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 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 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 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.

Land contract or contract for deed transactions are non probate transfers and thus are not part of the deceased's estate under Section 30-2715 RRS Neb.Clark v. Clark, S-06-1254, 275 Neb. 276. Deceased's son held one half of the rights to a land contract with escrowed deed. Nebraska Supreme Court affirms judgment for son for unpaid land contract payments. "a seller in a land contract retains the title as security for the unpaid purchase money and has an equitable lien on the land to the extent of the debt, a seller has, for all intents and purposes, a purchase-money mortgage.” A ccordingly, we conclude that the transfer to Dale of one-half of the balance remaining under the agreement was a non probate transfer within the meaning of § 30-2715.

Nebraska Supreme Court affirms garnishee judgment for commissions it owed to one of its real estate agent-independent contractors after it denied in garnishor interrogatories that the judgment debtor while an independent contractor was one of its employees. The garnishee real estate company owes the full amount of the commissions and not the amount of the judgment however. Petersen v. Central Park Properties, S-06-1289, 275 Neb. 220 "A garnishee owes a duty to act in good faith and answer fully and truthfully all proper interrogatories presented to him. S ee Western Smelting & Refining Co. v. First Nat. Bank, 150 Neb. 477, 35 N.W.2d 116 (1948). T he garnishee is expected to, in some appropriate manner, properly disclose all relevant facts within his knowledge at the time of submitting an answer concerning his indebtedness to the judgment debtor or concerning money or property of the judgment debtor then in his possession." "Thompson knew or should have known that Skala would be due commissions for real estate sales within the next 60 days. T he district court did not err in finding that commissions were owed to Skala at the time the interrogatories were answered." "Section 25-1028 provides for the garnishor the rebuttable presumption that if the garnishee fails to answer, the garnishee is indebted in the full amount of the judgment creditor’s claim. See Spaghetti Ltd. Partnership v. Wolfe, 264 Neb. 365, 647 N.W.2d 615 (2002). Although Realty Linc answered the interrogatories, Realty Linc’s appearance at the hearing to determine liability defeated garnishor's claim that garnishee owed the entire $33k judgment. The district court entered judgment against Realty Linc for$19k the entire amount of commissions the judgment debtor had coming to him. he court’s findings have the effect of a jury’s findings and will not be set aside on appeal unless clearly wrong.

Landlord for the Vatterot College Trade School sued the school in Douglas County district Court for Vatterot's failure to pay several years of property taxes on the property. The Douglas County District Court dismissed the action finding that the Landlord and the assigned tenant did not have privity of estate and further they had no contractual agreement for the college to pay the taxes. DeWester v. Watkins, S-06-230, 275 Neb. 173 An assignee or transferee of an interest in leased property is liable for a breach of a promise that runs with the land and which is broken while the assignee or transferee holds the leasehold estate, but is not liable for a promise that runs with the land if the promise is broken before the assignment or transfer. Napleton and Vatterott were not in privity of estate when the 2000 tax liability accrued. Nor were they in privity of estate between January and October 4 of the 2001 tax year, or for 9 months of the period in which the 2001 taxliability accrued. The lack of privity of estate between Napletonand Vatterott means that Vatterott is not liable for any breaches of the lease terms prior to the October 5, 2001, assignment unless the parties contracted otherwise. the Assignment Agreement is clear and unambiguous.The Assignment Agreement does not provide that Vatterott is liable for any obligations arising prior to the date of assignment. Absent aprovision obligating Vatterott for liabilities arising prior to the time Vatterott obtained its leasehold interest in the property,the lack of privity of estate in this case compels our conclusion that Vatterott is not liable for Omaha College’s failure to fulfillOmaha College’s obligations under the 1999 lease

Follow up: Omaha area builder of luxury homes Gateway Builders files Chapter 11 bankruptcy petition. Omaha.com. Gateway Homes Inc. is seeking protection from creditors in a Chapter 11 bankruptcy filing, after subcontractors filed at least 100 construction liens against the custom-home builder in the past month. Bob Ginn, Gateway's attorney, said Monday that the company has obtained the cooperation of its largest financing banks to complete and sell homes now under construction in order to maximize the return to all Gateway creditors. He plans to file motions seeking for that to happen, but a bankruptcy judge must approve the motions for construction to proceed. Gateway said in court papers that it owes a total of $3.28 million in unsecured claims to its 20 largest creditors. Court documents show Gateway's estimated assets are $0 to $10,000, but Ginn said that amount was mistakenly reported. "If that box was checked, it would be checked in error," Ginn said, "because the total assets would be in the $1 million to $10 million range." Ginn said Gateway's total inventory consists of eight custom homes under construction and 19 spec homes, which are homes without a specific buyer built on speculation that they will sell. Of the spec homes, some are completed and are models that prospective buyers can tour, while others were still under construction, Ginn said. Most are nearly finished, he said. Gateway owner Kevin Hebner declined to comment Monday and referred questions to Ginn. Gateway, a builder of mostly $250,000 to $400,000 custom homes, closed its doors two weeks ago and halted construction as subcontractors and suppliers filed dozens of liens. Construction liens are notices placed on public record of a debt due. Anyone who performs services or provides goods for improvements on real estate can file a lien within 120 days from the last date that services were performed or goods were provided. If a property has a lien, its sale cannot close unless a lien has been dealt with in some manner, ranging from lawsuits to foreclosures or payment. Chapter 11 allows a debtor to reorganize or liquidate according to a plan. "Filing bankruptcy allows us to sell the houses, and the creditors' interests are protected because their liens attach to the sale proceeds," Ginn said. "If we didn't file the bankruptcy, we couldn't sell the houses, because we would have to some way take care of those liens." Ginn said he would file a series of motions seeking authorization to complete and sell the homes under construction and formulating a method to assess the validity and amount of claims and liens. Ginn said he probably would file the motions this week. But it is highly unlikely a judge would enter his decision on the motions before a March 6 meeting of creditors at the Roman L. Hruska Courthouse in Omaha, Ginn said. There also are required waiting periods for objections. "We understand the urgency and will move forward as quickly as we can, but within those constraints," Ginn said. There could be more creditors than mentioned in the bankruptcy filing's "list of creditors holding the 20 largest unsecured claims." A dozen suppliers and subcontractors contacted before and after the filing declined to comment or did not return phone calls. The companies include lumber suppliers, plumbers, cabinet makers, carpet suppliers, concrete companies, brick suppliers, electricians, hardwood floor installers and insulation companies. The deadline to file a proof of claim is June 4.

The "kitchen sink" power of attorney your rich uncle gave you is not your personal gold card. Nebraska Supreme Court holds that the attorney-in fact's plenary power of attorney did not permit him to transfer gifts from the principal to himself or his family members without specific authorization. Archbold v. Reifenrath, S-06-1124, 274 Neb. . "Section 49-1557 provides that plenary power authorizes the agent to act as the principal’s alter ego. Notably, § 49-1557 limits plenary power to those acts an agent is otherwise authorized to do as an agent. As explained above, our case law on the subject has made clear that an agent is not authorized to make substantially gratuitous transfers to himself or his family absent an express provision in the POA. Because the POA in this case does not contain a specific authorization for the making of gratuitous transfers by Joseph to himself or his immediate family, we determine that Joseph has failed to meet his burden." The attorney-in-fact defendant probably should not have offered the testimony of his attorney who prepared the document to introduce parole evidence that the principal intended to allow gratuitous transfers, because the Nebraska Supreme Court had suspended her a few years ago for her handling of real estate transactions in a divorce case.

Nebraska Supreme Court allows Otoe County to require mutual impact easements when real estate developers seek permits to build houses close to existing hog confinement facilities. Coffey v. County of Otoe, S-06-921, 274 Neb. 796A property developer and a purchaser of one of his lots sought to build a house that was close to an existing hog confinement facility. Otoe County required in its zoning regulations that homeowners and livestock producers file mutual impact easements before it would allow the building to continue. When the livestock producer refused to grant the easement and Otoe County refused to allow a variance, the developer and his customer sued. The Otoe County District Court reversed finding the mutual impact easement requirement was an unconstitutional delegation of legislative power. Nebraska Supreme Court reverses, the zoning regulations were proper exercises of zoning power. "If the consent is used for no other purpose than to waive or modify a restriction which the governing body has lawfully created and has provided for such a waiver or modification by those most affected, then the consent is regarded as being within constitutional limitations," Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S . Ct. 190, 61 L. E d. 472 (1917).we conclude that the mutual impact easement language in Otoe County’s zoning regulations is not an unconstitutional delegation of legislative authority, and the district court erred in concluding otherwise

Nebraska court of appeals rules against member of homeowners association that had tried to reach agreements with real estate developers. appeals court in unpublished opinion finds no enforceable contract from the negotiations between the developer and the homeowners that resulted in merely vague promises of covenant details. While the district court had found an enforceable contract, which the appeals court reversed, the reviewing court agrees that a plaintiff in a breach of contract case may not seek profit disgorgement in any even from the defendant. MERLE RAMBO V. SULLIVAN R.E. GROUP, "The district court was clearly wrong to find an enforceable contract from the (vague agreements at the) June 1998 city council meeting. For example, Sullivan and the RNA, whose members opposed the zoning change, clearly agreed to a nine-lot subdivision for purposes of the zoning change. Sullivan and the RNA also clearly contemplated that certain covenants would be entered into and that such covenants would contain provisions favored by the RNA and would be enforceable by the RNA in some manner. However, the draft covenants provided to the city council did not contain all such provisions, which were merely outlined in argument before the council. There were essential terms left open for future agreement, including an enforcement mechanism, a definition of which RNA members would have the ability to enforce the covenants, and what ability, if any, there would be to amend the covenants once filed. We conclude that what was reached at the June 1998 meeting was an agreement for future negotiations. In fact, such negotiations did occur. further disgorgement of profits is not an appropriate remedy in this breach of contract claim. Nebraska has not recognized disgorgement of the breaching party’s profits as damages available to an injured party.

Obtuse prose department: Can anyone figure out what something isn't because it isn't? In In re Estate of Potthoff, S-05-1299 the Nebraska Supreme Court (J McCormack) determined that a decedent's attempts to take property he held with his estranged wife by filing "notices" were ineffective to turn joint held property into tenancy in common. In the meantime the Supreme Court had to find that the Red Willow County Court's decision in Elvira and Lloyd Potthoff's case was a final order when the Supreme Court in Estate of Rose had held that a probate court decision that some property was not exempt family property was not a final order. See Estate of rose 730 NW.2d 391(2007).. Try to decipher this: the record before this court does not reflect that elvira has made a claim for an elective share. thus,unlike In re Estate of rose,the computation of the augmented estate is not the fundamental issue i n this case.rather,the fundamental issue before the county court was the computation of the probate estate.

Follow up: Nebraska Supreme Court agrees that the Papio -Missouri Natural Resources District could subsidize private developments in Sarpy County while allowing taxpayers in its district to foot the bill. Japp v. Papio-Missouri River NRD, S-06-045, 273 Neb. 779. Justice William Connolly patron of death row inmates and the municipal bulldozer over private property rules that the Papio-Missouri NRD could enter into sweetheart deals with two high end real estate McMansion developments, because the developments would promote overall good water management. "under § 2-3235(1), the District has express authority to cooperate, enter agreements, and furnish aid to them to carry out projects that benefit the District." Even if the developers hold the property for very short times, they count! The Supreme Court chose to ignore the NRD's own concerns that their actions were illegal when the challenging taxpayers asked to introduce the legislatures 2005 proposed legislation LB552 which the unicameral voted down. That was irrelevant evidence. Finally setting up expensive water developments in a depressed housing market was not an improper extension of credit to the private developers (XIII, § 3, of the Nebraska Constitution). Thank you Justice Connolly!

Nebraska Supreme Court favors tax deed holder over trust deed purchaser's competing claim.

Ottaco Acceptance, Inc. v. Larkin, A-05-854

A tax certificate holder who takes a tax deed in accordance with Section 77-1837 is the owner of the property and not just a lien holder. The tax certificate holder elected to take a tax deed instead of foreclosing with the certificate. See 77-1902 {procedures to seek judicial foreclosure of the properties subject to tax certificate}. A purchaser from the trust deed holder's auction recorded his deed one day before the tax deed was recorded. Douglas County District Court ruled in favor of the tax deed holder and the Supreme Court affirms. A competing claimant to the property must comply with §§ 77-1843 and 77-1844 to challenge the title of an owner who gained title through a tax deed even if the tax deed holders title is void or voidable. Therefore one challenging the claim under a tax deed must show that he was the owner of the property and the time of the tax deed conveyance; that there were no taxes due; and that the tax deed was defective. Although the Supreme Court agrees that the trust deed buyer could claim title to the property and that the former owner had tendered payment of the taxes to the Douglas County Treasurer, the Court rejects the trust deed buyers claim that the tax deed was defective for not notifying the original owner, for not having a legible seal, and for not following a "formalistic" procedure of taking the original certificate from the County, then giving it back to him.

Extreme Makeover, Nebraska Supreme Court style: Nebraska Supreme Court hears duplex owners' appeal of Omaha Housing Authority's building code citations: the Metropolitan Utilities District has exclusive control over gas appliances; The city could not cite the owners for sloppy painting, tuck pointing and stucco repairs that were not themselves repairs the owners took to remedy code violations. McNally v. City of Omaha, S-05-1022 The City cited the owners for various code violations on a duplex they owned. Some of the citations were for painting over windows, failing to paint stucco exteriors and poor tuck pointing of masonry. Also the MUD had inspected a gas furnace but the City had not given its ok. Supreme Court holds that poor or sloppy repairs are not violations unless they are to repair cited problems. Also the MUD was the right agency to inspect specifically gas powered appliances. " 48-15 states: “repairs, maintenance work, alterations or installations which are caused directly or indirectly by the enforcement of this code shall be executed and installed in a workmanlike manner and installed in accordance with the manufacturer’s installation instructions.” Whether or not the unattractiveness of the repairs could fall under this definition of “workmanlike,” the Mcnallys argue that § 48-15 is inapplicable. the window trim painting, the stucco, and the tuck-pointing were repairs which the Mcnallys conducted on their own accord. We agree that § 48-15 is inapplicable in this case because the ordinance clearly limits the “workmanlike” mandate to situations where the work is conducted pursuant to enforcement of the Code."

Partners' stated in their agreement that once a partner sought to exit the partnership, another partner could within 90 days buy out the exiting partner. Nebraska Supreme Court rules that the 90 day time period started when the exiting partner served his complaint from an earlier case he brought to dissolve the partnership. Mogensen v. Mogensen, S-05-879, 273 Neb. 208 Partners had also acquired property and titled it in the mothers name. The partners provided the downpayment and the mother financed it. The partners did not pay rent to their mother for eight years but made improvements on the property. Supreme court agrees that the property although in the mothers name is presumed partnership land, and the mother did not overcome this presumption. "service of the complaint on keith, rather than either the summary judgment order or the filing of the lawsuit, provided notice of steven’s intent to withdraw and dispose of his interest The mother's property is partnership property because although some evidence does indicate an ownership interest in opal, it is not enough to overcome the presumption in § 67-412(3). We conclude that the brothers purchased the property for the partnership. the most convincing proof of their intent is that brian, keith, and steven decided they wanted the property and then decided to put it in opal’s name to take advantage of a government program. the brothers essentially controlled the transaction in obtaining the land, including using partnership funds to pay for the property. the facts that the partnership developed the land, paid the real estate taxes, and improved the farm for the first 8 years without paying rent further bolster our conclusion