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."

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.

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.

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.

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."

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).

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 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."

"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."

No ineffective assistance of appellate counsel when counsel on appeal fails to challenge earlier requirement that second degree murder required malice instruction nor that second degree murder law section 28-304 is unconstitutional because it lacks a malice requirement. State v. Thomas, S-08-1177, 278 Neb. 248

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.

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

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.

The Hall County District Court judge hearing a divorce case sent the attorneys his ruling and directed the wife's lawyer to prepare the decree. Husband filed a motion for new trial and then appealed the case within 30 days of the decree date but more than 30 days after the trial judge hearing a divorce case made his ruling in a letter and directed the wife's attorney to prepare the decree. The court clerk file-stamped the judge's letter-ruling. Nebraska Supreme Court, J Gerrard, rules the decree date is the correct date to start the 30 day appeal period running and admonishes the court clerk to not file this paperwork in the court file. Wagner v. Wagner, S-06-427, 275 Neb. 693. This case illustrates why trial courts should take care to ensure that regardless of how a final judgment is prepared, only the signed final order is filed with the clerk of the court. The clerk should not file stamp any document prepared by the trial court that is not a court order intended to have legal effect. But a filing that does not finally dispose of a case does not become a final, appealable order just because it is file stamped, and the trial court’s order in this case was clearly not meant to be a final determination of the rights and liabilities of the parties. Therefore, we conclude that the letter in this case was not a final, appealable order, and reverse the decision of the Court of Appeals.

Residents of the Ponca Hills area in Omaha appealed the Douglas County Board Equalization's decision to exempt residential properties an Omaha Catholic Diocese there used for lay ministry. Nebraska Supreme Court dismisses their appeal finding that the neighbors did not have standing to appeal the County's decision to exempt real estate from taxation with a petition in error to the Douglas County District Court. McClellan v. Board of Equal. of Douglas Cty., S-06-1072, 275 Neb. 581 "The Legislature’s stated purpose in the Tax Equalization and Review Commission Act (TERC) (Neb. Rev. Stat. § 77-5007) was to create an efficient mode of review by a single body which would provide a more consistent review of tax exemption and equalization decisions made by a board of equalization. The language of § 77-202.04 very specifically lists who may appeal from exemption decisions. The Legislature did not see fit to allow every indirectly affected taxpayer to appeal from the exemption status of someone else’s property. Instead, the Legislature determined that giving standing to the county assessor to appeal the grant of an exemption was sufficient to protect the public’s general interest in what properties are included on the tax rolls."

Nebraska Supreme Court finds a way around the law of the case doctrine on an appeal following remand. The Nebraska Supreme Court excepts law of the case doctrine and reconsiders worker compensation review panel's decision on injured worker's first trial that the worker compensation court judge should consider both the labor markets where the worker was injured and where she presently lived when evaluating the workers lost earning capacity. Money v. Tyrrell Flowers, S-07-681, 275 Neb. 602. At first trial judge found found the plaintiff had permanent and total disability because after her injury she moved to a small town that had few jobs. The worker compensation review panel reversed, requiring the trial judge to consider both the large and small towns' job markets. On retrial the trial judge found permanent total disability because the plaintiff was an "odd lot worker." The review panel then affirmed the trial court's odd lot worker ruling. Nebraska Supreme Court affirms, ruling that even if the the law of the case doctrine would have limited the trial court on retrial to considering the plaintiff's disability in the two labor markets, the Nebraska Supreme Court's intervening Giboo v. Certified Transmission Rebuilders 746 N.W.2d 362 (2008) decision merited excepting the first review panel's law of the case decision.

Appeal dismissed from multiple count lawsuit against former business partner and associates because trial court did not dismiss the plaintiff's cause of action in its entirety. Poppert v. Dicke, S-06-741, 275 Neb. 562 Disgruntled business partner sued other partners and associated professionals for breach of fiduciary duty and plead various claims against several parties. The district court dismissed the plaintiffs suit against the business partner for breach of fiduciary duty and certified it as final, appealable order. However the district court did not dismiss the plaintiff's suit for unjust enrichment and diverting profits. Because some of the remaining claims were identical with the dismissed claims, the district court failed to issue a certified final order. Nebraska Supreme Court dismisses appeal. 25-1315 requires the court to certify as appealable a final order as to a "claim for relief." "Claim for relief" and "cause of action" are synonymous, although theory of recovery is not. A cause of action comprises the common facts that establish the defendant's liability to the plaintiff although the difference between a cause and a theory is not too clear. Although the district court dismissed some of the plaintiff's theories of recovery, it did not dispose entirely of his cause of action against his partner. Therefore the Supreme Court lacked jurisdiction over the appeal. A “claim for relief” within the meaning of § 25-1315(1) is equivalent to a separate cause of action, as opposed to a separate theory of recovery. A cause of action consists of the fact or facts which give one a right to judicial relief against another; a theory of recovery is not itself a cause of action. the district court’s order dismisses some of those theories of recovery, i.e., “causes of action” Nos. 1 through 3, but does not dismiss all of them. The district court’s order was not a “‘final order’ . . . as to one or more but fewer than all of the causes of action.”