Saturday, April 28, 2007

Follow up to Nicholson v Red Willow County School District Nebraska Supreme Court again dismisses action residents in Southwest School District in Red Willow County filed to prevent merged district from assuming bonds the preceding school districts had issued prior to merger.Cumming v. Red Willow Sch. Dist. No. 179S-06-025, 273 Neb. 483We reject the argument that Stannard permits a collateral attack directed at the authority of S outhwest to issue bonds pursuant to the reorganization plan approved by the State Committee. T he appellants are not contesting the legitimacy of S outhwest as a school district and, thus, cannot be understood to be challenging the S tate Committee’s approval of the reorganization petition itself. Instead, the appellants are challenging a provision contained within the approved petition. A nd unlike Stannard, we cannot say that the challenged provision is, on its face, clearly and unequivocally prohibited by state law. Therefore, we have no basis to find that the S tate Committee’s approval of the reorganization petition was void

Friday, April 27, 2007

Complaint to pierce corporate veil post judgment not res judicata as to defendant’s after verdict conduct; even though Plaintiff’s counsel almost let a summary judgment slip though. Ichtertz v. Orthopaedic Specialists of Neb., S-05-1000, 273 Neb. 466. Surgeon formerly practicing in Grand Island sued Dr Bainbridge and his professional corporation. The court directed a verdict favorable to Dr Bainbridge but hit his corporation with a judgment exceeding $600k. Later plaintiff sued Dr Bainbridge again seeking to pierce the corporation veil. The plaintiff alleged Dr Bainbridge diverted corporate assets after the jury verdict to make the plaintiffs judgment uncollectible. Nebraska Supreme Court reverses Hall County District Court dismissal of action, finding that complaint to pierce corporate veil alleged post judgment actions that were not res judicata from the first case. The Supreme Court notes that the plaintiff’s attorneys might have lost because they failed to object when the Hall County District court converted Dr Bainbridge’s 12b6 motion into a motion for summary judgment. Lucky for them, the Supreme Court doesn’t like summary judgments, even under the 2003 Nebraska rules of pleading. “(At the motion to dismiss hearing) the defendants offered into evidence the Exhibits (from the first trial that absolved Dr Bainbridge.) Ichtertz raised no objection to the offer. Ichtertz did not offer any exhibits after the district court asked his attorneys, and the parties were given time to submit briefs on the motion. Ichtertz now claims the court erred in converting the motion to dismiss into a motion for summary judgment by receiving evidence outside the pleadings. Ichtertz was given an opportunity to present evidence and did not do so. We cannot determine from the record before us whether Ichtertz raised before the lower court the issue of conversion of the motion to dismiss into a motion for summary judgment. However, whether the court erred in its procedure regarding the motion to dismiss is not decisive of the matter, and we decline to resolve the cause on that basis.”

Wednesday, April 25, 2007

Eighth Circuit (Retired Justice O’Connor) upholds probation revocation based on defendant’s positive “sweat patch” tests for narcotics use. Decision of the Day Blog. Drug Testing: Eighth Concludes That Sweat Patches Are Generally Reliable U.S. v. Meyer, 06-2961 (8th Cir. Apr. 25, 2007) The Eighth sides with the government, joining the Tenth Circuit in concluding that the patches are generally reliable. See United States v. Gatewood, 370 F.3d 1055, 1060-62 (10th Cir. 2004), vacated on other grounds, 543 U.S. 1109 (2005). However the court explains that district courts need to scrutinize this evidence on a case-by-case basis. The defendant had eight negatives before receiving a bad test. His explanation was that his job duties changed from hauling away nice cars to moving the beaters, and we all know beater drivers are dopers. Wait I thought coke users rode around in nice rigs, at least in the TV shows. Justice Sandra Day O’Connor authors the opinion.
Follow up: Unlike the recent decision of our Supreme Court, the Kansas Supreme Court keeps sensible limitations on slip and fall claims against public entities under the Kansas recreational land liability statute, throws out New Year’s Eve partygoer’s slip and fall case. Day on Torts: In Lane v. Atchison Heritage Conference Center, Inc., No. 94634 (March 16, 2007), The Court “barred” the plaintiff’s New Year’s Eve slip-and-fall claim against a publicly owned convention center that had hosted dances, card tournaments, sewing demonstrations, and even local Bar meetings! Plaintiff contended the recreational use limitation applied only if the facility where the injury occurred was primarily a recreational one. The Court disagreed, "immunity from liability under the recreational use exception to the [Kansas Tort Claims Act] does not depend upon the "primary use" of the property but rather depends on the character of the property in question.. The recreational use exception to the KTCA, K.S.A. 2006 Supp. 75-6104(o), applies when property is "intended or permitted" to be used for recreational purposes.” The correct test to be applied under K.S.A. 2006 Supp. 75-6104(o) is whether the property has been used for recreational purposes in the past or whether recreation has been encouraged."

Tuesday, April 24, 2007

Eighth Circuit overrules evidence spoliation claim against plaintiff who after an accident on Interstate 80 removed monitoring device from its bus. Greyhound Lines v. Robert Wade U.S. Court of Appeals Case No: 061875P.pdf 04/24/2007 District of Nebraska - Omaha Greyhound sued Archway Cookies for a rear end collision between Greyhound’s disabled bus and the following Archway Cookie truck. The district court apportioned fault 85% to the following Archway vehicle and 15% to Greyhound. Eighth Circuit affirms, denies defendant’s spoliation claim and refuses to overturn district court’s finding allocating fault between the parties. The ultimate focus for imposing sanctions for spoliation of evidence is the intentional destruction of evidence indicating a desire to suppress the truth, not the prospect of litigation. Richter v.City of Omaha, __ N.W.2d __, 2007WL865842 at *4 (Neb. March 23, 2007) (unfavorable inference where "spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth" Morris v. Union Pac. R.R., 373 F.3d 896, 902 (8th Cir.2004).. Thus, the district court did not err in finding spoliation had not occurred. Additionally, although some material was not preserved, the ECM data identified the specific mechanical defect that slowed the bus, and several bus passengers testified how the bus acted before the collision. See Stevenson, 354 F.3d at 748 ("There must be a finding of prejudice to the opposing party before imposing a sanction for destruction of evidence"). Defendant loses his challenge to the District Court’s fault allocation the fact finder assesses and apportions negligence among the parties, and its apportionment will be reversed only upon a showing of clear error. Baldwin v. City of Omaha, 607 N.W.2d 841, 853 (Neb. 2000) ("apportionment is solely a matter for the fact finder") The district court's assessment of fault was not a clear error

Sunday, April 22, 2007

Dallas in the Panhandle: Nebraska Supreme Court affirms oil driller's sale of joint venture interest over partner's objections, but reserves trial on sale of royalties. Oil driller sold its interests in drilling projects in Nebraska to outside entities. Participant in joint operating agreement countered that it had a right of refusal and also had a right to purchase part of the Driller’s overriding royalty interests. Driller sold off substantially all of its assets to more than one entity. Nebraska Supreme Court agrees that applying Texas law, the selling oil driller could sell to more than one entity substantially all of its assets without triggering the preferential rights of the other joint operating agreement participant. Summary judgment in favor of seller however reversed as to the other participants overriding royalty interests. Court upholds $6000 sanction against defendants also for failing to comply with discovery orders. Coral Prod. Corp. v. Central Resources, S-05-564

The district court determined the parties agreed in the JOA thatTexas law would govern their disputes and granted summaryjudgment to Central, E XCO, and Zecchi on Coral and K JJ’s claims of fraud, breach of contract, and tortious interference. Italso determined that the JOA did not apply to E XCO’s transfer ofoverriding royalty interests to Zecchi.We determine that Central’s sale of all of its oil and gas assetsfell within the parties’ typewritten exception to the preferentialright- to-purchase provision of the preprinted JOA. However,we conclude that the district court erred in determining Coral’spreferential right to purchase did not apply to overriding royaltyinterests. We reverse on that sole issue and affirm the districtcourt’s order of summary judgment in all other respects. We conclude that the district court did not err in determining that Central’s sale of all of its oil and gas assets fell within the parties’ typewritten exception to the preprinted preferential-rightto- purchase provision of their joint operating agreement. We also conclude that the district court did not abuse its discretion in ordering Coral and K JJ to pay attorney fees in the amount of $6,000 as a sanction for failing to produce documents that necessitated the retaking of a corporate deposition. However, we conclude that the district court erred in determining that Coral’s preferential right to purchase did not apply to overriding royalty interests and remand the cause for further proceedings on that single issue. The district court’s orders of summary judgment are affirmed in all other respects

Saturday, April 21, 2007

Jennifer Brown hits the NFL lottery: even though she by her own admission had sex with two other men near the time she conceived a child with former Husker player Correl Buckhalter, Nebraska supreme court affirms default judgment against Buckhalter. State on behalf of A.E. v. Buckhalter, S-06-693, 273 Neb. 443The Nebraska Supreme Court took Jennifer Brown at her word that she had sex with three men including Buckhalter near the time they conceived AE. You know the other two were not the fathers, and Buckhalters “private” test was not reliable. So if you are a something headed “ho” admitting to having sex with three men at the same time means there werent more?

Wednesday, April 18, 2007

Douglas County did not discriminate against female correctional officers when jail administrators reassigned female guard to late night shift. Tipler v. Douglas County, NE 062553P.pdf 04/12/2007District of Nebraska – Omaha employment discrimination case. Plaintiff was a corrections officer at the Douglas county jail. She initially served the standard day shift, but was reassigned to a less desirable night shift. After three months she regained her day shift, but in the meantime she suffered headaches, childcare problems and other woes. Naturally she sued under Title VII(42 U.S.C. § 2000e-2(a)) and the Constitution (42 U.S.C. § 1983, US constitution amendment 14). Male corrections officers did not experience the same shift change difficulties. The district court found that the County had a reasonable gender-based job assignment policy, and that Tipler "failed to establish any right to a particular shift assignment or that the assignment resulted in more than a minimum restriction on her employment." The court granted the County summary judgment. The Eighth Circuit affirms. The County "acknowledges that Appellant's gender was a factor in moving her to a different shift." However “An employer may treat employees differently based on gender when it is "a bona fide occupational qualification reasonably necessary to the normal operation of thatparticular business." See 42 U.S.C. § 2000e-2(e). Prison assignments qualify for such personnel actions. Plaintiff's reassignment to a different shift on the ground that additional females were needed on that shift in order to supervise female prisoners was reasonable and required in order for the facility to comply with state prison standards; reassignment imposed only a minimal restriction on plaintiff; county employed means that were substantially related to achieving important government objectives, and the transfer did not violate plaintiff's rights under the Equal Protection Clause

Saturday, April 14, 2007

The Nebraska supreme court requires police to have probable cause to stop vehicles for drunk driving, except at night when the driver might actually want the officer's assistance. When the state patrol trooper stopped the defendant on a Washington County highway at 300AM, the "community caretaking" exception to the fourth amendment permitted the policeman's investigative stop. State v. Bakewell, S-06-765, 273 Neb. 372. Better known cases of the "caretaking" exception involved the police departments' seizing evidence they found in impounded vehicles. The Nevada supreme court refused to extend the caretaking exception to traffic stops "theincidentinquestionoccurredat3:15- a.m. there was little or no traffic present on this stretch of high way at the time of the incident the defendant's vehicle stopped orslowed considerably five times within approximately 90 secondswhile traveling down the highway, with the vehicle eventually-pulling off on to the shoulde rof the road. Considering the totality of the circumstances, it was reasonable for Groves to conclude that the Defendant was lost or that something was wrong"

Nebraska Supreme Court says cigarettes can be salary for undercover agents, but in this case the informant was just giving information. State Patrol investigator gave a cooperating witness $20 for cigarettes after she gave information Harold Kuenning's murder. The Defendant in a murder case argued this was improper because the witness was in prison or on probation, parole. Nebraska Supreme Court holds that merely giving information to the Police does not make a witness an undercover agent. See 29-2262.01 State v. McKinney, S-05-591, 273 Neb. 346. The prosecution must also comply with the fourth amendment when collecting DNA samples from suspects even while they are incarcerated. under§29-3304,lawenforcementpersonnel must have probable cause to believe that the person whose Dnais sought—whether he or she has been arrested or may otherwise be subject to Dna testing—committed the crime for which the Dna is sought.

Friday, April 06, 2007

Nebraska Supreme Court signals it will protect attorney client communications more than work product in discovery proceedings. State ex rel. Stivrins v. Flowers, S-06-1044, 273 Neb. 336 Plaintiff sued Lincoln physician Timothy Stivrins for failure to diagnose lung cancer. Plaintiff's counsel notices the doctor's partner physician for a deposition and prior to the deposition the partner physician sought legal advice from the same lawyer who represented the defendant. Plaintiff counsel questioned the witness about attorney client communications he had with the defendant's counsel. The district court upheld the plaintiff's motion to compel. Defendant filed this mandamus action in the Supreme Court against the district court and affirms the writ. While the Supreme Court in its Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997) decision applied a balancing test for work product claims after a party established a prima facie case for protection, the court here appears to shut off any discovery of attorney client communications as long as the party makes a prima facie case for the privilege. Although the court in Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006) denied an interlocutory appeal from an adverse ruling against a party's privilege claim, the supreme court distinguishes the result against the privilege in that case because the party seeking protection did not file their claim as a mandamus action. "Once pace established the attorney-client relationship, the plaintiff had the burden to establish that the inquiry related to or was an exception to this rule or that the communications wereoutside the scope of the privilege and further an appeal after the disclosure of the privileged communications at issue would be an inadequate remedy in this case."

Driver’s license applicant had been involved in a couple drunken driving incidents in Nebraska and also several other traffic incidents in Missouri while holding a Missouri drivers license. Missouri revoked the applicant’s license for 1 year and additionally imposed an additional five year ineligibility to obtain a license on the applicant. § 302.060(10) RS Mo. After the 1 year but before Missouri issued a new driver’s license he applied for a Nebraska permit. Nebraska Supreme Court agrees that he was not eligible for a Nebraska driver’s license because he was a revoked Missouri driver until the State issued a new license. Wilczewski v. Neth, S-05-1378, 273 Neb. 324 “Although Wilczewski’s 1 year revocation (from Missouri) has ended, he is still ineligible under Missouri law to renew or restore his prior Missouri driver’s license. We conclude that for purposes of the motor Vehicle Operator’s License Act, Wilczewski’s current period of ineligibility in Missouri constitutes a revocation as it is defined by § 60-476.01. Under Nebraska law, an individual may not be licensed to operate a motor vehicle in Nebraska if he has a Driver’s license that is currently revoked in another state. §60-486 RRS Neb. Because Wilczewski’s Missouri driver’s license is currently revoked for purposes of Nebraska law, Wilczewski may not be licensed to drive in this state until his 5year period of ineligibility to drive in Missouri has ended.”

Sunday, April 01, 2007

US District Judge Strom fines Omaha company and it human resources director for harboring illegal immigrant Just for giving hard working undocumented workers jobs we wont do, the US District Court Nebraska imposes a $100k fine; it also convicted its HR director of harboring illegal immigrants, put her on probation and fined her $9K. Of course the heartless US Government is punishing workers who were lured here by higher wages. Maybe they can move on to hiring child labor too, after all they can do a lot of jobs we cant too. An Omaha manufacturing company was ordered to pay $101,000 Friday after being convicted of immigration charges.Plastrglas Inc., 4200 N. 30th St., pleaded guilty in January in U.S. District Court to harboring or shielding illegal immigrants from detection. The offense carried a fine of up to $500,000.A Dec. 5 raid at the plant netted 30 illegal immigrant workers.Donna Lake, 46, the company's personnel director, was fined $9,000 and placed on probation for three years. Lake had pleaded guilty to a misdemeanor charge of engaging in a pattern and practice to hire illegal workers.The sentences imposed by U.S. District Judge Lyle Strom followed recommendations from the U.S. Attorney's Office after the company agreed to the guilty plea.