Saturday, June 28, 2008

Nebraska Supreme Court rules for property owners who lost condemnation action against Douglas County finding their failure to serve notice on the County and to file affidavits of notice in the same manner that a plaintiff would serve a defendant with a new lawsuit were directory and not jurisdictional. Wooden v. County of Douglas, S-06-1163, 275 Neb. 971 "we conclude the district court did not lack jurisdiction as a result of the Woodens’ failure to timely file an affidavit of proof of service.when §§ 76-715, 76-715.01, and 76-717 are considered in light of each other, it is clear that the act which confers jurisdiction on the district court, and which is therefore mandatory, is the filing of the notice of appeal and, by extension, service of this notice. Moreover, we note that two distinct acts occurring days apart cannot both be jurisdictional. And because the act which is mandatory and jurisdictional is the filing of the notice of appeal, we conclude that the Woodens’ failure to timely file an affidavit of proof of service could not and did not divest the district court of jurisdiction. Instead, the timely filing of such an affidavit is directory. We find persuasive the reasoning of the Neumeyer court, which held that the filing of an appeal bond was directory rather than mandatory and that “to hold [that such was mandatory] would convert clear, brief language into a jurisdictional maze.”12 The Court of Appeals erred in concluding that the district court lacked jurisdiction due to the Woodens’ failure to file a timely affidavit of proof of service.the petition on appeal filed by the Woodens was not the commencement of a new action, but simply a continuation of the condemnation action filed by the County. The continuation of this action, and of the petition on appeal itself required by § 76-717, is therefore governed by the statutory scheme relating to condemnation actions.
Legal malpractice lawsuit against estate of deceased patent attorney returns to the Nebraska Supreme Court after the Court had rejected the estate's District Court ruling that the plaintiff would not have won a patent infringement suit if the attorney had timely renewed its patent for a tilling device. The Douglas County District Court on remand again ruled for the attorney's estate, this time finding the plaintiff could not win a patent infringement suit because its limited patent claims would estop a patent suit. Nebraska Supreme Court this time affirms summary judgment finding that the US Supreme Court's Festo decision applied and the plaintiff's hypothetical patent lawsuit would not win because the plaintiff would not be able to overcome a patent defendant's prosecution estoppel defense. New Tek Mfg. v. Beehner, S-06-783, 275 Neb. 951 "In this case, the single two-way hydraulic cylinder claim originally asserted as claim 3 was canceled, but the two-cylinder lever-pivoting means originally asserted as claim 4 was retained in the amended application. The drawings incorporated in the ’365 patent and the ’080 patent reflect only the two-cylinder means. Element 4, claim 22, of the ’080 patent, as construed by the district court in its Markman order, describes only a device utilizing two hydraulic cylinders as lever-pivoting means. We conclude that the rejected claim 3 of the original application was replaced by a narrowing claim which may trigger prosecution history estoppel as a legal limitation on the doctrine of equivalents. We conclude as a matter of law that none of the rebuttal criteria identified in Festo II and explained further in Festo III are met in this case. The first criterion is not met because it cannot be said that the claimed equivalent was unforeseeable at the time of the narrowing amendment. The claimed means consisting of a single two-way hydraulic cylinder was canceled in response to a prior art objection. As we noted in New Tek I, there is no evidence that the alleged equivalent is “after-arising technology.”56 The second criterion is not met because the amendment to claim 3 was made to avoid prior art that contained the equivalent in question, and thus it is not tangential, but is central to the allowance of the claim.57 The third criterion is not met because the =claim for the single two-way hydraulic cylinder was rejected on the basis of prior art; there can be no other reason that Schmidt could not have described the accused equivalent

Sunday, June 22, 2008

Mr Davis' attorney has advice for those trophy wives worried about the longevity of their meal tickets: get the insurance policy before your divorce is final. Mary Kay Davis, the former wife, sought the policy as security for more than $1.5 million in alimony and child-support obligations should her ex-husband die prematurely. She lost her case in the Nebraska Supreme Court on June 20, 2008 Davis v. Davis, S-07-529, 275 Neb. 944 " Henry Davis, chief executive of Greater Omaha Packing Co., refused to get a physical examination to allow her to purchase the insurance policy. When the couple divorced after three years of litigation in 2006, Henry Davis was ordered to pay $5,000 a month in child support on behalf of two children and $12,500 per month alimony for 106 months, unless either party died or Mary Kay Davis remarried. The alimony would equal $1.325 million over nearly nine years. Mary Kay Davis returned to court seeking the life insurance policy as security for the divorce decree. Henry Davis had already purchased a $1 million life insurance policy on behalf of a trust that would provide for the children should he die before they reach 19, the age of majority, according to court records. John Slowiaczek of Omaha, the attorney for Henry Davis, said the ruling will not prevent courts from requiring divorcing couples to obtain life insurance as part of their divorce settlements. However, once the divorce is final, former spouses can't get life insurance policies on each other without consent. "Once it's over, I don't have any more right to insure your life than you have to insure mine," Slowiaczek said. The Supreme Court held that although an ex-wife might have an insurable interest in the ex-husband, she still could not force the husband to become her insured life for her own policy. "an insurable interest does not give her the right to own a policy on Henry’s life without his consent. Section 44-704 specifically requires adult insureds to consent to insurance policies on their lives unless they or their spouses are the owners of the policies. Mary Kay is not Henry’s spouse, and Henry would not be the owner of the policy."

Thursday, June 19, 2008

Nebraska Court of Appeals refuses to find 18 day delay for a juvenile detention hearing unreasonable, Through the eyes of a child initiative. In re Interest of April E. et al. Filed on May 27, 2008 Memorandum opinion, not designated for permanent publication A-08-036 through A-08-038SUMMARY: An 18-day delay between the ex parte order and the detention hearing is “on the outer edge of reasonableness” but is not unreasonable. The evidentiary basis of an ex parte temporary detention order is not appealable because the ex parte order is not a final order.

Nebraska Court of Appeals reverses teacher's dismissal when it found the Millard School Board violated the Nebraska Open Meetings Law when it made its decision in a closed session. Rominger Legal.Com. The case involves the 2006 firing of Tanya Bligh, who was a teacher at Russell Middle School. Following four days of hearings, the board determined that Bligh was an incompetent teacher and failed to meet Millard's performance standards, according to co rt records. But in terminating Bligh's contract, the board voted in closed session, the appeals court found. Bligh v. Douglas Cty. Sch. Dist. No. 0017, A-07-283, A-07-284the Board held its vote on Bligh’s contract in closed session. The Board announced the decision in open session, but failed to actually hold the vote in open session. Neb. Rev. Stat. § 79-829 (Reissue 2003) specifically provides that a teacher’s contract shall be deemed continuing and remain in full force unless the school board “by a vote of the majority of its members” determines that the contract should be terminated. We can think of no more “formal action” with respect to the termination of a teacher’s contract than the actual vote of the school board. In this case, the Board failed to comply with § 79-832 because the Board failed to take its “formal action” in open session. As such, we conclude that the district court’s orders in both appeals should be reversed, and we need not address the remaining errors alleged by Bligh.

Sunday, June 15, 2008

Text of Attorney General Jon Bruning's opinion concerning petition circulators and blockers who appear on private commercial property. Nebraska Attorney General's Office. The constitutional guarantee of free speech in Nebraska is found in art. I, § 5 of the Nebraska Constitution. However, the Nebraska Supreme Court has repeatedly and consistently held that the guarantee of freedom of speech under the Nebraska Constitution is the same as the guarantee of freedom of speech under the First Amendment to the United States Constitution. Pony Lake School District 30 v. State Committee for the Reorganization of School Districts, 271 Neb. 173, 710 N.W.2d 609 (2006); Dossett v. First State Bank, 261 Neb. 959, 627 N.W.2d 131 (2001); State v. Moore, 258 Neb. 738, 605 N.W.2d 440 (2000); Pick v. Nelson, 247 Neb. 487, 528 N.W.2d 309 (1995). .. While there are no Nebraska cases directly on point, we do not believe that art. I § 5 of the Nebraska Constitution creates a state constitutional right for petition circulators or “blockers” to remain on private property and continue their activities after the owner has asked them to stop.
Nebraska Supreme Court orders new arguments in State Trooper's case. The Nebraska Supreme Court has ordered a second round of oral arguments in the case of a Nebraska State Patrol trooper who was fired for joining a group affiliated with the Ku Klux Klan. In its order, the court told attorneys in the case of Robert E. Henderson to submit additional legal briefs by Aug. 1 and to be ready for a new hearing in September. The court said the attorneys should address four questions in their arguments: collective bargaining agreements, constitutional rights, binding arbitration and legal precedent. Henderson's attorney, Vincent Valentino, said the court's order is not routine but is not unprecedented. He said the four questions give little indication of the court's leanings. A spokeswoman for the Attorney General's Office said only that state lawyers would provide the information the court requested. The case began when the State Patrol fired Henderson, of Omaha, for joining the Knights Party, which describes itself as the oldest, largest and most-active Klan organization in the United States. An internal investigation confirmed that Henderson had joined the party and posted messages to an online discussion group for party members. He said he joined as a way to vent his frustrations over his wife leaving him for a Hispanic man. Henderson appealed his firing to an independent arbitrator in 2006, as allowed by the collective bargaining agreement covering state troopers. The arbitrator ruled in his favor, saying that Henderson's firing violated his First Amendment and due process rights. Attorney General Jon Bruning appealed the arbitrator's ruling, arguing that Nebraska's public policy against racism should bar Henderson from being reinstated. Lancaster County District Judge Jeffre Cheuvront upheld Henderson's firing.

Saturday, June 07, 2008

Nebraska Unicameral in its wide-ranging judiciary bill LB1014 helps out "public service" lawyers by initiating a loan forgiveness program for attorneys who join public advocacy organizations. Nebraska Unicameral. This will help cure the crying need we have in this state for more lawyers to sue the State every time the Legislature tries to trim a little fat from social services programs or when an illegal alien stubs his toe during an ICE raid. The initial maximum replacement loan amount shall be $6000 per year for "fulfill(ing) the purposes of recruiting and retaining public legal service attorneys in occupations and areas with unmet needs, including attorneys to work in rural areas and attorneys with skills in languages other than English." Where was this program when State Senator Nantkes was finishing law school?
Nebraska Supreme Court holds that hog confinement lot operator who appealed Madison County's refusal to grant him a variance used the denovo appeal procedure to the District Court. In re Application of Olmer, S-07-247, 275 Neb. 852 When a decision regarding a conditional use or special exception permit is appealed under § 23-114.01(5) RRS Neb (Cum. Supp. 2006) and a trial is held de novo under § 25-1937 (Reissue 1995) RRS Neb, the findings of the district court shall have the effect of a jury verdict and the court’s judgment will not be set aside by an appellate court unless the court’s factual findings are clearly erroneous or the court erred in its application of the law. The district court found that the Board, in denying O lmer’s conditional use permit, acted as a tribunal exercising judicial functions and that therefore, Olmer’s appeal should be treated as a petition in error. Because Olmer’s appeal was treated as a petition in error, the court explained that Olmer was not entitled to a trial de novo, nor could the court receive additional evidence that was not offered at the hearing before the B oard. A ccordingly, the court stated that, in making its decision, it did not consider any exhibits that were not offered and received by the Board. the B oard in the present case, in denying O lmer’s application, was exercising judicial functions which decisions are generally reviewed through the filing of a petition in error.15 B ut § 23-114.01(5)clearly provides for a right of appeal to the district court from the B oard’s decision, without setting forth any procedure for prosecuting the appeal. Therefore, the appeal procedure in § 25-1937 is also implicated.16 A nd there is nothing in§ 23-114.01(5), nor in § 25-1937, that purports to remove the right to proceed in error under § 25-1901. T us, we conclude that under the circumstances presented here, O lmer had the option of filing either a petition in error under § 25-1901 or an appeal under § 25-1937
Nebraska Supreme Court reverses Douglas County District Court directed verdict that was in favor of the State of Florida Department of Insurance, receiver for an insolvent truck insurance company in its suit against insurance agency that used truckers' premiums to acquire other insurance when the insolvent insurer was unable to provide adequate coverage for the agency's customers. State of Florida v. Countrywide Truck Ins. Agency, S-06-1220, 275 Neb. 842 "The district court erred in granting a directed verdict in favor of Florida. Giving all reasonable inferences to Agency and Fulkerson, there is a question of fact whether a fraudulent transfer occurred between T ruck and Agency. T here is evidence that the transfer of $2,235,401 represented the amount held in the customer deposit account on behalf of T ruck’s insureds and that Agency used this money to purchase insurance for T ruck’s insureds. T here is no evidence of any other transfer."

Tuesday, June 03, 2008

Kearney liquor store loses its license after selling alcohol to a minor who later died as a passenger in automobile accident. Nebraska Supreme Court affirms liquor license revocation because the defendant liquor store failed to prove that the minor's Canadian identification card that he had presented in the past to purchase alcohol was a valid identification card. Although the Commission permitted a community activist to speak to urge the Commission to revoke the store's license the District Court judge cured any error because she did not consider the citizen's comments when reviewing the Commission's revocation ruling. JCB Enters. v. Nebraska Liq. Cont. Comm., S-06-1373, 275 Neb. 797 When the district court conducts its review of a final decision of the Commission, it is required to make independent factual determinations. In its proceedings for review of a final decision of the Commission, the district court shall conduct the review de novo on the record of the agency. Id. In this case, the district court stated in its order that when it conducted its de novo review, it “specifically ha[d] not considered any evidence which was not received at the actual hearing in this matter which took place before the Commission.” T hus, any irregularities before the Commission were cured when the district court ignored R iibe’s comments in its de novo review of the record in the instant case.
Summary judgment for defendant in insured's breach of contract action against insurance broker for failing to purchase insurance reversed. Nebraska Supreme Court holds that summary judgment for insurance agent was inappropriate because the defendant did not prove whether the agent was a captive agent for the insurance company or whether he was an insurance broker, acting on behalf of the insured to acquire insurance. Broad v. Randy Bauer Ins. Agency, S-06-844, 275 Neb. 788 We conclude that an action for breach of contract to procure insurance is inappropriate when brought against an insurer’s agent who, within the scope of his or her authority, contracted on behalf of the disclosed principal and did not bind himself or herself personally. Specifically, an insurance agent’s mere promise to procure requested coverage through his sole principal is insufficient to create the agent’s personal liability because that promise is clearly within the scope of the agent’s authority. However, we will recognize a cause of action against a broker for breach of contract to procure insurance because the broker is the insured’s agent.

Sunday, May 25, 2008

Justice Department to Monitor Elections in Colfax County Nebraska US Justice Department. The Justice Department today announced that on Tuesday, May 13, 2008, it will monitor elections in Colfax County, Neb., and Bergen County, N.J., to ensure compliance with the Voting Rights Act.Colfax and Bergen Counties are obligated to provide all election information, ballots and voting assistance information in Spanish as well as in English according to the Voting Rights Act. Colfax County Election Commissioner Rita Mundil never heard of any complaints and noted Colfax county is the only county in the State that offers bi-lingual ballots. Justice Department personnel will monitor polling place activities during voting hours at polling locations in these jurisdictions. Civil Rights Division attorneys will coordinate the federal activities and maintain contact with local election officials.Each year, the Justice Department deploys hundreds of federal observers from the Office of Personnel Management, as well as departmental staff, to monitor elections across the country. In calendar year 2006, for example, 966 federal observers and 575 Department personnel were sent to monitor 119 elections in 81 jurisdictions in 24 states. To file complaints about discriminatory voting practices, including acts of harassment or intimidation, voters may call the Voting Section of the Justice Department’s Civil Rights Division at 1-800-253-3931.More information about the Voting Rights Act and other federal voting laws is available on the Department of Justice Web site at

Nebraska Supreme Court allows expert in a medical malpractice case related to delayed treatment of a spinal cord injury to testify in his affidavit that had the defendant doctors not delayed diagnosing and treating the plaintiff's injury the plaintiff more likely than not would have experienced a better outcome from treatment. The Supreme Court distinguishes this proper opinion that a better outcome would result from giving improper opinions that the plaintiff lost a chance to recover. Rankin v. Stetson, S-07-073, 275 Neb. 775 an opinion framed in terms of loss of chance would not sustain Rankin’s burden of establishing that the defendants proximately caused her injury. We also note that Nebraska has not recognized the loss-of-chance doctrine. See Steineke v. Share Health Plan of Neb., 246 Neb. 374, 518 N.W.2d 904 (1994). Gross’ statements that Rankin would have had a “better prognosis” and a “chance of avoiding permanent neurological injury” do not equate with an opinion that it was more likely than not that Rankin would have had a better outcome if she had undergone surgery immediately following her injury. Opinions dealing with proximate causation are required to be given in terms that express a probability greater than 50 percent. Thus, Gross’ statements do not establish the required certainty to prove causation. While a 49-percent chance of a better recovery may be medically significant, it does not meet the legal requirements for proof of causation. The terms “chance” and “prognosis” by definition do not establish the certainty of proof that is required. On the other hand, an opinion expressed in terms that it is more likely than not that a plaintiff “would have had a better outcome” is sufficiently certain to establish causation. A better outcome is not the same as a chance of a better outcome. Rather, it is a definite result. In this case, there were statements within Gross’ affidavit that were sufficient to establish causation. When reviewing a summary judgment, we view Gross’ affidavit in a light most favorable to Rankin and give her the benefit of all reasonable inferences from such evidence. Contrary to the defendants’ assertion, Gross’ affidavit espoused more than a mere “loss of chance.” Gross opined that early surgical decompression of the spinal cord would more likely than not have led to an improved outcome for Rankin. This evidence established causation for the purpose of opposing the defendants’ motion for summary judgment on such issue. Thus, Gross’ affidavit satisfied the requirement that Rankin produce some expert testimony to establish that the actions or inactions of the defendants were a proximate cause of Rankin’s injury. Nebraska Advance Sheets Ran kin v. Stetson 787 Cite as 275 Neb. 775
Nebraska Supreme Court reverses accounting malpractice verdict that was against accountant in 1031 exchange dispute. Frank v. Lockwood, S-06-731, 275 Neb. 735 A Western Nebraska businessman sued his accountant after he sold some real estate but decided not to escrow the entire sale amount for a section 1031 exchange for other property. The accountant earlier advised him that he would be able to offset some of his gain from the real estate sales with his corporation's losses. The businessman was not able to offset the real estate sale income. The IRS gave the plaintiff an extension to file his tax return until October at the accountant's request but the accountant failed to advise the businessman to pay estimated taxes by the regular April 15 due date. The businessman incurred substantial penalties and interest because he did not file and pay his return until December, almost 2 months later than the extended due date. The Scotts Bluff County District Court jury awarded the businessman a verdict of $37000, all of his IRS penalties and interest. Nebraska Supreme Court reverses, holding the plaintiff businessman failed to prove that the IRS interest payment damaged him. The plaintiff should have proven that he could not have borrowed the unpaid tax amount at a rate lower than the IRS rate. While the Nebraska Supreme Court upholds the verdict for the IRS penalties, the court sends it back to the District Court to determine and award only for penalties related to failing to pay the taxes. Justice Connolly dissents. Frank v. Lockwood, S-06-731, 275 Neb. 735 The plaintiff's failure to file the return on time is not the accountant's fault. The penalties incurred by the Franks in this case appear to have been of two types—those incurred because the Franks failed to pay taxes when due on April 15, 2002, and those incurred because the Franks failed to file their returns when due as extended to October 15. Under federal law, I.R.C. § 6651 (2000) provides in subsection (a)(1) that a taxpayer may be assessed a penalty for failure to timely file a return and provides in subsection (a)(2) that a taxpayer may be assessed a separate penalty for failure to timely pay taxes due. In addition, I.R.C. § 6654 (2000) provides that penalties may be assessed for underpayment of estimated taxes. Nebraska law provides for similar penalties for failure to timely file returns, Neb. Rev. Stat. § 77-2789 (Reissue 2003), and for underpayment of estimated taxes, 316 Neb. Admin. Code, ch. 20, § 007 (1998). there was sufficient evidence from which the jury could find that L ockwood was negligent in failing to advise the Franks to pay an estimate of their 2001 tax liability on April 15, 2002. the district court did not err in denying L ockwood’s motion for judgment notwithstanding the verdict with respect to any portion of the damages award that was attributable to penalties for the Franks’ failure to timely pay the extent such penalties are penalties for failure to timely file returns, under the facts of this case, they are not recoverable as damages. However, to the extent such penalties are penalties for failure to timely pay the taxes, under the facts of this case, they are recoverable as damages. Because the evidence in the record does not allow us to determine what portion of the penalties are for late payment of the taxes which are recoverable, we find it necessary to remand this cause to the district court for a new trial limited to a determination of the portion of damages attributable to penalties imposed for failure to timely pay taxes and, upon a proper showing, awarding the Franks an amount of damages equal to penalties for failure to timely pay taxes.

Saturday, May 24, 2008

Follow up: Referee hearing discipline case against Kearney attorney William Orr recommends public reprimand over failed coffee shop franchising venture. Kearney Hub. Kearney attorney Jeff Orr should be publicly reprimanded for violations he committed while representing Barista's Daily Grind, an Omaha attorney has recommended to the Nebraska Supreme Court. Waldine Olson, who is acting as referee in Orr's disciplinary proceedings, has ruled that Orr violated four of 13 ethical standards and provisions listed in the State Bar Association's Code of Professional Responsibility and Rules of Professional Conduct. (Click here to view Referee Waldine Olson’s 36-page referee’s report in the Jeff Orr discipline case. The Supreme Court case - filed against Orr in August 2007 by the Bar Association - involves Orr's work in drafting a franchise agreement and disclosure statement for Kearney coffee company Barista's and its owners, Steve Sickler and Cathy Mettenbrink. Sickler and Mettenbrink blame Orr's legal work for the failure of their franchised business last year. Olson recommended a public reprimand for Orr instead of probation or suspension in a referee's report filed May 7. Olson said Orr did not "knowingly" or "intentionally" engage in conduct that involved "dishonesty, fraud, deceit or misrepresentation." The referee said Barista's suffered "severe" consequences as a result of Orr's actions. "Although the exact nature and extent of the harm suffered by the clients was not addressed in detail, the evidence is clear and convincing that the consequences to the client were serious," Olson said. However, Olson said the Barista's case was an "isolated occurrence as opposed to a recurring pattern of misconduct" by Orr. The referee said Orr practiced law more than 40 years with no previous complaints. "The numerous letters from clients, business and community leaders, and members of the bar speak to his good standing and his reputation as a competent and ethical practitioner," Olson said. Orr's community service, including membership on the Supreme Court Task Force on Gender Fairness, also played a role in the disciplinary recommendation, the referee said. Following a March hearing, Olson filed a 36-page report May 7 that cleared Orr of nine misconduct allegations and found him in violation of four others. Olson said Orr took on the Barista's case knowing he was not competent to handle the work. "Not only had he never undertaken such a task previously, but also he was warned by an intellectual properties lawyer, whom he respected, that franchise law is 'pretty specialized,'" Olson said of Orr. In 2002, Sickler and Mettenbrink hired Orr to assist them in franchising their coffee shop concept. Orr told Sickler and Mettenbrink that he had experience in franchising businesses, Supreme Court records show. In March, Orr testified that he had experience in reading and reviewing franchise agreements and disclosure statements for companies such as Wendy's, Quizno's, Dairy Queen, McDonald's, Baskin-Robbins and Ford. However, Orr said during the hearing that he had never drafted a franchise agreement. In drafting Barista's franchise agreement, Orr said he relied heavily on a Quizno's agreement he had worked on previously. Orr said he did not research Nebraska law when he drafted Barista's agreement. "... Although he knew that certain aspects of franchising were governed by the Federal Trade Commission, he did not adequately prepare himself for the task," Olson said of Orr. Supreme Court documents show Kearney attorney Bradley Holbrook helped Orr get a second opinion on the Barista's documents from Omaha attorneys Robert Kirby and Gary Batenhorst. The Omaha attorneys told Orr and Holbrook the disclosure statement did not comply with FTC rules. Batenhorst characterized deficiencies in the disclosure statements as "major," court documents said. In his recommendation to the Supreme Court, Olson said Orr attempted to correct deficiencies in the disclosure statement and there was no evidence that Orr attempted to conceal his errors. "Orr disclosed to the client that the documents he had drafted would require considerable changes and they could not be used to sell additional franchises until the changes had been made," Olson said. "The evidence suggests a good faith, although misguided, attempt to resolve the problem." Orr has practiced law in Kearney since 1967 and is a partner and shareholder of Jacobsen, Orr, Nelson & Lindstrom P.C. Barista's closed its two Kearney locations at 4402 Second Ave. and 2400 Central Ave. last summer after Sickler and Mettenbrink defaulted on loan payments and lost ownership of their properties to Kearney State Bank & Trust Co. in a foreclosure. Before learning that their disclosure statement did not comply with FTC rules, Barista's sold 21 franchises between 2003 and 2006. Barista's Daily Grind currently operates in west Kearney under new ownership. The Supreme Court will decide whether to accept Olson's recommendation. Public reprimands can take various forms, including a press release to the media.

Saturday, May 17, 2008

Case summary: Omaha attorney gets to take her Third offense driving while intoxicated case to the Nebraska Supreme Court. Nebraska Judicial Branch Case Summaries. S-07-0464, State (Appellant) v. Willow T. Head Douglas County, Judge Peter C. Bataillon Attorneys: James M. Masteller (County Attorney’s Office) (Appellant) --- James E. Schaefer, Jill A. Daley (Gallup & Schaefer) Criminal: DUI, 3rd offense Proceedings below: The trial court found two valid prior convictions and enhanced Head’s DUI to 3rd offense. The State filed an application for error proceedings which was granted. The Nebraska Court of Appeals in 2006 sent the case back to the District Court because Head's motion to quash evidence of the prior convictions was not ripe for review. State v. Head, 712 N.W.2d 822, 14 Neb.App. 684 (Neb.App. 04/18/2006) The Court of Appeals reversed the decision of the district court and remanded with directions. See State v. Head, memorandum opinion, A-07-0464, January 3, 2008. Head filed a petition for further review which was granted by the Nebraska Supreme Court. Issues on Review: The court of appeals (1) had no statutory authority to remand for further proceedings under Neb. Rev. Stat. § 29-2316 because jeopardy attached; (2) erred in relying on State v. Keen, 272 Neb. 123 (2006) to reach the finding that the district court improperly rejected Head’s 2002 DUI conviction based on its interpretation of State v. Loyd, 265 Neb. 232 (2003) as State v. Keen did not overrule State v. Loyd.
Case summary: Omaha dentist appeals license revocation. The Nebraska Supreme Court in 2001 had disciplined the dentist who was also a member of the Bar for narcotics abuse. Nebraska Judicial Branch. S-07-0588, Shaun O. Parker, D.D.S., Appellant v. State of Nebraska, Appellee Lancaster County, Judge Jeffre CheuvrontAttorneys: Jerry Katskee (Appellant); Jon Bruning and Lisa Anderson (Attorney General’s Office). Civil: Revocation of professional license Proceedings Below: Parker filed a petition for review with the district court seeking to review the decision by the Chief Medical Officer/Director (CMO) for the Department of Health and Human Services Regulation and Licensure (DHHS), which decision revoked his license to practice dentistry. The district court affirmed the agency's findings of fact, conclusions of law, and order, which order revoked Parker's license to practice dentistry in Nebraska. Issues: On appeal, Parker argues: (1) Whether Parker was denied procedural due process by DHHS in the crucial stages of the proceedings against him, to wit: (a) the investigation of the complaint derived from a confidential informant; (b) the presence of the attorney general at the closed session investigation; (c) the subsequent recommendations by the CMO; (2) whether the punishment meted out to Parker, viz., the revocation of license to practice his profession, fit the nature of the alleged infraction; (3) whether the district court erred in not considering the impact of the failure of the hearing officer to consider the arguments of Parker on constitutional issues by remanding the case to the CMO for further proceedings as permitted by Neb. Rev. Stat. § 84-917(5)(b)(i); (4) whether the district court erred in its order by holding that its de novo review presented clear and convincing evidence that Parker engaged in unprofessional conduct and that the discipline imposed was appropriate under the circumstances; (5) whether the entire administrative procedure is flawed and grants arbitrary and dictatorial powers to the CMO; (6) whether the findings of fact and conclusions of law of the CMO were arbitrary, capricious, and unreasonable; and (7) whether the district court erred in its order by not finding the administrative findings of fact and conclusions of law were arbitrary, capricious, and unreasonable.
County employee Douglas County fired for dropping ice wins reinstatement. Pierce v. Douglas Cty. Civil Serv. Comm., S-07-252, 275 Neb. 722 Douglas County facilities engineer and International Union of Operating Engineers, Local 571 member Nathan Pierce could not go unescorted near a co-worker at the Douglas County Hospital because he had angry confrontation with her before. Later as he went through her area he dropped a cup of ice near her nurse's station. Douglas County terminated him. Nebraska Supreme Court reverses the termination ruling and orders him reinstated because the District Court had jurisdiction to rule on Pierce's claim that the county board breached the collective bargaining agreement with the union. Also the violation if any was not serious enough to merit termination. "the district court had jurisdiction over Pierce’s claims that the Department breached the collectiver bargaining agreement (CBA) as far as those allegations were relevant to Pierce’s termination. However, we need not reach the merits of Pierce’s claims under the CBA. We conclude that the evidence shows the Department did not consider Pierce’s alleged conduct to be a serious violation of the Commission’s personnel manual, warranting termination. We therefore reverse the district court’s order affirming Pierce’s termination "
Nebraska Supreme Court upholds subrogation waiver clause between owner and contractor when a television tower under construction collapsed, also the contractor was liable for damage the construction work and other property to the subrogated insurance company, even when the subrogated insurance company complained that gross negligence caused the accident. Lexington Ins. Co. v. Entrex Comm. Servs., S-06-1452, 275 Neb. 702 "the danger with exculpatory clauses is that a party injured by another’s gross negligence will be unable to recover its losses. But such danger is not present in cases involving waivers of subrogation because the waiver only applies to losses covered by insurance, so “there is no risk that an injured party will be left uncompensated.”..Waivers of subrogation serve in avoiding disruption of construction projects and reducing litigation among parties to complicated construction contracts. Concluding that waivers of subrogation cannot be enforced against gross negligence claims would undermine this underlying policy by encouraging costly litigation to contest whether a party’s conduct was grossly negligent. Therefore, we conclude that “public policy favors enforcement of waivers of subrogation even in the face of gross negligence [claims]..the majority approach furthers the policy underlying the use of waiver of subrogation clauses in construction contracts. That court explained that a waiver of subrogation is useful in construction contracts because it avoids disrupting the project and eliminates the need for lawsuits.37 The majority approach furthers this purpose. Applying the waiver to all losses covered by the owner’s property insurance policy eliminates litigation over liability issues and whether the claimed loss was damage to the Work or non-Work property."
The Hall County District Court judge hearing a divorce case sent the attorneys his ruling and directed the wife's lawyer to prepare the decree. Husband filed a motion for new trial and then appealed the case within 30 days of the decree date but more than 30 days after the trial judge hearing a divorce case made his ruling in a letter and directed the wife's attorney to prepare the decree. The court clerk file-stamped the judge's letter-ruling. Nebraska Supreme Court, J Gerrard, rules the decree date is the correct date to start the 30 day appeal period running and admonishes the court clerk to not file this paperwork in the court file. Wagner v. Wagner, S-06-427, 275 Neb. 693. This case illustrates why trial courts should take care to ensure that regardless of how a final judgment is prepared, only the signed final order is filed with the clerk of the court. The clerk should not file stamp any document prepared by the trial court that is not a court order intended to have legal effect. But a filing that does not finally dispose of a case does not become a final, appealable order just because it is file stamped, and the trial court’s order in this case was clearly not meant to be a final determination of the rights and liabilities of the parties. Therefore, we conclude that the letter in this case was not a final, appealable order, and reverse the decision of the Court of Appeals.

Sunday, May 11, 2008

Nebraska Supreme Court holds that the trial court should decide whether a dispute should go to arbitration, and in this case between an importer and a distributor of coffee, the defendant had waived arbitration when it filed pleadings in the court case. Good Samaritan Coffee Co. v. LaRue Distributing, S-07-300, 275 Neb. 674 "a waiver defense raised in the context of prior litigation-related activity is presumed to be decided by a court, rather than an arbitrator. A nd shifting of this issue to an arbitrator is only proper where there is “‘clea[r] and unmistakabl[e] evidence’” of such an intent in the parties’ arbitration agreement. T he arbitration agreement at issue in this case fails to meet this standard. party seeking arbitration may be found to have waived its right to arbitration if it “‘(1) knew of an existing right to arbitration; (2) acted inconsistently with that right; and (3) prejudiced the other party by these inconsistent acts.’” E ach of these factors strongly weighs in favor of a finding that LaRue has waived its right to arbitration in this case."

Saturday, May 10, 2008

In another guaranty dispute, the Nebraska Supreme Court reverses the Nemaha County District Court in party when the Supreme Court finds a guarantor's obligation to guarantee the payment of two promissory notes his son and daughter-in-law signed extended only to his unconditional promise to guarantee payment on the first promissory note, but not to the Bank's extension of credit to the son and daughter-in-law from a second promissory note when the primary borrowers showed they were creditworthy according to the financial disclosures they made to the bank. The Nemaha County Court found the guarantor liable for the entire indebtedness, including the second extension of credit. The District Court dismissed the guarantor entirely. The Supreme Court holds the guarantor liable for the initial indebtedness, but not for the extension. First Nat. Bank of Unadilla v. Betts, S-07-023, 275 Neb. 665
Nebraska Supreme Court affirms judgment that non-compete agreement between and insurance agency and one of its brokers was enforceable even after the broker's original employer had merged with another firm. The successor company had valid consideration for a non-compete agreement that barred the defendant from soliciting the company's customers for 2 years after his termination. The Nebraska Supreme Court upheld the trial court's damage calculation by which the Douglas County District Court determined the damages from breaching the non-compete agreement by finding the amount of revenue the defendant generate from the prohibited customers for two years after his termination minus the expenses the plaintiff would have incurred had it retained the business. While the trial court rejected the plaintiff's CPA experts conclusions, it accepted some of his findings as to revenues and expenses. Because the court took the expert's testimony as fact testimony, it did not need to determine if the CPA's testimony passed the Daubert test. Aon Consulting v. Midlands Fin. Benefits, S-06-1256, S-07-034 , 275 Neb. 642
Building supplier sued widow of deceased construction company owner for over $1 million of defaulted construction loans that the defendant and her husband had guaranteed. The Douglas County District Court after cross-motions for summary judgment dismissed the bank's complaint. Nebraska Supreme Court reverses, awarding full judgment to the plaintiff. The Supreme Court finds the widow did not limit her liability to $525000 in their company's financing agreement with the Plaintiff, and further the plaintiff's releasing deeds of trust on the defendant's office buildings in 1991 did not impair the widow's collateral because she allowed new substantial loans with other banks to encumber the same property. Builders Supply Co. v. Czerwinski, S-06-1138, 275 Neb. 622We recognize that the A greement contains language relative to the $525,000 upon which Czerwinski relies. However, aguaranty is an independent contract that imposes responsibilities different from those imposed in an agreement to which it is collateral. S ee National Bank of Commerce Trust & Sav. Assn. v. Katleman, 201 Neb. 165, 266 N.W.2d 736 (1978). It is the guaranty agreement that contains the express condition on the guarantor’s liability and that defines the obligations and rights of both guarantor and guarantee. Id. T he language relied upon by Czerwinski in the A greement relative to the $525,000 merely described B uilders’ obligation to extend credit to B enchmark to a specific amount.the record indicates that she signed deeds of trust on the office building in 1999 and 2000 for $100,000 and $600,000 respectively, suggesting that she was aware of the availability of the office building to serve as collateral in a substantial amount. T he $600,000 encumbrance remained into 2006, the inference from which is that through her actions, Czerwinski impaired the office building collateral rather than B uilders

Sunday, May 04, 2008

Eighth Circuit Court of Appeals won't party on. 20 USC 1091(r) excluded some students from eligibility for federal student loans if they have a record of drug convictions. Students for a Sensible Drug policy sued to invalidate the laws in the District Court of South Dakota, contending the laws result in double punishments, contrary to the Double Jeopardy Clause. Eighth Circuti Court of Appeals affirms, finding the law is a civil remedy and the exclusion provisions relate rationally to the purpose of keeping dope head kids out of college. Protestants for the Common Good, and United Church ofChrist, Justice and Witness Ministries,joinded the case as amici, wonder what side they were on? 071159P.pdf 04/29/2008 Students for Sensible Drug Pol v. Margaret Spellings U.S. District Court for the District of South Dakota [PUBLISHED] [Benton, Author, with John R. Gibson and Wollman, Circuit Judges]"section 20 USC 1091(r) is meant to deter other students from possessing or selling drugs on campus, it also encourages rehabilitation, school safety, a drug-free society, and ensuring tax dollars are spent on students who obey the laws. The statute is rationally related to these alternative purposes. “The Act’s rational connection to a nonpunitive purpose is a ‘[m]ost significant’ factor in our determination that the statute’s effects are not punitive.” And the statute is not excessive in relation to these alternative purposes."

Saturday, May 03, 2008

Prosecutors ask the 10th Circuit Court of Appeals to reconsider its ruling granting a new trial to former QWest executive Joseph Nacchio. "Prosecutors have asked a federal appeals court to review an earlier decision granting a new trial to former Qwest Chief Executive Joe Nacchio. The federal prosecutors asked the full 10th U.S. Circuit Court of Appeals Wednesday to reconsider the case and affirm Nacchio's conviction.A three-judge panel of the appeals court last month threw out Nacchio's conviction on 19 counts of insider trading. It ruled that the trial judge incorrectly excluded the defendant's expert testimony from an expert in economics and securities fraud. Nacchio was convicted last year of illegally selling $52 million worth of stock when he knew that Denver-based Qwest Communications International was at financial risk but didn't tell investors."
Guatemala man gets 20-32 years in Kearney stabbing A Guatemala man has been sentenced to 20 to 32 years in prison for stabbing his girlfriend and her sister in their northwest Kearney apartment. Mauro Yos-Chiguil pleaded guilty in March to second-degree murder and felony second-degree assault charges in Buffalo County Court. Authorities have said the 33-year-old Yos-Chiguil stabbed his girlfriend and mother of his twin sons in her head, shoulder, chest and stomach. She was released after treatment at a local hospital. Also injured was the girlfriend’s teenage sister. After he completes his sentence, Yos-Chiguil could face deportation. Authorities have said he is an illegal immigrant
Governor Heineman appoints Attorney Rob Otte to replace Lancaster County District Court Judge Earl Witthof. The Governor forgot that judge slots are for career public sector lawyers. "Dave Heineman’s office announced the appointment of 51-year-old Robert Otte on Friday. A spokeswoman for Heineman said Otte will be replacing Judge Earl Witthoff, who retired in March. Otte is a partner at the law firm of Morrow, Poppe, Otte & Watermeier. The governor’s office said Otte has handled real estate and other business law cases and has trial experience in state and federal courts. Otte is a 1978 graduate of the University of Nebraska in Lincoln and was awarded his law degree from UNL law school in 1981.
Saunders County murder case from 1977 could end up in juvenile court. "A 48-year-old man charged in a 30-year-old murder could see his case transferred to juvenile court.Jeffrey D. Glazebrook was 17 when May McReynolds, a 97-year-old retired school teacher, was raped on Nov. 6, 1977. She died two weeks later as a result of injuries suffered during her attack. Glazebrook, an inmate at the Tecumseh State Correctional Institution, was charged in conjunction with the crime in March, after a cold case investigator found that DNA from hairs found on McReynolds’ night clothes matched Glazebrook’s DNA. Glazebrook appeared in Saunders County District Court on Friday morning, where he was expected to enter a plea to first-degree murder and first-degree sexual assault charges. Instead, said Tom Klein, Glazebrook’s attorney, Judge Mary Gilbride advised Glazebrook that he may be able to have his case transferred to juvenile court. After Friday’s hearing, Klein said he was not yet sure if he would ask to have Glazebrook’s case transferred. “I had not had the opportunity to discuss that with him,” Klein said. There is no statute of limitations on transferring a first-degree murder charge to juvenile court, Saunders County Attorney Scott Tingelhoff said. Even so, it’s rare to transfer a case from to juvenile court so many years after the crime. “It’s a unique situation,” he said. Glazebrook is currently serving a sentence of 16 1/2 years to 38 years for the 1991 rape of a 45-year-old Lincoln woman. His projected release date is in July 2010. He is next scheduled to appear in Saunders County District Court 8:30 a.m. May 30. Klein said he expected Glazebrook would either enter a plea or a request to have the case transferred to juvenile court during that hearing.
Nebraska Supreme Court denies Goodyear's claim that the Nebraska Department of Revenue should have created regulations to define what sales tax credits Goodyear could receive for property purchases before the Revenue Department could deny credits to Goodyear under the LB775 business tax incentive programs. Goodyear Tire & Rubber Co. v. State, S-06-1103, 275 Neb. 594The Nebraska Supreme Court denied Goodyear's appeal that it was entitled to credits for sales taxes on some equipment and parts purchases. Goodyear also appealed because the Nebraska Department of Revenue did have have regulations to interpret the disputed sections of the law. The Supreme Court held the Revenue Department did not need the regulations. "In the present case, § 77-4111 requires the Commissioner to adopt and promulgate those rules and regulations, but only those rules that are necessary for carrying out the purposes of L.B. 775. The purpose of L.B. 775 is to “accomplish economic revitalization of Nebraska” and to “encourage new businesses to relocate to Nebraska, retain existing businesses and aid in their expansion, promote the creation and retention of new jobs in Nebraska, and attract and retain investment capital in the State of Nebraska.”We conclude that promulgating rules and regulations regarding interpretation of qualified property is not necessary for carrying out those purposes."

Friday, May 02, 2008

Residents of the Ponca Hills area in Omaha appealed the Douglas County Board Equalization's decision to exempt residential properties an Omaha Catholic Diocese there used for lay ministry. Nebraska Supreme Court dismisses their appeal finding that the neighbors did not have standing to appeal the County's decision to exempt real estate from taxation with a petition in error to the Douglas County District Court. McClellan v. Board of Equal. of Douglas Cty., S-06-1072, 275 Neb. 581 "The Legislature’s stated purpose in the Tax Equalization and Review Commission Act (TERC) (Neb. Rev. Stat. § 77-5007) was to create an efficient mode of review by a single body which would provide a more consistent review of tax exemption and equalization decisions made by a board of equalization. The language of § 77-202.04 very specifically lists who may appeal from exemption decisions. The Legislature did not see fit to allow every indirectly affected taxpayer to appeal from the exemption status of someone else’s property. Instead, the Legislature determined that giving standing to the county assessor to appeal the grant of an exemption was sufficient to protect the public’s general interest in what properties are included on the tax rolls."
Nebraska Supreme Court finds a way around the law of the case doctrine on an appeal following remand. The Nebraska Supreme Court excepts law of the case doctrine and reconsiders worker compensation review panel's decision on injured worker's first trial that the worker compensation court judge should consider both the labor markets where the worker was injured and where she presently lived when evaluating the workers lost earning capacity. Money v. Tyrrell Flowers, S-07-681, 275 Neb. 602. At first trial judge found found the plaintiff had permanent and total disability because after her injury she moved to a small town that had few jobs. The worker compensation review panel reversed, requiring the trial judge to consider both the large and small towns' job markets. On retrial the trial judge found permanent total disability because the plaintiff was an "odd lot worker." The review panel then affirmed the trial court's odd lot worker ruling. Nebraska Supreme Court affirms, ruling that even if the the law of the case doctrine would have limited the trial court on retrial to considering the plaintiff's disability in the two labor markets, the Nebraska Supreme Court's intervening Giboo v. Certified Transmission Rebuilders 746 N.W.2d 362 (2008) decision merited excepting the first review panel's law of the case decision.

Sunday, April 27, 2008

Nebraska Steps To Forefront Of Efforts To Protect Seniors And Secure Social Purpose Of Life Insurance. Insurance Nebraska lawmakers have acted to protect senior citizens and to secure the good social purpose of life insurance as financial protection for families and businesses, said Frank Keating, president and CEO of the American Council of Life Insurers (ACLI). By a final vote of 40-2, the Nebraska Senate approved Legislative Bill 853, which would deter a practice called stranger-originated life insurance (STOLI). In STOLI transactions, speculators such as hedge funds, or their representatives, induce seniors to purchase life insurance solely to sell the death benefits to the speculators. The speculators hope to profit when the seniors die, and the sooner they die, the higher the profits. LB 853, which is based on model legislation developed by the National Association of Insurance Commissioners (NAIC), would require the speculators in STOLI arrangements to wait at least five years before acquiring the rights to the death benefits, thus reducing the economic incentives for STOLI. This five-year period applies only to STOLI policies and would not affect the ability of good-faith life insurance consumers to sell their policies if they decide they no longer need or want their life insurance protection. “STOLI transactions pose numerous risks to seniors and we applaud Nebraska lawmakers for being among the first in the nation to adopt strong measures against this abuse. Life insurance is for financial protection of families and businesses. It should never be purchased solely as an investment scheme for hedge funds. Fortunately, states around the nation are following Nebraska’s lead and considering legislation to deter this abuse of their seniors,” Keating said. “Nebraska Insurance Director Ann Frohman and Sen. Rich Pahls (District 31-Omaha), who chairs the Banking, Commerce and Insurance Committee, took the lead in advancing the vital consumer protections in LB 853 over the objections of the hedge funds who profit from these abuses. Nebraska seniors—indeed, all consumers—can thank them for standing up for the people of Nebraska,” Keating said. The bill now goes to Gov. Dave Heineman (R), who is expected to sign it. The American Council of Life Insurers (ACLI) is a Washington, D.C.-based trade association whose 353 member companies account for 93 percent of the life insurance industry’s total assets in the United States, 93 percent of life insurance premiums and 94 percent of annuity considerations. In addition to life insurance and annuities, ACLI member companies offer pensions, including 401(k)s, long-term care insurance, disability income insurance and other retirement and financial protection products, as well as reinsurance. ACLI's public Web site can be accessed at
Nebraska Supreme Court considers whether divorced wife may compel business executive husband to undergo medical examination so she could purchase a $1million life insurance policy to secure his payments. Nebraska Judicial Branch Case Summaries April 29 through May 2, 2008. S-07-529, Mary Kay Davis (Appellant) v. Henry Alan Davis (Appellee)

Douglas County District Court, Judge Patrick Mullen

Attorneys: William G. Dittrick and Kirk S. Blecha of Baird Holm (Appellant); John S. Slowiaczek and Virginia A. Albers of Lieben, Whitted, Houghton, Slowiaczek, and Cavanagh (Appellee).

Civil: Marital Dissolution

Proceedings Below: Parties stipulated to a “Post-Marital Agreement” which provided for dissolution of the marriage and division of property. The district court upheld the agreement and dissolved the marriage. Shortly thereafter, Mary attempted to take out life insurance on Henry’s life, which required that Henry submit to a physical examination. Henry declined and Mary petitioned for the district court to order Henry’s compliance. The district court denied Mary’s request and this appeal followed.

Issues: Whether the district court erred when it failed to order Henry to submit to a physical exam for purposes of allowing Mary Kay to obtain a life insurance policy on Henry’s life.

Red Lake Indian Tribal Court lacks jurisdiction on highway within reservation boundaries, Eighth Circuit Court of Appeals rules in affirming defendant's summary judgment from the US District Court for Minnesota. Falmouth Institute American Indian Law Blog. The Court of Appeals for the Eighth Circuit ruled that the Red Lake Nation court did not have the authority to hear a case involving a car accident on the reservation in which a non-member was involved. In Nord v. Kelly (No. 07-1564) the court affirmed a district court decision that the tribe did not have jurisdiction to hear a lawsuit brought by a tribal member against a non-member, non-Indian, for damages sustained in accident that took place on a state highway within the reservation. The tribal court took over four years to deny the defendant's motion to dismiss the tribal court lawsuit against him for a car accident. Then he filed a declaratory judgment action in Federal Court , District of Minnesota to declare no jurisdiction for the case. The Eighth Circuit Court of Appeals affirms summary judgment for the defendant who had filed the declaratory complaint. "Consistent with the reasoning of Strate v. A-1 Contractors, 520 U.S. 438, 442 (1997) (holding "tribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question"), we give effect to the plain language of the right-of-way granting instruments. There is no indication in the public records that the Red Lake Band retained any "gatekeeping right" over the public highway, no assertion that the right-of-way is no longer maintained as part of the State's highway, and no assertion that any statute or treaty grants or retains tribal authority over nonmembers in this situation. See Strate, 520 U.S. at 456. Therefore, the Red Lake Band has no "right of absolute and exclusive use and occupation" of that land, id. (internal marks omitted), and the public highway at issue, as in Strate, is the equivalent of alienated, non-Indian land for purposes of regulating the activities of nonmembers.
During a dental malpractice trial in Gage county district court the judge kept a trial schedule so tight that the jury heard the entire case in one week with over sixty hours of trial time. Malchow v. Doyle, S-06-219, 275 Neb. 530The jury verdict went to the dentist and the plaintiff appealed claiming the grueling trial schedule and possible juror misconduct prejudiced the plaintiff. Nebraska Supreme Court finds no abuse of discretion in the lengthy court sessions and no juror misconduct after it refused to admit affidavits from jurors who claimed the foreman was injecting his own legal standards of proof into the case. The Supreme Court did modify the court's discovery sanction against the defendant to remove the plaintiff's expert's extra costs to prepare for testimony when the defendant delayed submitting discovery materials. "the trial was conducted over a 5-day period and 62 hours were devoted to the trial. T he record does not show that either party was restricted in the presentation of its evidence. Malchow has not demonstrated that she was prejudiced in presenting her case based on the length of each trial day, and she is not entitled to an inference that the jury resented her because of the length of the trial. We conclude that the district court did not arbitrarily place time limits on either party or restrict the presentation of evidence. Thus, the court did not abuse its discretion in overruling any motions for mistrial on the basis of the conduct of the trial." juror’s knowledge about the burden of proof is personal knowledge that is not directly related to the litigation at issue and is not extraneous information. Doyle did not pay certain specified fees to Miloro in advance as agreed upon, which resulted in the deposition’s being canceled. We conclude that the district court abused its discretion in ordering Doyle to pay the $6,000 charged by Miloro as compensation for time he spent preparing for the deposition. Whether Miloro needed to spend 12 additional hours to prepare for a 2-hour discovery deposition by Doyle is not the question, but, rather, whether Doyle should have been ordered to pay such charges. We conclude that the district court’s order on this issue was in error.
Excellent example of the Nebraska Supreme Court's use of the "absurdity" method of statutory interpretation: An agricultural services company sued the personal representative of an estate for its past due account. J.R. Simplot Co. v. Jelinek, S-06-666, 275 Neb. 548The Nebraska Supreme Court agreed with the estate's personal representative that the agricultural services company missed its deadline to file suit against the estate. The services the company provided to the estate's farming operations were not "administrative expenses" that do not have a four month limitation period on them because these expenses arose from the contract between the company and the personal representative. Section 30-2485(b)1 includes contracts with the personal representative in the claims subject to the four month deadline. The Nebraska Supreme Court falls back on the "absurdity" argument, " If this court were to adopt Simplot’s reasoning—that the services in question should be considered administration expenses—then § 30-2585(b)(1) (sic) would be rendered virtually meaningless." Indeed, there is no 30-2585(b)1 in my code book.

Saturday, April 26, 2008

Appeal dismissed from multiple count lawsuit against former business partner and associates because trial court did not dismiss the plaintiff's cause of action in its entirety. Poppert v. Dicke, S-06-741, 275 Neb. 562 Disgruntled business partner sued other partners and associated professionals for breach of fiduciary duty and plead various claims against several parties. The district court dismissed the plaintiffs suit against the business partner for breach of fiduciary duty and certified it as final, appealable order. However the district court did not dismiss the plaintiff's suit for unjust enrichment and diverting profits. Because some of the remaining claims were identical with the dismissed claims, the district court failed to issue a certified final order. Nebraska Supreme Court dismisses appeal. 25-1315 requires the court to certify as appealable a final order as to a "claim for relief." "Claim for relief" and "cause of action" are synonymous, although theory of recovery is not. A cause of action comprises the common facts that establish the defendant's liability to the plaintiff although the difference between a cause and a theory is not too clear. Although the district court dismissed some of the plaintiff's theories of recovery, it did not dispose entirely of his cause of action against his partner. Therefore the Supreme Court lacked jurisdiction over the appeal. A “claim for relief” within the meaning of § 25-1315(1) is equivalent to a separate cause of action, as opposed to a separate theory of recovery. A cause of action consists of the fact or facts which give one a right to judicial relief against another; a theory of recovery is not itself a cause of action. the district court’s order dismisses some of those theories of recovery, i.e., “causes of action” Nos. 1 through 3, but does not dismiss all of them. The district court’s order was not a “‘final order’ . . . as to one or more but fewer than all of the causes of action.”
The defendant in a methamphetamine possession case from Buffalo County requested a special prosecutor because an associate attorney with his defense counsel's law firm moved to the prosecuting attorney's office. The former associate was not involved with the defendant's case while working for either office. Nebraska Supreme Court rejects the defendant's per se rule for disqualification, instead interpreting Model Rule 1.11 to allow the judge discretion to require proper screening procedures to ensure client confidentiality. State v. Kinkennon, S-07-654, 275 Neb. 570 "A per se rule would result in the unnecessary disqualification of prosecutors where the risk of a breach of confidentiality is slight, thus needlessly interfering with the prosecutor’s performance of his or her constitutional and statutory duties. Furthermore, a per se rule would unnecessarily limit mobility in the legal profession and inhibit the ability of prosecuting attorney’s offices to hire the best possible employees because of the potential for absolute disqualification in certain instances. Whether the apparent conflict of interest justifies the disqualification of other members of the office is a matter committed to the discretion of the trial court. What constitutes an effective screening procedure will depend on the particular circumstances of each case. However, at a minimum, the disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the office with respect to the matter. S imilarly, the other lawyers in the office who are involved with the matter should be informed that the screening is in place and that they are not to discuss the matter with the disqualified lawyer.

Saturday, April 19, 2008

Nebraska Supreme Court reverses defendant's summary judgment from Douglas County District Court in wrongful death lawsuit from a fatal drowning accident at Lake Powell Utah. Plaintiff estate filed wrongful death action for decedent who drowned while vacationing on the defendants' houseboat. The plaintiff alleged the defendants allowed their boat to get too far ahead of the decedent who was swimming in the lake and were not careful in picking him up. Nebraska Supreme Court affirms summary judgment on the plaintiff's Jones Act claim but reverses on its general negligence claim. The district court should have allowed the plaintiff's affidavits by former career Coast Guard officers who stated expert opinions that the boat operators were negligent. Caguioa v. Fellman, S-06-1055, 275 Neb. 455
Nebraska Supreme Court denies defendant's claim of ineffective appellate counsel and opens the door slightly to post-conviction discovery proceedings, but holds further discovery would not have helped the defendant. State v. Jackson, S-06-1041, 275 Neb. 434. the defendant in his post-conviction action sought discovery from the prosecutor regarding any evidence the prosecutor had that would show that a drug dealer ordered another hit man to kill the man that the defendant was convicted of killing. The trial court overruled the defednat's request. The Supreme Court agrees that discovery was not appropriate in this case under State v. Thomas, 236 Neb. 553, 462 N.W.2d 862 (1990)., but suggests it might allow some discovery in the future. "when a postconviction discovery request is for evidence that the defendant would not have known to request until after the trial, the postconviction stage is the prisoner’s first opportunity to make such a request...there should be a limited exception for discovery requests concerning evidence which the prosecution withheld from the defendant at trial when there is a reasonable possibility that the requested evidence, if it exists, could have resulted in a different outcome at trial."

Saturday, April 12, 2008

A records storage management company charged its law firm customer a $10,000 fee to permanently remove all of its records from the storage facility. The Omaha law firm filed a declaratory judgment complaint against the company claiming the removal fee was an illegal penalty provision. the Douglas County District Court agreed finding the removal fee was a penalty and not a legitimate liquidated damages fee. The Nebraska Supreme Court reverses holding the removal fee was neither a liquidated damages provision nor a penalty, rather it was a fee for a service. Berens & Tate v. Iron Mt. Info. Mgmt., S-07-193, 275 Neb. 425 The district court erred in finding that the “Permanent Withdrawal” fee was unenforceable. We conclude that the “Permanent Withdrawal” fee is neither a liquidated damages clause nor an illegal penalty provision. Rather, the provision is an enforceable contractual term that sets forth the payment required for services to be performed under the contract. T he judgment of the district court is reversed."
Nebraska Supreme Court affirms dismissal of wife's fraudulent transfer complaint against ex-husband to reach business he liquidated to avoid including its assets in the couple's marital estate. Reed v. Reed, S-06-757, 275 Neb. 418. Shortly before the husband filed for divorce his parents repossessed stock they held in the couple's business; the husband also liquidated his interest in a real estate development partnership. Wife sued to reclaim her marital share of these interests using the Uniform Fraudulent Transfer Act (UFTA) Neb. R ev. S tat. §§ 36-701 to 36-712 (Reissue 2004). The Hall County District Court dismissed her complaint, the Supreme Court affirms. "a spouse’s right to an equitable distribution of the marital estate is not a “right to payment” under the UFTA . A ccordingly, the UFTA does not apply in cases where, as here, an individual believes that his or her former spouse fraudulently transferred assets before the divorce to prevent those assets from being equitably distributed as part of the marital estate. Instead, such a claim is perhaps more properly litigated as a claim for dissipation of marital assets."

Friday, April 11, 2008

Nebraska Unicameral amends medical lien statute Section 52-401 to clarify that medical providers may only claim their discounted fees and charges when they accepted discounts from private health insurance or health benefit plans. Amended law now allows chiropractors to file liens, but does not public insurance. Stinson Morrison Health Care E-Alert. "On March 10, 2008, Nebraska Governor Dave Heineman approved LB 586, amending Neb. Rev. Stat. 52-401, the Medical Lien Statute. The changes went into effect when approved. Of importance to health care providers is that the changes to the statute clarify that a provider's charges under a perfected lien are only subject to reduction when the provider has contracted for a discount or other limitation with a private medical insurance or health benefit plan. The limitation does not apply to reimbursement under public programs such as Medicare and Medicaid. The provider's option, if available, to pursue full payment when a public program is primary is not affected by LB 586. In 2004, the Nebraska Supreme Court ruled in Midwest Neurosurgery, P.C. v. State Farm Ins., that when a provider has entered into a managed care contract to accept a rate less than its full charge, the lower contracted rate becomes the provider's usual and customary charge for purposes of the Medical Lien Statute. Since that time there has been a question whether that decision applied to public programs such as Medicare. The changes made by LB 586 make it clear the discount provisions only apply to private programs; not public. When a patient has health benefits under a public program as his/her primary insurance, the provider has all options available under those public rules including, to waive billing Medicare and pursue the potential liability settlement at full charges. In addition to the above, LB 586 brought chiropractors under the statute's umbrella. Chiropractors now have the protections and the obligations of the Medical Lien Statute. Remember, that the Medical Lien Statute does not require a provider to pay the injured party's attorney's fees and costs. While these attorney's fees have precedence over a provider's lien, the provider is not obligated to pay, in any proportion, those fees. Also of note, a late amendment provides that even when there is a contractual discount or other limitation, the full provider charge is the measure of damages for medical expenses and not the discounted rate. This last amendment may, or may not, be a subject for future legislative sessions.

Sunday, April 06, 2008

Nebraska Supreme Court agrees that the Worker Compensation Court may grant default judgments under § 48-162.03(1) but the party moving for a default judgment must give the defaulted party notice of the motion under Worker Compensation Court rule 3. Cruz-Morales v. Swift Beef Co., S-07-812, 275 Neb. 407 The plaintiff sued the Defendant Swift Beef for a work injury and Swift received proper service of process. Swift failed to answer and the plaintiff moved for a default judgment but sent the notice to the wrong address for the Defendant's third party administrator. "we (under 48-162.03) conclude that the Workers’ Compensation Court has statutory authority to enter default judgments, however the Plaintiff needed to send proper notice to the defendant. Worker Compensation Court rule 3 which requires notice of the motion is not more restrictive than Supreme Court pleading rule 5 which does not require notice of a default judgment in general civil actions, see Phillips v. Monroe Auto Equip. Co., 251 Neb. 585, 558 N.W.2d 799 (1997) {worker compensation court rules may not be more restrictive than civil court rules as to admitting evidence}.
Injured worker who sometime after her work-related accident moved from Omaha to a smaller community could ask the court evaluate her lost earning capacity based upon her access to the labor market in the smaller community, as long as she could show her move was in good faith. Giboo v. Certified Transmission Rebuilders, S-07-139, 275 Neb. 369 "when an employee injured in one community relocates to a new community, the new community will serve as the hub community from which to assess the claimant’s earning capacity, provided that the “change of community was done in good faith, and not for improper motives.” Like the South Dakota Supreme Court (Reede v. State, Dept. of Transp., 620 N.W.2d 372 (S.D. 2000)), we believe the claimant carries the burden to establish that the move was made in good faith and not for the purpose of exaggerating the extent of his or her difficulty in finding suitable employment. If the claimant cannot show a legitimate motive behind his or her post-injury relocation, the community where the claimant resided at the time the injury occurred will serve as the hub community."
Immigrant who earlier plead guilty to two separate drug related felonies and had already served those sentences filed to withdraw those guilty pleas because he discovered the Federal Government would consider him deportable. Defendant plead guilty to the cases before Section 29-1819.02 required the court to advise immigrants of the consequences of pleading guilty to their immigration status. Nebraska Supreme Court holds the district court did not have jurisdiction to hear his motions to withdraw his guilty plea after already serving his sentences . State v. Rodriguez-Torres, S-06-1351, 275 Neb. 363 "Although § 29-1819.02 gives the trial court some discretion to allow a defendant to withdraw a guilty plea, the statute does not provide a separate procedure to accomplish that after the defendant’s conviction has become final. Since Nebraska statutes do not authorized any procedure allowing for the present action, the district court was without jurisdiction to address the merits of R odriguez-Torres’ motion."
Nebraska Supreme Court resolves tangled fee dispute between Law Offices of Ronald J Palagi and its former associate Steven Howard over a $2 million injury verdict from Phelps County District Court and some other large cases. Nebraska Supreme Court dismisses former associates appeal of the Buffalo County District Court's attorney lien division order {motion to alter or amend judgment to correct clerical errors did not toll 30 day appeal deadline}, affirms division of fees from same large case from Douglas County District Court and award of extra attorney fees for Palagi's untimely payment of a fee bonus to Howard under the Nebraska Wage Payment Collections Act. Nebraska Supreme Court invalidates provisions of the parties employment agreement that purported to require the associate attorney to turn over fees earned from cases the associate takes from the law firm after resigning as violating the Model Rule 5.6 {restrictions on lawyer's right to practice}. The Supreme Court also rules against the law firm's claim that the associate attorney's actions to advise the firms clients that he was leaving the firm violated the associate's fiduciary duty to the law firm because the law firm could not prove that the attorney's actions caused the firm any loss. Law Offices of Ronald J. Palagi v. Howard, S-06-384, S-06-665, S-07-757, 275 Neb. 334

Saturday, April 05, 2008

The Lancaster County District Court dismissed the State Attorney General's complaint against tobacco companies participating in the tobacco Master Settlement Agreement because the State of Nebraska agreed to arbitrate any annual payment reductions. The Nebraska Supreme Court affirms, while finding the District Court's dismissal in favor of arbitration was an appealable order, the Master Settlement Agreement arbitration requirement applied to whether the States adequately and diligently enforced tobacco marketing restrictions against companies that did not participate in the 1998 Master Settlement Agreement. State ex rel. Bruning v. R.J. Reynolds Tobacco Co., S-06-1027, 275 Neb. 310the district court’s order compelling arbitration and dismissing the State’s action for declaratory judgment was a final order and that this court has jurisdiction to determine this appeal. We further conclude that the district court did not err in determining that the MSA requires arbitration of the dispute over diligent enforcement of the qualifying statute. We therefore affirm the court’s order compelling arbitration and dismissing the State’s action for declaratory judgment.

Thursday, March 27, 2008

Nebraska Supreme Court remands defendant's methamphetamine possession conviction to Sarpy County District Court to find whether the police incidentally seized narcotics following a valid arrest or whether the defendant voluntarily consented to further police searching of his residence. State v. Gorup, S-07-450, 275 Neb. 280 Sarpy County and Bellevue law enforcement staked out the defendant's residence and arrested him as he exited the apartment. The police observed knives on a table and entered the apartment although the defendant was outside the premises at all times. The police then seized a closed zippered shaving kit case and asked the defendant's permission to open it. The police found methamphetamine. "The district court found that the protective sweep of Gorup’s apartment was unlawful and that the search incident to a valid arrest might have been unlawful. It concluded, however, that the warrantless search of the black zippered case was lawful under the inevitable discovery doctrine because Gorup’s consent was voluntary The district court reached the issue of the validity of Gorup’s consent, but it did not definitively determine whether the search incident to a valid arrest exception applied. If the district court had concluded that the first search was valid, it would not have needed to analyze the validity of Gorup’s consent to the subsequent search. Where a search following an illegal entry is justified based on alleged consent, a court must determine whether that consent was voluntary, and in addition, the court must determine whether the illegal entry tainted that consent. U.S. v. Robeles-Ortega, 348 F.3d 679 (7th Cir. 2003). the court erred in failing to consider the appropriate factors to determine whether the search was an exploitation of the prior illegality. The district court should have considered the above factors in determining whether Gorup’s consent was obtained by the exploitation of the detectives’ prior search. T hus, we remand the cause for consideration of such factors. See Brown v. Illinois, 422 U.S. 590, 95 S . Ct. 2254, 45 L. E d. 2d 416 (1975){proximity of illegal search to confession or consent, flagrancy of conduct, intervening events determine whether illegal search taints subsequent confession or consent to search}