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."

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.

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.

Train engineer PO'd the Nebraska Supreme Court; Supreme Court reverses $53K jury verdict that was in Burlington Northern employees favor after the railroad disciplined him for refusing to submit to a urine test. Jackson v. Brotherhood's Relief & Comp. Fund, S-06-177, 273 Neb. 1013. On the day the railraod asked the plaintiff to submit to a urine test, he refused,first that he had already urinated before reporting to work, next that he would not drink water because that would give him indigestion, finally that he was taking the antidepressant effexor and his doctor had diagnosed him to have prostatitis, and he claimed that a side effect of the drug was difficulty in urinating. Burlington northern suspended the plaintiff for several months, and he made a claim for reimbursement of lost income from his Union fund that compensates members for time lost due to minor disciplinary actions. The fund refused to pay and the Plaintiff sued. The Box Butte county jury ruled for the plaintiff in part from evidence that he was unable to urinate due to the drugs side effects and from the plaintiff's unverified hair samples that purported to show him drug free. Supreme Court reverses, as the Plaintiff could not establish the proper reasons to admit this mostly scientific evidence. "Insufficient foundation was laid for Jackson’s opinions regarding medical causation, the excerpts from the medical and nutrition books, the prescribing information for effexor, and the results of the forensic hair analyses. evidence that would not have made it through the front door of admissibility nevertheless made its way to the jury through the back door, cloaked as exhibits 17 and 18. We conclude that the district court abused its discretion in admitting exhibits 17 and 18 into evidence. " The court further found admitting the exhibits reversible error because nothing indicated that their admission was harmless.exhibits 17 and 18 into evidence could have unfairly prejudiced the Fund in a number of ways. because we are unable to determine that exhibits17 and 18 did not affect the result of the trial unfavorably to the Fund, we conclude that reception of that evidence was prejudicial and reversible error.

Finally a win for the dad: Nebraska Supreme Court (CJ Heavican) reverses Lincoln County District Judge Murphy's order for joint custody when neither party requested joint custody. Supreme Court finds parties have a due process right to have notice of potential rulings from the court. Zahl v. Zahl, S-06-1123Somehow the supreme court reversed the Learned Hand of the Plains, District Judge John Murphy. The parents disputed custody of their one child, born June 2004. They were married in July 2004. Father worked for Union Pacific running trains to Marysville Kansas. Mother worked for the sheriff's department. The parties separated only several months after the child was born, and mother had a child a few years older from a prior marriage, and at the time mother was in court disputing custody of that child. The court finally ordered joint custody but neither party had requested it, and at a schedule that apparently did not fit the father's railroad schedule well. Father appeals. Supreme Court reverses. When ordering joint custody under Nebraska statute § 42-364(5) (Cum. supp. 2006), a district court must specifically find that joint custody is in a child’s best interests. the district court failed to make that finding in the dissolution decree. Further, because neither party had requested joint physical custody, the evidence presented at trial was limited to which parent should have sole custody. We conclude that under this circumstance, the court must conduct a separate hearing on joint physical custody before ordering such, and that its order must specifically find that joint physical custody is in the child’s best interests. "A trial court’s authority under § 42-364(5) to order joint physical custody when the parties have not requested it must be exercised in a manner consistent with due process requirements...fundamental fairness requires that...when a trial court determines at a general custody hearing that joint physical custody is, or may be, in a child’s best interests, but neither party has requested this custody arrangement, the court must give the parties an opportunity to present evidence on the issue before imposing joint custody"

Follow up: WE'RE NUMBER ONE! Legal reform activists proclaim Nebraska most business friendly legal climate in the country. We have a "rule of law" judiciary (for now) and an attorney general who is more interested in law enforcement than taking down businesses. But I'm not sure if the authors of the report took into account our justice crusaders Connolly and Gerrard.. Overlawyered.com.

Risky Business: The Annual Boardroom Guide to Litigation in the 50 States ranks state legal environments with economics, real world corporate experience and input from state legal reform experts and puts Nebraska and Virginia on top. Why does Nebraska come out on top? "Nebraska enjoys the top ranking for its favorable litigation climate. Its liability laws lead to fair and predictable litigation results. Nebraska law does not allow punitive damages, places limits on medical malpractice lawsuits, has a 10-year statute of repose for product liability lawsuits, and does not allow joint liability for non-economic damages. The Supreme Court is led by a rule-of-law majority and Attorney General Jon Bruning is a staunch defender of the rule of law. Nebraska’s liability climate is conducive to growth and job creation..

While the Nebraska court of appeals affirmed probation for the runt rider Richard Thompson, it affirms theLancaster County District Court's 12-18 year sentence for second degree arson (Section 28-503 RRS Neb)that District Judge Colborn handed to 17 year old Benjamin Reddish ( a class III felony).

• State v. Reddish , A-06-465

"The record indicates that within a period of less than 2 months, Reddish was involved in starting nine fires, ranging from small acts of vandalism to vehicle fires to the fire resulting in this sentence, in which Reddish was responsible for completely destroying a residence under construction and causing in excess of $400,000 damage. The record also indicates that Reddish has a history of fire-related conduct, and during the presentence investigation, Reddish scored in the maximum risk range for aggressiveness and the problem risk range for antisocial behavior and violence. The fires Reddish was involved in were premeditated acts, and he pled no contest to a serious crime. The district court did not abuse its discretion in imposing this sentence. This assignment of error is without merit."

When is a good nephew a better son? Thomas Malloy died in Holt county in 2003 owning nearly 1300 acres of farm ground. He gave through his will over 300 acres to his nephew Thomas Welsh with an option to purchase 640 more. Tom Welsh's father died when the nephew was very young and he considered Tom Malloy a father figure. The Holt County Court however refused to allow Welsh a lower inheritance tax as a child under 77-2004. The court of appeals (J Sievers) agrees finding that the county court was not clearly wrong to determine while the deceased and the nephew were close they did not have a parent child relationship. In re Estate of Malloy, A-06-178, 15 Neb. App. 755"Applying in re Estate of Ackerman,250 Neb. 665, 550 N.W.2d 678 (1996), to the instant case, we conclude, for the reasons that follow, that the county court did not err in denying Welsh the status he seeks under § 77-2004. We note that our review is for error appearing on the record, considering all of the circumstances of a particular case, and we do not disturb the lower court’s factual findings unless they are clearly wrong."

Did Pamir Safi's defense counsel get the idea to persuade Lancaster County District Court Judge Cheuvront to bar the prosecution and its witnesses from using the word "rape" from an earlier case he lost (before Cheuvront bailed out altogether)? Back in 1991 attorney Clarence Mock thought defendants should be able to draw conclusions for the jury deciding a drunk driving case. Attorney Mock represented defendant Thomas Wordekemper in Cuming County Court against a drunk driving charge. The defendant tested at .135, then well over the legal limit but contended that he was veering across the driving lane to avoid puddles of water. Attorney Mock allowed the defendant to testify and his money question was: "are you guilty of the accusations that have been made against you by this prosecutor?" Defendant: No. The state objected and the court sustained the states objections. Mock appealed arguing the defendant had a constitutional right to claim his innocence including his legal conclusion that he was "not guilty." The Nebraska Court of Appeals affirmed the conviction and rejected Mock's argument: "In answering his attorney's question, the defendant could be giving an opinion concerning the existence of any or all of the elements of the crime with which he was charged..However.. the defendant should have been asked questions which either required him to testify regarding the facts or to give a lay opinion based upon his perception."04/13/93 STATE NEBRASKA v. THOMAS H. WORDEKEMPER 3 NCA 256 (1993)

Manufacturer of medicated livestock feed was a grist mill and not a medical packaging company for worker compensation insurance costs. Nebraska supreme court affirms judgment against manufacturer of medicated animal fee and in favor of Travelers Insurance, the assigned risk carrier for Nebraska worker compensation insurance. Travelers Indemnity Co. v. International Nutrition, S-06-063, 273 Neb. 943 The defendant applied for worker compensation insurance through the Nebraska assigned risk pool, which Travelers administers. When Travelers audited the insured business, it applied a retroactive rate increase, reclassified theindustry from medical packaging to grist milling, charged the assigned risk rate and sought prejudgment interest. The District court ruled in favor. The district court approved of Travelers' using the NAIC worker compensation manuals to determine worker classifications and billing policies. Nebraska Supreme Court affirms. given the plain and unambiguous language of the insurance policy and the application of the nCCI basic Manual, travelers had the authority to correct International nutrition’s classification code and retroactively apply the corresponding change in premium. travelers did not breach the insurance contract, nor did it waive its right to change the classification code as a result of its decision not to

Nebraska Supreme Court reverses Hall county district court's ruling that social worker did not have qualified immunity after police arrested a parent she was investigating for child abuse. Supreme Court takes case because a public officer who is a defendant in a Section 1983 civil rights action and claims qualified immunity may seek immediate appeal of an unfavorable trial court ruling on her qualified immunity if the decision involved solely legal questions. Williams v. Baird, S-06-889, 273 Neb. 977.

the order of the district court denying baird’s claims ofqualified immunity is not a final order under § 25-1902. However, under the collateral order doctrine,we are permitted tor eview baird’s qualified immunity claim withrespect to Williams’ firs tclaim.as such, we conclude that baird is entitled to qualifiedi mmunity on that claim, as Williams failedto allege a legally cognizable constitutional claim. We accord ingly reverse the district court’s denial of baird’s claim ofQualified immunity.

Follow up on why the pedestrian crossed the road: Nebraska Supreme Court wont let attorneys pocket a quick settlement from a co-defendant, dismiss him from the case and then go after the deep pockets for the entire case. Tadros v. City of Omaha, S-05-1538, 273 Neb. 935 The plaintiff was injured crossing at the crosswalk West Omaha. A motorist ran her over and she sustained serious injuries. The plaintiff filed a political subdivision tort claim against the city and sued the driver, but later settled and dismissed the driver for $35000. The plaintiffs injuries apparently exceeded $1million. Because poltical subdivisons are liable for up to $1milliion the court reduced the judgment. The trial court determined the parties responsibility for the accident to be 50% City, 30% driver, 20% plaintiff. City appealed when the court took off only the $35000 settlement and not the driver's 30%. Supreme court reverses because under §25-21,185.11(1) RRS Neb a defendant's obligation for an accident proportional to his percentage of fault in the accident, inlcuding the fault of dismissed defendants. Under the contributory negligence statutory scheme in nebraska,joint tort-feasors who are“defendants”in an action “involving more than one defendant” share joint and several liability to the claimant for economic damages. they are liable for the entire amount of the claimant’s economic damages which are not chargeable to the claimant,so long as the claimant’s contributory negligence is not equal to or greater than the total negligence of all persons against whom recovery is sought. but,when the claimant settles with a joint tort-feasor,the claimant forfeits that joint and several liability. the claimant cannot recover from the nonsettling joint tort-feas o r more than that tort-feasor’sp roportionate share in order to compensate for the fact that the claimant made settlement with another that may prove to be inadequate.

Our states personal injury lawyers should get paid a lot for swift justice: The Hauptman OBrien law firm took on a serious injury case just weeks after the accident and within a few months was in court getting a settlement for nearly $200,000. The clients dismissed the law firm before they accepted the settlement The lawyers sued for their justly earned fee. The Nebraska supreme court reverses, ordering the law firm to prove that its fee was reasonable,Hauptman, O'Brien v. Turco, S-05-928, 273 Neb. 924 Ahem! Concurring Justice Gerrard wants to make sure we dont chill the worthy efforts of personal injury attorneys who work a few months on a case and pocket thousands of dollars. Heed his words of wisdom, "(the client) must (have specific) objections to (show why the fees are unreasonable). Inparticular, it will generally be insufficient to simply conclude that the size of a contingent fee,compared to the length of the litigation, makes the fee unreasonable.It should therefore be the unusual circumstance that a court refuses to enforce a fully informed contingent fee arrangement because of events arising after the contract’s negotiation

Supreme Court cautions parties to be more diligent in making jurisdictional challenges especially when they are upstairs in the big court. In two cases involving probated estates the Nebraska Supreme Court allows a related case to proceed in the district court but refuses to revoke an informally appointed personal representative's status for the estate of a decedent who had died in 1987, Washington v. Conley, S-06-428, 273 Neb. 908 In re Estate of Nemetz, S-06-487, 273 Neb. 918, The Supreme Court criticizes the Legislatures giving exclusive jurisdiction of probate cases to the county courts under § 24-517 (Cum. Supp. 2006), while Neb. Const. art. v, § 9 grants the district courts common law and equity jurisdiction. In Washington the Supreme court reverses the district court's decision that it lacked jurisdiction to hear a constructive trust case that appeared to be related to a probate case in county court. The District court failed to consider the jurisdictional attack as a facial one under Rule 12b1, depending solely on the allegations in the plaintiff's complaint and thus in finding that it lacked jurisdiction, the district court erroneously relied upon information not found in Washington’s complaint, specifically, the assertions of counsel that the property at issue in this case is subject to a separate and contemporaneous probate proceeding in county court. The supreme court rejected the objections of the decedent's children to the second wife's appointment as informal personal representative nearly 20 years after the decedent's death in Estate of Nemetz. Although it appears unseemly for the widow to wait 20 years to probate an estate and shut off the children, the court concluded "the county court (properly) applied § 30-2454(b) finding no cause to remove Widow as personal representative. based on an examination for error appearing on the record."

Nebraska Supreme Court (J Miller-Lerman) reverses doctor's verdict against Norfolk Faith Regional Hospital for over $1.3 million because the court instructed the jury that the doctor was an employee of the Hospital rather than an independent contractor. Domjan v. Faith Regional Health Servs., S-05-1463, 273 Neb. 877. The court instructed the jury that the parties were in an employment relationship and further that termination was only for good cause rather than cause. The court suggested that the instruction's suggestion that the doctor was an employee and not a contractor probably swayed the jury to the doctor's favor. Further the jury instruction used the term good cause, one for employment relationships rather than "cause" from the contractor agreement, further misleading the jury. Employment good cause is the standard for a reasonable employer to dismiss and employee while contractual cause is material breach or default...in light of the actual custom of persons in the performance of contracts similar to the one involved in the specific case.” Phipps v. Skyview Farms, 259 Neb. 492, 499, 610 N.W.2d 723,730-31 (2000). Reversed for a new trial

Thank you Nebraska Supreme Court for keeping lawyers busy when business was starting to dry up. The supreme court (J Connolly, again) extends its ruling in Jackson v. Morris Communications Corp.265 Neb. 423, 657 N.W.2d 634 (2003) , that allowed retaliatory discharge actions for injured workers who sued their employers to almost any kind of adverse employment action in Trosper v. Bag 'N Save, S-05-889, 273 Neb. 855 This ruling comes at just the right time as the Nebraska Worker Compensation court most recent annual report shows that job injuries and claims have steadily fallen for the past 9 years. All is not lost for business though, because the Nebraska Supreme court will copy and paste all employment discrimination law from the glorious federal government to carry out its quest for more attorney fees and justice.

Obtuse prose department: Can anyone figure out what something isn't because it isn't? In In re Estate of Potthoff, S-05-1299 the Nebraska Supreme Court (J McCormack) determined that a decedent's attempts to take property he held with his estranged wife by filing "notices" were ineffective to turn joint held property into tenancy in common. In the meantime the Supreme Court had to find that the Red Willow County Court's decision in Elvira and Lloyd Potthoff's case was a final order when the Supreme Court in Estate of Rose had held that a probate court decision that some property was not exempt family property was not a final order. See Estate of rose 730 NW.2d 391(2007).. Try to decipher this: the record before this court does not reflect that elvira has made a claim for an elective share. thus,unlike In re Estate of rose,the computation of the augmented estate is not the fundamental issue i n this case.rather,the fundamental issue before the county court was the computation of the probate estate.

Nebraska Supreme Court advises District Courts not to make extra work for it by routinely certifying Section 25- 1315(1) piece-meal final orders for appeal. Supreme Court dismisses appeal from Plaintiff severely injured in 1998 on Interstate 680- while it was under construction because the appeal concerned only part of his case against the road sign contractor and the district court abused its discretion in allowing the Plaintiff to appeal on just this part of his case. Cerny v. Todco Barricade Co., S-05-877 Plaintiff was severely injured in rear end collision on a part of Douglas county I680 that was under construction. He settled claims with the other driver, the state and its main contractor. He proceeded against the Road Sign subcontractor for his own claim and the assigned claims of the other defendants. The district court granted summary judgment in favor of the road sign contractor only on the contribution and indemnity claims of the state and its contractor. The plaintiff asked the court to certify the summary judgment as final under 25-1315(1) and the District Court entered final judgment. The sign company cross appealed the court's denying its motion for summary judgment against the 2nd driver. Supreme Court dismisses appeal finding that the trial court should not have so easily found the contribution/indemnity claims were final orders. "§ 25-1315(1) was intended to prevent interlocutory appeals, not make them easier...Therefor certification of a final judgment must be reserved for the “unusual case” in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by pressing needs of the litigants for an early and separate judgment as to some claims or parties.29 the power § 25-1315(1)confers upon the trial judge should only be used “‘“in the infrequent harsh case