again standing with her arms raised, and Molina was again telling her that if she dropped her arms, he would hit her with the belt. She remained in that position for approximately 2½ to 3 hours. Mrs. Molina said that when she told Molina not to make Diana suffer, Molina said that Mrs. Molina "needed to stop talking and telling him that because it would just make him spank her more and that it would just be best if I just would be quiet." Molina said that "he could do whatever he wanted because he was the father and he was the one that brought her into this world." Mrs. Molina testified that about 1:30 or 2 p.m., Molina went out and got some food, and they then ate inside the room. Molina had Diana stand up again because she had urinated on the floor. Mrs. Molina testified that Molina was very angry and pulled Diana up by her hair, and a chunk of Diana's hair came out. Diana spent the rest of the day on her feet. If Diana lowered her arms, Molina yelled at her and hit her with a belt until she raised her arms again. Mrs. Molina testified that around 8 p.m., Diana was allowed to drink some juice and eat an apple. Mrs. Molina said that she thought Diana "was very hungry because she was eating really fast and she was falling asleep and [Molina] went over and picked her up and spanked her or hit her about five times and then put her on top of the bucket again." Diana remained standing on the floor until Mrs. Molina went to bed at around midnight. Mrs. Molina testified that she slept intermittently, but heard Diana say that her feet hurt and she wanted to go to bed. Molina would not let her and made her run around the room while Molina hit her. Mrs. Molina said it sounded as if Diana was running into the furniture or walls. Mrs. Molina said she heard Diana say she needed to use the bathroom, and Molina said he would take her out in the living room and "have her do it in the paper." Diana then told him she was finished, Molina said he would clean her up, and then they came back into the room. Mrs. Molina testified that she heard Diana say her feet were hurting and that she wanted to sleep. After that, Mrs. Molina heard Diana screaming, and it sounded as if Molina was repeatedly hitting Diana with the belt. Mrs. Molina looked and saw Molina swinging Diana around and shaking her. Molina made Diana run and then after she fell, hit her repeatedly while she was on the floor. Mrs. Molina said that it sounded like Molina then repeatedly picked Diana up and dropped her to the floor "ten or twenty times." Molina hit Diana hard in the stomach; then, when Mrs. Molina looked, Molina was trying to get Diana up, but she was unresponsive. Molina told Mrs. Molina that Diana had fallen when he was bringing her back from the bathroom, but Mrs. Molina testified that she would have heard had Molina taken Diana up the stairs to the bathroom. Mrs. Molina attempted to resuscitate Diana, but was unsuccessful. They decided to take Diana to the hospital, but Molina insisted on dressing her in an attempt to hide bruises that Mrs. Molina testified were "almost all over her body." According to Mrs. Molina, Molina "said that I should say that she had already come that way from El Salvador; that a cousin had beat her and that not all of those [bruises] were from him." "That I should say that -- that what I had heard was that she had fallen down the stairs when he -- he was bringing her back from the bathroom." Mrs. Molina said that she told Molina "'[y]es,' that I would say that at the hospital so that he would take her to the hospital because if I didn't say that he wouldn't take her." They left for the hospital out the basement door, although that was not the door they usually used, because Molina said his mother was watching television and she would see what had happened and get worried.
Posted by stan_sipple at 12:07 PM
Tuesday, May 02, 2006
Director of Motor Vehicles failure to sign revocation order following hearing officer's recommendation results in no final order for the Nebraska Court of Appeals to review; driver's appeal dismissed O'Hara v. Department of Motor Vehicles, 14 Neb. App. 709 Filed May 2, 2006. No. A-04-1128. The hearing officer recommended revocation of PL's driver's license for the statutory period. Directly below the hearing officer's signature on the "Proposed Findings of Fact, Proposed Conclusions of Law and Recommended Order of Revocation" is a section titled "Certificate of Adoption and Order," which purports to be the order of the director of the Department adopting the hearing officer's recommended order. It further states that PLs driver's license is revoked for 90 days, effective April 27, 2004. The "Certificate of Adoption and Order" is dated April 19, 2004, but it is not signed by the director. PL nonetheless appealed to the district court for Douglas County the Department's order of revocation. On September 22, 2004, the district court entered an order affirming the Department's order of revocation. APPEAL DISMISSED Neb. Rev. Stat. § 25-1301 (Cum. Supp. 2004) defines "rendition of a judgment" as "the act of the court, or a judge thereof, in making and signing a written notation of the relief granted or denied in an action." Under § 25-1301, "rendition of a judgment," i.e., the judge's signature, is a requirement for a final order.without the director's signature on the order of revocation, the director has not adopted the recommendations of the hearing officer as the official and final order of the Department, as stated in the "Certificate of Adoption and Order." We conclude that the signature of the director of the Department is required for an order of revocation to be effectively rendered.
Posted by stan_sipple at 2:37 PM
Nebraska Court of Appeals excludes periods of salaried compensation when determing a workers average weekly wage when the injured worker performed the same kind of work through the 6 month period before the accidentGriffin v. Drivers Mgmt., Inc., A-05-995, 14 Neb. App. 722 Driver injured while driving for Werner Enterprises' Driver Management division had received both pay for mile driven and a flat salary during the 6 months preceding his work accident. The Court of Appeals rules, Judge Carlson dissenting, that the worker compensation court should calculate the average weekly wage, see 48=126 RRS Neb, by excluding the weeks the employee received a salary and counting only the weeks he was paid by the mile.Including PL's earnings when he was paid a salary and was engaged in a different character of employment would distort Pl's average weekly wage calculation. The trial court correctly calculated PLs average weekly wage, including from the 6 months preceding the accident only the earnings PL was paid based upon his output.
Posted by stan_sipple at 2:19 PM