Saturday, June 23, 2007

Follow up: Nebraska Supreme Court agrees that the Papio -Missouri Natural Resources District could subsidize private developments in Sarpy County while allowing taxpayers in its district to foot the bill. Japp v. Papio-Missouri River NRD, S-06-045, 273 Neb. 779. Justice William Connolly patron of death row inmates and the municipal bulldozer over private property rules that the Papio-Missouri NRD could enter into sweetheart deals with two high end real estate McMansion developments, because the developments would promote overall good water management. "under § 2-3235(1), the District has express authority to cooperate, enter agreements, and furnish aid to them to carry out projects that benefit the District." Even if the developers hold the property for very short times, they count! The Supreme Court chose to ignore the NRD's own concerns that their actions were illegal when the challenging taxpayers asked to introduce the legislatures 2005 proposed legislation LB552 which the unicameral voted down. That was irrelevant evidence. Finally setting up expensive water developments in a depressed housing market was not an improper extension of credit to the private developers (XIII, § 3, of the Nebraska Constitution). Thank you Justice Connolly!
Nebraska Supreme Court favors tax deed holder over trust deed purchaser's competing claim.

Ottaco Acceptance, Inc. v. Larkin, A-05-854

A tax certificate holder who takes a tax deed in accordance with Section 77-1837 is the owner of the property and not just a lien holder. The tax certificate holder elected to take a tax deed instead of foreclosing with the certificate. See 77-1902 {procedures to seek judicial foreclosure of the properties subject to tax certificate}. A purchaser from the trust deed holder's auction recorded his deed one day before the tax deed was recorded. Douglas County District Court ruled in favor of the tax deed holder and the Supreme Court affirms. A competing claimant to the property must comply with §§ 77-1843 and 77-1844 to challenge the title of an owner who gained title through a tax deed even if the tax deed holders title is void or voidable. Therefore one challenging the claim under a tax deed must show that he was the owner of the property and the time of the tax deed conveyance; that there were no taxes due; and that the tax deed was defective. Although the Supreme Court agrees that the trust deed buyer could claim title to the property and that the former owner had tendered payment of the taxes to the Douglas County Treasurer, the Court rejects the trust deed buyers claim that the tax deed was defective for not notifying the original owner, for not having a legible seal, and for not following a "formalistic" procedure of taking the original certificate from the County, then giving it back to him.

Saturday, June 16, 2007

Nebraska Court of Appeals in an unpublished opinion agrees that summary judgment against class action plaintiffs who sued Ameritrade for failing to provide real time options' quotes should stand. Appeals Court agrees that Ameritrade did not agree to provide real options quotes to subscribers who paid $20 per month for real time stock only quotes.

Green v. Ameritrade, A-05-651

Appeals Court rejects plaintiffs action because Ameritrade did not promise in its information contract and the relevant NASDAQ agreement to provide real time options quotes, just real time quotes for actual stocks, even though the option information server was on Ameritrade premises. The appeals court additionally notes the Plaintiff did not allege any trading losses from the incomplete information. Giving the plaintiff the benefit of the doubt, the Ameritrade trading handbook that mentioned options quote did not obligate Ameritrade to provide real time options quotes, even if you assume the handbook was a contractual document. (Plaintiff) contends that because the handbook contains information regarding options trading and the real time quote service, the real time quote service includes option quotes. He is basically arguing that because the words “options” and “real time” are contained within the same document, one must infer that Ameritrade promised real time quotes for options to subscribers of the real time quote service. We conclude that such an inference is illogical. Even when the Trading Account Handbook is considered in conjunction with the agreements governing the contractual relationship, there is no basis to conclude that the handbook promises real time option quotes to real time service subscribers. Accordingly, even if the Trading Account Handbook was part of the contract between (Plaintiff) and Ameritrade, it does not contain a promise by Ameritrade to provide real time quotes for options
Follow up: Who was the former Supreme Court employee who retained access to the Nebraska Supreme Court's JUSTICE program? More details leak out after the Nebraska State Auditor pulls up the rug in the "squeaky clean" Supreme Court's crib and shows a few more roaches scurrying around. Turns out some former employees still retained access to the main JUSTICE computer system and in theory some had the capability to alter court records. Who was/were these employees? After all just two years ago someone in charge of the Supreme Court forced the resignation of the probation director Ed Birkel after a drunk driving arrest and then terminated then State Court administrator Frank Goodroe after he had been on the job about 18 months. Journal Star reporter Leah Thorsens March 30 2005 headline on the story read, "No details given on state court administrator's firing." Janice Walker, the Court administrator deputy took over, and received all the hits for the Court's extravagant seminar costs. Looks like s*** really doesn't roll uphill.
13-1315, state version of Federal Rule of Civil Procedure 54b applies also to intervention actions. Nebraska Court of Appeals (Judge Cassel) dismisses defendant's appeal in Bank's replevin lawsuit in Buffalo County District Court because other bank's intervention complaint was still pending.

TierOne Bank v. Cup-O-Coa, Inc., A-07-006

Defendant lost its replevin suit and after the District Court overruled its motion for new trial appealed the judgment but past the 30 day deadline. In the meantime 2nd bank filed an intevention complaint seeking to establish a superior lien on the property in the replevin action. Defendant did not get notice of the final order on the new trial from the District Court clerk and appealed after the 30 day deadline. While the Appeals Court suggested that the appeal would have been late because a party who does not receive notice of a final judgment must first move to vacate the judgment for lack of notice, the Court of appeals dismisses appeal because intervention action was still pending and under 25-1315 no case is final untill all claims and parties are final, unless the court certifies that a single judgment is final, as is the case in federal court civil litigation FRCP54(b). See also Malolepszy v. State, 270 N eb. 100, 699 N .W.2d 387 (2005){Supreme Court dismissed appeal in accident against State because third party claim against road contractor was not resolved}the reasoning of Malolepszy applies to a complaint in intervention. S ection 25-1315(1) refers to “more than one claim for relief,” but also adds “whether as a claim, counterclaim, cross-claim, or third-party claim.” While this language does not specifically mention a claim in intervention, neither does it limit the term to a plaintiff’s “claim.” N eb. Rev. S tat. § 25-329 (Cum S upp. 2006) refers to the “claim of the intervenor.” (Emphasis supplied.) S ee, also, N eb. R ev. S tat. § 25-328 (Cum. S upp. 2006). Moreover, § 25-1315 applies when more than one claim for relief is presented or when multiple parties are involved. S ection 25-328 allows the intervenor to “become a party” to the action. S ee In re Interest of Kiana T., 262 N eb. 60, 628 N .W.2d 242 (2001). Clearly, there are multiple parties in the instant case. The principle underlying § 25-1315 would apply equally to a claim in intervention.

Tuesday, June 12, 2007

Nebraska Insurance Commissioner will ask the Unicameral to close off more senior entrepreneurs. He will seek legislation to restrict selling life insurance policies to investors. State Insurance Commissioner Tim Wagner said Tuesday that he agreed with changes recommended by the National Association of Insurance Commissioners on how state laws treat so-called stranger-owned or investor-owned life insurance. The insurance commissioners, meeting in San Francisco, said states should put tougher limits on when people can sell their life insurance policies to third parties. Ordinarily, selling an insurance policy to another party is not a problem, Wagner said, because an insurance policy is the property of the insured person. But some investment groups solicit people, especially the elderly, to buy policies, even lending them the money to pay the premium and also paying them substantial fees. The person walks away from the loan, and the investment group ends up owning the policy and collecting the death benefit. Insurance companies have objected, saying the investors do not have a legitimate interest in the insured person's well-being. Insurance companies also object because they base premiums partly on the fact that a large number of policies lapse before the insured person dies. Investor-owned policies always are held until the person dies. Bloomberg News reported that investors held policies with death benefits of $22.5 billion at the end of 2005, according to an insurance analyst. Some companies have stopped selling some types of insurance policies to older people because so many were being resold. The recommended state law, Wagner said, would make stranger-owned life insurance less profitable to investors. The proposed law still would allow people to sell their policies if they had legitimate reasons, such as someone with a terminal illness who needs the cash or a person going through a financial crisis such as a divorce or job loss. Nebraska and 34 other states have enacted the insurance commissioners' earlier recommended law on the subject. Wagner said he would recommend the new model law to the Nebraska Legislature next year. A key provision would prohibit people from selling policies for five years if they were paid for by nonfamily members. A policy purchased by the insured person or with a loan backed by ordinary collateral could be sold after two years. Wagner said he favors the proposed law, although there are questions about how it would be enforced. He said he didn't know how many people in Nebraska take part in stranger-owned life insurance transactions, but some businesses have applied for state licenses to handle such transactions. "That would lead you to think this is a growing segment," Wagner said. If the law passes, he said, the department could investigate a suspicious transaction reported by an insurance company. If there were a violation, the insurance company would not pay the death benefit.

Saturday, June 09, 2007

No political subdivision tort claim act liability against a zoning entity that refused to grant a building permit after one of its representatives advised property owners that he would allow the permit.

Rohde v. City of Ogallala, S-06-149

Plaintiffs sued the City of Ogallala for rescinding approval it had given the Plaintiffs to rebuild on some property. The court of appeals sent the case back after Ogallala won a 12b motion in district court. Rohde v. Knoepfel, 13 N eb. A pp. 383, 693 N .W.2d 564 (2005). This time the Supreme Court affirms summary judgment because the city was immune from zoning actions under 13-910(4). Section 13-910(4) is clear and unambiguous. Political subdivisions are not liable under the PSTCA for actions based upon the revocation of a permit or license. The City revoked its decision to issue a permit allowing the Rohdes to subdivide their property because such division did not comply with City ordinances.
Nebraska Supreme Court affirms Worker Compensation award for asbestos induced mesothelioma that plaintiff's doctors diagnosed more than 20 years after his retirment from the employer but orders no disability payments to plaintiff's widow. No nod to Daubert in this opinion with shaky evidence for the plaintiff. Olivotto v. DeMarco Bros. Co., S-05-1526The plaintiff was a concrete and terrazzo installer for the defendant until his retirement in 1980Although he did not work with asbestos, former co workers testified that asbestos was around their work areas. He did not claim any occupational injury or disease. He died in 2004 from mesothelioma. His widow sought worker compensation benefits from the employer. The worker compensation court awarded disability and medical costs for the asbestos exposure. The review panel affirmed the award but reversed the disability benefits. Supreme Court affirms the award, but reverses the extra award for out of pocket expenses to the widow and agrees that the widow should not get any disability payments. Without mentioning Daubert or Nebraska cases following its rule, the Supreme Court restates its relaxed rule for admitting expert testimony on medical causation in worker compensation cases. Basically if the doctor can say anything to justify his conclusions, the court may let it in. In a workers’ compensation case, a witness must qualify as an expert and the testimony must assist the trier of fact to understand the evidence or determine a fact in issue. T he witness must have a factual basis for the opinion, and the testimony must be relevant. Veatch v. American Tool, 267 N eb. 711, 676 N .W.2d 730 (2004). A determination concerning the sufficiency of the foundation for an expert’s opinion is left to the discretion of the trial court. We conclude there was sufficient evidence to support the medical opinions of Drs. Connor and Deschamps, and the trial court did not abuse its discretion in admitting such evidence."
Parents could not make property damage claim for adult child's personal automobile because they did not have an insurable interest in the vehicle. Sayah v. Metropolitan prop. & casualty Insurance . 745 Cite as 273 Neb. 744 Someone stole son Saif's 1999 Grand Cherokee and the police found it burned, on cinder blocks with its decorative mag wheels missing. Son and parents all sued for property damage. Initially the insurance company denied the claim because it was suspicious. District court gave insurance company summary judgment because the son did not have insurance and the parents had no insurable interest. See 44-375 RRS Neb. Supreme Court affirms. a claimant under an insurance contract must show an interest in the contract that would be recognized and protected by the courts. An insurable interest is “every interest in property or any relation thereto, or liability in respect thereof, of such a nature that a contemplated peril might directly damnify the insured.” [7-10] Section 44-375 provides: “[w]hen the name of the party intended to be insured is specified in a policy, such insurance can be applied only to his own proper interest.” Under Nebraska law, to have an insurable interest, the claimant must have some legally enforceable right that would be recognized and enforced in the property at issue. Neither family use of property nor the family relationship alone gives automatic rise to an insurable property interest. A parent has no legal recourse in an adult child’s property simply by being a parent, without some other legally enforceable right. Nor does Nebraska law recognize Ali’s occasional use of Saif’s Jeep as a legal interest. When no legally enforceable interest exists, no insurable interest exists.
Lets hear it for the "squeaky clean" Nebraska Supreme Court: some in their comments accuse State Auditor Mike Foley of grandstanding his critical report of Supreme Court spending. Journal Journal Star reporter made much of the Auditor's report on apparent overspending on Supreme Court conferences, maybe by a twice as much according to federal GSA standards. The full report though reveals more than this tip of the iceberg: a. lack of accounting for state vehicle use and meal reimbursements b. the over funded budget for the Counsel for Discipline; remember CJ Hendry wrote just about two years ago in the Nebraska lawyer that he had to raise dues because of the big holes the bad lawyers left because they wouldn't pay the court costs in their disciplinary cases. By they way, why would Mr. Mabin be asking CJ Heavican for his comments? Didn't this happen on the Champion of Justice Justice Hendry's watch? Maybe he shouldn't have left so suddenly to spend quality family time so that he could straighten this out.
District Court can't deny worker compensation insurer just because local attorneys want to keep more money from a third party settlement. Nebraska Supreme Court rules that under 48-118, equitable estoppel may not deny worker compensation insurer subrogation in third party claim. Burns v. Nielsen, S-06-030Fedex carrier was injured while delivering a package to a customer's home. During the worker compensation litigation Fedex disputed some compensation and medical treatment, but later settled the case. The employee then settled a large injury claim with the property owner from where he fell. The district court denied Fedex any subrogation on equitable principles because it disapproved of the way Fedex handled the worker compensation case. Supreme Court reverses. "the district court’s duty under § 48-118.04 to “order a fair and equitable distribution of the proceeds of any judgment or settlement” simply requires the court to determine a reasonable division of the proceeds among the parties. The court in this case erred in applying equitable principles to bar FedEx from recovering any of its subrogation interest."
Plaintiff loses auto accident case because she did not serve already deceased defendant in time. Two Justices also recommend cleaning up the civil procedure code on amending pleadings. Plaintiff in an auto accident case sued the defendant only a few months before the normal statute of limitations would have run. Plaintiffs counsel attempted service a number of times and shortly before the six month service deadline (25-217 RRS Neb)learned the defendant had passed away over year before they filed suit. Plaintiff served the defendant's son who was the decedent's administrator but did not attempt to amend the suit to name the personal representative defendant until her six month service deadline had run. Supreme Court agrees that any attempt to relate the amendment back to the suit filing date was void because there is no case after 25-217 caused the case to be dismissed. In concurring opinion, Justices Lerman and McCormack argue that the legislature should amend 25-201.02 to make the state version of FRCP 15 current with the federal version, which was amended in 1991 and then allowed relation back only if done within a time before the statute of limitations had run with the new defendant aware of the pending action. Reid v. Evans, S-05-1503"Because Reid’s lawsuit had been dismissed, her subsequent motion to amend and take advantage of relation back was a nullity, as would have been any order entered by the county court on that motion. Once Reid’s lawsuit had been dismissed, the county court lacked jurisdiction to make any further orders other than to formalize the dismissal. See id. The district court did not err in determining that the county court lacked jurisdiction to consider Reid’s motion to amend, and we affirm the district court’s decision. Concurring opinion: If the Legislature was to revise § 25-201.02 to provide language similar to the current version of rule 15(c) of the Federal Rules of Civil Procedure, a plaintiff seeking to amend and take advantage of relation back who files a motion after the statute of limitations has run but during the period allowed for service, and who otherwise meets statutory requirements, would be able to amend the complaint. Revisions to § 25-201.02 could marginally enhance the utility of statutory relation back in Nebraska.
Follow up, On second appearance in the Supreme Court, black sheep member of Aaron Ferer & Sons metal trading company loses appeal seeking stock gifts from father who founded the company while giving a pass to the company's corporate counsel. Ferer v. Aaron Ferer &; Sons Co., S-05-730Father planned to issue stock gifts to three children in business but only if they stayed actively involved with the company. Father executed stock transfer documents but did not deliver them. After dissatisfied son left the company, he revoked his gift. Supreme Court agrees with Doulgas County District Court that gift transaction did not occur. The Supreme Court also gives a pass to the company's corporate counsel who had already noted the incomplete stock gift in its record books. "Aaron argues that Harvey’s alleged 1995 gift was complete and irrevocable when the transfers were noted by E&S in the maroon books. Assuming without deciding that the maroon books were the official stock records of AFSCO and that recording the transfer in those books could constitute constructive delivery, we nonetheless conclude that the gift was defeated by Harvey’s lack of a present donative intent.