Thursday, December 10, 2009

Nebraska Court of Appeals allows injured worker who was illegal alien to collect temporary total disability from worker compensation case. But because there was "no evidence the plaintiff intended to remain in the country as an unauthorized alien" the trial court's ruling that the plaintiff would be ineligible for vocational rehabilitation services was premature. Visoso v. Cargill Meat Solutions, A-09-339, 18 Neb. App. 202. The injured worker's work status is not involved in the definition of “alien.”

Sunday, December 06, 2009

Order of the Kneepads Update: Nebraska Supreme Court in reciprocal discipline case from California imposes 90 day suspension on attorney the California Bar who was engaged in improper data mining. State ex rel. Counsel for Dis. v. Loftus, S-08-1330, 278 Neb. 1015. Loftus will not be eligible for reinstatement until 90 days after he has paid all delinquent dues and assessments owed to the Nebraska State Bar Association and has shown that he has successfully completed California’s State Bar Ethics School, taken and passed the Multistate Professional Responsibility Examination, and shown that he has complied and is complying with his term of probation and other conditions imposed by California
Nebraska Supreme Court denies murder defendant's claim for post-conviction relief alleging ineffective trial and appellate counsel where defendant claimed that counsel's failure to object to reports of Crimestoppers calls about the defendant was because of trial and appellate counsels' errors. State v. Duncan, S-08-1308, 278 Neb. 1006. any failure of Duncan’s trial counsel to object to Henthorn’s testimony was not prejudicial. The evidence supports Duncan’s convictions and renders the court’s erroneous admission of Henthorn’s testimony harmless.Duncan has not assigned that the postconviction court erred in failing to find that his appellate counsel provided ineffective assistance. When claims of a trial counsel’s performance are procedurally barred, we examine claims regarding trial counsel’s performance only if the defendant assigns as error that appellate counsel was ineffective for failing to raise trial counsel’s performance.
Nebraska Supreme Court affirms dismissal against purchaser of commercial property who claimed seller negligently misrepresented condition of building's roof when Supreme Court found plaintiff must show it used ordinary prudence when it relied on the neglient misrepresentations. Lucky 7 v. THT Realty, S-08-1290, 278 Neb. 997in both negligent and fraudulent misrepresentation cases, whether the plaintiff exercised ordinary prudence is relevant to whether the plaintiff justifiably relied on the misrepresentation when the means of discovering the truth was in the plaintiff’s hands..justifiable reliance must be decided on a case-by-case basis..Ordinary prudence is a factor in determining whether a plaintiff is justified in relying upon a defendant’s representations. The district court did not err as a matter of law in applying an ordinary prudence standard to Lucky 7’s negligent misrepresentation claim. We also conclude the court’s factual findings were not clearly wrong.
Nebraska Supreme Court reverses District Court ruling in favor of Bankruptcy Chapter 7 trustee that had garnished a contractors bank account. Although judgment debtor had an account balance when the judgment creditor filed its garnishment, the judgment debtor already was in default to the Bank who had a perfected lien on its accounts. Myers v. Christensen, S-08-1212, 278 Neb. 989 The trustee is the judgment creditor, or garnishor; Gencon is the judgment debtor; and Charter West is the garnishee. The case turns on the question of whether, on the date the garnishment summons was served, Gencon had a right to the deposit account which was superior to that of Charter West. Only if that were so could Charter West have been “indebted to” or holding “property or credits of” Gencon within the meaning of the garnishment statutes and therefore liable as a garnishee § 25-1030.02. Due to the existence of Charter West’s perfected security interest, Gencon had no enforceable right to the proceeds of the deposit account on the date that the garnishment summons was served and therefore, the trustee could have no such right. In other words, the trustee could not acquire a claim by garnishment which was superior to the claim of Charter West arising from its perfected security interest. Because of Bank's perfected security interest in the deposit account, which was far exceeded by the amount of Gencon’s indebtedness then in default, Charter West was not “indebted to” or holding “property or credits of” Gencon at the time of service of the garnishment summons.
Nebraska Supreme Court holds that employer's appeal of worker compensation court judge's assessment of interest and waiting time penalties did not divest the trial court of jurisdiction over the benefits award itself. The Supreme Court upholds worker compensation court review panel's decision that delinquent interest accrues from the date each weekly benefit became due. Russell v. Kerry Inc., S-08-146, 278 Neb. 981 "the Court of Appeals incorrectly determined that the workers’ compensation trial judge did not have jurisdiction to entertain Russell’s second enforcement motion while Kerry’s appeal from the judge’s first enforcement order was pending before the review panel. We reverse that part of the Court of Appeals’ decision. But we affirm the Court of Appeals’ determination that under § 48-125(3), the review panel correctly assessed interest on Russell’s final award from the date that each installment of benefits became due to the date of Kerry’s payment."

Thursday, November 26, 2009

Nebraska Supreme Court denies post-conviction relief to defendant who challenged his conviction of manslaughter and use of a weapon to commit a felony as inconsistent counts. Court rules that the underlying intentional felony was the armed assault that resulted in a manslaughter conviction. State v. Sepulveda, S-08-1291, 278 Neb. 972. the act of firing the gun at Geiger which resulted in Geiger’s death was an intentional and unlawful assault and was the predicate offense of use of a firearm to commit a felony. Intentional assault rather than manslaughter was the predicate felony to use of a firearm to commit a felony; therefore, convictions for both manslaughter and use of a firearm to commit a felony were not inconsistent. Sepulveda’s trial counsel’s failure to raise the issue was not deficient performance and did not result in ineffective assistance of counsel. Because Sepulveda’s trial counsel did not render ineffective assistance of counsel, Sepulveda’s appellate counsel was not ineffective for failing to address the issue on appeal.
Nebraska Supreme Court affirms defendant's conviction for driving while intoxicated, fourth offense, over his objection that records of two prior convictions were invalid because the records the State offered to prove the prior offenses lacked file stamp dates. State v. Macek, S-08-1196, 278 Neb. 967 Mark A. Macek appeals his guilty plea and conviction in the Lancaster County District Court for driving under the influence of alcohol, fourth offense, 60-6,197.03 (7). Macek claims that two of his three prior convictions were improperly used to enhance his sentence because they were not final, appealable orders. We affirm the decision of the district court. Macek is making an impermissible collateral attack on his prior DUI convictions and that those prior convictions were properly used for enhancement purposes.
Nebraska Supreme Court upholds juvenile's confession to a shooting homicide and declines to modify the "totality of circumstances" test for special considerations for juveniles, as the American Bar Association has recommended; also the police officers' characterization of the shooting as an accident did not mislead the defendant into thinking he was confessing to a negligent homicide. State v. Goodwin, S-08-1159, 278 Neb. 945 "While the minority of an accused is a factor to consider in determining the voluntariness of a confession, it is not determinative. Because the age, education, and intelligence of an accused are included within the totality of circumstances (test) of whether there has been a knowing and voluntary waiver of Miranda rights prior to a custodial interrogation, a court necessarily exercises "special caution" with respect to juveniles. Accordingly, we decline to modify the totality of the circumstances test for determining the voluntariness of Miranda waivers by minors we conclude that no implied promise of leniency can reasonably be inferred from the questioning techniques utilized by the detectives. There was no suggestion of any definite benefit which Goodwin could expect to receive in exchange for his statement. The references to lack of intent and a "tragic accident" were made in the context of the detectives’ efforts to persuade Goodwin to truthfully explain his involvement in the shooting. "

Sunday, November 22, 2009

Nebraska Supreme Court upholds bench trial conviction for unintentional manslaughter Neb. Rev. Stat. § 28-305 (Reissue 2008) while also finding the Defendant guilty of intentional use of a weapon to commit a felony (section 28-1205 RRS Neb). State v. Tucker, S-08-623, 278 Neb. 935 . Defendant was charged with first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. Defendant waived a jury trial. The court found Defendant guilty of the lesser-included offense of manslaughter "by unintentionally causing the death of . . . victim while in the commission of an unlawful act. the court explained that the predicate felony to that offense was "assault and/or a terroristic threat. By acquitting Defendant of first and second degree murder, the trial court made the implicit finding that Defendant lacked the specific intent to kill and that he also lacked the specific intent to commit any of the listed felonies for felony murder. By finding Defendant guilty of unintentional manslaughter, the court found that Defendant did not intend to kill victim, but that he did kill victim during the intentional commission of an unlawful act. based on the predicate offense of intentional assault, the evidence was sufficient to support the trial court’s judgment that Defendant was guilty of use of a weapon to commit a felony
Nebraska Supreme Court allows testimony of police officer who was certified as a "drug recognition expert" (DRE) that defendant was too impaired from marijuana to drive over defendants Daubert objection. State v. Daly, S-08-192, 278 Neb. 903. "Although (research on the validity of DRE evaluations has) not always published in (peer-reviewed journals) per se, DRE research has been the subject of considerable scientific scrutiny..(the) use of the protocol and its various elements has certainly not been kept a secret nor is there evidence that its proponents have attempted to avoid the limelight..(the) risk of a false positive is low. Any risk is mitigated further by the fact that identifying the specific drug that caused a driver’s impairment is inessential—the DUI statute only requires proof that the defendant was under the influence of "any drug" and does not require the drug to be identified by the arresting officer (§ 60-6,196 )."

Saturday, November 14, 2009

Order of the Kneepads Update: Nebraska Supreme Court suspends for six months attorney who neglected child custody matter, failed to refund unearned fees, had been privately reprimanded in the past for neglecting cases, and failed to timely respond to the Counsel for Discipline inquiries. State ex rel. Counsel for Dis. v. Smith, S-08-1333, 278 Neb. 899 "Because Smith neither responded to the Counsel for Discipline regarding Johnson’s grievance nor filed a pleading, we have no basis for considering any factors that mitigate in Smith’s favor. Furthermore, this behavior indicates disrespect for our disciplinary jurisdiction and a lack of concern for the protection of the public, the profession, and the administration of justice. Considering that Smith has previously been privately reprimanded for similar neglect and that he has failed to communicate with the Counsel for Discipline in a timely or meaningful fashion, we conclude that a 6-month suspension from the practice of law is necessary to protect the public and maintain the reputation of the bar. We also order Smith to return any fees collected from Johnson."
Nebraska Supreme Court upholds Internet enticement law and rejects defendant's challenge to Section § 28-320.02 RRS Neb. on equal protection, free speech, over breadth and vagueness grounds. State v. Rung, S-08-878, 278 Neb. 855 "Defendant appeals his conviction for use of a computer to entice a child or a peace officer believed to be a child for sexual purposes, a violation of Neb. Rev. Stat. § 28-320.02 (Reissue 2008). Defendant challenges the constitutionality of § 28-320.02 and asserts that his sentence is excessive. We reject Defendant’s constitutional challenges, and we affirm his conviction and sentence. Defendant asserts no suspect classification and because the statute does not jeopardize a fundamental right, the classification in § 28-320.02 is subject to a rational basis review for equal protection purposes. When a classification created by state action does not jeopardize the exercise of a fundamental right or categorize because of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.§ 28-320.02, is geared toward enticement of minors to engage in sexual conduct that would violate specified statutes, and as such, § 28-320.02 does not jeopardize the fundamental right recognized in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). Defendant argued that § 28-320.02 is over broad because it targets speech regarding acts that would not otherwise be illegal. This argument, similar to his other arguments, is based on his misreading of the statute. Defendant lacks standing to challenge § 28-320.02 for vagueness

Saturday, November 07, 2009

Case overruled: Nebraska Supreme Court allows Defendant facing retrial after a trial court ordered a deadlocked jury mistrial to file a plea in bar motion to contest whether double jeopardy would bar the retrial. Although the court should have had counsel and the defendant present while declaring the mistrial, the error was harmless. State v. Rubio, 261 Neb. 475, 623 N.W.2d 659 (2001) is overruled to the extent it suggests the plea in bar procedure is not available to challenge a mistrial. State v. Williams, S-08-1220, 278 Neb. 841 A mistrial entered without manifest necessity is the equivalent of an acquittal for purposes of double jeopardy analysis in that each terminates jeopardy without a finding of guilt. Abney v. United States, 431 U.S. 651, 660, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). a plea in bar pursuant to § 29-1817 may be filed to assert any nonfrivolous double jeopardy claim arising from a prior prosecution, including a claim that jeopardy was terminated by entry of a mistrial without manifest necessity. To the extent that language in State v. Rubio, 261 Neb. 475, 623 N.W.2d 659 (2001). is inconsistent with this holding, it is disapproved. We conclude that although the judge erred in not having the parties and counsel present during his colloquy with the jury regarding its inability to reach a verdict, the court did not abuse its discretion in ordering the mistrial. Accordingly, jeopardy did not terminate and retrial is not barred by principles of double jeopardy.
Used car dealers now must inspect even "as-is" cars for sale for "patent" safety defects. Wilke v. Woodhouse Ford, S-08-807, 278 Neb. 800 The Nebraska Supreme Court holds "patent" defects the responsibility of the dealer, such as steering and brakes, but in this case the defect was the loose play in the gearshift that allowed a child to take the parked car out of park. "Applying our risk-utility test for the existence of a legal duty to use reasonable care, we conclude that there is a relatively great magnitude of risk of injury in the circumstance where an unknowing buyer drives off the dealer’s lot in a used vehicle which has a patent safety defect, such as defective brakes or steering. " "a commercial dealer of used vehicles intended for use on public streets and highways has a duty to conduct a reasonable inspection of the vehicle prior to sale in order to determine whether there are any patent defects existing at the time of sale which would make the vehicle unsafe for ordinary operation and, upon discovery of such a defect, to either repair it or warn a prospective purchaser of its existence. The dealer has no duty to disassemble the vehicle to discover latent defects or to anticipate the future development of safety defects which do not exist at the time of sale. The tort duty we recognize today is not affected by a valid disclaimer or exclusion of U.C.C. warranties, because such contractual provisions do not absolve a seller from exercising reasonable care to prevent foreseeable harm."

Sunday, November 01, 2009

Laid off Pamida worker drops her WARN act suit. A woman who sued an Omaha-based regional retailer arguing she and others weren't properly notified before being laid off has dropped her legal fight. Cynthia Zych sued Pamida Stores Operating Co. in April. Her lawsuit alleged the company violated a federal law aimed at protecting workers during certain mass layoffs and plant closings. She said she was one of 54 people laid off in January. The law can be triggered in several ways, including when more than 50 employees are cut and they make up at least 33 percent of the employer's active workforce. Zych's attorney, Bob O'Connor Jr., said Friday he asked the court to dismiss the suit earlier this month because Pamida's layoffs didn't meet that requirement and therefore didn't violate the law.
Bankruptcy sale of former Husker lineman's trophies nets $28,500. Journal "A court-ordered auction of former Nebraska football player Aaron Taylor's championship hardware has brought in $28,500. It took about 30 minutes to sell Taylor's seven championship rings and his Outland Trophy on Saturday morning in Scottsbluff. Bids were taken in person and online. The trophy netted the highest bids, selling for $6,800. The rings sold for $2,000 to $5,900. The auction was forced by the failure of the Husker-themed Scarlet and Cream Letter Club restaurant Taylor started in Omaha with other former NU players and his resulting bankruptcy."
Nebraska Supreme Court allows award for loss of earning power to injured truck driver who had previously received Social Security Disability Income benefits but returned to work under the Social Security Administration "Ticket to Work" program. Manchester v. Drivers Mgmt., S-09-062, 278 Neb. 776 Because Plaintiff had an earning power to lose, her receipt of Social Security benefits based on an earlier determination of total disability did not prevent her from recovering workers’ compensation benefits. ..the existence of the Social Security rehabilitative programs indicates that an individual once assessed by the Social Security Administration to be totally disabled is not expected to be forever unable to work. See 42 U.S.C. § 422 (2006).. Plaintiff participated in the "Ticket to Work" program and was working her way off Social Security disability. Because Plaintiff was able to resume gainful employment and had worked for Drivers Management for 13 months before the accident, the Social Security Administration’s determination that at one point in time she was totally disabled does not logically prevent her from later recovering workers’ compensation benefits for her loss of earning capacity due to a disability incurred in the course of her employment

Tuesday, October 27, 2009

Nebraska Court of Appeals finding plain error, revises QDRO to require wife to receive half of husband's state patrol retirement plan based either upon his choice of a refund or annuity, the marital share of the patrol retirement fund is that share of the fund that the time of the marriage divided by total service represents. Klimek v. Klimek, A-09-023, 18 Neb. App. 82. The Appeals Court further awards half of the wife's defined contribution 401k to the husband.
Nebraska Court of Appeals admonishes trial judges to better supervise QDRO preparation after they rule in divorce cases. Court of Appeals adds judgment interest of over $27000 to wife's judgment for almost $183000 from husband's 401k plan that was worth over $600000 when the husband took almost two years to file an acceptable QDRO. Fry v. Fry, A-09-011, 18 Neb. App. 75 "Ultimate responsibility for assuring that a proper decree is entered, and for entry of a QDRO if the court determines that the situation so requires, rests upon the trial judge. While the judge may call upon the assistance of counsel, the decree and the QDRO are orders of a court and not mere agreements of the parties. we encourage trial courts to implement procedures to ensure that their responsibility to enter QDRO’s is fulfilled at the same time as the decree is entered, bearing in mind that in practice, the drafting of a QDRO may require approval by the retirement plan administrator, which counsel can secure prior to submitting the QDRO to the court. Even though more than 2 years passed following entry of an unappealed decree, we conclude that the district court had jurisdiction to enter the QDRO in accordance with the terms of the decree, because a QDRO is merely an enforcement device. Based upon Kullbom v. Kullbom, 215 Neb. 148, 337 N.W.2d 731 (1983), we conclude that the court did not err in awarding judgment interest on Janet’s share of the profit-sharing plan accruing from the date of the divorce decree."

Saturday, October 24, 2009

Order of the Kneepads Update: Nebraska Supreme Court reinstates attorney who was addicted to crack and crack hoes. No. S-07-718: State ex rel. Counsel for Dis. v. Hubbard. Respondent reinstated to the practice of law, subject to the conditions of reinstatement set forth in the court’s judgment entered November 21, 2008.
Nebraska Supreme Court reverses Cass County Court probate order to sell estate property at a public sale; Supreme Court, J Wright, allows private listing with commercial real estate broker first before heirs can ask county court judge to order public auction. In re Estate of Failla, S-09-170, 278 Neb. 770 "The evidence supports the conclusion that Diana should first attempt to sell the property by listing it at its appraised value. The county court is given discretion to determine how long the listing should continue. If this method of sale does not prove satisfactory, the court should direct that the property be sold at a public sale.?
Nebraska Supreme Court finds that meatpackers' payments to cleaning companies were subject to sales taxes, reverses Lancaster County District Court that hand found Department of Revenue regulations that required packers to pay the sales taxes went beyond revenue statute § 77-2701.16(4)(a). Swift & Co. v. Nebraska Dept. of Rev., S-08-1095 through S-08-1099, 278 Neb. 763 Specialized cleaning services for meatpackers cleaned all the equipment fixtures, areas of the plants and the packers paid sale taxes on the services. Packers sought refunds and sued in Lancaster County District Court when the Department of Revenue denied their refund claims. The District Court Judge found Reg. 1-098.03A unlawfully expands the definition of services covered by § 77-2701.16(4)(a). Supreme Court, CJ Heavican reverses: "the Department did not exceed the scope of its rule making authority. Although other sections of the statute specifically mention personal property, those situations are distinguishable... also Reg. 1-098.03A contemplates that the cleaning of tangible personal property must be incidental to cleaning the building. As pointed out by the Department, most cleaning contracts contemplate at least some cleaning of personal property located within the building...Therefore..Reg. 1-098.03A did not exceed the Department’s rule making authority and that the taxpayers are not entitled to a refund ."
Nebraska Supreme Court scolds attorney who handled a deceased's revised estate plans on eve of her death for not acting independently from the deceased's son whom the Supreme Court found to have exercised undue influence over her. In re Estate of Hedke, S-08-980, 278 Neb. 727. Supreme Court Justice William Connolly reverses finding from the District Court of no undue influence when he found likely collusion between deceased's son and his personal attorney who took over deceased mother's estate planning and drafted a will and trust that benefited the son over the mother's daughter who lived in Arizona. Glad to see the Supreme Court ruling against children who decide to stay on the farm so that the child who moved out to a warm weather state could get a fair break. Also even though the mother and son lived in a sparsely populated area of the state, the Court suggests that they should go to greater lengths to find the lawyer who did the mother's first will instead of using the lawyer the son used for other legal work. Charles and Rogers also failed to provide Leona with information that would have permitted her to compare her new estate plan with her previous intentions in her earlier will. Rogers’ billing statements and Charles’ testimony showed that Charles was involved in the planning of Leona’s new estate plan. Yet, he admitted that he did not explain to Leona that her new estate plan would effectively disinherit Dolores. Rogers told Leona that her medical expenses could deplete her cash assets if she lived a long time. But he did not discuss the money in her accounts at that time. Most important, neither Charles nor Rogers informed Leona that Charles had found her old will and that there were substantial differences. Nor did Leona have independent legal advice from an attorney solely dedicated to her interests. Despite her age, her infirmity, and allegations of Charles’ theft, Rogers did not attempt to determine whether a conservatorship might be in Leona’s best interests. He admitted that he did not explain to Leona that Dolores believed Charles was misappropriating her assets. And, at trial, Charles admitted that that he had used trust funds for his benefit without authorization. We note that Rogers now represents Charles in this appeal. He argued Charles’ case before this court. Rogers also failed to independently verify Leona’s competency by asking her questions about her assets or speaking to her physician to determine if a guardianship or conservatorship was necessary. To the contrary, he successfully continued the competency hearing scheduled for December 15, 2004, until January 12, 2005, after Leona had executed new estate plan documents. Although Leona had told Rogers that she wanted to divide her property as her father had and that she did not know where her earlier will was, he did not verify that the differences in the new will represented her wishes. On this record, Rogers’ testimony that Leona was not mentally impaired rings hollow. The evidence was sufficient to support a judgment for Dolores if unrebutted. The evidence clearly showed that Leona was subject to Charles’ undue influence and that he had the opportunity to exercise such influence. The court’s finding that Charles had engaged in self-dealing while he was Leona’s attorney in fact and trustee established his disposition to exercise such influence. Finally, even if Leona could have understood that she was disinheriting Dolores, the evidence showed that she would not have done so but for Charles’ ability to turn Leona against Dolores.

Sunday, October 18, 2009

Three Hispanic former employees sue Willsie Cap and Gown Company for discriminatory treatment and retaliation. Willsie Cap & Gown routinely offered better hours, more desirable work, more breaks and even better lighting to non-Hispanic employees.

The lawsuits also say Hispanic employees were prohibited from speaking Spanish in the plant, but non-Hispanic employees were allowed to speak their native languages.

Excavating company's efforts to remove beaver dams from path of pipeline caused fuel leaks in 2007 and a lawsuit.

Mid-America Pipeline LLC filed a federal lawsuit against Wilson Excavating this week.

The lawsuit says Wilson Excavating caused the pipeline leak while trying to remove beaver dams in eastern Nebraska.

Increased bankruptcy filings for 2008 and so far this year.
Filings are up all over
Bankruptcy statistics for Nebraska, Iowa and nationwide for the first eight months of this year and for all of 2008: January-August 2009 Nebraska bankruptcy filings up 13 percent from the same period last year, to 5,051 Iowa up 30 percent, to 6,702 Nationally, up 34 percent to 921,659 For 2008 Nebraska bankrutpcy filings up 25 percent from 2007, to 6,715 Iowa up 15 percent to 7,853 Nationally, up 33 percent to 1.064 million. Sources: U.S. Bankruptcy Court District of Nebraska; National Bankruptcy Research Center
Nebraska bankruptcies
Statistics on Nebraska bankruptcies for all of 2008 and the first eight months of 2009: Filing type: 2008 Through Aug. Omaha office Chapter 7: 2,126 1,560 Chapter 9: 0 2 Chapter 11: 18 9 Chapter 12: 1 1 Chapter 13: 1,287 834 Total: 3,432 2,406 Lincoln office Chapter 7: 2,592 2,138 Chapter 9: 0 0 Chapter 11: 9 18 Chapter 12: 16 14 Chapter 13: 666 475 Total: 3,283 2,645 Nebraska totals Chapter 7: 4,718 3,698 Chapter 9: 0 2 Chapter 11: 27 27 Chapter 12: 17 15 Chapter 13: 1,953 1,309 Total: 6,715 5,051 Source: U.S. Bankruptcy Court District of Nebraska
Nebraska Court of Appeals in an opinion not designated for permanent publication reverses Washington County District Court ruling that gave divorced husband credit for income tax he paid on retirement plan benefits he kept because the parties failed to file a qualified domestic relations order, QDRO, for nearly three years after the court's divorce decree. Sears v. Sears, A-09-378Parties divorced in 2005 and the court ordered a QDRO to deal with the husband's retirement plan. The parties appealed the divorce but did not deal with the retirement assets, so the court's award to the wife of the retirement funds became the law of the case. For nearly three years however without a QDRO the husband continued to receive the full retirement check. Wife sought an accounting for those amounts. Nebraska Court of Appeals rules in her favor and reverses the husband's credit for taxes he paid on the full amount. Blaine v. Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008), holds that an accounting is appropriate to address the monetary balancing required by the delayed entry of a QDRO required by a divorce decree. If and when the judgment is paid, the tax consequences are between the parties and the IRS. To the extent that the record supports a conclusion about taxability, Sonderup‟s testimony was clear that the judgment would not be income to Donna. Accordingly, the award of a credit of $7,458 for husbands income taxes is reversed.

Saturday, October 17, 2009

Order of the Kneepads Update: Nebraska Supreme Court disbars attorney who practiced law while she was suspended for not paying bar dues, for multiple dui and driving while suspended convictions, and for not responding to complaints. Attorney had a prior private reprimand for practicing law while suspended for non-payment of dues. State ex rel. Counsel for Dis. v. Carbullido, S-08-1203, 278 Neb. 721. The evidence establishes that Carbullido has repeatedly violated the law, court orders, and the Nebraska Rules of Professional Conduct. Cumulative acts of attorney misconduct are distinguishable from isolated incidents, and they justify more serious sanctions. Indeed, we have said that ordinarily, cumulative acts of misconduct can, and often do, lead to disbarment. In this case, Carbullido demonstrates a continued pattern of disregard for the rules she must abide by as a lawyer and as a law-abiding citizen. She has continued to flaunt these rules after being given multiple warnings and less severe punishments. We order that Carbullido be disbarred from the practice of law in the State of Nebraska, effective immediately. Carbullido is directed to comply with Neb. Ct. R. § 3-316, and upon failure to do so, she shall be subject to punishment for contempt of this court. Carbullido is further directed to pay costs and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2007) and § 3-310(P) and Neb. Ct. R. § 3-323 within 60 days after an order imposing costs and expenses, if any, is entered by the court.
Nebraska Supreme Court reverses summary judgment in nursing home negligence case holding that son did not have apparent authority to agree to binding arbitration for his mother's treatment. Koricic v. Beverly Enters. - Neb., S-08-1167, 278 Neb. 713 "The appellant, Frank Koricic (Frank), lived with his elderly mother, Manda Baker (Manda), and assisted her in her daily affairs. When her health declined, she was admitted to Beverly Hallmark, a nursing home in Omaha, Nebraska. At Manda’s admission, Frank signed several documents for her. One of the documents was an optional arbitration agreement. This appeal presents the issue whether Frank had authority to act as Manda’s agent and to enter into the arbitration agreement for her. The district court determined that because Frank had actual authority to enter into the arbitration agreement, the agreement bound her estate. Although we agree that Frank had authority to sign the mandatory paperwork for admission, we conclude that Frank did not have authority to sign the arbitration agreement because it was not a condition of admission. We reverse the district court’s order dismissing Frank’s complaint."
Nebraska Supreme Court affirms robbery conviction from Gage County; denies defendant's appeal to allow testimony of other inmates that another suspect committed the robberies; denies appeal on prosecutors closing arguments; denies appeal on other crimes evidence; denies appeal on evidence of prior convictions.State v. Epp, S-08-331, 278 Neb. 683Miller-Lerman-J."William A. Epp appeals his convictions and sentences for robbery and possession of a deadly weapon by a felon. Epp was found to be a habitual criminal and was sentenced to imprisonment for 60 to 60 years on each of the two convictions, with the sentences ordered to be served consecutively. We affirm Epp’s convictions and sentences."Whether or not the district court erred in refusing to admit the portions of Mick’s testimony at issue, the guilty verdict rendered against Epp was surely unattributable to such error. The court refused portions of Mick’s testimony in which he denied that he committed the Wymore Casey’s robbery and denied that he told Blessing and Forney that he committed a robbery. Such testimony did not support, and instead refuted, Epp’s defense that it was Mick and not Epp who committed the robbery. Epp presented other evidence raising the possibility that Mick rather than Epp robbed the Wymore Casey’s. The jury apparently rejected such evidence.
Nebraska Supreme Court dismisses appeal from plaintiff's motion seeking an independent medical examiner to determine whether she required further medical treatment for work injury award from 1995. Judge's denying independent medical examiner was not a final order.Miller v. Regional West Med. Ctr., S-09-100, 278 Neb. 676 "The order of the single judge denying her request for an independent medical examination does not foreclose Miller’s ability to file a petition pursuant to § 48-173 seeking workers’ compensation benefits for her shoulder surgery...Because the requested independent medical examination is not a prerequisite to the filing of a petition under § 48-173 seeking benefits for the proposed shoulder surgery on this record, the denial of the request did not affect a substantial right and is therefore not a final, appealable order."

Saturday, October 03, 2009

Late history professor from UNL, JM Sosin, exposed the false history activist judges have used to justify their existence in his book "The Aristocracy of the Long Robe." From the Choice review: “Sosin has written a perplexing book. ..On the basis of a survey of English practice and American Colonial case law and legal controversies, the author engages in a sometimes heated complaint against the emergence of a `Transcendently(sic) Omnipotent' Court' in opposition to the historical evidence that no precedent for such a Court can be found in English or Colonial American practice.
Nebraska Court of Appeals denies Cass County District Court defendant's plea in bar (§ 29-1817 (Reissue 2008) ) to continued prosecution for Driving Under the Influence, enhanced for refusing to take a chemical test, when the defendant plead guilty to refusing to take a chemical test. State v. Grizzle, A-09-327, 18 Neb. App. 48 "DUI (60-6196) and refusal to submit (60-6197) are not the same offense for double jeopardy purposes and that the State is not barred from prosecuting multiple offenses in a single prosecution. Grizzle’s claim that the penalty provision for third-offense DUI subjected him to multiple punishments is not ripe for appellate review. Accordingly, we affirm the denial of Grizzle’s plea in bar."
Nebraska Supreme Court denies relief to defendant serving prison term for attempted second degree murder who requested that his guilty plea be set aside because he alleged the sentencing court's warning to him of the possible immigration consequences of his plea was insufficient. State v. Yos-Chiguil, S-08-1329, 278 Neb. 591 . "The (court's) failure to give the required advisement and the occurrence of an immigration consequence of which the defendant was not advised which triggers the statutory remedy in § 29-1819.02(2). The district court had jurisdiction to consider Yos-Chiguil’s motion to vacate his conviction, and this court has appellate jurisdiction to determine whether the district court erred in overruling the motion. § 29-1819.02(2) requires that in addition to showing that the advisement required by § 29-1819.02(1) was not given or was incomplete, a defendant seeking to vacate a plea-based conviction must also show that such conviction "may have the consequences for the defendant of removal from the United States, or denial of naturalization pursuant to the laws of the United States." Failure to give all or part of the advisement required by § 29-1819.02(1) regarding the immigration consequences of a guilty or nolo contendere plea is not alone sufficient to entitle a convicted defendant to have the conviction vacated and the plea withdrawn pursuant to § 29-1819.02(2). The defendant must also allege and show that he or she actually faces an immigration consequence which was not included in the advisement givenYos-Chiguil did not allege an essential fact necessary to trigger the remedy provided by § 29-1819.02(2), the district court did not err in denying the relief sought without an evidentiary hearing ."
Nebraska Supreme Court allows Lancaster County District Court judge to order a two year license revocation to commence as soon as the state released defendant from prison or put him on parole. State v. Fuller, S-08-1253, 278 Neb. 585 "§ 60-4,108, states a license revocation is to begin on the date that is ordered by the court. Obviously, some drivers may not be in a position to drive until they have served their sentence of incarceration. Therefore, the court is given the discretion to determine when the license revocation pursuant to § 60-4,108 is to begin, including after the completion of a period of confinement. ..Section 60-4,108 is not ambiguous. The language "from the date ordered by the court," see id., clearly means "from the date selected by the court," giving the district court the discretion to determine the beginning date of the operator’s license revocation. "
E-mail "harassment" case earns further review to the Nebraska Supreme Court: No. S-08-628: State v. Drahota, 17 Neb. App. 678 (2009). Petition of appellant for further review sustained on September 30, 2009.

Monday, September 28, 2009

Nebraska Supreme Court affirms Court of Industrial Relations decision to award back pay to former Dakota County School District speech teacher whom the District had improperly classified as a long term substitute teacher. South Sioux City Ed. Assn. v. Dakota Cty. Sch. Dist., S-08-1307, 278 Neb. 572. The District unilaterally decided to end (speech teacher’s) employment in December after she taught nearly every day of the first semester. authority of the Association and its rights would be undermined if the District were allowed to unilaterally designate probationary teachers as long-term substitutes. The District’s designation of speech teacher as a long-term substitute had the effect of unilaterally removing her from the bargaining unit. he CIR correctly concluded that speech teacher was not a long-term substitute, but performed as a probationary certificated employee and was therefore a member of the bargaining unit. The act of unilaterally paying speech teacher on a basis other than as provided in the Agreement and without bargaining with the Association about such a change was a violation of § 48-824.

Saturday, September 19, 2009

Ex-trooper with KKK ties may lose Nebraska law enforcement certificate. The Nebraska Police Standards Advisory Council is recommending that law enforcement certification be revoked for Robert Henderson, who was fired by the state patrol for his ties to the Ku Klux Klan. Henderson asked the council on Wednesday to let him keep his certification so he can work as a law officer elsewhere in Nebraska. But the council voted to revoke his certification, citing his neglect of duty and his emotional incapacity. The decision goes to the Nebraska Crime Commission for approval. Henderson was dismissed in 2006 after it was discovered he had joined a racist group. He told an investigator he joined the Knights Party in June 2004. Henderson appealed his dismissal to the Nebraska Supreme Court, State v. Henderson, 277 Neb. 240 (2009) which upheld the firing. I didn't know that practicing your first amendment rights off duty adversely affected your attention to duties and emotional capacity.
Petition for further review to the Nebraska Supreme Court sustained in No. S-08-959: State v. Simnick, 17 Neb. App. 766 (2009). Petition of appellant for further review sustained on September 16, 2009 {the finding that Defendant committed an aggravated offense for the purpose of lifetime community supervision should have been submitted to a jury, but the error was harmless }.
Nebraska Supreme Court affirms Seward County District Court's dismissal of landowner's suit for lacking standing against the Nebraska Game and Parks Commission in which plaintiff tried to force the Game and Parks Commission to halt power line construction over the Twin Lakes Recreation Area. State ex rel. Reed v. State, S-08-1261, 278 Neb. 564. A proposed power line project over the Twin Lakes area would allegedly disturb the livelihood of the the Western Prairie Fringed Orchid, which has been identified as a "threatened and/or endangered species" by the U.S. Department of the Interior and the State of Nebraska. Plaintiff sought to impose upon NGPC his opinions regarding the administration of the state’s wildlife management areas. By law, NGPC is charged with this responsibility. See § 37-336. Plaintiff's claim that NGPC has breached its duties does not give Plaintiff the right to seek relief in the courts. Such concerns are better left to the policy decisions of the legislative and executive branches. Certainly, the public has a right to influence NGPC’s policies regarding the administration of the state’s wildlife management areas. However, the mechanism for doing so is through our representative form of government, and not through the courts. See Ritchhart v. Daub, 256 Neb. 801, 594 N.W.2d 288 (1999). Plaintiff has not shown that he has standing to bring the action."
Nebraska Supreme Court allows sentencing court to correct mistaken calculation of time served after sentencing. State v. Clark, S-08-735, 278 Neb. 557 The Lancaster County District Court judge gave an defendant more credit for time served than he actually served and the court attempted to correct the sentence for Class I misdemeanor sexual assault by noting the appropriate amount of credit. On May 19, 2008, the district court attempted to sentence defendant to 360 days in jail but incorrectly credited Defendant with 361 days’ time served. On June 12, the court entered a written sentencing order granting Defendant credit for 61 days’ time served, the amount of time actually served and reflected by the record. Defendant appealed, and the Nebraska Court of Appeals affirmed. We granted Defendant’s petition for further review. For different reasons, we affirm. A sentencing court must under Neb. Rev. Stat. § 47-503 (Reissue 2004), separately determine, state, and grant credit for time served, and must the court must set form those times as a part of the sentence, State v. Torres, 256 Neb. 380, 590 N.W.2d 184 (1999). The judge was without discretion to award Defendant more credit for time served than he actually served. Accordingly the district court had authority to correct the erroneous portion of its sentencing pronouncement by giving Defendant the accurate amount of credit for time served as reflected by the record.
Nebraska Supreme Court affirms summary judgment in favor of heating repair business's liability and umbrella insurer against personal representative of decedents who died of carbon monoxide poisoning from allegedly faulty heating repairs. Harleysville Ins. Group v. Omaha Gas Appliance Co., S-07-1235, 278 Neb. 547 . The Douglas County District Court ruled in favor of insurer Harleysville did not owe liability and umbrella coverage for carbon monoxide poisoning that resulted from faulty heating repairs. The estate appealed. While the Supreme Court agrees that the estate could intervene in the action and did not expand the issues therein, it agrees that the policy "pollution" exception covered injuries from carbon monoxide poisoning. "(Personal Representative had) standing to bring this appeal and to present the arguments that she makes. PR was a proper party defendant to Harleysville’s declaratory judgment action alleging that it had no duty in relation to the alleged incident that killed the decedents. While PR presented somewhat different assertions as to why the policy should cover the incident, those did not interject any factual or legal questions extraneous to the action. As to whether the CO2 poisoning would be covered, the Court states "we need not engage in PR’s extensive semantic discussion of whether the isolated phrase referring to "liability caused by pollutants" refers solely to legal obligations stemming from the pollutants themselves without any human causal element The umbrella policy, like the general liability policy, excluded coverage for liability occasioned by the release of pollutants—regardless of what level of human culpability was involved"(emphasis supplied).

Friday, September 11, 2009

Nebraska Supreme Court declines to allow pain and suffering damages for intentional or negligent misrepresentation. Estate had sued nurses for misrepresenting decedent's suffering while under its hospice care. While the trial court erred when it excluded the plaintiff's expert witness who would testify that improper medications led to the decedent's increased pain, the error was harmless. Tolliver v. Visiting Nurse Assn., S-08-357, 278 Neb. 532 The estate asks this court to adopt the Restatement (Second) of Torts § 557A. It contends that adopting § 557A would allow a party who is physically harmed by a defendant’s misrepresentation to recover non-economic damages. In addition, the estate claims that the trial court erred in excluding the testimony of one of its medical experts. We decline to adopt § 557A because the damages the estate seeks were available under its negligence theory. We further conclude that the excluded expert testimony was cumulative to other experts’ testimony. We affirm.
Senator Nelson must have been thinking about his buddies at the trap shooting range when he voted against scholarly totalitarian Cass Sunstein for his regulatory sinecure at the Office of Management and Budget. Good job Benator.
Why are the members of the Nebraska Pardons Board having to take countless pardon applications for minor crimes? Simple, the Nebraska Supreme Court said so. See also State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154 (1996). Board of parole; members; powers; reprieves; proceedings; power to pardon; limitations "The Governor, Attorney General and Secretary of State, sitting as a board, shall have power to remit fines and forfeitures and to grant respites, reprieves, pardons, or commutations in all cases of conviction for offenses against the laws of the state, except treason and cases of impeachment. The Board of Parole may advise the Governor, Attorney General and Secretary of State on the merits of any application for remission, respite, reprieve, pardon or commutation but such advice shall not be binding on them."

Sunday, September 06, 2009

Follow up: the Eighth Circuit Court of Appeals amended its decision on October 21, 2009 but did not change its ruling, its amended holding states: "substantial evidence supports the district court’s conclusion that Graske breached a duty of reasonable care if Doyle was seated on the bow cushion when the boat came on plane." Nebraskan vacationers went fishing in the Grand Cayman Islands. The defendant's boat had an air cushion hull and when defendant accelerated the steering failed, causing the boat to turn sharply left. Plaintiff flew off the boat and suffered severe head trauma when the boat struck him. Defendant removed case to federal district court under admiralty jurisdiction and after taking consideration of plaintiff's 10% contributory negligence awarded plaintiff over $3 million plus $750, 000 loss of consortium damages. Eighth Circuit Court of Appeals affirms damage verdict but noting ambiguous law and precendents from other circuits reverses loss of consortium award.Daniel Doyle v. Leland Graske U.S. Court of Appeals Case No: 08-3144 District of Nebraska - Omaha 083144P.pdf 09/02/2009 . "Substantial evidence supported the district court's determination that defendant breached a duty of reasonable care to plaintiff by bringing his boat to planing speed when plaintiff was in a position of danger; neither did the court err in finding that defendant's negligence in operating the boat was a proximate and substantial cause of plaintiff's injuries; there is no well-settled admiralty rule authorizing loss-of-consortium damages for spouses of non-seafarers negligently injured beyond the territorial waters of the U.S., and the district court erred in awarding plaintiff's spouse damages for loss of consortium"

Saturday, September 05, 2009

Order of the Kneepads Update: Nebraska Supreme Court suspends Iowa attorney for filing pleadings while her Nebraska license was inactive, for failing to respond to the disciplinary counsel's grievances, and on reciprocal discipline for 90 days with one year probation. State ex rel. Counsel for Dis. v. Frye, S-09-139, 278 Neb. 527 "respondent should be and hereby is suspended from the practice of law for a period of 90 days, effective 30 days after the filing of this opinion, after which time respondent may apply for reinstatement. Should respondent apply for reinstatement, her reinstatement shall be conditioned on respondent’s being on probation for a period of 1 year following reinstatement, subject to the terms agreed to by respondent and outlined above. "
Neighboring property owners in rural Douglas County win reversal of their injunction action against dog groomers who wanted to open a dog kennel. Conley v. Brazer, S-08-974, 278 Neb. 508 Supreme Court reverses the District Court's summary judgment in favor of the dog kennel owners. "Section 23-168.02(1) states that "[a]n appeal to the board of adjustment may be taken by any person or persons aggrieved . . . by any decision of an administrative officer or planning commission ..§ 23-114.05 establishes that an appeal to a board of adjustment is not the exclusive remedy for challenging a land use alleged to be in violation of zoning regulations. an aggrieved party may use § 23-114.05 to seek injunction of land use in violation of regulations. The kennel's neighbors were authorized to sue by § 23-114.05 independent of the remedies offered by §§ 23-168.01 to 23-168.04 . We conclude that the Conleys were entitled to seek injunctive relief without first resorting to the appeal procedure set forth in §§ 23-168.01 to 23-168.04. We further conclude that the district court erred in granting summary judgment to the Brazers, Paradise Pet Suites, Douglas County, the City of Omaha, and the other named defendants because there are genuine issues of material fact pertaining to the Conleys’ requests for injunctive and declaratory relief
Deceased's nephew loses appeal in Nebraska Supreme Court of will contract complaint in Madison County District Court. Uncle had turned over his estate to female friend who was a very good financial advisor about two years before his death. Nephew could not prove any will or writing existed in which the uncle would have promised not to disinherit him. Johnson v. Anderson, S-08-811, 278 Neb. 500 Section 30-2351 specifically states that the only way to prove the existence of a contract to make a will or not to revoke a will or devise is by satisfying one of the three subsections. Considering the evidence in the light most favorable to Roger, there is no will or signed writing that satisfies § 30-2351. Conclusions based on guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for purposes of summary judgment. Recio v. Evers, ante p. 405, ___ N.W.2d ___ (2009); Marksmeier v. McGregor Corp., 272 Neb. 401, 722 N.W.2d 65 (2006). Therefore, the evidence did not warrant the imposition of a constructive trust on Aner’s estate
Nebraska Supreme Court rules against sign company that challenged city ordinances that prohibited displaying company's signs once its leases terminated with land owners. Larmar Co. v. City of Fremont, S-08-590, 278 Neb. 485. But the sign company beat a claim for frivolous case penalties because its attorneys were well prepared. "The district court properly concluded that when Lamar’s leases were terminated by their terms, Lamar’s rights with respect to the nonconforming use of the signs were extinguished and remained with the current landowner. Furthermore, Lamar lacked standing to raise its "as applied" and facial challenges to ordinance No. 4032 and the district court was not in error in granting summary judgment in favor of appellees on Lamar’s remaining claims. Further, the district court did not err in denying the cross-appellants’ request for attorney fees."
Defendant convicted of murder in "Boys Don't Cry" case loses appeal from post-conviction proceedings in which he requested new trial based on co-defendant's perjury at trial. State v. Lotter, S-08-449 through S-08-451, 278 Neb. 466. Defendant was too late in brining to motion for new trial based on Nissen's perjury; fear of the death sentence is not enough to show prosecutorial coercion. Unlike postconviction relief, relief under Neb. Rev. Stat. § 29-2103 (Reissue 2008) {motion for new trial based on newly discovered evidence} is not strictly limited to constitutional claims. A motion for postconviction relief cannot be used to obtain, outside of the 3-year time limitation under Neb. Rev. Stat. § 29-2103 (Reissue 2008), what is essentially a new trial based on newly discovered evidence. Once a defendant has been afforded a fair trial and convicted of the offense for which the defendant was charged, the presumption of innocence disappears. Even if a defendant has not actually killed a victim, substantial participation in the felony Constitutional Law: Criminal Law: Witnesses: Death Penalty. A witness’ testimony is not the result of unconstitutional coercion simply because it is motivated by a legitimate fear of a death sentence

Tuesday, September 01, 2009

What do the students who do best on the LSAT major in during college? The Volokh Conspiracy cites research that shows Economics and Philosophy do best: "Economics majors still perform at or near the top of all majors taking the test. Economics majors (LSAT score of 157.4) are tied for first (with Philosophy) of the 12 largest disciplines (those with more than 1,900 students entering law school). Economics is tied for second (with Philosophy/Religion (157.4)) behind Physics/Math (160.0) in a set of 29 discipline groupings that are created to yield at least 450 students with similar majors. " Pre-law students fare less well on the test, but I'm sure they can make up for it with greater opportunities for "community organizing" projects that can make up a lot of ground on their intellectual betters.
Follow up: Former aide to Senator Exon files qui tam lawsuit in Virginia federal court against Nelnet. "Jon Oberg, a University of Nebraska-Lincoln graduate and former aide to former U.S. Sen. Jim Exon, filed the suit in U.S. District Court for the Eastern District of Virginia. Nelnet is the lead defendant, but since the Lincoln student loan company settled its differences with the federal government more than two years ago, its spokesman said Nelnet considers the matter closed. "Without having seen the litigation there's nothing to comment upon," said Nelnet spokesman Ben Kiser. The suit seeks the return of about $1 billion in "special allowance" payments wrongfully obtained under a federal subsidy program. The subsidy guaranteed a 9.5 percent return on a limited class of student loans. It was created in the 1980s to ensure low-cost student loans at a time when the economy was souring and interest rates were high. It was largely phased out in 1993, but companies found a loophole that allowed them to actually expand the amount of loans receiving the subsidy by recycling older loans and packaging them with newer ones."

Friday, August 28, 2009

Eighth Circuit Court of Appeals affirms conviction for child pornography; defendant's claim that governments search of his computer that was hooked up peer to peer with other computers through Lime Wire program was not an illegal warrantless search. 083183P.pdf 08/14/2009 United States v. Harold Stults U.S. Court of Appeals Case No: 08-3183 District of Nebraska - Omaha [PUBLISHED] [Smith, Author, with Riley and Colloton, Circuit Judges] Criminal case - criminal law and sentencing. Users of peer-to-peer file sharing software like LimeWire do not have a reasonable expectation of privacy in files they make available to others using the software, and the warrantless search of defendant's computer through LimeWire did not violate his Fourth Amendment rights; affidavit the police used to obtain a warrant to search defendant's home and seize his computer established probable cause to believe child pornography would be found; defendant's prior conviction for attempted sexual assault on a child was sufficient to invoke the ten-year mandatory minimum sentence under 18 U.S.C. Sec. 2252(b)(2); under this court's precedents, the district court did not err in applying the five-level enhancement under Guidelines Sec. 2G2.2(b)(3)(B) as the government produced sufficient circumstantial evidence to meet its burden of proving defendant expected to receive child pornography when he used LimeWire; sentence was not unreasonable; special conditions of supervised release which controlled defendant's contact with children, access to pornography and use of the Internet and cameras were related to his offense and were reasonable measures to protect the public.
Eighth Circuit Court of Appeals affirms without comment Nebraska convict's civil rights complaint against requiring him to register as a sex offender for pandering a minor. 081629U.pdf 08/21/2009 Richard Hansen v. John Doe U.S. Court of Appeals Case No: 08-1629 District of Nebraska - Lincoln [UNPUBLISHED] [Per Curiam - Before Loken, Chief Judge, and Hansen and Colloton, Circuit Judges] Civil case - civil rights. Order dismissing suit claiming issuance of a citation for violation of SORNA's (Neb. Rev. Stat. §§ 29-4001-14.) reporting requirements violated plaintiff's civil rights affirmed without comment.
Nebraska Supreme Court affirms summary judgment against Mortgage lender in its declaratory complaint and insurers' cross-complaint denying the mortgage lender a defense in borrower's fraud and slander of title lawsuit against it in Kentucky state court. Mortgage Express v. Tudor Ins. Co., S-08-728, 278 Neb. 449 Mortgage Express, Inc., and Jeff Rothlisberger, its sole shareholder (collectively Mortgage Express), seek a declaration that Mortgage Express liability insurers, Tudor Insurance Company (Tudor) and Cincinnati Insurance Company (Cincinnati) are obligated to defend Mortgage Express in a suit brought against it by a third party, Village Campground (Village). In December 2006, the court entered summary judgment in favor of Tudor and Cincinnati, thereby dismissing Mortgage Express’ action, and Mortgage Express appealed The court filed another order dismissing Peterson ( the defendant insurance broker), properly certifying the case as a final, appealable order, and Mortgage Express filed this appeal. We affirm. There is no genuine issue as to the fact Mortgage Express was unaware, prior to the effective date of the Tudor policy, of the circumstances leading up to the claims asserted in Village’s amended complaint. Therefore, the Tudor policy does not provide coverage for the defense sought by Mortgage Express. As to defending the Village's slander of title suit, "title to real estate is not a person, organization good, product, or service as those terms are commonly understood," thus, slander of title did not fall within the policy coverage of a good, product, or service as those terms are commonly understood," thus, slander of title did not fall within the policy coverage defendant provided to plaintiff. Mortgage Express’ remaining argument is that Cincinnati must defend it in the underlying action because its lien is an invasion of the right to private occupancy of the premises Mortgage Express merely asserted that it held a valid, unsatisfied security interest against the property. A security interest is an interest in personal property or fixtures which secures payment or performance of an obligation. As such, Cincinnati has no duty to defend Mortgage Express and was properly granted judgment as a matter of law.
Nebraska Supreme Court reverses Court of Appeals decision that dismissed appeal of landlord's complaint for indemnificaiton against tenant bank arising from a bank customer's personal injury lawsuit. Kuhn v. Wells Fargo Bank of Neb., S-08-141, 278 Neb. 428 The burden of proving mootness is on the party seeking dismissal "Maintenance of a building," within the meaning of Neb. Rev. Stat. § 25-21,187(1) (Reissue 2008), does not encompass the ordinary activities associated with management of commercial property. Indemnification is distinguishable from the closely related remedy of contribution in that the latter involves a sharing of the loss between parties jointly liable. "The Court of Appeals erred by dismissing this appeal as moot, because the burden had not yet been placed on (landlord) to prove damages, and the record does not foreclose the possibility that (landlord) was liable to (injured plaintiff). The district court erred in concluding that paragraph 20 was ambiguous, and we find no merit to the Bank’s alternative reasons why paragraph 20 was purportedly unenforceable. The judgment of the Court of Appeals is reversed, and the cause remanded to the Court of Appeals with directions to reverse the judgment of the district court and remand the cause to the district court for further proceedings consistent with this opinion
Nebraska Supreme Court affirms summary judgment against tenured Creighton language professor who sued a PHD student for maliciously filing a harassment complaint against her. Recio v. Evers, S-07-1338, 278 Neb. 405 We conclude that a person cannot incur liability for interfering with a business relationship by giving truthful information to another. In this case, Recio’s claim for tortious interference with a business relationship rested on Evers’ sexual harassment complaint, and the record establishes that the material allegations of Evers’ complaint were truthful. And even if actual malice can defeat a defense that interference with a business relationship was justified, there is insufficient evidence in the record to show that Evers’ sexual harassment complaint was motivated by actual malice. Therefore, the district court correctly concluded that Evers’ sexual harassment complaint was justified.

Saturday, August 22, 2009

Nebraska Court of Appeals allows uncounseled prior DUI conviction for enhancement when sentence was stand-alone probation and subsequent offense for DUI 2nd offense. State v. Wilson, A-08-1337, 17 Neb. App. 846. New charge was DUI 2nd offense, more than 0.15, Neb. Rev. Stat. § 60-6,196 (Reissue 2004), which is a Class I misdemeanor under Neb. Rev. Stat. § 60-6,197.03(5) (Supp. 2007). At the time, her breath alcohol content was .215 grams per 210 liters of her breath. "we hold that a prior conviction resulting in a sentence of probation, and not actual imprisonment, can be used for enhancement in subsequent proceedings without a showing that the defendant had or waived counsel in the prior proceeding. Because Wilson was sentenced to probation and a fine and no term of imprisonment was actually imposed, Wilson was clearly not entitled to counsel for her misdemeanor conviction for DUI in 2003—on constitutional or any other grounds."
In mandamus action former physician who was a defendant in a medical malpractice lawsuit sought to prohibit the Dawes County District Court from allowing plaintiff to review materials the Nebraska Attorney General had obtained in its disciplinary action against him. The doctor had surrendered his license for sexual misconduct while the malpractice suit stemmed from an allegedly botched diagnosis of a spinal cord injury. The plaintiff argued that discovery was necessary because she may have been injured because the pervert doctor might have been turned on too much to give her good care. The Nebraska Supreme Court denies the doctors writ of mandamus and allows discovery of the disciplinary investigation to proceed. Stetson v. Silverman, S-09-209, 278 Neb. 389 "We conclude that the relators (the defendant doctor) have failed to meet their burden of showing clearly and convincingly that they are entitled to quash discovery of information regarding defendant's surrender of his license. In addition, they do not have standing to quash a subpoena directed at the Department to obtain its records. We therefore deny their request for a peremptory writ of mandamus ordering the district judge to vacate his discovery order."
Order of the Kneepads Update: Nebraska Supreme Court suspends Lincoln attorney for 60 days, deferred for 30 days upon conditional admission that she mishandled a convict's civil rights lawsuit against the State Department of Corrections. Court decision fails to mention same attorney had record of public discipline, a public reprimand in 2005 for neglecting cases. State ex rel. Counsel for Dis. v. Kleveland, S-09-115, 278 Neb. 385 (Kleveland II). Prior disciplinary decision State ex rel. Counsel for Dis. v. Kleveland 270 Neb. 52 (2005) (Kleveland I).
Order of the Kneepads Update: Nebraska Supreme Court suspends Omaha attorney for three months for failing to prepare auto accident cases for trial and for communicating with the court and clients. State ex rel. Counsel for Dis. v. Bouda, S-08-1204, 278 Neb. 380
Nebraska Supreme Court, Miller-Lerman, Justice affirms Lancaster County District Court conviction of felony murder and use of a firearm to commit a felony from the shooting death in an armed robbery of a marijuana dealer. State v. Banks, S-07-670, 278 Neb. 342. Defendant broke into the victims home to rob him of cash and a marijuana stash. Defendant shot the victim twice in the chest as he was getting away in his friends car. Nebraska Supreme Court affirms District Court's refusal to allow an alternative premediated first degree murder instruction along with the court's felony murder instruction. The district court's refusal to allow the jury to consider lesser included homicide offenses and acquittal on robbery the Supreme Court also affirms. Defendant also loses his appeal on jury selection, venue, witnesses cross examination and the state's late amendment of the weapons charge from a Class III felony to a firearms Class II felony. We conclude that Banks has not established reversible error from the court’s refusal to instruct on premeditated murder and the lesser-included offenses of second degree murder and manslaughter. In this case, Banks was convicted of first degree murder based on sufficient evidence. Banks has shown no prejudice from the refusal to instruct on premeditated murder, because such instruction would have simply given the jury an additional theory under which to convict Banks of first degree murder. Banks also has not shown that he was prejudiced by the failure to instruct on premeditated murder with its corresponding lesser-included offenses, because the evidence did not produce a rational basis to acquit him of first degree murder under a felony murder theory but convict him of second degree murder or manslaughter. The district court therefore did not violate Banks’ right to due process and did not otherwise prejudicially err when it refused to give the instructions requested by Banks

Tuesday, August 11, 2009

Nebraska Supreme Court hands down 120 day suspension against Douglas County Court Judge Marcuzzo for steering his nephew's domestic disturbance case away from "stern" Judge White to a judge who gave the nephew probation and also for leaving profane phone messages with prosecutors who were handling cases in his court. In re Complaint Against Marcuzzo, S-35-080001, 278 Neb. 331. Special Master had recommended a 3 month suspension.
Nebraska Supreme Court affirms misdemeanor assault conviction and 100 day sentence when victim did not testify except through the county court's receiving into evidence her 911 recorded call. State v. Thompson, S-08-1134, 278 Neb. 320 District Court on appeal ruled tape was inadmissible hearsay but admitting the tape was harmless error. Defendant did not raise a confrontation objections. an appellant must show that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence in a case tried without a jury. State v. Harms, 264 Neb. 654, 650 N.W.2d 481 (2002) (supplemental opinion). The appellant must show that the trial court made a finding of guilt based exclusively on the erroneously admitted evidence. State v. Lara, 258 996, 607 W.2d 487 (2000). If there is other sufficient evidence to support the finding of guilt, the conviction will not be reversed. Id. The burden rests on the appellant in a bench trial because of the presumption that the trial court, sitting as the fact finder, disregards inadmissible evidence. State v. Harms, supra. We conclude there was other sufficient evidence to support the finding of guilt.
Plaintiffs who sued the City of Omaha for injuries children suffered in sledding accident at Memorial Park won partial summary judgment on liability under the Political Subdivision Tort Claim Act. City sought to appeal the liability finding and obtained certification from the trial court that it was a final order. Nebraska Supreme Court dismisses appeal because a partial summary judgment can never be a final order, even if a party tries to certify it under 251315 Connelly v. City of Omaha, S-08-1011, 278 Neb. 31 "no final order was entered (or determination made) regarding damages as required by § 25-1902, and accordingly, the court could not have directed the entry of a final judgment within the meaning of § 25-1315(1). Because the judgment does not dispose of the entirety of any one claim, it cannot be made an appealable judgment by recourse to § 25-1315.21."

Sunday, August 09, 2009

Defendant convicted of sex crime who was not in custody, probation or parole could not challenge requirement he register as a sex offender through post-conviction proceedings. State v. York, S-08-884, 278 Neb. 306 Defendant claims that this requirement renders him "in custody under sentence" such that he should be permitted to seek relief under the Nebraska Postconviction Act. See § 29-3001. We conclude that an individual who is subject to the registration requirements under the SORA (Neb. Rev. Stat. § 29-4001 et seq. (Reissue 2008)) is not "in custody under sentence" for purposes of the Nebraska Postconviction Act. See § 29-3001.
Nebraska Supreme court reverses summary judgment in rescuers action against motorist who slid off Interstate 80. Motorist who slid off road could be negligent and injured motorist who suffered amputate foot in accident that occurred while he was trying to help defendant could be a rescuer. Rasmussen v. State Farm Mut. Auto. Ins. Co., S-08-747, 278 Neb. 289 "We conclude that the district court should have applied the rescue doctrine to the facts of this case. Here, we find no reason to make a distinction between the negligence of the person being rescued which is a proximate cause of injury to the rescuer and the negligence of a third party which placed the person to be rescued in peril and caused injury to another who attempted the rescue."
"The case is over and done." Nebraska Supreme Court overrules most recent iteration of family dispute over assets of local Omaha business and refuses to reinstate lawsuit against company that some relatives brought. Ferer v. Aaron Ferer & Sons, S-08-534, 278 Neb. 282 "Appellants also claim the district court erred in denying their motion for an order nunc pro tunc reinstating their ...cause of action for involuntary liquidation.The (trial court in its order) expressly stated that it intended to dismiss the sixth cause of action and that the dismissal was "no mistake." We find that the court has been extremely patient in dealing with appellants’ repeated attempts to retry issues that have previously been decided. The court did not abuse its discretion in denying appellants’ motion for an order nunc pro tunc. we conclude that the district court did not abuse its discretion in refusing to allow appellants to resurrect causes of action that have merely been repackaged and rewrapped. The (plaintiffs' case of Aaron versus defendants) is over and done.
Nebraska Supreme Court overrules claim of ineffectiveness of trial counsel for allegedly not pointing out errors to pro se defendant previous trial counsel had committed. Further no ineffectiveness of appellate counsel for raising trial counsel ineffectiveness on appeal because appellate counsel if different from trial counsel must raise it on direct appeal if issues are apparent on record. State v. Dunster, S-08-227, 278 Neb. 268 Dunster argues that direct appeal counsel was ineffective in raising, on direct appeal, the issue of ineffective assistance of trial counsel. But direct appeal counsel’s performance was not deficient in that regard.
Lincoln chiropractor who had earlier career as a mortician loses another attempt to reduce alimony award. Metcalf v. Metcalf, S-07-1346, 278 Neb. 258 Nebraska Supreme Court modifies rule on changed circumstances when to allow modification of a divorce decree. "a judgment for alimony may be modified only upon a showing of facts or circumstances that have changed since the last order granting or denying modification was entered. But once some change has been established since the last request, the analysis focuses on the change in circumstances since alimony was originally awarded or last modified. We adopt this rule because it recognizes the force of res judicata; modification will be considered only when there has been a change in circumstances since the last request for modification. But if there has been no change, modification is not justified, because the request is essentially the same as the last request."

Saturday, August 08, 2009

Thank you Senator Nelson for voting FOR Sonia Sotomayor to the Supremes: Thank you Senator Nelson for voting for Judge Sotomayor to the Supreme Court. You showed great courage in resisting the hypocritical call of Republicans to disqualify any minority candidate who failed to meet the strict tests we must apply to white politicians when those white public figures try to discuss race. Puerto Ricans have been historically disadvantaged since we occupy their territory give their residents social security and subsidize their industries. Judge Sotomayor early on showed herself to be a fine example of the wise Latina woman in her Yale Law Journal Note that advocated massive reparations from the United States to Puerto Rico when it entered the Union.
Thanks Licensing Board: From Dan Ullman, President of Nebraska Psychological Association his letter to the editor in the Journalstar on August 5, 2009:
The Nebraska Psychological Association expresses its appreciation on the part of the licensing boards for psychology and mental health practice in resisting an attempt to discriminate against vulnerable clients in providing mental health services or referrals for services. The focus of this attempt to prevent clinical services includes sexual orientation, religion, gender identity or other reasons based on any provider's claim of a "moral and religious conviction."

Most disturbing is the continuing attempt by the Department of Health and Human Services to coerce licensing boards to establish this discrimination regulation by placing on hold for 18 months needed changes approved by the boards ("Agency urges compromise," July 19, LJS).

Newspaper articles have emphasized Health and Human Services' attempt to discriminate against services to homosexuals. Not mentioned is the proposed discrimination policy against other clients on the basis of a provider's claim of a "moral or religious conviction."

The Nebraska Psychological Association's Code of Ethics protects the rights, welfare and safety of all clients, not just those who belong to any particular personal orientation. The code mandate is "Do No Harm;" it is not to protect the prejudices of providers.

Under the current Code of Ethics, if a mental health provider is unable to provide services, the provider must refer services in the terms of behavioral health needs of clients, not the needs or prejudices of a provider.

Dan Ullman, president, Nebraska Psychological Association

I couldnt agree more but I dont think Dr Ullman goes far enough so I sent the NPA my suggestions to elminate all homophobia from the psychological profession: How commendable of Dr Ullman for putting homosexual patients ahead of the "conscience" of those psychological professionals who would refuse to treat them. As you know "conscience" for these fanatic religious practitioners really means their freedom to be fearful, ignorant and hateful. However I am afraid that merely removing "conscience" rules from professional licensing standards does not go far enough to ensure the highest professional standards in your field. No, you have to also eliminate the hate from the profession. After all how to do ensure that some psychologists who harbor bigoted thoughts about homosexuality would not take on homosexuals' cases with the intention of harming them, or horrors trying to convert them to heterosexuality? I urge the Nebraska Psychological Association if you have not already, to recommend the following rules: 1. licensed psychologists must sign affidavits when applying for a license or renewing one that they fully embrace homosexuality as a healthy and in some respects a superior lifestyle to traditional marriage. They should encourage youngsters to discover their sexuality as early as possible. 2. psychologists must register which churches they attend and allow licensing boards to review the teachings of those churches to identify any latent or obvious homophobic messages. 3. In cases when homosexuals allege , they could discover from the professionals computers, diaries, notes and writings anything that questions homosexuality. 4. Psychologists who might harbor bigoted and outdated views on homosexuality or traditional marriage would have to undergo graduated probationary educational programs to purge themselves of these views. In case when the professional refuses to distance himself from actual homophobic views or churches that preach this hate, they should face discipline. Again thank you for your efforts to eliminate hate from our society. After all we can learn a lot from brave leaders like Hitler and Mao. They knew you had to go after the educated professions first before enslaving the masses

Friday, July 31, 2009

Nebraska Court of Appeals reverses administrative license revocation when police officer did not make statement in sworn report that defendant was operating a vehicle while intoxicated. Defendant was outside vehicle after 1 car accident. "the arresting officer did not make a traffic stop and failed to include sufficient factual allegations in the Sworn Report to indicate an allowable inference that Barnett, of the people on the scene at the time of the officer’s arrival, was the one who had been driving the vehicle. As such, the Sworn Report in the present case was insufficient to confer jurisdiction on the Department "Barnett v. Department of Motor Vehicles, A-08-211, 17 Neb. App. 795