Sunday, December 30, 2007

Eighth Circuit Court of Appeals affirms "slight" downward deviation from sentencing guidelines of 180 months prison plus 6 years supervised for methamphetamine production 21 U.S.C. § 841(a)(1), (b)(1)(C). Citing Gall v. United States, No. 06-7949 and 18 U.S.C. § 3553(a)(1), (4)(A), the Eighth Circuit finds no abuse of discretion from the sentence outside the guidelines range as the trial court considered all appropriate factors while not considering inappropriate factors.063488U.pdf 12/28/2007 USA v. Robert Jon Lucas U.S. Court of Appeals Case No: 06-3488 U.S. District Court for the Southern District of Iowa - Des Moines [UNPUBLISHED] [Per Curiam, with Murphy, Smith, and Shepherd, Circuit Judges]

Tuesday, December 25, 2007

Nebraska Supreme Court rules that Double Jeopardy Clause prevented retrial of assault defendant whose judge recused himself from the first bench trial after starting to hear testimony and declared a mistrial. State v. Jackson, S-07-084, 274 Neb. 724The State has the burden to show that it was manifestly necessary to allow a retrial after the mistrial. we cannot determine whether the judge exercised sound discretion in calling the mistrial because of the inadequacy of the record as to the underlying reasons for the decision. Because of the constitutional implications, the State bears the burden of demonstrating the manifest necessity of a mistrial declared over the objection of the defendant in a criminal case. See Arizona v. Washington, 434 U.S. 497, 98 S . Ct. 824, 54 L. E d. 2d 717 (1978){necessity for the retrial must appear in the record, although explicit findings are not required}; The State cannot meet this burden by simply requesting the court to make a general finding of manifest necessity, as it did here, without a factual record to support the finding. Where the reason for a mistrial is not clear from the record, the uncertainty with respect to manifest necessity must be resolved in favor of the defendant

Monday, December 24, 2007

Attorney's lien filing perfected his interest in receiving attorney fees from a court judgment even though he filed the lien after discharge. Equity excused the attorney from first filing a complaint of intervention (25-328) to seek a division of a divorcing spouse's property division judgment. Meister v. Meister, S-06-873, 274 Neb. 705. After trial when the court awarded the wife a money judgment for property division, the wife dismissed her attorney and other counsel represented her on appeal. Following appeal the husband paid the judgment into court. Former attorney filed his lien in court, which the district court denied was valid because wife had dismissed the attorney. Then former attorney sued for intervention which was dismissed. Nebraska Supreme Court holds, the dismissed attorney still could file a notice of attorney lien in accordance with 7-108 RRS Neb and equity excused his failure to promptly file an intervention complaint. The Supreme Court however leaves unresolved whether attorney properly attached and perfected his lien, and if so in what amount. "Attorney’s filing of the lien after his discharge did not affect the enforceability of the lien. Although intervention is the proper method of enforcing an attorney’s lien in an original action, equity excuses attorney’s failure to intervene before the trial. O n remand, we leave it to the district court to decide whether attorney attached and perfected his lien. If so, the court should then determine the amount of the lien. We reverse, and remand.
Juvenile courts may not consider the willingness of prospective parents to adopt the children of parents against whom the State seeks to terminate parental rights (Section 43-292.02). However the court's considering the adoptive parents' willingness to adopt and other testimony was harmless error and did not impair the terminated parent's due process. In re Interest of Destiny A. et al., S-06-1380, 274 Neb. 713
Nebraska Supreme Court declines to reduce father's child support obligation for social security benefits one of his disabled children receives. Gress v. Gress, S-06-607, 274 Neb. 686. One of the father's children had downs syndrome and received $564 per month social security benefits. the decision does not specify whether the social security took the form of SSI or SSDI. The father argued that in accordance with Ward v. Ward, 7 N eb. A pp. 821, 585 N .W.2d 551 (1998) he should receive a credit for some of the social security support. The Nebraska Supreme Court declines to overrule Ward, distinguishing the situation where a disabled child has additional needs that government benefits support from one where the child is otherwise normal but receives the benefits because of the death of the parent. "it not appropriate to offset child support costs where, as here, the Social Security benefits are intended to mitigate the additional costs that accompany disabilities." The Supreme Court might have discussed whether it would distinguish between Title II disability benefits, for example benefits to children of deceased or disabled workers and Title XVI benefits which are benefits to disabled children that parents' payroll contributions do not fund.
Last week's Nebraska Supreme Court decision In re Interest of Kevin K., S-06-447, 274 Neb. 678 might shed some light on Gary Lacey's crying need for more attorney help in the Lancaster County Attorney's office. The juvenile court asserted jurisdiction over the child because he was a truant (§ 43-247(3)(b)), something the Supreme Court calls a "status crime" (§ 43-245(15) (Reissue 2004)). After the child reached 16 his mother released him from attending public school. See 79-201. The juvenile court terminated jurisdiction. The State DHHS agreed with the juvenile judge's decision to close the case. The Lancaster County Attorney did the appealing. No wonder you are short handed Gary, you are trying to keep cases in the system that should be closed. The Supreme Court, J. Stephan affirms closing the case.where a juvenile is adjudicated solely on the basis of habitual truancy from school pursuant to § 43-247(3)(b), and the status of truancy is subsequently terminated by the lawful execution of a parental release authorizing discontinuation of school enrollment pursuant to § 79-201(3)(d), a juvenile court may terminate its jurisdiction without a finding that such termination is in the best interests of the juvenile.

Saturday, December 15, 2007

Nebraska Supreme Court finds personal jurisdiction proper for child's action against divorced parent who travelled to Nebraska and had his relatives do the same to take her to Canada where the parent allegedly abused the child. S.L. v. Steven L., S-06-563, 274 Neb. 646 The Lancaster County District Court dismissed the ex-wife's tort action against divorced father for allegedly abusing their child while she visited the father in Canada stating the court could not assert personal jurisdiction over the father. Nebraska Supreme Court reverses, finding for intentional injuries the pleading and other materials showed the defendants contacts to this State were sufficiently connected to Nebraska to justify personal jurisdiction over him. "one who removes a minor child from her Nebraska home under the guise of exercising a visitation right in another jurisdiction, and then intentionally subjects the child to harm before returning her to this state, could reasonably expect to be haled into a Nebraska court to answer for such conduct in a civil action brought on behalf of the child." Finally jurisdiction was appropriate in Nebraska as hearing the case here did not offend fair play and substantial justice. "Nebraska’s exercise of specific personal jurisdiction over Steven in this action would not offend notions of fair play and substantial justice.
Nebraska Supreme Court holds double jeopardy does not require reversal and dismissal of criminal charges when the defendant's counsel provides some of the evidence offered and received at trial that provided the court with evidence to avoid a directed verdict. State v. McCulloch, S-06-275, 274 Neb. 636. In a follow up to the Nebraska Court of Appeals' Mrs. Robinson case, the Nebraska Supreme Court rules that the Court of Appeals should not have reversed the defendant's conviction for sexual assault of a child younger than 13 when the defendant was older than 19 when the defendant's counsel provided some of the evidence that helped prove. State v. McCulloch, 15 N eb. A pp. 381, 727 N .W.2d 717 (2007) (McCulloch I) rehearing granted, opinion vacated and replaced with State v. McCulloch, 15 N eb. A pp. 616, 733 N.W.2d 586 (2007) (McCulloch II). The appeals court should not have ruled on direct appeal that defense counsel was ineffective for offering the crucial evidence that defendant was older than 19 at the time of the sexual assaults. Further Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. E d. 2d 265 (1988), does not confine the reviewing court's double jeopardy analysis to whether evidence the court receives solely from the State's offer was sufficient to avoid a directed verdict. "The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict...To the extent cases such as State v. Anderson, 258 Neb. 627, 605 N .W.2d 124 (2000) may be read as limiting Double Jeopardy consideration to only evidence offered by the State, they are disapproved.

Sunday, December 09, 2007

US District Court for the District of Nebraska erred when it gave a methampetamine defendant credit for "minimal participation" in a drug distribution scheme. Eighth Circuit Court of Appeals reverses sentence of time served at one year because the defendant actively participated in manufacturing and distributing the drugs. 063920P.pdf 12/07/2007 United States v. Scott Goodman U.S. Court of Appeals Case No: 06-3920 District of Nebraska - Omaha [PUBLISHED] [Gruender, Author, with Colloton and Beam, Circuit Judges] the court erred when it granted him a four-level minimal participant reduction under Guidelines Sec. 3B1.2(a); on remand, the court should not consider defendant's post-sentencing rehabilitation in determining his sentence.

Saturday, December 08, 2007

Nebraska Supreme Court allows Department of health and Human Services to use 1972 cost figures when allowing nursing home operator to claim depreciation reimbursement although existing operator acquired facility in 2000. Belle Terrace v. State, S-06-876, 274 Neb. 612. The Lancaster County District Court agreed with Tecumseh nursing home operator that it could use cost figures from 2000 to claim depreciation reimbursement from Medicaid for a building that was built in 1972 because the nursing home did not use the structure for its facility until 2000. Nursing home argued and the District Court agreed that the structure was not in existence before 1974, an interpretation in line with federal Medicare regulations. Nebraska Supreme Court reverses; when the Nebraska Department of Health and Human Services declines to follow federal regulations, the departments interpretation of an unambiguous term, in this case "in existence" prevailed over an interpretation the nursing home assumed applied because if this were a Medicare case, the nursing home would have won.
Nebraska motor vehicle accident guest statute § 25-21,237 (Reissue 1995) applies in action filed in district court between Nebraska residents even though accident occurred in Colorado where no guest statute applied. Heinze v. Heinze, S-06-722, 274 Neb. 595. The Nebraska Supreme Court rejects married plaintiff's contention that the district court should have allowed his action against his wife for injuries arising from an automobile accident they had in Colorado. The Supreme Court, per Justice Wright holds that Nebraska law, including Nebraska's guest statute (§ 25-21,237 (Reissue 1995)) would apply to the action husband-plaintiff filed against his wife in York County, their domicile. Justice Gerrard puts his two cents worth in,his concurring opinion, reminding the plaintiff that his attorneys should have raised one of Gerrard's pet constitutional issues, that § 25-21,237 is unconstitutional. See Le v. Lautrup, 271 Neb. 931, 716 N.W.2d 713 (2006) (Gerrard, J., dissenting). Too bad Justice Gerrard says, the plaintiff's lawyers failed to raise the constitutional issue.
Although the Nebraska Supreme Court earlier held that Neb. Rev. Stat. § 29-2281 (how to assess criminal restitution, see In re Interest of Brandon M., 273 Neb. 47, 727 N.W.2d 230 (2007) did not apply to juvenile delinquency proceedings, the Supreme Court holds that juvenile courts should use its rules for "guidance." In re Interest of Laurance S., S-06-1439, S-06-1443 , 274 Neb. 620 Nebraska Supreme Court (J. Miller-Lerman) reverses $29,000 restitution orders against two Fremont brothers who vandalized a school. Can you say "legislating from the bench?" Justice Miller-Lerman cant stand that juvenile courts don't have statutory guidelines on assessing restitution, so she helps them come up with some. $29000 was just too high a price to charge two likely career losers without considering their ability to pay. Did it occur to the supreme court that putting a little shock value into their heads might wake them up? Instead typical of her blame the victim attitude she is more concerned with the self-esteem of the delinquents. "The result of such [an order] would not be rehabilitation. Rather, it would give the [juvenile] a sense of unfairness, injustice and bitterness towards the system because the chance to reform would not be present.’”
Nebraska Supreme Court refuses to give custody to mother from Columbia who barely spoke English, felt helpless and thought social services authorities owed her something for it. Maska v. Maska, S-07-187, 274 Neb. 629 Aurora Ramirez Maska, a native of Columbia, sought custody of her two children in divorce proceedings in Buffalo County District Court. The district court awarded custody of the children to the American father during the school year with summer custody to the mother. On top of that the Court ordered the husband to pay Aurora $78 per month child support along with 46% of the kids' social security benefits, presumably from the father's disability claim. Nebraska Supreme Court affirms over Aurora's objection that the district court ruled against her because she was from Columbia, could barely speak English and felt that American welfare owed her something. Looks like a slam dunk to me that you would want 7 and 5 year old children to live with a parent who spoke English, at least during the school year. Sadly Justice Wright had to remind the parties that the Supreme Court was not ruling against her because of her nationality, rather it was in the best interests of the children to live with the American parent during the school year. Aurora’s final argument is that the district court abused its discretion by using her national origin and language as a factor against her when evaluating the best interests of the children. Her argument has no merit. The court’s decree does not state that it used Aurora’s national origin or language as a factor. (The child psychologist) recommended to the court that the primary physical custody of the children be given to Joel during the school year and to Aurora during the summer months. That is the recommendation the court adopted, and we find no abuse of discretion in the court’s decision.

Saturday, December 01, 2007

Nebraska Department of Health and Human Services' appeal of State Personnel Board decision to demote its adult protection worker instead of firing her is dismissed because it was not filed in the correct county. Nebraska Dept. of Health & Human Servs. v. Weekley, S-06-292, 274 Neb. 516Plaintiff and adult protection worker for the Department of health and Human Services faced termination because she did not timely investigate a report that a vulnerable adult was in danger. The vulnerable adult died later in a fire. the Department and the employee first attended a mini-hearing session at DHHS headquarters in Lincoln but the hearing officer recommended termination. The State Personnel Board of the DAS (Department of Administrative Services) recommended discipline short of termination. DHHS appealed the Personnel Board's decision in the Dodge County Court, where the State won reinstatement of its termination decision. Supreme Court vacates, holding that according to 84-917(2)(a), the Department should have filed its district court appeal in Lancaster County where the Department and its employee first attended the informal "mini-hearing" regarding the disciplinary action the Department sought to take against the adult protection worker, even though the formal DAS termination hearing took place in Dodge County. Notwithstanding the procedural limitations and the informal nature of the “mini hearing,” ,,we conclude that the “mini hearing” in Lancaster County was the first adjudicated hearing.DHHS filed its petition for further review in Dodge County, rather than Lancaster County, and the Dodge County District Court did not have jurisdiction."
Win for home-based business from disgruntled neighbors zoning appeal on a technicality. Small accounting and tax service business won an extension to operate from the owners home for an additional five years from the Omaha zoning board. Goodman v. City of Omaha, S-06-532, 274 Neb. 539 Neighbors appealed to the Douglas County District Court but the District Court affirmed. Neighbors first filed for a new trial and then filed their notice of appeal. Supreme court dismisses appeal, holding that when the district court functions as an intermediate appellate court, a motion for new trial or similar motion does not toll the 30 day jurisdictional time limit for appealing"Section 14-414 provides that the district court’s authority is limited to the power to reverse, modify, or affirm the decision brought before that court for review. The district court acts as ab appellate court in appeals from zoning appeals boards (Kuhlmann v. City of Omaha, 251 N eb. 176, 556 N .W.2d 15 (1996). Because the district court in this case functioned as an intermediate court of appeals, and not as a trial court, the appellants’ motion for new trial did not stop the running of the time within which to perfect an appeal."
Nebraska Supreme Court reverses Douglas County Court twice in one week again from probate cases. In re Trust Created by Isvik, S-06-420, 274 Neb. 525 In re Guardianship & Conservatorship of Cordel, S-06-591, 274 Neb. 545 Douglas County Court probate cases seem to get more than their share of reversals from the Nebraska Supreme Court. Isvik: the Supreme Court reverses the Douglas County Court's "reforming" a settlor's written revocation of a trust 2 weeks before her death to change it to a trustee replacement. Also the Supreme Court refused to dismiss the settlor's estate's appeal even though it failed to have an appropriate supersedeas undertaking on time after appealing. Cordel: Supreme Court allows parent of incapacitated adult to intervene to object to an $80000 trustee fee.
Nebraska Supreme Court affirms dismissal of Douglas County security employee who while on sick leave worked a second job, even though the disciplinary citation and a supervisor referenced a mistaken allegation that his off-duty injury that lead to the employee's taking sick leave was during outside employment. Hickey v. Civil Serv. Comm. of Douglas Cty., S-06-802, 274 Neb. 554. Plaintiff injured his had during off-duty time and he received sick leave from his employer Douglas county Nebraska. Later the county discovered he was working at a second job while drawing sick leave pay. The county moved to dismiss plaintiff and plaintiff appealed. One of the plaintiff's supervisors testified mistakenly that the county dismissed plaintiff because he was injured while working a second job and sought sick leave pay for the injury. But the disciplinary notice and other employees testified that the county dismissed plaintiff for working at outside employment while drawing sick leave. Supreme Court affirms. "the record clearly establishes, despite supervisor’s confusion, that Hickey’s employment was terminated for violating section 2(a) (against outside employment on sick leave) and that he had notice of and the opportunity to defend himself against that charge. We find no due process violation."

Tuesday, November 20, 2007

Nebraska Court of Appeals reverses guilty verdict for second degree assault and sexual assault for the Sheridan County District Court's erroneous admission of prior crimes evidence. However the appeals court does not decide whether the District Court's failure to give the "other crimes" limiting instruction when the court allowed the evidence, as State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999) requires. State v. Sutton , A-06-1297, 16 Neb. App. 185 Evidence of prior assault between defendant and victim was not admissible under 27-404(2) RRS Neb. The court admitted the evidence and the appeals court found the error harmful beyond a reasonable doubt. The district court failed to give a Sanchez limiting instruction, but since the admission of evidence was itself reversible error, the appeals court does not determine whether the court's failure to give Sanchez limiting instructions would be reversible error."The trial court failed to state such purpose at the time of the hearing required by rule 404(3)—which was an earlier opportunity for the trial court to “state the purpose or purposes” in order to comply with the procedures mandated in Sanchez. However we need not consider whether the trial court’s failure to abide by the Sanchez requirements constitutes reversible error in the instant case, given that we have concluded that the evidence was inadmissible. We simply point it out to remind trial courts of the requirements set forth in State v. Sanchez."

Sunday, November 18, 2007

No action against general contractor by subcontractor's employee from construction site accident. Eastlick v. Lueder Constr. Co., S-06-721, 274 Neb. 467 . Bricklayer fell off scaffolding he and a co-worker negligently assembled and of course his attorneys needed someone other to blame. Bricklayer sued the general contractor who had nothing to do with the masonry subcontractor's work. Dodge County District Court gave summary judgment to the general contractor and bricklayer appealed. Nebraska Supreme Court (J. Wright) affirms summary judgment. Unlike the Omaha Public Power District in Parrish v. Omaha Pub. Power Dist., 242 Neb. 783, 496 N.W.2d 902 (1993), who kept its own safety personnel constantly checking the work site, the general contractor had nothing to do with the masonry subcontractor's own scaffolding. Closer to the mark the Supreme Court finds that as in Hand v. Rorick Constr. Co., 190 Neb. 191, 206 N.W.2d 835 (1973), "the instrumentality (scaffolding) which caused the injury was not the premises, but, rather, was the equipment owned, controlled, and erected by the subcontractor, who was the employer of the injured worker. The general contractor had no right to control the subcontractor's equipment. The duty of a general contractor to employees of a subcontractor extends only to providing a reasonably safe place to work as distinguished from apparatus, tools, or machinery furnished by the subcontractor for the use of his own employees.”
Nebraska Supreme Court allows district courts to dictate work schedules of public safety employees. Hogelin v. City of Columbus, S-06-641, 274 Neb. 453. The Chief of the Columbus Fire Department required firefighters to attend extra safety training that the US Department of Homeland Security funded but the training schedule would put the firefighters over the maximum work hours that Section Section 35-302 allowed (no more than 60 hours per week, given 24 hour schedules). The head of the union complained that the evening training schedules interfered with his visitation schedule and another firefighter received a reprimand for failing to attend a training session when the fire department had already approved his trip out of town to attend a wedding in North Carolina. The firefighters right to the maximum hours restrictions in 35-302 was so important that the firefighters' collective bargaining agreement allowing the City to set work schedules did not set aside the requirements of the statute. Finally the court finds an injunction was appropriate. Remember that next time a government agency in Lincoln decides to impose extra training requirements on a small town's fire or police department.

Saturday, November 10, 2007

Nebraska Supreme Court leaves jurisdictional and other questions unanswered in underinsured motorist case where the State was a defendant and worker compensation subrogee. Nebraska Supreme Court holds that § 44-6413 RRS Neb (barring uninsured/underinsured motorist claims when the statute of limitations on the underlying claim has expired) did not bar injured state employee's underinsured motorist action because the plaintiff settled her negligence claim against the primary tort-feasor within the four year statute of limitations period § 25-207 RRS Neb. Reimers-Hild v. State, S-06-203 274 Neb. 438 . The State of Nebraska and its underinsured motorist carrier raised the defense of 44-6413 that the Plaintiff sued after the statute of limitations had expired. Plaintiff was injured in an automobile accident while in the scope and course of her employment with the State of Nebraska. She received worker compensation from the State and also settled for the primary tort-feasor's liability insurer liability limits of $25000. The State had uninsured/underisnured coverage on the state vehicle the Plaintiff was in at the time of the accident but self-insured damages of up to $300000. The plaintiff did not file a tort or contract claim against the State. Instead the Plaintiff sued the State more than four years after the accident and later added its underinsured carrier . The Nebraska Supreme Court reverses, refusing to consider the defendants jurisdictional claims. "we hold that § 44-6413(1)(e) does not apply when an insured has settled his or her claim against an uninsured or underinsured motorist before the statute of limitations applicable to that claim would have expired. T he district court erred in concluding otherwise." The Surpeme Court noted several of the future questions it will no doubt play with: what will be the correct statute of limitations? Did the Plaintiff need to file either a tort, contract claim or both against the State before filing suit Did sovereign immunity or worker compensation immunity apply?

Sunday, November 04, 2007

The Unicameral's boondoggle DNA testing statute's chickens come home to roost. The state convicted five defendants of robbing and murdering a 68 year old woman from Beatrice in 1985. Defendant White was convicted of murder and defendant Winslow plead to second degree murder.
  • State v. White, S-06-919, 274 Neb. 419
  • State v. Winslow, S-06-983, 274 Neb. 427
Three co-defendants testified against White. Nebraska Supreme Court orders DNA testing for both the defendant who went to trial (White) and the defendant who plead (Winslow). The Supreme Court orders testing because no matter how far fetched the claim, this evidence if available could produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced. See § 29-4120(5). Senator Chambers comments back in 2001 tell it all, the senators agreed that cost was no object.

Saturday, November 03, 2007

Order of the Kneepads Update: Rare readmission of disbarred attorney to the Nebraska State Bar after 20 years. Nebraska Supreme Court allows readmission to the bar of attorney disbarred 20 years after twice stealing funds from his law firm. Legal profession blog. The Supreme Court disbarred John Kinney in 1987 after twice stealing over $20,000 from his law firm. The court denied his application for readmission ten years ago but this time allows it conditioned upon his passing the bar exam. Character witnesses and the court's soft spot for substance abusers carried the day for Mr. Kinney. State ex rel NSBA v. Kinney 274 Neb. 412 (2007).

Saturday, October 27, 2007

Nebraska state courts retained jurisdiction to prosecute crimes involving Indians that preceded effective date of Unicameral's retrocession agreement with the Federal Government. State v. Wabashaw, S-06-642, 274 Neb. 394 Defendant was convicted of robbery and the court sentenced him as an habitual offender. The crime occurred on Indian territory. Nebraska Supreme Court affirms conviction as effective date (71 Fed. R eg. 7994 (Feb. 15, 2006)) of Nebraska's retrocession agreement (L.R. 17, Legislative Journal, 97th Leg., 1st S ess. 2356, 2358-59 (May 31,2001)) followed the crime. Congress abrogated its 1868 treaty with Indian tribes that required notice to the tribes before the State prosecuted an Indian (Public Law 280 18 U.S.C. § 1162(a) (2000)). Finally the Defendant's prior robbery conviction in South Dakota counted to enhance his sentence even though South Dakota courts (S.D. Codified Laws § 22-7-9 (2004))could not have considered the prior conviction due to passage of time (§ 29-2221 RRS Neb.).
Nebraska Insurance Guaranty Act bars all subrogation claims against insureds unless they are outside the scope of the insolvent insurer's policy. Car owner sued dealership for damages arising from repairs the plaintiff alleged were faulty. The car owner paid his $1000 deductible and his own insurer picked up the rest. The dealership's insurer became insolvent after the Plaintiffs started the lawsuit and the district court dismissed the action under the provisions of the Nebraska Insurance Guaranty Act that prohibits subrogation actions against responsible defendants. Nebraska Supreme Court agrees that the plaintiffs could not file action directly against the dealership unless the accident was beyond the coverage of the garage policy and material issues of fact prevented summary judgment for the dealership on coverage. Alsobrook v. Jim Earp Chrysler-Plymouth, S-06-383, 274 Neb. 374"Section 44-2403(4)(b) prohibits subrogation claims from being asserted against an insured of an insolvent insurer, except to the extent that the claim is outside of or in excess of the insurance policy issued by the insolvent insurer. T he district court erred in concluding, as a matter of law, that Alsobrook’s entire claim, in excess of the deductible, is barred by the A ct"

Wednesday, October 17, 2007

Grand Island Lawn Company Owner Pleads Guilty to Harboring Illegal Immigrants. Yahoo business. David Wortman turned himself in for arrest last month, one day after U.S. Immigration and Customs enforcement raided Cloudburst Lawn and Sprinkler and arrested 19 suspected illegal immigrants. Agents believed 11 of those arrested were from Mexico, six were from El Salvador and two were from Guatemala.Wortman was under investigation by ICE, the IRS and the U.S. Department of Labor, U.S. Attorney Joe Stecher said in a news release. Wortman was scheduled to be sentenced Jan. 22. In a plea deal, he agreed to be sentenced to 30 months in prison and to file new tax returns for 2005 and 2006. According to the criminal complaint, Wortman told federal officials that the company's gross sales in 2005 were more than $1.5 million. Stecher said Wortman cashed several checks from customers that were for less than $10,000 each but represented larger business dealings that should have been federally reported. Stecher said the 45 transactions totaled about $440,000 and were paid in groups of 22 to 108 checks. Under his plea agreement, Wortman agreed to forfeit the $440,000, not only for the unreported transactions, but also to pay $200,000 to the Labor Department to settle claims of unpaid overtime.

Saturday, October 13, 2007

The Heritage Foundation and The Federalist Society Host A Reception with Supreme Court Justice Clarence Thomas Omaha, NE, October 19th

Event details Friday, October 19, 2007 6:30 p.m. Reception 7:00 p.m. Remarks Hilton Omaha 1001 Cass Street Omaha, NE 68102

Sign up here for this special event. Justice Thomas is a national treasure and a great speaker. Just think if a few more decisions from the Supremes went his way. As John Lennon said, "Imagine!"

Tuesday, October 09, 2007

The Nebraska Court of Appeals should have considered the defendant's ineffective counsel appeal because his challenge to the Nebraska terroristic threats statute was merit less.
State v. Nelson, S-06-449
Although defendant filed notice in his ineffective counsel appeal that he would allege that the Nebraska terroristic threats statute (28-311.01) is unconstitutional, the Nebraska Supreme Court holds the court of appeals should have heard the appeal. "(Defendant's) mere assertion that a statute may be unconstitutional does not automatically deprive the Court of Appeals of jurisdiction over the case. To conclude otherwise would amount to ceding the regulation of our docket, and that of the Court of Appeals, to the unsupported allegations of litigants. We find that for the constitutionality of a statute to be genuinely “involved” in an appeal,"
Nebraska Supreme Court rejects "ERISA" standards when it reversed summary judgment ruling that went against disability insurance recipient.

Sweem v. American Fidelity Life Assurance Co., S-06-870

The Douglas County District Court refused to admit plaintiff's evidence that she was still disabled after the disability insurer cut her off because she had not given this information to the insurer before it decided to end her benefits. Nebraska Supreme Court rejects the defendant's suggestion that plaintiff should have provided her evidence of continued disability before the insurer made its decision to terminate benefits as ERISA plan insurers often require."We discern no good reason to apply ERISA principles to this common-law action to recover benefits claimed due under an insurance policy, and American Fidelity directs us to no other state court decision which has done so."

Sunday, October 07, 2007

Justice William Connolly again hands a victory to bigger government units over smaller ones. This time he allows the reorganized Lyons-Decatur School District to bait and switch Decatur residents into believing they would have a say in whether the school district would keep their local school open. Citizens for Equal Education v. Lyons-Decatur Sch. Dist., S-06-159, 274 Neb. 278. Justice Connolly just cant help himself from finding "absurd results" from the plain meaning of statutes. This time he finds that an agreement between the residents of Decatur and Lyons when they merged their school districts in 1984 that the Decatur school would not close unless a majority of the Decatur voters approved did not mean that because that would be an "absurd" result. Section 79-419 said just that, but that would get in the way of consolidating small town schools into large ones that would support lots of extra staff. We really should be grateful for Justice Connolly for doing the Legislature's job. After all his Supreme Court justice's salary takes care of a baker's dozen of unicameral members.

Tuesday, September 25, 2007

Judge who did not recite immigration consequences to immigrant defendant word for word did not cause manifest injustice entitling defendant to vacate his plea. State v. Molina-Navarrete, A-06-1362, 15 Neb. App. 966Can you tell the difference between what the Dawson County Judge told one of our hard working striving new arrivals to our land of promise and what the Nebraska Legislature requires judges to advise defendants on the possible immigration consequences of breaking our laws? Here's what the judge told the defendant Molina-Navarrete: "In addition, if you are not a United States citizen, any conviction of this offense may have the consequence of causing you to be removed from the United States; that is, deported or denied naturalization of the laws of the United States. Do you understand all of the penalties" YES Here's what Section 29-1819.02 requires, in bold: IF YOU ARE NOT A UNITED STATES CITIZEN, YOU ARE HEREBY ADVISED THAT CONVICTION OF THE OFFENSE FOR WHICH YOU HAVE BEEN CHARGED MAY HAVE THE CONSEQUENCES OF REMOVAL FROM THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES. Molina-Navarette sought to vacate his guilty plea after sentencing for narcotics possession. Dawson County overruled his motion and the Nebraska Court of Appeals found no manifest injustice, the standard for vacating pleas after sentencing: "We conclude that these minor language differences are inconsequential and that Molina-Navarrete was properly advised of the immigration consequences of his plea as required by § 29-1819.02 and refusing to vacate the plea was not a manifest injustice"

Saturday, September 22, 2007

Eighth Circuit again reverses Nebraska Federal District Court Judge Bataillon, this time for Judge Bataillon's ruling that retired union members should be able to keep sucking their employer Crown Cork and Seal dry for a lifetime of gold-plated health care. International Association of Machinists, AFL-CIO v. Crown Cork &Seal 09/18/2007 U.S. Court of Appeals Case No: 06-3639 District of Nebraska - Omaha [PUBLISHED] [Bowman, Author, with Melloy and Gruender, Circuit Judges]. Retired union employees of Crown Cork and Seal filed grievances because the company put introduced unwelcome cost cutting measures to their health plans. Company sought declaratory relief that it did not have to arbitrate and could modify the health plans. District Court Bataillon ruled the company had to agree to arbitration under the company's active labor relations agreement with present employees. Eighth Circuit reverses. The retirees' health benefits did not vest before the Master Agreements expired and did not survive the expiration of those agreements. The district court erred in granting summary judgment to the union and ordering arbitration of Crown's unilateral modification of the retiree health plan. Crown's declaratory judgment action under the Labor Management Relations Act is dismissed, as the law of the case conclusively determined that retiree benefits did not vest before the Master Agreement expired.
Bankrupt used car dealer owed a $150000 federal court judgment to a former female employee due to his partner's flagrant sexual harassment of her. Eighth Circuit Court of Appeals finds the federal court employment discrimination verdict under 42 U.S.C. § 2000e-3(a) was not dischargeable as a willful and malicious injury according to 11 USC 523(a)(6). Holly Sells v. Michael Porter 09/21/2007 U.S. Court of Appeals Case No: 07-6008 and No: 07-6013 U.S. Bankruptcy Court for the Eastern District of Arkansas
The Lancaster County Court and local prosecutors do the right thing to avoid another "Jena 6" situation here. Lancaster County Judge Gayle Pokorny sentenced Earl Richardson III to six months in jail yesterday for "criminal mischief." Journal Star.com What was his crime? Richardson an Omaha resident was randomly shooting a harmless paintball gun while riding in the back of his friend's Lincoln Towncar. One of his shots found the back of a three year old girl's head, and it knocked her to the ground. He plead to two counts of "Criminal Mischief," Section 28-519. Criminal Mischief can be a Class IV felony, or Class I, II, or III misdemeanor. The article does not say whether the judge sentenced the defendant to concurrent six month terms or whether the defendant received two consecutive three month sentences. Naturally the public is outraged at the seemingly light sentence, especially since the Defendant had a rather long rap sheet, 5 pages of computer print-outs. But good Judge Pokorny and the prosecutors who watered down the charges did the right thing. After all, we don't need any Jena 6 marches or more Ernie Chambers lawsuits around here do we?

Friday, September 21, 2007

Nice recovery for the losing attorney who didn't bother to defend the summary judgment motion against his client: Plaintiff's deceased husband suffered paralyzing injuries in an ATV accident while on a work detail cutting and spraying weeds on a Natural Resources District bike trail. Weichman v. Lower Platte South NRD, A-05-1147, 15 Neb. App. 946. At the time the deceased husband was an inmate at the Lincoln Community Corrections Center. Plaintiff representing the estate continued their suit against both the Natural Resources District as a political subdivision tort claim action action and the Nebraska Department of Corrections as a state tort claim action. The Lancaster County District Court dismissed the the Department of Corrections during a summary judgment hearing that the plaintiff's attorney did not attend. The district court ruled the Nebraska State Tort Claim Act's discretionary function exception(§ 81-8,219(1)) immunized the State from responsibility for the inmate's injuries. Plaintiff appealed the Department of Corrections dismissal as a final order. Nebraska Court of Appeals, and reverses. "Even though Plaintiff’s counsel failed to appear at the summary judgment hearing and to contradict or contest DCS’ evidence, there are a number of unresolved facts—remembering that on summary judgment, we view the evidence most favorably to Weichman...(the) evidence suggests that contrary to a statement in (the correctional officer’s) affidavit, his responsibility on June 6, 2002, was not limited to “security,” and creates an issue of material fact (as to whether the discretionary function exception applied). "if the corrections officer trains instructs and supervises the inmates (on the work detail) for NR D, then whether the discretionary function or duty exception from liability applies is a material issue of fact for trial."

Wednesday, September 19, 2007

Edward Poindexter's attorney recently lost his client's latest motion for new trial; Douglas County District Judge Bowie ruled against him on every point. Poindexter's attorney also obtained ham sandwich indictments against Lincoln Police and Fire Department personnel in 1995 from Lincoln's 1994 "Rodney King" wannabe Renteria. When the cases when to trial all promptly resulted in acquittals. Does anyone see a pattern here? Poindexter's attorney Bob Bartle said it all however, when he seemed to brush off the district court loss because "it's going to the Supreme Court." Well if I were a friend or relative of the Omaha Police officers Ed Poindexter and David Rice killed or maimed, I would not assume that the meddlesome snivel liberties lawyers representing these Black Panther thugs and their lackeys on the Supreme Court are done yet.

Sunday, September 16, 2007

Speed traps in men's rooms: Did the Minneapolis Airport police set-up Senator Craig? Maybe to tap the bathroom-cruising cash cows, but not for politics. Now that Senator Craig has decided to try to fight the citations he received, officially for violating Minnesota criminal statutes titled "Interference with Privacy" and "Disorderly Conduct", did the cops set him up to unseat yet another Senator from the vulnerable Republican Party? Probably they set him up but not for that reason. The fine was pretty substantial. And most defendants caught in an airport far from home would love to avoid the embarrassment of returning to Minnesota, sitting through hours of county court sessions to fight the charges. Predictably most would waive their rights and plead guilty to reduced charges. Now with a $1000 fine and nearly $100 of court costs, that's good pay for a day's work. The airport probably pays the officer $40-45k per year, maybe to $55k with overtime. Add in 20 to 30% for deferred compensation, FICA, health insurance, etc. The $1000 fine more than covers the officer's pay for the day. Now the officer probably spent half his shift landing the Senator, and court personnel and prosecutors a few more hours, but still a nice profit from the cruising cash cows.

Sunday, September 09, 2007

US District Court habeas action was too late under Federal AEDPA because the defendant failed to appeal his original Nebraska state court conviction and obtained a direct appeal only years later to remedy his claim that his counsel was ineffective for failing to file a direct appeal on time. 063893P.pdf 09/06/2007 Keva Tyree O'Neal v. Michael Kenny U.S. Court of Appeals Case No: 06-3893 District of Nebraska - Lincoln. Something for all those goons in the joint who discover that their public defenders should have appealed the plea bargains they reach for them to think about: in federal court the merry-go-round comes to a stop. The defendant plead guilty to a few counts of first degree assault. His attorney botched the appeal because the poverty affidavit he drafted was deficient. Only much later did the Nebraska state court grant the defendant a direct appeal to remedy his counsel's ineffectiveness. Eight Circuit agrees that under Nebraska law, the direct appeal to remedy ineffective counsel is a new proceeding and not the original one. To determine whether a new direct appeal constitutes direct review within the meaning of AEDPA, we must examine the underlying state law and in State v McCracken the Nebraska Supreme Court explicitly rejected the defendant's position. "In State v. McCracken, the court held that the grant of a new direct appeal constitutes a new appellate process and does not reinstate the original appellate process. State v. McCracken, 615 N.W.2d 882, 882 (Neb. 2000); State v. McCracken, 615 N.W.2d 902 (Neb. 2000) (McCracken II)"

Saturday, September 08, 2007

Nebraska Supreme Court reverses Thomas County District Court's summary judgment ordering removal of directors of cattle feeding corporation. Neiman v. Tri R Angus, S-06-118, 274 Neb. 252. District court judge ordered corporate officers removed following dispute between shareholders and the directors. Although the defendants did not offer evidence disputing removal, the Supreme Court reverses the removal under 21-2086 proceedings. Because the statute includes grounds for fraud and because fraud requires heightened proof of intent, the Supreme Court concludes all grounds for removal of directors will require heightened proof. "Nebraska's statute on judicial removal of corporate directors, § 21-2086, is an extraordinary remedy. It is not for resolving mere differences of opinion between the shareholders and the directors regarding their exercise of business judgment. Instead, it is an unusual remedy that is to be granted only upon the shareholder’s production of sufficient evidence demonstrating that the director has engaged in “fraudulent or dishonest conduct or gross abuse of authority or discretion with respect to the corporation.” § 21-2086."
Another win for trial lawyer justice in Nebraska: Nebraska Supreme Court reverses summary judgment in suit against U-Haul by user who mishandled the truck's loading ramp. Erickson v. U-Haul International, S-05-1163, 274 Neb. 236The plaintiff's parents rented a U-Haul moving van to move from Iowa to Herman, Nebraska in Washington County. The Plaintiff tried to extend the loading ramp while her father moved the truck, but the truck jumped suddenly and pinned her leg. She sued the U-Haul Center of Omaha and also the umbrella U-Haul company. District court dismissed the case against U-Haul Center finding no duty to warn and dismissed against U-Haul parent company finding no personal jurisdiction. Even though the Nebraska Unicameral has already addressed truck leasing liability issues in 25-21,239, the Supreme Court (J Connolly) predictably reverses. So why is this worthless case going back for trial? Who is going to win a negligence case when a girl and her parents are mishandling heavy equipment? This case wont go to trial and someone will pocket a nice settlement since the Supreme Court has shut off the defendants' threat of a quick dismissal.

Sunday, September 02, 2007

Convicts who escaped from prison had Fourth Amendment rights until the enbanc Eighth Circuit Court of Appeals reinstated the totalitarian use of Nebraska Department of Corrections administrative arrest warrants Neb. Rev. Stat. § 83-173(11) . Missouri Appellate Law Blog reports the split decision U.S. v. Lucasfrom the Eighth Circuit Court of Appeals en banc that reinstated the escaped convict's charges on drugs and weapons charges arising from his apprehension while staying at his girlfriends house. The initial panel of the Eighth Circuit and the dissenters think the Department of Corrections' warrant insufficient to overcome the fourth amendment protection convicts have when absconding from incarceration. We'll think about that next time a convict escapes, takes hostages and is about to kill them and hope that defendant's lawyers won't be able to think up some creative defenses to the case.

Saturday, September 01, 2007

Eminent law prof blawgger applauds Nebraska Supreme Court's decision to maintain SNAFU status with sentencing guidelines. Sentencing Law and Policy Blog loves Nebraska's Justice League member Joe Bataillon, US District Court, and now William Connolly Nebraska Supreme Court for refusing to bow to pressure from the Legislature to introduce some sanity to sentencing decisions. Why if we had guidelines for drug dealers, then we might have to have guidelines for electrocuting murderers, Nigerian gang-bangers, and pedophile runt-rangers.
No complaint amendment to add promissory estoppel three after the plaintiff dropped it from his breach of employment contract lawsuit. Keating v. Ironwood Golf and Country Club voluntarily withdrew his promissory Bank, supra, if the district court had allowed (Not designated for permanent publication). Premier Omaha area golf club Ironwood Country Club hired Bradley Keating to be its chief operating officer in April 2001 with a five year employment contract, subject to the parties reaching within 90 days of starting employment agreement on work performance standards. Apparently Mr. Keating ran afoul of some big names, including Howard Hawks and Thomas Fitzgerald. The club terminated him after 90 days. Keating sued for breach of contract and for breached promissory estoppel. After Ironwood filed its initial demurrer to the promissory estoppel count, Keating withdrew this from his pleading. But nearly three years later in response to Ironwoods motion for a complete summary judgment he sought to reinstate it. Nebraska Court of Appeals, unpublished decision, affirms summary judgment. "Keating sought to change his lawsuit from a straightforward breach of a written contract action to a promissory estoppel cause of action only after the hearing on Ironwood’s motion for summary judgment, nearly 3 years after Keatingestoppel cause of action. Similarly to Cimino v. FirsTierKeating to amend his pleading, the basis of his lawsuit would have been significantly altered after 3 years of proceeding to defend a case based only on a breach of contract cause of action. For these reasons, the district court did not abuse its discretion in refusing to grant Keating’s motion for leave to file an amended petition to change his theory of recovery from a breach of contract claim to one of promissory estoppel."

Friday, August 31, 2007

UNL Law College student expelled for plagiarism appealed to the Lancaster County District Court. District Court and Nebraska Court of Appeals dismiss case, holding that the Dean and Honor Committee of the law school are not "agencies" subject to the Administrative Procedures Act, nor was their expulsion decision a "contested" case.Kerr v. Board of Regents et al. ___N.W.2d___ Filed August 28, 2007. No. A-05-953. Law student Michael Kerr got caught plagiarizing three papers and then submitting the identical plagiarized material to different professors. A law school Honor Committee voted 4 to 1 to expel him and the Dean approved. Kerr alleged disparate treatment due to his race and national origin (guess) so that must have swayed the one dissenter on the committee. He then appealed to the District Court, lost and appealed to the Court of Appeals. Appeal dismissed."An “agency” is each board, commission, department, officer, division, or other administrative office or unit of the state government “authorized by law to make rules and regulations.” § 84-901(1). We have found no basis to conclude that the Honor Committee or Dean Willborn is “authorized by law to make rules and regulations,” Nor was Kerr's expulsion the result of a contested case as "there is no law requiring that the question of whether Kerr remains a College of Law student be determined by an agency (as defined by § 84-901(1)) and, in any event, as said, the Honor Committee and the dean are not agencies under such statute.

Wednesday, August 29, 2007

Order of the Kneepads update: Counsel for Discipline for the Nebraska Supreme Court helps poor business people find ways to blame their attorneys. The Kearney Hub reports that master litigator Kent Frobish, Assistant Counsel for Discipline of the Nebraska Supreme Court filed formal charges (pdf) against venerable Kearney attorney William Orr arising from his representing the Baristas' coffee shop principals. Disciplinary Counsel Frobish became very proficient in this job because he held a baker's dozen of private sector positions before landing in the Supreme Court's easy chair. Somehow I don't see how Baristas' people can blame Orr for all their problems. He didn't tell them not to deposit their withholding taxes to the tune of over $330K. Although the FTC fined the partners, this did not completely choke their income.

Friday, August 24, 2007

No uninsured motorist coverage for passengers who were not insured persons for an automobile's liability insurance policy, and a much smaller payday for plaintiffs' attorneys. Nebraska Supreme Court, J Stephan with Gerrard, J and Heavican CJ concurring rules for Shelter against its insured's passenger who was injured in an accident with an uninsured automobile. Jones v. Shelter Mut. Ins. Cos., S-06-310, 274 Neb. 186. Shelter excluded passengers in their insureds' vehicle who were not themselves insured persons under the policy. Although permitted drivers were covered, guest passengers were not. Plaintiff and his own uninsured carrier American Family argued Shelter's policy violated 44-6408 . 44-6408 requires liability insurers who provide insurance for bodily injury... arising out of the ownership, operation, maintenance, or use of a motor vehicle to also provide to persons insured who are legally entitled to recover compensatory damages for bodily injury (uninsured and uninsured motorist coverage). Supreme Court rules Shelter did not violate public policy by restricting the meaning of "use" of the motor vehicle to those guests who were operating or maintaining it. Justice Gerrard, concurring, cant wait to butt in and tell the Unicameral how it should write its laws. Gerrard states he is concerned about unsuspecting passengers who throw themselves at the mercy of uninsured drivers. Good enough, but how about the plaintiff attorneys who win smaller settlements because of this ruling? Don't they deserve favorable mention from their champion John Gerrard?
Will medical malpractice plaintiffs be able to bring cases against Hospitals and doctors for their advertisements? Nebraska Supreme Court, per curiam, affirms Douglas County District Court defense verdict in medical malpractice case rules that judge could exclude defendant evidence of hospital's advertisements for its walk-in emergency clinic. Supreme Court holds the advertisements did not establish a standard of care. But Court hints that in the right cases plaintiffs could bring negligent misrepresentation claims Karel v. Nebraska Health Sys., S-05-1311, 274 Neb. 175 Tina Karel's estate administrator sued Nebraska Health Systems, dba Clarkson West EmergiCare (Clarkson West), and Scott Menolascino, M.D., for medical malpractice action. Plaintiff died just a few hours after seeking treatment from the emergency clinic the second time that evening. After the defense verdict the Plaintiff appealed arguing the district court should have admitted her evidence of the defendants' print and radio advertisements produced by for the Clarkson West Emergicare clinic.Supreme Court affirms. "Neither the offer of proof nor any other part of the record affords any basis for concluding that Karel relied upon or was even aware of the marketing activities undertaken by Clarkson West when she chose to seek medical care at the facility"

Sunday, August 19, 2007

Malpractice lawyers will sue other lawyers for settling cases and also for taking cases to court. Nebraska Supreme Court (J. Wright) reinstates $1.6 million malpractice verdict against Omaha's McGrath North law firm in favor of former client LaVista Keno operator Richard Bellino and his trial attorney David Domina. Bellino v. McGrath North, S-06-130, 274 Neb. 130. Lawyers beware of advising clients to accept settlements that another lawyer will say were too low, conversely don't advise a client to beat a settlement offer at trial. The Douglas County jury ruled that McGrath North's client received bad legal advice on how to dump his business partner in their Keno business and then that he would win in court. Although the district court agreed that the defendants' continuous representation through the clients unsuccessful appeal against the former partner's business opportunity lawsuit was timely and that the defendants were negligent , the district judge reduced the jury's $1.6 million to $224K. The district judge reasoned that since the client would owe his partner something eventually, no damage resulted from the attorney's conduct. Supreme Court disagrees. "After (plaintiff) did not accept (former partner's) offer, (Plaintiff's) appeal continued until this court affirmed the judgment in favor of (former partner). The jury could reasonably have concluded that but for the negligence of McGrath North, Plaintiff would have paid substantially less than $3.1 million to attain his stated goals."
Nebraska Supreme Court in two cases arising from the Amwest liquidation that started six years ago rules against landlord who sought satisfaction from defaulted tenants performance bond, but rules in favor of Florida general contractor who said it never received notice of the Amwest liquidation proceedings.
  • State ex rel. Wagner v. Amwest Security Ins. Co., S-05-1267, 274 Neb. 110 (Strategic Capital Resources, Inc.)
  • State ex rel. Wagner v. Amwest Security Ins. Co., S-06-049, 274 Neb. 121(Sunhouse International)
The Supreme Court affirms denying the claims of Strategic Capital Resources against its tenants performance bond to satisfy rental payments. Turns out the tenant-principal defaulted three days after the Insurance Department's notice that it would cancel the Amwest bond. "Each of the four lease bonds contained explicit conditions that must be complied with before A mwest’s liability under the agreements would arise. All four lease bonds required Strategic to provide A mwest written notice of (principal’s) default as a condition precedent to S trategic’s right to payment under the lease bonds. Amwest however did not receive notice of defaults until after cancellation. Strategic may not analogize these cases to cases arising form claims-based insurance policies as bond claims require strict compliance with preconditions for them. In the Sunhouse international case, the Supreme Court rules in favor of the claimant against a defaulted construction performance bond. The evidence showed that Amwest liquidators sent notice to the claimant's former attorneys offices. The claimant disputed that it received notice. Only later did Amwest liquidators produce an affidavit with out supporting documents stating the it did give proper notice. On denovo review Supreme Court discounts the affidavit. "we find the affidavit insufficient proof that, in accordance with § 44-4822, notice was sent to S unhouse’s last known address as reflected in A mwest’s records."
Although Justice Stephan doesn't think police officers have rights to free speech, he and his fellow Solons on the Nebraska Supreme Court think that a little law school wouldn't hurt them. Snyder v. Department of Motor Vehicles 274 Neb. 168. The Supreme Court majority throws out an administrative license suspension from Douglas County because the police officer marked "speeding over 20 mph, DUI" as the reason for the arrest. Now if the busy Omaha Police Department officer who stopped this drunk driver who was driving over 20 mph over the speed limit had been to law school, he would have known that although that's the ticket he issued to this drunk driving menace, that was a mere legal conclusion and did not state "facts" to make the wise Supreme Court justices happy. So what if Supreme Court justices and their clerks dream up these technicalities while sitting in their State Capitol chambers and law libraries, the form has TWO AND A HALF INCHES for the officer to state his reasons for arresting the suspect and the burden of the paperwork is not "onerous," even for busy policemen who must complete these forms at all hours and in all weather conditions. Dissenting Chief Justice Heavican seems to be the only judge on the court who agrees to see the real world, and finds the court decision's thwarting effective drunk driving enforcement.

Saturday, August 11, 2007

Follow up: on remand the Nebraska Supreme Court again reverses the Commission on Industrial Relations in the dispute between the Hyannis Educational Association and the Grant Public School District ; Supreme Court rules in favor of school district that "deviation clauses" from union contracts between several other school districts and teachers' representatives were prevalent, whether they had open-ended or specified conditions, and therefore the CIR erred when it threw out the school district's deviation clause. Hyannis Educational Assn. v. Grant County. Sch. Dist. No. 38-0011, S-06-300The Supreme Court also declined to moot the case because of the Legislature's Class I Schools' consolidation bill from two years ago, 2005 Neb. Laws, L.B. 126.

Sunday, August 05, 2007

The Nebraska Supreme Court decides that good police discipline, i.e., toeing the line, overrides Union activity and the public's right to know police officers' public safety concerns. Omaha Police Union Local 101 v. City of Omaha, S-06-403 Omaha Police Department Chief sought to discipline two officers who were police union officials for comments they made about the OPD's 911 standards. One commented that the OPD's procedures were "misleading" and this was during a union meeting. The chief tried to discipline this officer but Internal Affairs dismissed the case. A second officer wrote and article that was barely insubordinate, in that article the officer wrote an article was generally critical of the standard operating procedures for two-officer 911 calls and the manner in which the city and OPD calculated response time. Housh characterized city officials as “[a] bunch of grown men and women, supposedly leaders, acting like petty criminals trying to conceal some kind of crime.” He also stated that “[t]hey refuse to do it, they know they have screwed up, and rather than admitting guilt, they (whoever they are) will make history and try to control what is said/revealed during union meetings regarding response time.” The comments about "grown men" cant be true, because if the police administration had grown men, it would not have thought these comments while harsh amounted to a disciplinary breach. Anyway the Supreme Court gives the department what it wants, the chance to tie up anyone who questions authority and public safety and make them think twice about rocking the boat, because next time an employee criticizes his government employer he will have to navigate a maze of constitutional balancing tests, juggling and water torture.

Friday, August 03, 2007

Nebraska Supreme Court nixes North Carolina pig breeder's claim against hog farmers estate. The breeders officers mistakenly signed where the hog farm's principal should have signed to guarantee the farms breeding stock debts. Court affirms Gage County Probate Court's ruling that there was no guaranty agreement either by reforming the erroneously signed document nor by finding that the guaranty was the "leading object" of the agreement between the farm and breeder, so the court would not excuse the writing requirement of the statute of frauds (§ 36‑202(2) (Reissue 2004)). In re Estate of Dueck, S-06-538there was no written guaranty agreement between the parties. In the absence of a written agreement between GIS and Dueck, there was nothing to reform The leading object rule presumes that there has been an oral promise or some sort of an oral agreement.Dueck did not orally agree to guarantee Forward Trend’s debt to GIS, and it follows that the leading object rule was inapplicable.

Monday, July 30, 2007

Eighth Circuit Court of Appeals finds Plaintiff's railroad ballast machine product liability lawsuit was out of time after Virginia court transferred case to Nebraska. 062641P.pdf 07/25/2007 David Eggleton v. Plasser & Theurer U.S. Court of Appeals Case No: 06-2641 District of Nebraska - Omaha Track maintenance worker from Virginia was working the Defendants' Plasser RM-802 ballast cleaning machine . on Burlington Northern railroad tracks in Nebraska and suffered severe injuries while using the machine here in 1998. Within two years he sued Plasser, a German manufacturer in Virginia state court but did not pursue the case. He dismissed the state court action but refiled it within six months in Virginia federal court, taking advantage of the Virginia savings statute, § 8.01-229(E)(3). The district court ruled Virginia did not have personal jurisdiction over the defendants but transferred the case to Nebraska federal court, per 28 USC 1406. The Nebraska federal judge allowed the case to proceed and the defendants appealed. Nebraska law does not extend a plaintiff's limitations period after a voluntary dismissal. If the Nebraska limitations period applies, the Plaintiff's complaint is too late. Eighth Circuit reverses, Nebraska limitation period applies. "After filing his claims against Plasser in a timely fashion, Eggleton neglected the case for more than three years. He took a voluntary nonsuit and then re-filed the case six months later. He waited more than one year after re-filing the case to serve Plasser, thus finally giving the defendant formal notice of the pending lawsuit. While all of these actions were apparently permissible under Virginia law, Eggleton’s inertia in pursuing his case against Plasser militates against his claim of injustice in the application of Nebraska law."

Sunday, July 29, 2007

Eighth Circuit Court of Appeals affirms $1.00 religious discrimination verdict against Omaha area home builder that required employees to attend motivational sessions to promote the owner's beliefs in reincarnation and other Buddhist and Hindu doctrines. Real estate developer fired salesman who was a devout member of the Assemblies of God Church for “poor leadership and lack of judgment,” although the salesman did admit to making inappropriate sexual comments to a female co-worker. Ollis’s official termination did not include any reference to sexual harassment. A principal of the developer also testified he used “muscle testing” in his decision to terminate the plaintiff. The Plaintiff objected to having to attend company events that he perceived to be cult-like indoctrination sessions, including beliefs in incarnation and other Buddhist and Hindu doctrines. The Plaintiff sued for discrimination and retaliation. The jury awarded only $1.00 of damages plus attorney fees. Eighth Circuit affirms.062852P.pdf 07/27/2007 Doyle Ollis, Jr. v. Hearthstone Homes U.S. Court of Appeals Case No: 06-2852 District of Nebraska Riley, Circuit Judge. "the record indicates Ollis held sincere Christian religious beliefs. The record also provides some support for Ollis’s contention HearthStone required Ollis to attend MBE sessions to “cleanse negative energy.” These sessions involved affirming the belief in past lives, participating in ritual-like activities, and reading Hindu and Buddhist literature. Ollis testified the MBE sessions conflicted with his religious beliefs. Ollis testified he informed Smith and Langford of the conflict between the MBE requirements and his religious beliefs. Ollis testified he expressed his disagreement with HearthStone’s core values at company meetings where Smith was present. Ollis told Smith he declined to participate in after-hours sessions designed to “clear some Mind Body Energy work.” Finally, Ollis satisfied the third element of his prima facie case, that is, he suffered an adverse employment action, termination.Although the evidence is thin, we find there was a sufficient evidentiary basis for a reasonable jury to find in Ollis’s favor on his claim of religious discrimination.

Saturday, July 28, 2007

Some jurors used a slide rule and looked up the inflation rate to help them determine how much to award in wrongful death case.Nebraska Supreme Court affirms verdict of only $46k for wrongful death of a woman in her late teens. Poppe v. Siefker, S-05-670, 274 Neb. 1 Family members of woman killed in head-on collision on Interstate 80 with suicidal driver sued and the Lancaster County district court jury awarded them $46k. Plaintiffs appealed arguing the verdict was too low and the result of jurors' improper reliance on outside aids to help them calculate the present value of their award. Nebraska Supreme Court agrees that the plaintiffs failed to present clear and convincing evidence that some jurors' use of a financial slide rule and inflation rate on a post-it note presented a reasonable likelihood that the extraneous materials prejudiced the plaintiff. Although Nebraska jury instructions ask jurors to reduce their damage awards to present value, the instructions don't tell jurors how to do it. In this case, neither side offered evidence on how to do this either. The Nebraska Supreme Court affirms the verdict because although the slide rule and inflation rate were not in evidence, the court cant determine whether the jurors' use of the aids hurt or even helped the Plaintiffs. "Given that the jury was not provided any evidence on present value, nor instructed as to how present value was to be calculated, the personal financial slide calculator and the handwritten inflation rate could not have contradicted any of the evidence presented at trial. Nor could the jury have given undue weight to these items, while disregarding other evidence adduced at trial, because there simply was no evidence presented on this issue."
Defendant convicted of murder in Douglas County District Court goes to Nebraska Supreme Court for a third time but comes away empty handed. State v. Harris, S-06-062, 274 Neb. 40 The defendant in his post-conviction appeal argued that the State violated his constitutional rights by its late offer of the defendants proffer statement and the direct testimony of the Omaha Police detective who had interviewed the defendant that tended to show that the defendant personally knew the murder victim by his nickname "Homicide." Nebraska supreme court rules , with retired judge Hannon dissenting, no prejudicial constitutional error occurred even if the court should not have admitted detective's statements that contradicted the defendant's contention that he did not know the victim, it was harmless. "in a post-conviction proceeding the defendant must meet show the verdict would reasonably likely have been different absent the errors. We agree (with the trial court that no prejudice occurred). In light of the other evidence presented at trial, including the testimony of Hicks and three witnesses who stated that Harris had admitted to the crime, we conclude that Harris has failed to meet his burden on post-conviction to prove that the claimed constitutional errors relating to the Cass report were prejudicial.
Nebraska court of appeals rules against member of homeowners association that had tried to reach agreements with real estate developers. appeals court in unpublished opinion finds no enforceable contract from the negotiations between the developer and the homeowners that resulted in merely vague promises of covenant details. While the district court had found an enforceable contract, which the appeals court reversed, the reviewing court agrees that a plaintiff in a breach of contract case may not seek profit disgorgement in any even from the defendant. MERLE RAMBO V. SULLIVAN R.E. GROUP, "The district court was clearly wrong to find an enforceable contract from the (vague agreements at the) June 1998 city council meeting. For example, Sullivan and the RNA, whose members opposed the zoning change, clearly agreed to a nine-lot subdivision for purposes of the zoning change. Sullivan and the RNA also clearly contemplated that certain covenants would be entered into and that such covenants would contain provisions favored by the RNA and would be enforceable by the RNA in some manner. However, the draft covenants provided to the city council did not contain all such provisions, which were merely outlined in argument before the council. There were essential terms left open for future agreement, including an enforcement mechanism, a definition of which RNA members would have the ability to enforce the covenants, and what ability, if any, there would be to amend the covenants once filed. We conclude that what was reached at the June 1998 meeting was an agreement for future negotiations. In fact, such negotiations did occur. further disgorgement of profits is not an appropriate remedy in this breach of contract claim. Nebraska has not recognized disgorgement of the breaching party’s profits as damages available to an injured party.
The creditor had a judgment against the defendant for over $5000 and garnished her bank account when she had a balance of about $1500. She claimed the substitute cash exemption from 25-1552 but the county court agreed with the creditor that the exemption did not apply to garnishments. Nebraska court of appeals reverses and holds that a judgment debtor my use her cash exemption to hold off the bank garnishment. ARL Credit Servs. v. Piper, A-06-090, 15 Neb. App. 811 "a judgment debtor may assert the in-lieu-of-homestead exemption, provided by Neb. Rev. Stat. § 25-1552 (Cum. Supp. 2006), in response to a garnishment summons against the judgment debtor’s bank account. Because such exemption is authorized by statute and supported in case law and long-established practice, we reverse the county and district court judgments of the courts." However because it was not clear whether the defendant timely asked the court to exempt the property, the court of appeals reverses for further proceedings.