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}

Wednesday, March 26, 2008

Land contract or contract for deed transactions are non probate transfers and thus are not part of the deceased's estate under Section 30-2715 RRS Neb.Clark v. Clark, S-06-1254, 275 Neb. 276. Deceased's son held one half of the rights to a land contract with escrowed deed. Nebraska Supreme Court affirms judgment for son for unpaid land contract payments. "a seller in a land contract retains the title as security for the unpaid purchase money and has an equitable lien on the land to the extent of the debt, a seller has, for all intents and purposes, a purchase-money mortgage.” A ccordingly, we conclude that the transfer to Dale of one-half of the balance remaining under the agreement was a non probate transfer within the meaning of § 30-2715.
Legal malpractice expert witness who is retired judge criticized the defendant's handling of the case but forgot to state her legal work did not meet the standard of care, summary judgment affirmed. Wolski v. Wandel, S-06-1039, 275 Neb. 266Mentally disabled adult sued his former attorney for obtaining an unfavorable settlement in a declaratory judgment action regarding Cass County farm ground that his parents had deeded to him and later to another person ambiguously identified as a "trustee." The plaintiff's attorney negotiated a settlement for the disabled client to have a life estate. Later the plaintiff sued his former attorney for malpractice. The court granted the attorney's motion for summary judgment based on the depositions of the defendant and an experienced probate and estate attorney that she met the standard of care. The District Court granted summary judgment for the defendant attorney. Nebraska Supreme Court affirms summary judgment finding the plaintiff's expert was critical of the defendant's handling of the case, it did not state his opinion that the defendant breached her standard of care. Legal malpractice plaintiff's expert witness was retired Sarpy County District Judge Reagan who thought the case "should have been tried." "Wolski did not meet his burden of demonstrating the existence of a genuine issue of material fact. Reagan’s testimony falls short of this objective. Although Reagan expressed criticism of certain aspects of Wandel’s representation, he did not specifically opine that her performance deviated from the applicable standard of care. In a medical malpractice case, we have held that an expert’s testimony that a surgical procedure should have been performed in a different manner did not constitute evidence that the defendant had departed from the applicable standard of care in performing the surgery in the way that he did.13 We noted that if the expert believed that there had been a deviation from the standard of care, “it would have been a simple matter . . . to have said exactly that.”14 R eagan’s “criticism” of Wandel was similarly insufficient as evidence of professional negligence. At most, R eagan’s testimony establishes that his evaluation of the underlying case differed from that of Wandel. It is not uncommon for lawyers to have differing views about the merits of a contested case, and such a difference of opinion between lawyers does not necessarily mean that one of them has been negligent in evaluating the case. R eagan’s testimony does not establish that Wandel’s professional performance fell below that expected of lawyers of ordinary skill and capacity under similar circumstances.

Sunday, March 23, 2008

Nebraska Supreme Court agrees that group of relatives who inherited estate property from an expiring QTIP needed to reimburse the estate for estate taxes even though the second decedent who passed on the QTIP property had purported to waive reimbursement in his will. In re Ervin W. Blauhorn Revocable Trust, S-06-531, 275 Neb. 256 Husband and wife who had no children of their own set up a Qualified Terminal Interest Property Trust (QTIP) which would take effect when the first spouse died. When the wife died the widower took over the QTIP property. When he died the beneficiaries of the deceased wife's QTIP objected to paying his estate taxes that became due from the QTIP property. The husband's will purported to waive reimbursement claims, but not specifically for QTIPs. The Hamilton County Court ordered the QTIP beneficiaries to reimburse the estate. Nebraska Supreme Court affirms and holds the waiver was not specific enough to waive the QTIP beneficiaries' reimbursement requirement. Also the Supreme Court agrees that the county court properly admitted the estate attorney's affidavit in which the attorney attested to the total estate tax return and a hypothetcial tax return that excluded the QTIP property. "The language of article X of E rvin’s trust agreement, which was signed after the effective date of the current version of 26 USC § 2207A, indicated that there was to be no right of reimbursement against recipients or beneficiaries. However, we conclude that such was insufficient to waive the trust’s right of reimbursement under that section. A s is detailed above, this is so because there was no reference to § 2207A, or even to the QTIP trust or property, in article X, and thus no language “specifically indicat[ing] an intent to waive any right of recovery under this subchapter” as required by § 2207A. T he county court did not err in ordering the S charvins to reimburse the trust for a portion of the federal estate tax paid by the estate, and the S charvins’ first assignment of error is without merit. Messner, as the attorney who actually completed the federal estate tax return for the estate, was competent to testify to the amount he calculated as being due on that return. In addition, Messner was competent to testify about the alternative calculation he performed wherein he omitted B onnie’s property from the estate.

Friday, March 14, 2008

Nebraska Supreme Court affirms summary judgment in favor of doctors who performed gastric bypass operation on the Plaintiff and then treated her for subsequent complications of the surgery. While the Nebraska Supreme Court would allow the plaintiff to present non-expert testimony on the standard of care and deviation from the standard of care in an obvious case of malpractice, the plaintiff still needed to present expert testimony for causation. Thone v. Regional West Med. Ctr., S-05-1556, 275 Neb. 238 The Plaintiff had gastric bypass surgery which involved doctors' placing a band on her stomach. She developed complications 6 months later and had to go back to the hospital. Doctors apparently did not take action to identify the reasons for her distress and correct them for five days. Plaintiff sued for malpractice but when the defendants moved for summary judgment she failed to present affidavits from experts to show she could make a prima facie case of malpractice (standard of care, deviation from the standard of care, and proximate cause of the injury). The Scotts Bluff County District Court granted the defendants summary judgment. The Nebraska Supreme Court affirms, but only because the plaintiff failed to present an affidavit from an expert that the doctors' alleged malpractice was the proximate cause of her injuries. "the lack of expert testimony does not preclude the Thones from proving the standard of care with respect to their claim that appellees were negligent in waiting 5 days to treat Collette. Pursuant to the common-knowledge exception, a layperson can infer that a reasonable physician would not wait 5 days before rendering aid to a patient in Collette’s condition. However, the B ioEnterics manual does not trigger the manufacturer-instruction exception in this case. A s such, the lack of expert testimony proves fatal to the T hones’ claims that appellees committed negligence by deviating from the instructions set forth in the B ioEnterics manual when attending to Collette’s ailments." "lay testimony may suffice to establish a defendant’s deviation from the standard of care." See Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994). "Given their total lack of expert testimony in this case, the Thones can only survive summary judgment if the injuries to Collette’s gastrointestinal system so obviously stem from appellees’ alleged 5-day delay in treating her that the causal link may be inferred even by laypersons." "Without expert testimony, it would be impossible for a layperson to conclude that Collette’s ultimate injuries were caused specifically by a 5-day delay in treating her."

Sunday, March 09, 2008

Order of the Knee pads update: Nebraska Supreme Court denies reinstatement following disbarment over 10 years ago when attorney was convicted of tax evasion and has not completed restitution to the US Government for over $66k nor to the IRS on his total tax liability that was between $300 and $400k. Legal profession blog. "The Nebraska Supreme Court denied an application for reinstatement of a disbarred attorney. The attorney had been suspended for a false representation and then disbarred in 1997 for an income-tax conviction. Counsel for Discipline had opposed reinstatement notwithstanding a favorable referee's finding on present good moral character. The court agreed with Counsel for Discipline, concluding that the underlying conviction (which involved failure to pay taxes over a ten-year period)and his failure to make restitution militated against restoration to practice." State ex rel. Counsel for Dis. v. Scott, S-97-584, 275 Neb. 194 The Nebraska Supreme Court did not consider its reinstatement ruling in Counsel for Discipline v Mills (Mills II) when it reinstated an attorney whom it had suspended for filing false declarations with the IRS in an estate case but in the meantime the US Government had successfully prosecuted for filing the false forms. The Nebraska Supreme Court found a way to let him in.
Nebraska Supreme Court affirms garnishee judgment for commissions it owed to one of its real estate agent-independent contractors after it denied in garnishor interrogatories that the judgment debtor while an independent contractor was one of its employees. The garnishee real estate company owes the full amount of the commissions and not the amount of the judgment however. Petersen v. Central Park Properties, S-06-1289, 275 Neb. 220 "A garnishee owes a duty to act in good faith and answer fully and truthfully all proper interrogatories presented to him. S ee Western Smelting & Refining Co. v. First Nat. Bank, 150 Neb. 477, 35 N.W.2d 116 (1948). T he garnishee is expected to, in some appropriate manner, properly disclose all relevant facts within his knowledge at the time of submitting an answer concerning his indebtedness to the judgment debtor or concerning money or property of the judgment debtor then in his possession." "Thompson knew or should have known that Skala would be due commissions for real estate sales within the next 60 days. T he district court did not err in finding that commissions were owed to Skala at the time the interrogatories were answered." "Section 25-1028 provides for the garnishor the rebuttable presumption that if the garnishee fails to answer, the garnishee is indebted in the full amount of the judgment creditor’s claim. See Spaghetti Ltd. Partnership v. Wolfe, 264 Neb. 365, 647 N.W.2d 615 (2002). Although Realty Linc answered the interrogatories, Realty Linc’s appearance at the hearing to determine liability defeated garnishor's claim that garnishee owed the entire $33k judgment. The district court entered judgment against Realty Linc for$19k the entire amount of commissions the judgment debtor had coming to him. he court’s findings have the effect of a jury’s findings and will not be set aside on appeal unless clearly wrong.
On his third trip to the Nebraska Supreme Court for driving while intoxicated second offense defendant Lloyd, the Supreme Court holds that the Douglas County Attorney's office did not miss the 29-110 statute of limitations for retrying him for DWI 2nd offense. State v. Lloyd, S-06-1113, 275 Neb. 205 The Supreme Court initially ruled that the City of Omaha could not prosecute him under the Omaha municipal code driving while intoxicated 2nd offense section because the municipal dwi code section was inconsistent with state law ( State v. Loyd, 265 Neb. 232, 655 N.W.2d 703 (2003).. Then the Douglas County Attorney refiled the cases against the defendant for DWI 2nd offense under Nebraska statutes § 60-6,196(2) and the Nebraska Supreme Court dismissed the defendant's interlocutory appeal because his statute of limitations objection was not a final order State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005).. Finally after the Douglas county court found defendant guilty of DWI2ndMcCormack) rules the Douglas County Attorney did not miss the 18 month statute of limitations under 29-110 because the time the case was pending on appeal tolled the limitations period. pending” means: “Begun, but not yet completed; unsettled; undetermined; in process of settlement or adjustment. T hus, an action or suit is ‘pending’ from its inception until the rendition of final judgment.”Loyd’s case remained pending while on appeal to the district court and this court. T he statute of limitations under § 29-110(1) was tolled during that period, and the March 18, 2003, complaint was timely filed."

Thursday, March 06, 2008

Landlord for the Vatterot College Trade School sued the school in Douglas County district Court for Vatterot's failure to pay several years of property taxes on the property. The Douglas County District Court dismissed the action finding that the Landlord and the assigned tenant did not have privity of estate and further they had no contractual agreement for the college to pay the taxes. DeWester v. Watkins, S-06-230, 275 Neb. 173 An assignee or transferee of an interest in leased property is liable for a breach of a promise that runs with the land and which is broken while the assignee or transferee holds the leasehold estate, but is not liable for a promise that runs with the land if the promise is broken before the assignment or transfer. Napleton and Vatterott were not in privity of estate when the 2000 tax liability accrued. Nor were they in privity of estate between January and October 4 of the 2001 tax year, or for 9 months of the period in which the 2001 taxliability accrued. The lack of privity of estate between Napletonand Vatterott means that Vatterott is not liable for any breaches of the lease terms prior to the October 5, 2001, assignment unless the parties contracted otherwise. the Assignment Agreement is clear and unambiguous.The Assignment Agreement does not provide that Vatterott is liable for any obligations arising prior to the date of assignment. Absent aprovision obligating Vatterott for liabilities arising prior to the time Vatterott obtained its leasehold interest in the property,the lack of privity of estate in this case compels our conclusion that Vatterott is not liable for Omaha College’s failure to fulfillOmaha College’s obligations under the 1999 lease
Jackpot Justice Update: Nebraska Supreme Court (J Gerrard) hands over another deep-pocket to plaintiffs' attorneys and they won't let a ruling from the "slipping backward" days stand in their way. DeWester v. Watkins, S-06-230, 275 Neb. 173 "In this case, the district court entered summary judgment for Kyle based on the rule announced in Vilas, and theCourt of Appeals affirmed that judgment because the doctrine of vertical stare decisis compelled it to strictly follow Vilas. The estate argues that Vilas was wrongly decided and should be overruled. We agree. We are persuaded by the Restatement, the reasoning of other courts to have decided the issue, and our ownauthority giving effect to the clearly articulated public policyof the Motor Vehicle Operator’s License Act, that negligent entrustment should be defined with reference to control of theentrusted property, and a defendant’s ownership of the propertyis not a prerequisite for liability for negligent entrustment. In other words, to be liable for negligent entrustment, the defendant must have had the authority to permit or prohibitthe entrustee’s use of the entrusted property. But control ofthe entrusted property is the essential element of a negligententrustment claim, not legal ownership. To the extent that Vilas holds otherwise, it is overruled.

Wednesday, March 05, 2008

When York County Jail inmate Holmstedt sued the county and various officers for civil rights violations under 42 USC Section 1983 he did not identify whether he was suing them as individuals or as officials of the County. Nebraska Supreme Court follows rule of the Eighth Circuit Court of Appeals (Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999))that the plaintiff must clearly identify that civil rights defendants are individuals or the court will assume they were acting in their official capacities. Since the plaintiff did not properly serve the defendants as county officials under § 25-510.02(2). Holmstedt v. York Cty. Jail Supervisor, S-05-906, 275 Neb. 161 "the The Court of Appeals for the Eighth Circuit has held that in order to sue a public official in his or her individual capacity, “a plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant is sued only in his or her official capacity.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). See, also, Baker v. Chisom, 501 F.3d 920 (8th Cir. 2007) (stating that requiring express statement that defendant is sued in individual capacity is consistent with Federal Rules of Civil Procedure). in order to meet the pleading requirement in § 1983 actions, “litigants wishing to sue government agents in both capacities should simply use the following language: ‘Plaintiff sues each and all defendants in both their individual and official capacities.’” Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989) the rule followed by the Court of Appeals for the Eighth Circuit is reasonable and addresses a valid concern regarding providing sufficient notice to individual defendants, especially where a legal action could result in personal liability. The Eighth Circuit rule is simple for a court to apply, and it is not difficult for a plaintiff to comply with the rule. Having concluded that Holmstedt sued the individual defendants solely in their official capacities, we consider the defendants’ motions to dismiss pursuant to rule 12(b)(2), (4), and (5). We conclude that Holmstedt failed to properly serve the defendants in their official capacities and that therefore, the district court did not err in granting the motions to dismiss pursuant to rule 12(b)(2), (4), and when a motion to dismiss raises rule 12(b)(6) grounds and any combination of rule 12(b)(2), (4), and (5) grounds, the court should consider the rule 12(b)(2), (4), and (5) grounds first and should then consider the rule 12(b)(6) grounds only if it determines that it has personal jurisdiction and that process and service of process were sufficient. See Sinochem Intern. v. Malaysia Intern. Shipping, ___ U.S. ___, 127 S. Ct. 1184, 167 L. Ed. 2d 15 (2007)

Saturday, March 01, 2008

No Daubert gate keeping required when expert relies on scientific manual that the defendant did not dispute. Nebraska Court of Appeals with Judge Sievers dissenting affirms four judgments totalling over $3.5 million from automobile collisions occurring at the intersection of Highway 30 and Newberry Road in Lincoln County. While the State Department of Roads placed stop signs on both sides of the intersection, one flagged, posted a stop ahead sign and an additional sign that the intersection highway was ahead, the Court of Appeals agreed with the Lincoln County District Court the state negligently placed the right side stop sign too far away from the intersection because the sign was out of drivers' cone of vision. The Court of Appeals upholds allowing plaintiffs' expert witnesses to testify that the Department of Roads failed to comply with the State's Traffic Manual because the State failed to object to its own manual. That according to the Court of Appeals majority removed the experts' testifying about the manual from the Court's Daubert gate keeping function. Kirkwood v. State, A-05-1226, A-06-630 , 16 Neb. App. 459The Department of Roads does not challenge (plaintiff’s expert's) qualifications as an expert. The State also does not challenge the scientific validity and reliability of the Manual, upon which expert based his opinions. Rather, the State’s point of contention centers on expert’s interpretation of provisions of the Manual. For that reason, we conclude that no Daubert analysis was necessary. See, e.g., Perry Lumber Co. v. Durable Servs., 271 Neb. 303, 710 N .W.2d 854 (2006) (concluding that no Daubert analysis of methodology was necessary where party asserting error did not challenge scientific validity and reliability of methodology set forth in publication providing guidelines for scientific method of fire investigation). Dissenting Judge Sievers would reverse and dismiss all claims because the drivers' negligence in running the stop signs intervened as causes of the collisions. "Even if the State was negligent in its signing of the intersection, such was not a proximate cause, and that even if it could be considered a proximate cause, (the negligence of the drivers who failed to stop at the sign) combined with the comparative in one of the cases of the (plaintiff who turned in front of one of the drivers who failed to stop) constitute efficient intervening causes."
Nebraska court of appeals dismisses partial appeal of partnership dispute between daughter-in-law and parents of her deceased husband because the Dundy County District Court failed to make specific findings that the the daughter-in-law's partial appeal should proceed under 25-1315 RRS Neb. Jones v. Jones, A-05-1076, 16 Neb. App. 452. Daughter-in-law acting as her deceased husband's personal representatives sue his parents for a partnership accounting along with other contractual and tort actions. The District Court granted the in-laws directed verdict on the plaintiff's accounting claim and on its own agreed to certify the directed verdict as "final" for appeal purposes under 25-1315 RRS Neb. Later the District Court granted the in-laws summary judgment on the remaining cases. The Court of Appeals had initially dismissed the appeal from the directed verdict, then recalled and consolidated it with the appeal of the remaining counts. Finally the Court of Appeals dismisses the first appeal. the trial court apparently attempted to certify as final the judgment for directed verdict out of which this appeal arises. The Nebraska Supreme Court disapproved routine 25-1315 certifications in Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007) when it held the trial court must make specific findings to justify the partial appeal to avoid "piecemeal...appeals..occasioning... the use of more judicial resources...than...required (for a single appeal)."