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?