Nebraska Court of Appeals in 2 unpublished opinions requires sentencing courts to run accompanying weapons charges consecutively to the underlying felonies. Neb. Rev. Stat. § 28-1205(3) State v. Short, A-06-332 and State v. Colpitts, A-06-554

Nebraska Court of appeals dismisses workers request for waiting time penalties and attorney fees against employer who delayed funding a lump sum settlement that included terms requiring Medicare/Medicaid’s approval of the lump sum’s set-aside provisions. Garcia v. Platte Valley Constr. Co., 15 Neb. App. 357 Filed January 30, 2007. No. A-06-490. Worker who was injured in 1995 reached a lump sum settlement with the employer in January 2005. The lump sum documents reflected that final approval would not take place until the Center for Medicare Services, (CMS). CMS did not approve the lump until more than 30 days after the conditional lump sum approval date. Employee and attorney filed for additional waiting time penalties and attorney fees. See 48-125 RRS Neb. Trial court denies motion finding the award was not final. Court of appeals dismisses appeal finding the order was not final so it was not appealable. The lump sum order stated "Approval of this WCMSA is not effective until a copy of the final executed workers' compensation settlement agreement, which must include this approved WCMSA amount, is received by CMS at the following address[.]"Because that order did not "perform in praesenti," we further find that the January 12 order was wholly void. That order does not operate as a final judgment, and it is wholly ineffective as such. Therefore, we find that the instant appeal must be dismissed for lack of a final, appealable order and that the proper resolution is to remand to the review panel for remand to the trial court for entry of a final order in this case.

Eighth circuit Court of Appeals summary judgment in Sherman Act complaint against manufacturer of multiple use kidney dialysis devices. HDC Medical v. Mandioc Corp. 061638P.pdf 01/25/2007 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Smith, Author, with Bowman and Colloton, Circuit Judges]. The Plaintiff manufactured kidney dialysis devices and reprocessing solutions. The defendant competed against the Plaintiff but retooled its device to make Plaintiff's solutions unusable. Also through warranty claims and tying arrangements, it shut out Plaintiff from its customers. Plaintiff filed a Sherman Act complaint against the Defendant, alleging that the Defendant monopolized the market for reprocessing devices. The district court ordered summary judgment for the defendant finding that the defendant did not possess monopoly market power. Eighth Circuit court of appeals affirms, finding that although there was a significant price differential between defendant's products and similar products in the market, this did not segment the defendant's product into its own market. The boundaries of the product market can be determined by the reasonable interchangeability or cross-elasticity of demand between the product itself and possible substitutes for it. Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962); United States v. Archer-Daniels-Midland Co., 866 F.2d 242, 246 (8th Cir. 1988) cert.denied; 493 U.S. 809 (1989). In other words, the product market can be determined by analyzing how "consumers will shift from one product to the other in response to changes in their relative costs." SuperTurf, Inc. v. Monsanto Co., 660 F.2d 1275, 1278(8th Cir. 1981) District court did not err in determining that the same market and that defendant did not possess monopoly power in this market; the fact that there was a significant price differential between the two dialyzers was not the only factor to be considered in determining the relevant product market; with respect to plaintiff's anti-competitive conduct claim, the district court did not err in finding that Plaintiff failed to offer any evidence to support its allegations of predatory or anti-competitive conduct and that it also failed to show that defendant's conduct had a dangerous probability of success. HDC offered no evidence, other than a substantial price differential, to support the conclusion that single-use dialyzers are a distinct product market from multi-use dialyzers. Accordingly, we must affirm the district court's grant of summary judgment on HDC's monopolization claim, because HDC failed to create a jury question on the issue of the relevant product market. United States v. Archer-Daniels-Midland Co., 866 F.2d 242, 246 (8th Cir. 1988) cert. denied; 493 U.S. 809 (1989)

Another case from the Eighth Circuit Court of Appeals going up to the Supremes: Atlantic Research v. USA 05-3152 (WD Ark 2006) whether parties may seek contribution for superfund cleanup costs. See Scotusblog. Atlantic Research contaminated its area where the company retrofitted rocket motors for the federal government during the 80's. Bloggers note that industry, state governments and enviromentalists came together on the same side. The issue’s importance to owners of Superfund sites, which include many industrial corporations, is self evident: remediation of these “brownfield” sites can be so costly that, without a legal mechanism to share costs prior to EPA-initiated clean-ups, these properties remain abandoned until EPA turns its attention to them. But EPA has so many sites to attend to that it could be years before it seeks to compel clean-up at any given site. Granting a pre-enforcement contribution right, landowners contend, allows them to clean up property much earlier than they otherwise would and reap the benefit from idling assets, and the Eighth Circuit along with the 2nd circuit agreed. The United States Supreme Court earlier in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S. Ct. 577, 160 L. Ed. 2d 548 (2004) (“Aviall”) found that a party could only attempt to obtain § 113(f) contribution “during or following” a §§ 106 or 107(a) CERCLA civil action. Id. at 161, 125 S. Ct. at 580. Atlantic Research amended its complaint to seek Section 107(a) contribution. The Western District of Arkansas Federal Court dismissed the complaint on the federal governments 12b6 motion. The Eighth Circuit reversed finding that after Aviall, Section 107a provides a distinct avenue to recover cleanup costs, following a 2nd Circuit opinion holding this, Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d 90, 100 (2d Cir. 2005 at 99. {“it no longer makes sense” to view section 113(f)(1) as the exclusive route by which liable parties may recover cleanup costs. } Therefore [the eighth circuit] concluded that the broad language of § 107 supports not only a right of cost recovery but also an implied right to contribution.

Nebraska Court of Appeals finds sale of ongoing business that comprised real estate, buildings fixtures and goods was not subject to UCC Article 2 on Sales; however court affirms judgment in favor of seller because buyer of business waived condition precedent for an inventory of goods and inventory remaining after sale.MBH, Inc. v. John Otte Oil & Propane, 15 Neb. App. 341 Filed January 23, 2007. No. A-05-292 "Since the predominant purpose of the contract was the sale of an ongoing business. The essential elements of the contract are nongoods, including real estate, buildings, and goodwill, the sale was not one primarily of goods, and therefore Article 2 did not apply." However In the instant case, the terms of of the contract calling for (an inventory of existing product, fixtures, etc) became enforceable after the closing. The terms became defined by the parties' subsequent actions that indicated their interpretation of the terms. MBH's delivery of chemicals, fertilizer, and grain along with inventories of these items and Otte's acceptance of these items supplied the terms missing from paragraph 5, making it an enforceable provision. This occurred despite the fact that the joint inventory contemplated by the parties was not completed. We further explain our decision in our following response to Otte's argument that the trial court erred when it found that Otte waived the joint inventory as a condition precedent to enforcement of paragraph 5.

Order of the kneepads update: on the respondent's fourth trip to the Supremes on disciplinary charges, he escapes with suspension concurrent to the discipline the Nebraska Supreme court imposed last year, with conditions on reinstatement. State ex rel. Counsel for Dis. v. Petersen, S-06-182, 272 Neb. 975 What is it with the Nebraska Supreme Court and its chronic sympathy for substance abusers and alcoholics? As long as the attorney gets into the assistance Program it seems he can have a chance to save his ticket. In the 3rd case, the referee thought the reform efforts were too little too late. Now after the counsel for discipline prosecutes more charges of neglecting client cases, the attorney is seeking adequate counseling and will have a chance at reinstatement. The former reported cases were:State ex rel. Counsel for Dis. v. Petersen, 264 Neb. 790, 652 N.W.2d 91 (2002){Supreme court dismisses case because Counsel for Discipline botched it} State ex rel. Counsel for Dis. v. Petersen, 267 Neb. 176, 672 N.W.2d 637 (2004){reciprocal suspension for 30 days after eighth circuit court of appeals suspends attorney for failing to file a brief} State ex rel. Counsel for Dis. v. Petersen, 271 Neb. 262, 710 N.W.2d 646 (2006) {serial neglect of client matters indefinite suspension until February 2008}

Follow up: although Nebraska Supreme Court did not walk meth-head mom Brandy Blair for allowing her 2 year child to die by electrocution, it reverses the jury verdict convicting her of intentional child abuse resulting in death because the court should have allowed the defendant to offer negligent child abuse as a lesser included offense. State v. Blair, 272 Neb. 951 Filed January 19, 2007. No. S-05-544. The Supremes gives the defendant a pass and orders the Lancaster County district court to retry the defendant with a negligent child abuse option as a lesser included offense. The Supremes thought that since there were so many other scum slacker kids in the house at least one of them could have taken charge of the child's care. The Court further found that even though the jury found intentional child abuse, it could have found it also negligent. I see that the Supreme Court didnt see a need to cite the child abuse statutes in its decision (28-707 et seq RRS Neb) "The dispositive issue is whether an instruction on negligent child abuse was warranted by the evidence. Negligent child abuse is a lesser-included offense of intentional child abuse resulting in death. See State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006). The jury was instructed that it could find Blair guilty of intentional child abuse resulting in death, guilty of intentional child abuse, or not guilty."We conclude the evidence provided at least a rational basis for the jury to acquit Blair of intentional child abuse and convict her of negligent child abuse. This is not to say that the jury would necessarily have believed the evidence presented by Blair. However, such evidence provided a rational basis for the jury to potentially find that the abuse was committed negligently and not knowingly and intentionally the jury was not given the opportunity to consider whether Blair acted negligently and the failure to instruct on the elements of negligent child abuse was not harmless error. We therefore reverse the judgment of conviction and remand the cause for a new trial.

Nebraska court of appeals denies constitutional challenge to fetal homicide law because defendant failed to file the proper notice with the Clerk of the Supreme Court State v. Moss (Not Designated for Permanent Publication) Filed January 16, 2007. No. A-05-1132.Appeal from the District Court for Douglas County: J. Patrick Mullen, Judge. Affirmed Defendant convicted of second degree murder and fetal homicide challenged constitutionality of § 28-392 as unconstitutionally vague and overbroad, both on its face and as applied to Moss. Court of appeals affirms conviction and finds Dfendant did not comply with Neb. Ct. R. of Prac. 9E (rev. 2006) Nebraska Supreme Court rules of practice, which requires the appellant to notify the clerk of the supreme court that he is challenging the constitutionality of a law: The record shows that on June 28, 2004, Moss filed a motion to quash the count of the information charging him with second degree murder of Harlan's unborn child. In support of Moss' motion, he alleged that § 28-392 was unconstitutionally vague and overbroad, both on its face and as applied to him. In an order filed October 5, the district court denied Moss' motion to quash. Moss filed an appeal from that order, and this court dismissed the appeal for lack of jurisdiction under Neb. Ct. R. of Prac. 7A(2) (rev. 2001). See State v. Moss, 13 Neb. App. ___ (No. A-04-1192, Dec. 14, 2004). Moss properly presented the constitutional issue to the district court. However, the record does not show that Moss complied with rule 9E, which requires in part that when filing a brief, a party alleging unconstitutionality of a federal or state statute must file and serve a separate written notice of the challenge to the statute with the Clerk of the Supreme Court. Because Moss did not comply with this requirement, the constitutional challenge to § 28-392 has not been properly preserved for appellate review

Man kicks dog: 90 day jail sentence from the Buffalo County District Court Judge Sievers is not a dog lover: dissents from 90 sentence for kicking "Bear" State v. Claussen (Not Designated for Permanent Publication) Filed January 16, 2007. No. A-06-070. Appeal from the District Court for Buffalo County: John P. Icenogle, Judge. Affirmed Nebraska Court of appeals affirms 90 day jail sentence for defendant convicted of cruelty to his neighbors barking dog "Bear," Judge Sievers dissenting as to the sentence. . "Bear" is a 10-pound "Maltese[-]American Eskimo" mix dog. Prosecutors charged the defendant with animal cruelty for his kicking the dog away from his fence. The dog even required treatment from a neurological specialist in Colorado and antidepressant medications. The court dismissed charges of assault Judge Sievers dissents from the decision affirming the 90 day jail sentence calling it a waste of tax dollars:"It is a waste of taxpayers' money to incarcerate this individual for 3 months for what is the functional equivalent of a first-time speeding ticket." When Claussen moved in next door to Rasmussen, the two were friendly with each other. However, that changed following two arguments in the fall of 2004, one regarding Rasmussen's two dogs and the other regarding Claussen's dog. At the time of the incident at issue, Claussen and Rasmussen were not speaking to each other. Rasmussen testified that on February 12, 2005, he was in his kitchen and looked out the window and saw Bear in the yard standing on his hind legs up against the chain link fence that separates Rasmussen's property and Claussen's property. He testified that Bear was barking. Rasmussen testified that while looking out the window, he saw Claussen walk over from his driveway and kick the fence at the spot where Bear was standing. Rasmussen testified that Claussen's kick propelled Bear backward. He testified that Bear responded by snarling and barking and stood up against the fence again and that Claussen kicked the fence a second time. Rasmussen testified that this time Bear "flew . . . a foot or two off the fence." Rasmussen testified that after the altercation with Claussen, he took Bear to the veterinarian to get checked for injuries and subsequently took him to a neurological specialist in Fort Morgan, Colorado. He further testified that Bear is on antidepressants because he becomes very nervous and agitated. Claussen was charged with animal cruelty, in violation of Neb. Rev. Stat. § 28-1009(2)(a) (Cum. Supp. 2006). That statute states, "[A] person who cruelly mistreats an animal is guilty of a Class Imisdemeanorr." The phrase "cruelly mistreat" means "to knowingly and intentionally kill, maim, disfigure, torture, beat, mutilate, burn, scald, or otherwise inflict harm upon any animal." (Emphasis supplied.) Neb. Rev. Stat. § 28-1008(3) (Cum. Supp. 2006). Claussen argues that the definition of "cruelly mistreat" in § 28-1008(3) does not include acts where the harm is minimal, such as in the instant case. Dissenting as to the sentence Judge Sievers writes: While I concur in taffirmingnce of the conviction, I must respectfully dissent from the majority's resolution of the assignment of error that the sentence of 90 days' incarceration is excessive. It is clear from the record and a review of the majority's opinion that the only way this conviction stands up is if Claussen was guilty of "otherwise harming" the dog, because the specified and rather horrific injuries listed in the statute certainly did not occur. If the dog was "otherwise harmed," and the jury found it was, that harm was clearly minimal. To sentence a young man with no criminal record to 90 days' incarceration because he may have inappropriately responded to his neighbor's barking dog is an abuse of discretion. The sentence is far too severe for the nature of the offense and the nature of the offender. It is a waste of taxpayers' money to incarcerate this individual for 3 months for what is the functional equivalent of a first-time speeding ticket. The fact that the sentence is within the statutory limits does not make it an appropriate sentence. See State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).

Nebraska Supreme Court reverses fatal shooting case from Douglas County when bailiff advised dissenting juror that the jury might be deliberating indefinitely if she did not agree to convict the defendant; Supreme Court however finds no Batson violation when the State’s explanation for striking a Black juror was that he attended a “Christian” school. State v. Floyd, 272 Neb. 898 Filed January 12, 2007. No. S-05-1376. Defendant on trial for murder and attempted murder for shooting a pregnant victim who was not his intended target. The jury agreed to convict the defendant of being a felon in possession of a firearm, but one jury refused to convict him of murder and unborn manslaughter. Although the dissenting juror and the bailiff gave different accounts of their discussions, the Supreme Court reverses because the bailiff ventured into trial procedure when answering the juror’s question about what would happen if the juror did not agree to the verdict. Defendant also raised a Batson challenge to two of the State's strikes, and the State responded that one African American juror who attended a "Christian Academy." Nebraska Supreme Court found this explanation was not race based and enough to rebut the Defendant's prima facie challenge, further the Defendant did not prove race based discrimination under Batson. “We conclude that the improper communication from the bailiff to the juror would have affected the average juror in a way that would have prejudiced Floyd and denied him a fair trial. In reaching this conclusion, we consider the circumstances surrounding the communication. At the time the communication was made, the jury had been ordered to return to deliberations after it was determined that the jury's verdicts on the murder and manslaughter charges were not unanimous. The communication was made to the juror who was known to be the lone dissenting juror. Either directly or indirectly, the communication focused on the potential effect that the juror's continued dissent would have on the length of deliberations. We determine that the communication could have pressured the average juror to change his or her vote in order to avoid protracted deliberations. Because the communication occurred when the jury was not yet unanimous on the charges of first degree murder and manslaughter of an unborn child, we conclude that the improper communication was prejudicial to Floyd and denied him a fair trial on those charges. We note, however, that the jury was polled prior to the improper communication and that the jury was already unanimous as to Floyd's guilt on the charge of being a felon in possession of a firearm. We therefore conclude that the improper communication which occurred after the unanimous verdict on the firearm charge had been announced was not prejudicial as to the firearm conviction. Because the improper communication denied Floyd a fair trial on the murder and manslaughter charges, we determine that the district court abused its discretion by failing to grant Floyd a new trial on these convictions. It is therefore necessary to reverse Floyd's convictions on the charges of first degree murder and manslaughter of an unborn child”

Order of the Kneepads update: Nebraska Supreme Court suspends for one year with probation female Lincoln attorney reprimanded twice before and found guilty of three additional instances of neglecting cases; at least it upped the punishment from the referee's recommended probation only.State ex rel. Counsel for Dis. v. Wickenkamp, 272 Neb. 889 Filed January 12, 2007. No. S-05-1251.

Respondent mishandled three cases and claimed she filed a brief by sliding it under the judge's door. Still referee lets her off with a reprimand and probation. Counsel for discipline agrees and seeks motion to approve with the Supreme Court. Supreme Court suspends attorney for one year with additional probation. The first private reprimand was dated December 18, 2000, and the second was dated October 30, 2003.... This court is seriously concerned with respondent's repeated neglect of matters entrusted to her. See State ex rel. Counsel for Dis. v. Sipple, 265 Neb. 890, 902, 660 N.W.2d 502, 512 (2003) (discussing attorney's prior private reprimands and stating that "we have held that cumulative acts of attorney misconduct are distinguishable from isolated incidents, therefore justifying more serious sanctions"). We further note that the record reflects respondent has received two prior private reprimands, one of which involved similar neglecting conduct, which we consider as aggravating factors in imposing discipline in this case. Upon due consideration of the record, the court finds that respondent should be and hereby is suspended from the practice of law for a period of 12 months, effective immediately.

Follow up on a Follow up: While the Nebraska Supreme Court discovers a reason to reverse a drug dealers conviction due to the STate's defaulted Leon defense, it clarifies the mandate to allow a retrial State v. Tompkins, 272 Neb. 865 Filed January 12, 2007. No. S-05-212.Supplemental Opinion "The evidence, including that erroneously received, was sufficient to sustain the conviction. Accordingly, Tompkins' convictions should be reversed and he may be given a new trial at which the evidence obtained through the defective search warrant shall not be admissible. See Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988). See, also, State v. Allen, 269 Neb. 69, 690 N.W.2d 582 (2005); State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000), overruled on other grounds, Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We therefore reverse the judgment of the Court of Appeals and remand the cause to that court with directions to reverse the judgment of the district court and remand the cause to that court for a new trial consistent with this opinion."

Did former NC Senator and 2008 Democrat Presidential hopeful John Edwards do his fair share of pro bono? If not maybe thats a good thing!"Overlawyered.com revisits a question from the 2004 elections whether John Edwards, Kerry's VP running mate, did his fair share of probono during the time he also pocketed millions from malpractice cases. Here are my takes: 1. Do you count the extra free work PI lawyers do for clients just to keep the business? 2. Even if John Edwards did not do any high profile cases maybe thats a good thing.

Order of the Kneepads update: Omaha attorney on her 6th DWI arrest is still on the streets "Raising the Bar."FremontTribune.com An Omaha attorney who has been convicted of drunken driving five previous times again was found guilty of third offense drunken driving, a misdemeanor, instead of felony fourth-offense drunken driving.Attorney Willow Head was scheduled for sentencing in March and could get probation or up to a year in jail and other penalties. Had District Judge Peter Bataillon convicted her of felony fourth-offense drunken driving, her license would have been revoked for 15 years and she could have faced up to five years in prison. Where was the SupremeCourt on the 2nd or 3rd incident here? The judge's interpretation of state law led to Head's conviction on the lesser charge. State law says DUI convictions from up to a dozen years ago may be used to toughen charges and punishments for drunken drivers. A felony fourth drunken-driving charge comes after three valid misdemeanor convictions, for instance. Before a July 2004 drunken-driving arrest and subsequent charge of felony fourth-offense drunken driving, Head, 35, had been convicted of drunken driving in 1992, 1993, 1994, 2002 and 2003. Her 1992 DUI was wiped out by her attendance at a diversion program, so it could not be considered for enhancement of the charge. Bataillon ruled this week that two other convictions also couldn't be used. He issued a similar ruling in 2005, but the appellate court tossed it because it was premature. Bataillon said Head's 2002 conviction couldn't be used because, in 2003, the state Supreme Court said Omaha's drunken-driving ordinance didn't follow state law. And Bataillon said Head's 1993 conviction had already been ruled out for consideration by another judge. Douglas County Attorney Don Kleine said Friday that his office will appeal Bataillon's latest ruling as well. James Schaefer, who represented Head, said he is confident Bataillon will be upheld.

Nebraska Supreme court decisions Friday Jan 5, 2007: Statute of Limitations, Indian child adoptions, worker compensation waiting time penalties City of Lincoln v. Hershberger, S-05-1066, 272 Neb. 839 On remand from the Nebraska Supreme Court two years ago, City of Lincoln v. PMI Franchising, 267 Neb. 562, 675 N.W.2d 660 (2004), the District Court again ruled the City of Lincoln failed to timely sue the guarantors for their defaulted business loan with the City. This time the Supreme Court rules that the statute of limitation s for a guaranty action commences when the creditor accelerates the debt, holding the guarantors personally liable at that time. The fiver year limitation period Section 25-205 applied and the action was timely. In re Adoption of Kenten H., S-06-204, 272 Neb. 846 Natural mother of adopted child could raise after adoption proceedings finished that child was an Indian child and thus subject to post judgment vacation of the adoption in accordance with the federal and Nebraska Indian Child Welfare laws§ 43-1506(4), Juvenile Court's 12b6 dismissal was improper. D'Quaix v. Chadron State College, S-06-548, 272 Neb. 859 Worker Compensation court judge overlooked giving employer the State of Nebraska credit for voluntary worker compensation benefits it paid to the plaintiff before the trial judge awarded. Supreme Courtpermitss employer the State to offer evidence of its payments and to seek credit forthoses payments against the award in Plaintiff's motion for waiting time penalties and attorney fees(48-125,), finding these proceedings were not a collateral challenge to the trial judge's award.