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 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.

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.

Legal malpractice lawsuit against estate of deceased patent attorney returns to the Nebraska Supreme Court after the Court had rejected the estate's District Court ruling that the plaintiff would not have won a patent infringement suit if the attorney had timely renewed its patent for a tilling device. The Douglas County District Court on remand again ruled for the attorney's estate, this time finding the plaintiff could not win a patent infringement suit because its limited patent claims would estop a patent suit. Nebraska Supreme Court this time affirms summary judgment finding that the US Supreme Court's Festo decision applied and the plaintiff's hypothetical patent lawsuit would not win because the plaintiff would not be able to overcome a patent defendant's prosecution estoppel defense. New Tek Mfg. v. Beehner, S-06-783, 275 Neb. 951 "In this case, the single two-way hydraulic cylinder claim originally asserted as claim 3 was canceled, but the two-cylinder lever-pivoting means originally asserted as claim 4 was retained in the amended application. The drawings incorporated in the ’365 patent and the ’080 patent reflect only the two-cylinder means. Element 4, claim 22, of the ’080 patent, as construed by the district court in its Markman order, describes only a device utilizing two hydraulic cylinders as lever-pivoting means. We conclude that the rejected claim 3 of the original application was replaced by a narrowing claim which may trigger prosecution history estoppel as a legal limitation on the doctrine of equivalents. We conclude as a matter of law that none of the rebuttal criteria identified in Festo II and explained further in Festo III are met in this case. The first criterion is not met because it cannot be said that the claimed equivalent was unforeseeable at the time of the narrowing amendment. The claimed means consisting of a single two-way hydraulic cylinder was canceled in response to a prior art objection. As we noted in New Tek I, there is no evidence that the alleged equivalent is “after-arising technology.”56 The second criterion is not met because the amendment to claim 3 was made to avoid prior art that contained the equivalent in question, and thus it is not tangential, but is central to the allowance of the claim.57 The third criterion is not met because the =claim for the single two-way hydraulic cylinder was rejected on the basis of prior art; there can be no other reason that Schmidt could not have described the accused equivalent

Summary judgment for defendant in insured's breach of contract action against insurance broker for failing to purchase insurance reversed. Nebraska Supreme Court holds that summary judgment for insurance agent was inappropriate because the defendant did not prove whether the agent was a captive agent for the insurance company or whether he was an insurance broker, acting on behalf of the insured to acquire insurance. Broad v. Randy Bauer Ins. Agency, S-06-844, 275 Neb. 788 We conclude that an action for breach of contract to procure insurance is inappropriate when brought against an insurer’s agent who, within the scope of his or her authority, contracted on behalf of the disclosed principal and did not bind himself or herself personally. Specifically, an insurance agent’s mere promise to procure requested coverage through his sole principal is insufficient to create the agent’s personal liability because that promise is clearly within the scope of the agent’s authority. However, we will recognize a cause of action against a broker for breach of contract to procure insurance because the broker is the insured’s agent.

Nebraska Supreme Court reverses defendant's summary judgment from Douglas County District Court in wrongful death lawsuit from a fatal drowning accident at Lake Powell Utah. Plaintiff estate filed wrongful death action for decedent who drowned while vacationing on the defendants' houseboat. The plaintiff alleged the defendants allowed their boat to get too far ahead of the decedent who was swimming in the lake and were not careful in picking him up. Nebraska Supreme Court affirms summary judgment on the plaintiff's Jones Act claim but reverses on its general negligence claim. The district court should have allowed the plaintiff's affidavits by former career Coast Guard officers who stated expert opinions that the boat operators were negligent. Caguioa v. Fellman, S-06-1055, 275 Neb. 455

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

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