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.