Omaha Bookeeper bilked over 20 clients in recent years; previously put on diversion for embezzling money from rescue squad WORLD-HERALD Don Brown and at least 22 other people can tell a similar story about how they lost tens of thousands of dollars to Douglas C. Johnson, their mild-mannered accountant.The cases of those 23 people collectively have led to civil judgments against Johnson exceeding $1 million and a criminal investigation spanning three years. But Johnson still is open for business.Brown, a 62-year-old mechanic, owns Don's Automotive in Council Bluffs. For more than 20 years, Douglas C. Johnson did the body shop's books and taxes, Brown said. Johnson, 49, would stop by regularly to chat about grandkids or business or whatever, Brown said. He considered Johnson a friend, almost family."You'd think he was one of the nicest people you ever met," Brown said. "It took an awful lot for me to even say anything bad about him."Brown said he trusted Johnson enough to loan him a total of $111,800 over a four-month period. The money was supposed to be used to finance a truck company and to buy inventory for a bike company owned by Johnson's wife, Brown said.For each loan - there were three - Johnson provided a promissory note, Brown said. The sloppy, page-long documents look like Johnson pounded them out on a typewriter.The promissory notes said the loan was backed by the businesses and Johnson's personal guarantee, court records show. They promised to pay a handsome interest rate - usually between 9 percent and 13 percent - and said that Brown could get his money back anytime with three days' notice.Brown said he received post-dated checks to cash when the notes came due, but they all bounced."I would tell myself he got himself in a pickle and he's trying to get out of it," Brown said. "I'd make excuses for him." Johnson also made excuses, citing health concerns and family problems when reneging on appointments to discuss the loans, Brown said. "He was really working your conscience." But after two years of delays and defensive explanations, Brown said, he decided to do something. In 23 separate cases, judges have ordered Johnson to pay more than $1.3 million to former clients, court records show. Judges have ruled against Johnson in Douglas County in Nebraska and Pottawattamie and Mills Counties in Iowa. More cases are pending. Johnson has declined to comment and referred questions to his Omaha attorney, Alan Stoler. Johnson, who is not a certified public accountant, continues to operate his bookkeeping business, Osberg-Johnson & Co., out of an office near 56th and F Streets. Stoler said the money Johnson borrowed from clients "was used for investment purposes" in other businesses Johnson worked with. He said Johnson is trying to pay the court judgments. The first case was filed in August 2000 and the first judgment granted in October of that year. But according to court records, almost all the judgments remain unpaid. Now Johnson's former friends and business associates don't know to whom they should - or can - turn for help. Some of his former clients, hoping for an investigation, brought their cases to the attention of county attorneys, police officers, the Nebraska Attorney General, the Nebraska Department of Banking and Finance, the Iowa Superintendent of Securities and the U.S. Postal Inspector Service. The Postal Inspectors and Department of Banking and Finance have been working together on the case for three years, said Tom Sindelar, the department's enforcement manager. The departments are "still compiling information." "We made a decision at some point to work with other agencies and - instead of attempting to do something piecemeal - to attempt to encompass everything," he said In 2002, after the courts already had ordered Johnson to repay more than $300,000, Nebraska and Iowa banking regulators ordered Johnson to stop writing promissory notes, which is illegal unless the issuer registers with the state. There is no evidence that Johnson has written promissory notes since then. But a week after Nebraska regulators issued the order, Johnson started operating an "investment club," according to documents he gave to one of the investors, Don Dohse. Dohse said he grew concerned about his money after Johnson changed offices, moving from a building with a well-kept lawn to his current office in a building hidden by unkempt landscaping. Dohse, a 78-year-old retiree in Omaha, said he demanded that Johnson return the $30,000 he put into Johnson's investment club. Dohse said he has received only an interest payment. Dohse said he gave Sindelar copies of the documents Johnson provided when the investments were made. Like Johnson's promissory notes, they promised a good profit. The Nebraska Department of Banking and Finance only investigates cases, Sindelar said. County prosecutors then determine whether they want to bring a case based on the evidence Sindelar's department generates. "The scope of this thing wasn't known and wasn't anticipated," Sindelar said. The rulings against Johnson have been civil judgments, and civil cases have a lower burden of proof than criminal cases. White-collar crimes are harder to prove, so it's common for county prosecutors to spend most of their time dealing with violent crimes. "These cases can be technical," Sindelar said. "Eventually Johnson will be confronted. The venue where that occurs remains to be seen." Leigh Ann Retelsdorf, a deputy Douglas County attorney, said Douglas County has no cases pending against Johnson. Douglas County charged Johnson with theft by deception for allegedly taking $160,000 from Omaha Ambulance Service accounts in 2001. Johnson did bookkeeping for the company at the time. Those charges were dismissed after Johnson agreed to attend a diversion program. In a deposition Johnson gave in March 2003, he said he repaid the money "through funds I was able to borrow from people or acquire."

Eppley managers protected themselves from airline bankruptcies when they negotiated month to month leases with Northwest and Mesaba(Northwest airlink); demand for landing and gate leases is strong. Carrier's bankruptcy doesn't worry Eppley WORLD-HERALD The Chapter 11 bankruptcy filing by a regional carrier for the also-bankrupt Northwest Airlines isn't expected to affect service at Eppley Airfield.Mesaba Airlines, which flies under the Northwest Airlink name, filed for bankruptcy last week. Pinnacle Airlines also provides regional flights for Northwest."I would expect (Mesaba) to continue services, as the other carriers have," said Don Smithey, executive director of the Omaha Airport Authority. He briefed the authority's board members during their regular monthly meeting Tuesday. "Bankruptcy seems to be just part of the business plan anymore," Smithey said of the latest filing in the troubled airline industry. Smithey said the authority's finances are not strained by the bankruptcies. Airlines are allowed only month-to-month leases on Eppley ticket counters and gates, and the authority keeps balances owed low, Smithey said. So an airline entering bankruptcy doesn't have a large debt to Eppley. Mesaba's balance, for instance, is about $30,000 in landing fees. After a bankruptcy filing, an airline must remain current on its rent or the authority can terminate the lease, Smithey said. "Everyone is paying their bills," he said. "We don't have a problem." If a bankrupt airline were to dissolve, Smithey said, another airline likely would take its place because demand is strong. "The market is strong enough to support larger planes" than the 70-seat regional jets that Mesaba uses, he said. American Airlines, in fact, has added another Omaha-Chicago flight, this one using a 150-seat MD-80 jet. The airline plans to use another MD-80 on Omaha-Chicago flights beginning Oct. 30. Smithey said he did not know yet whether that flight would be an addition to American's schedule or would replace a flight that now uses a regional jet. Board member Pat McNeil noted the movement by airlines away from regional jets. "Two years ago, the trend was the RJ's," he said. "That didn't last long." Smithey said airlines are responding to demand. "People do appreciate the larger airplanes," he said. A member of the Huron (S.D.) Airport board attended Tuesday's meeting. Larry Picek and his wife, Beth, flew Tuesday from Huron to Omaha on Mesa Airlines to pick up a car in Omaha they were buying. Picek said the commercial air service is important to Huron's business development, and Eppley's low-fare carriers are a draw for passengers from eastern South Dakota.

DV for KwikShop reversed where Pl. fell in snow packed parking lotIn unpublished opinion Neb App reverses directed verdict for Kwik Shop where Plaintiff fell in snow packed parking lot. Court finds sufficient evidence to present to jury that Defendant owed a duty of reasonable care to the Plaintiff and that it may have breached it. Court does not address issue of assumption of risk or contributory negligence. Court also finds sufficient evidence of notice. Burrell v. Kwik Shop (Not Designated for Permanent Publication)October 18, 2005. No. A-04-513.Appeal from the District Court for Douglas County: Patricia A. Lamberty, Judge. Reversed and remanded for a new trial. whether Kwik Shop should have expected that Burrell either (a) would not discover or realize the danger or (b) would fail to protect herself against the danger. The danger of walking across a snow-packed parking lot is obvious, and thus, the question here is whether Burrell would fail to protect herself against the danger. The court in Burns v. Veterans of Foreign Wars, 231 Neb. 844, 855, 438 N.W.2d 485, 492 (1989), stated: "[R]eason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. . . . It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances." Quoting Restatement (Second) of Torts, § 343 A, comment f. (1965). Here, there was evidence that the only customer entrance was the double doors through which Burrell entered. Burrell testified that the entire parking lot was snow packed and that there was nothing to hold on to as she walked toward the store. She testified that she was being "very cautious and careful and walking slowly" as she walked across the parking lot. She testified that she entered the Kwik Shop store to make sure that she paid and to get a receipt, because she had attempted to pay with a credit card at the pump but the machine did not issue a receipt. There was evidence here that Kwik Shop could expect that after filling the car with gas, a customer may enter the store to pay for the gas, buy additional items, use the facilities, or merely obtain a receipt when one is not issued by the machine, and fail to protect herself from the danger of walking across the icy parking lot.

1 year sentence for cruelty and neglect of horses affirmed; Court of Appeals affirms lower court on finding no 4th Amendment violation for warrantless seizure of horses in open field Defendant leased. § 28-1012(1) (Cum. Supp. 2004) which allows law enforcement to seek warrant to seize animals is not required in all instances, but subject to 4th Amendment guidelines. IN this case, "plain fields" exception applies and there is no privacy expectation; Trial court had jurisdiction to enter nunc pro tunc order on reimbursement amount even though defendant has appealed. State v. Ziemann, 14 Neb. App. 117 October 18, 2005. No. A-04-1483. Appeal from the District Court for Thurston County, Darvid D. Quist, Judge, on appeal thereto from the County Court for Thurston County, Douglas Luebe, Judge. Judgment of District Court affirmed in part, and in part remanded for further proceedings. NO expectation of privacy in open field, giving Defendant benefit of the doubt that leased field gives her 4th amendment standingCheryl does not own or reside at the farmstead where her two horses were seized. Cheryl bases her claim of a "legitimate expectation of privacy in the premises" on the fact that she leased the grass area on the farmstead for a dollar--although she did not establish whether this was per day, week, month, or year. And, the only evidence that any such lease existed is Cheryl's testimony. But, assuming there was such a lease, Cheryl was leasing only open land, which is subject to the open fields exception to the warrant requirement. Under the open fields doctrine, "'[o]pen fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance.'" State v. Cody, 248 Neb. 683, 695, 539 N.W.2d 18, 26 (1995), quoting Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). The boarding of two horses at an abandoned farmstead for a dollar clearly is not the sort of intimate activity sheltered by the Fourth Amendment. To put it another way, the search is not unreasonable and does not require a warrant. Therefore, Cheryl did not have standing to challenge the search of the farmstead. Neb. Rev. Stat. § 28-1012(1) (Cum. Supp. 2004), which states: "Any law enforcement officer who has reason to believe that an animal has been abandoned or is being cruelly neglected or cruelly mistreated may seek a warrant authorizing entry upon private property to inspect, care for, or impound the animal." is discretionary However, the statute only says "may" seek a warrant, and Cheryl cites no authority that this statute either imposes a higher standard on law enforcement officers than is otherwise established by longstanding principles of search and seizure or makes it mandatory that a warrant be secured. And, we can think of no reason why the statute would do so. Thus, we read "may seek" as purely discretionary and as not effecting other doctrines of search and seizure, such as the plain view doctrine. The Nebraska Supreme Court stated the "plain view doctrine" in State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003) as if (1) a law enforcement officer has a legal right to be in the place from which the object subject to the seizure could be plainly viewed, (2) the seized object's incriminating nature is immediately apparent, and (3) the officer has a lawful right of access to the seized object itself. Case remanded to re-determine restitutionWe find that the district court committed plain error when it vacated the county court's order nunc pro tunc dated July 15, 2004, since the county court did have jurisdiction to enter such order. However, remembering that the county court has ordered three different amounts of reimbursement and that the presentence investigation report and sentencing hearing are insufficient to establish what the reimbursement by Cheryl really should be, we remand the cause to the district court with directions for it to remand the matter to the county court to hold such proceedings as are necessary as to make an accurate determination of the amount of reimbursement owed by Cheryl to Siouxland Rescue and Lown and to enter the corresponding order.

MedMal rankings out for 2003

Cornhuskers break into the top 20: for med mal claims paid per 1000 non-federal licensed physicians, Nebraska ranks 18th in the nation; overall claims were 83 Kaiser State Health FactsTotal claim payments for '03 were $16million +, with an average payment of just under $200K. That put us down in the 30's.

When the Plaintiff loses, it was just to have her day in court; Red Willow County District Judge Battershell dismisses dental malpractice suit after he strikes Plaintiff's expert's testimony. North Platte Bulletin The jury trial against a North Platte dentist for negligence ended suddenly Oct. 12 after a Red Willow County district judge dismissed it. Dentist Gerald Thalken was accused of negligence by a former patient, Tracy A. Mavigliano. She said Thalken put caps on her teeth that were uneven and that the procedure was so bad she suffered pain and couldn’t even eat afterward. The trial began Oct. 11 after a Lincoln County jury was selected. But it ended suddenly early Oct. 12 after Thalken’s defense attorney, Kyle Wallor of Omaha, made a motion to strike the testimony of former North Platte dentist William Hull. Hull, who said Thalken’s treatment of Mavigliano’s teeth was poor and charged her $24,987 to repair them, appeared as an expert witness for Mavigliano. Hull admitted on the stand that he never reviewed Mavigliano’s dental records from either Thalken or Dr. James States of North Platte. Wallor argued that the a witness couldn’t be deemed an expert witness without reviewing the medical records first, a standard he said was set by the Nebraska Supreme Court. Red Willow County District Judge John Battershell threw out Hull’s testimony, then dismissed the case for a lack of evidence. P. Steven Potter, Mavigliano’s attorney, said the case was an uphill battle. He said it was difficult to differentiate the damage done to his client’s teeth by decay from the treatment she received from Thalken. “But it was never about the money to her,” Potter said. “It was her hope to bring an awareness so that others wouldn’t have the same problems. “She felt like a woman raped. She couldn’t have lived with herself if she didn’t do something.” “We accomplished what we wanted to,” Mavigliano said. In her lawsuit, Mavigliano said Thalken capped her teeth without repairing the decay on them first. She said she had to pay former North Platte dentist William Hull to have her teeth re-aligned and recapped. “This case is not about decay,” Potter said in opening statements Oct. 11. “It’s about the treatment Dr. Thalken gave Tracy.” Potter said X-rays would show that Thalken didn’t repair Mavigliano’s teeth before capping them and didn’t seal them properly. “She was in horrible pain,” Potter said. “She went into a depression and didn’t get help for her teeth until her mom and dad stepped in.” Potter said another dentist promised not to pull one of Mavigliano’s teeth right up until the moment he did when she was a child, which caused an unnatural fear of dentists in her. Mavigliano’s suit says the cost of the extensive and unexpected dental work done by the Hull was the “direct and proximate result of the negligence” of Thalken. The suit says Thalken failed to take an impression of Mavigliano’s her teeth prior to performing the procedure, placed low-grade metal caps on her teeth that subsequently had to be replaced, and failed to test her bite at the end of the procedure to ensure it was correct. Mavigliano said she lost $891.75 in wages and more than $24,987 in dental fees. She is asking for $25,878 in damages. Kyle Waller, Thalken’s attorney, said the case was about tooth decay “because of the nature and extent of decay” in Mavigliano’s mouth. “Of the 28 teeth in her mouth, 22 had decay,” Waller said. He said Thalken talked her out of having her teeth pulled and replaced with dentures or implants and began treatment, which he said was to be extensive. Waller said Mavigliano stopped the treatment after only three visits and three hours. He said she returned twice but only for maintenance on her fillings and did not continue treatment. Waller said William Hull formed his opinions on Mavigliano’s teeth without reviewing the records or X-rays of either Thalken or Dr. James States, another dentist she saw. Waller also said Mavigliano never complained to Thalken about pain or uneven teeth. William Hull charged nearly $30,000 to repair the teeth and an additional $7,000 to be deposed for the lawsuit, file an affidavit and travel to North Platte to testify, according to Waller. The defense intended to call Henry St. Germain, a dentist and professor at the University of Nebraska, according to Waller. Waller said St. Germain would testify that Thalken did provide the correct standard of care and that photos revealed scar marks on the caps that prove Mavigliano was able to chew. Battershell reprimanded Thalken during Hull’s during testimony Tuesday afternoon for making faces and shaking his head. Battershell asked him to stop demonstrating his disagreement by his body language. Battershell must have been satisfied because he did not repeat his request.

The U.S. Supreme Court agreed last week to consider restricting the government's authority to regulate wetlands, scheduling the first major environmental law test for new Chief Justice John G. Roberts Jr. Washington Times The justices said they will hear arguments from two sets of Michigan property owners seeking to build on land designated as wetlands. A federal appeals court said the U.S. Army Corps of Engineers could block the projects to protect water quality and wildlife.a Michigan man, John A. Rapanos, was convicted of violating the Clean Water Act for filling his wetlands with sand to make the land ready for development. He also lost a civil suit, which is at issue in his appeal. Justice Roberts may have played a central role in the decision to get involved. Under his predecessor, the late William H. Rehnquist, the court last year rejected a similar appeal by John Rapanos, one of the landowners involved. "What has changed here is we have a new judge on the court," said Mr. Rapanos' attorney, M. Reed Hopper, a lawyer with the Pacific Legal Foundation in Sacramento, Calif. "This does suggest that Judge Roberts is as fair-minded as we hoped." The cases ask whether the Clean Water Act, which gives permitting authority to the corps, covers wetlands that aren't adjacent to a river or other navigable waterway. The justices also will consider whether Congress has power under the Constitution's Commerce Clause to regulate those wetlands. The disputes are follow-ups to a 2001 decision that struck down a corps rule designed to protect migratory bird habitats on local ponds. The Supreme Court in that case said the rule lacked a "significant nexus" to the "navigable waterways" that are covered under the Clean Water Act. The justices also agreed to hear a separate case from Maine that asks whether the Clean Water Act applies when water passes through a dam. The question is whether that process constitutes a "discharge" subject to the environmental law. Environmentalists have been worried about how Roberts will vote in such cases. As an appeals court judge, he suggested in 2003 that federal power is limited. He had urged the appeals court to reconsider its decision restricting a San Diego area construction project because it encroached on the habitat of the rare arroyo southwestern toad. But in the first major oral argument he heard, Roberts chided a lawyer for Oregon who was there to try to protect that state's physician-assisted suicide law from being made secondary to the federal Controlled Substances Act. In the Supreme Court cases involving wetlands, Bush administration lawyer Paul Clement, the solicitor general, said the government has long-standing power to protect waterways, even if that means limits on pollution on nearby land.In a second case, justices will decide if the Army Corps of Engineers had the authority to restrict the development of a condominium in MacComb County, Mich. The government contends the work could pollute Lake St. Clair, which connects Lake Huron and Lake Erie. Justices also agreed to hear a third case involving the same law, the 1972 Clean Water Act. It was filed by the owner of hydroelectric dam projects in Maine which provide electricity for the company's paper mill. Lawyers for S.D. Warren Co. argue that the company should not be required to get permits for some of its operations. The cases are Rapanos v. United States, 04-1034, Carabell v. Army Corps of Engineers, 04-1384, and S.D. Warren Co. v. ME Board of Environmental Protection, 04-1527.

Interstate child custody dispute: Tug of war between Wyoming and Nebraska courts continues in custody dispute for son of deaf parents; Aunt&Uncle in Hastings suing to keep custody; Wyoming court rules Hastings County could not extend temporary guardianship order there beyond six months and orders child may stay with Wyoming parents Lincoln Journal Star Friday, October 14, 2005 Matthew Neuman had just finished lunch after a morning at kindergarten when his mom got the good news. A Wyoming court had decided Matthew, 6, will stay in Cheyenne with his parents rather than go to live with his aunt and uncle in Nebraska. “WE WON OUR CASE” said an e-mail from Matthew’s parents, Eric and Vicki Neuman, about the ruling. The Neumans have been battling to regain custody of Matthew since the Nebraska couple were awarded temporary guardianship of the boy in July 2003. It’s unclear how the Wyoming decision will affect the court cases in Nebraska. The couple, Ron and Dena Hohlen of Hastings, are Matthew’s maternal aunt and uncle. They contend the Neumans, who are deaf, did not provide a safe home for Matthew, who can hear. The Nebraska court battle dragged on for two years and Matthew lived with his aunt and uncle in Nebraska. His parents were allowed supervised weekend visits in Nebraska. But in July, the Neumans took Matthew back to their home in Wyoming, a violation of the Nebraska court order. In late July, a Wyoming court approved a different guardianship arrangement, allowing Matthew to live with his parents in Wyoming with supervision by another Wyoming couple. The Hohlens fought that arrangement in Wyoming courts. Last week the Wyoming District Court ruled the Nebraska guardianship is not valid because Nebraska state law allows a temporary guardianship for only six months. Section 30-2611 RRS Neb. The court dismissed the Hohlens’ case. “After careful review of all filings in the case the court notes that Nebraska statute places a six-month limit on temporary guardianship. It is clear from this record that the six-month guardianship … has expired,” said the judge in the order. The Hohlens’ attorney in Wyoming said she did not know whether the district court decision would be appealed to the state Supreme Court. The Neumans’ Nebraska attorney, Tom Lieske, had raised Nebraska’s six-month limit on temporary guardianship with the Nebraska court in seeking to dismiss the temporary guardianship a year ago. But Adams County Judge Robert Ide continued the temporary guardianship. Lieske said he is studying the Wyoming decision but has not determined how he might use it in the Nebraska case. Hearings on the Nebraska guardianship issue have been set for Oct. 26, 27 and 28. The Neumans have also been charged with violation of custody, a criminal misdemeanor charge for taking Matthew out of Nebraska without court permission. 28-316 RRS Neb. A hearing on that criminal charge is scheduled for Oct. 26. Steven and Leslie Shelton, a Cheyenne couple, are Matthew’s legal guardians in Wyoming, but the court has agreed the boy can live with his parents, said Dameione Cameron, a Wyoming attorney representing the couple. The Wyoming court does oversee the guardianship, requiring a report from the guardians every six months, Cameron said. The Wyoming court decision shows the temporary guardianship in Nebraska is not valid, said Leslie Shelton. “We are hoping that the Wyoming decision will be used in the Nebraska cases. We hope it will make them go away. That is our dream,” she said.

Supremes reverse directed verdict against Conagra Monfort plant employee's third party suit against Qwest Communications. "Accepted work doctrine" did not apply where phone company maintained control over strip of ground where cable lay.Washington v. Qwest Communications Corp., 270 Neb. 520 October 14, 2005. No. S-04-677. ConAgra employee Washington was injured when he tripped over a wire lying on the ground between a telephone terminal box and a utility pole located on a utility easement. Qwest Communications Corporation (Qwest) had installed the wire several days earlier in order to provide telephone service to a construction trailer owned by Addison Construction Co. (Addison). The district court granted Addison's motion for directed verdict, and a jury entered a verdict in favor of Qwest. Washington appeals. (ConAgra was joined as a party for the purpose of workers' compensation subrogation. See Neb. Rev. Stat. § 48-118 (Reissue 2004).) Parker v. Lancaster County School District, 254 Neb. 754, 757, 579 N.W.2d 526, 528 (1998), states the "accepted work doctrine" as "generally a construction contractor is not liable for injuries or damage to a third person with whom he is not in contractual relation resulting from the negligent performance of his duty under his contract with the contractee where the injury or damage is sustained after the work is completed and accepted by the owner." See also Moglia v. McNeil, 270 Neb. 241 (2005) Supreme Court holding"We conclude that the accepted work doctrine did not apply because Qwest was still in control of the premises where the work was performed and the injury had occurred. In this case, the evidence showed that Qwest maintained control of the premises at all times because of the utility easement and that Qwest had control of the placement of the wire...Qwest maintained control over the site of Washington's accident, which occurred on a utility easement. Therefore, the accepted work doctrine was not applicable to the facts of this case. It was error for the trial court to instruct the jury that the accepted work doctrine could be relied upon as a defense in this case." Defendant entitled to new trial because he presented evidence to establish at least Qwest's legal duty of care: Washington adduced evidence which, if believed by the trier of fact, would establish that Qwest had a duty to protect him from injury, that it did not discharge that duty, and that he was injured as a result. Therefore, Washington is entitled to a new trial as to Qwest's liability.

No cert 2nd time up to the Supremes; on remand 8th Circuit found even if the intitial police questioning post indictment violated Miranda's 6th Amendment prong,the violation had no effect on trial; As a consolation prize though, Defendant wins a Booker resentencing. Supreme Court refuses to hear drug conviction of Lincoln man The Associated Press The U.S. Supreme Court has refused to hear the appeal of a Nebraska man convicted on drug charges, although last year it ruled unanimously for him, saying police should have informed him of his rights before questioning him. The high court on Tuesday refused without comment to hear the appeal of John Fellers, who was sentenced to more than 12 years in prison but sought to have his conviction overturned after the Supreme Court’s ruling last year. In 2000, Fellers, of Lincoln, freely spoke of his drug problem to police when they arrived at his home to tell him he had been indicted by a grand jury for conspiracy to distribute methamphetamine. He was informed of his so-called Miranda rights, which include the right to remain silent and seek counsel, only after he was taken to jail. With Fellers arguing his case to the Supreme Court, the panel ruled last year that the statements he made violated his Sixth Amendment right to counsel. The panel sent his case to a federal appeals court to determine whether to suppress statements he later made in jail. In May, the 8th U.S. Circuit Court of Appeals upheld his conviction, saying there was no indication the incriminating statements he later made were prompted by what he said at his home. "We conclude that the exclusionary rule is inapplicable in Fellers’s case because, as with the Fifth Amendment in Elstad, the use of the exclusionary rule in this case would serve neither deterrence nor any other goal of the Sixth Amendment.there is no indication that the interrogating officers made any reference to Fellers’s prior uncounseled statementsin order to prompt him into making new incriminating statements. In addition,because Fellers’s initial statements related to persons already named in the indictment and to his own personal use of methamphetamine (the drug he was accused ofconspiring to distribute and to possess with intent to distribute), the officers would have had a basis for the questions asked during the jailhouse interrogation even if Fellers had said nothing at all at his home." "Even if Fellers’s jailhouse statements should have been suppressed, any error in admitting those statements at trial was harmless beyond a reasonable doubt. Although a defendant’s own confession is “a particularly potent piece of evidence,” its erroneous introduction is harmless where the other evidence against him is so substantial that it “assured beyond a reasonable doubt that the jury would have returned a conviction even absent the confession.” But the panel did order that Fellers be resentenced because of a recent decision by the Supreme Court on sentencing guidelines, which said juries, not judges, should determine whether to dole out punishments stronger than ones in sentencing guidelines. "The jury in Fellers’s case specifically found that Fellers was responsible for between 50 and 500 grams ofmethamphetamine and specifically rejected an alternative verdict stating that Fellerswas responsible for more than 500 grams of methamphetamine, the district court’sdecision to enhance Fellers’s sentence based upon the latter figure was in error.Because Fellers raised this issue at sentencing, he is entitled to a new sentencinghearing.Fellers’s conviction is affirmed, but his case is remanded for resentencing in accordance with Booker. Fellers was sentenced to more than 12 years in prison for conspiring to distribute and possess with intent to distribute between 50 and 500 grams of methamphetamine. The case is Fellers v. United States, 04-1552.

Sprint unit sues Nebraska Public Service Commission in US District Court-Nebraska; alleges that PSC is stonewalling Sprint-TimeWarner Cable venture to provide phone service to Southeast Nebraska area on pretext that local phone carriers dont have to deal with the cable company. Thu, Oct. 13,The Associated Press Sprint Communications Co. is accusing the Nebraska Public Service Commission of hampering its efforts to provide local phone service in the state. In a lawsuit filed in U.S. District Court, Sprint Communications, a subsidiary of Sprint Nextel Corp., alleges that the Public Service Commission is violating the federal telecommunications Act of 1996, which was meant to foster competition in the industry and give consumers more choices. Sprint Communications, based in Overland Park, teamed with Time Warner Cable to provide local telephone service in Lincoln and other cities using Time Warner’s cable wires. To do that, Sprint must reach agreements with local phone companies to handle telephone calls to their customers. But Sprint could not strike a deal with the Southeast Nebraska Telephone Co., or Sentco, to offer local service in Falls City. Sentco argued that because Time Warner, not Sprint, would actually be the company directly offering phone service, it was not obligated under federal law to negotiate with Sprint. The Public Service Commission ruled in September that Sprint did not meet the definition of a telephone common carrier under Federal Communications Commission regulations and did not qualify to negotiate agreements with local telephone companies. Sprint wants the court to declare it a telecommunications carrier, require local phone companies to negotiate interconnection agreements, and issue a permanent injunction prohibiting the Public Service Commission from enforcing its order. Sprint said phone service in urban areas had expanded through innovation in technology, but rural areas of Nebraska “currently lack any meaningful choice regarding their provider of local wireline telecommunications services.” “Although the purpose of the 1996 act was to open up local monopolies to competition, the … PSC’s rewrite of the statutory definition preserves Sentco’s local monopoly and deprives rural subscribers of the new options and innovation that other customers around the nation enjoy,” the lawsuit says. One key issue behind the lawsuit is how local telephone companies are paid for phone calls they receive from other carriers that complete in their exchange area. With digital technology, it is difficult to determine where a call originates, making it difficult for a local exchange to determine how much to charge for the call. Meanwhile, the FCC is looking at reforming the process that carriers use to charge each other for terminating phone calls. One idea is to come up with a uniform charge for all calls. Sprint spokeswoman Debra Peterson said the company believes consumers should have choices when it comes to their local telephone service provider. “We’re simply trying to make that happen,” she said. First glance ■ Sprint Communications Co. claims in a lawsuit that a state agency is hampering it from providing local phone service in Nebraska.

SEC imposes sanctions on ex-General Re exec for setting up sham accounting between Berkshire Hathaway unit and AIG. BLOOMBERG NEWS Omaha.com John Houldsworth, a former executive of Berkshire Hathaway Inc.'s General Re reinsurance unit, has been indefinitely suspended by consent from auditing public companies after pleading guilty in an accounting probe. The sanction, imposed in an administrative filing Tuesday, lasts until the Securities and Exchange Commission chooses to lift it, said SEC spokesman John Nester. Houldsworth, who lives in Ireland, agreed to the suspension when he pleaded guilty to a criminal charge of conspiring to violate U.S. securities laws in June. Houldsworth, 46, admitted to helping American International Group Inc., the world's largest insurer, use a sham reinsurance contract in 2000 to distort its finances. He also has settled a civil suit from the SEC

Complex securities fraud case from Red Willow County goes back to trial court on failure to disclose grounds, though Neb. App. Agrees securities law violations lapsed by operation of 1 year statute of limitations and 3 year statute of repose. . Appeals court finds that issues of fact existed whether defendants who took assignments from defrauded investors seeking to recover investments in defaulted notes had a duty to affirmatively disclose their possible complicity in fraud and other wrongdoing. Appeals court affirms SJ for defendants statute of limitations defenses because action for selling unregistered securities were not equitably tolled. that some federal securities fraud claims; trial court properly allowed defendants to assert statute of limitations defense even though case had been pending a couple years Ord v. AmFirst Invest. Servs., 14 Neb. App. 97 October 11, 2005. Nos. A-04-153, A-04-437. The plaintiffs appeal from orders of the district court for Red Willow County dismissing certain of the plaintiffs' claims against AmFirst Bank; AmFirst Investment Services; individual defendants, Aragon Financial Services, Inc. DynaCorp Financial Strategies, et al. The plaintiffs purchased promissory notes issued by DFS trusts through Carter, a registered representative of Aragon, from June 11, 1997, through January 25, 2000, and DFS' subsequent default on these obligations. For the reasons set forth below, we (agree that SJ was proper on the federal securities registration violations, but SJ was not proper on Plaintiffs' failure to disclose fraud claims. Further the Court properly allowed defendants to amend to insert a statute of limitations defense. To prove fraudulent concealment, a plaintiff must show that (1) the defendant had a duty to disclose a material fact; (2) the defendant, with knowledge of the material fact, concealed the fact; (3) the material fact was not within the plaintiff's reasonably diligent attention, observation, and judgment; (4) the defendant concealed the fact with the intention that the plaintiff act in response to the concealment or suppression; (5) the plaintiff, reasonably relying on the fact or facts as the plaintiff believed them to be as the result of the concealment, acted or withheld action; and (6) the plaintiff was damaged by the plaintiff's action or inaction in response to the concealment. Streeks v. Diamond Hill Farms, 258 Neb. 581, 605 N.W.2d 110 (2000). Clearly, the record before us shows that genuine issues of material fact exist whether Aragon and Carter concealed material facts with the intent that the plaintiffs acted in response to this concealment; whether the plaintiffs relied on the facts as the plaintiffs believed the facts to be as the result of the concealment; and whether the plaintiffs were damaged as the result of their reliance. Under the circumstances of the instant case, we cannot adopt AmFirst Bank's conclusion that Aragon and Carter had no duty to disclose material facts to the plaintiffs. Clearly, even though the sale of the notes was complete, Aragon and Carter had an ongoing duty to the plaintiffs, given that Aragon and Carter promised to undertake the responsibility of assisting the plaintiffs with recovering their money and impressed upon the plaintiffs that their signing of the release and the hold harmless agreement was imperative to the success of such recovery. In regard to the relevant statute of limitations, the trial court found that the plaintiffs' federal claims under the Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Adviser's Act of 1940 were all filed after the 1-year statute of limitations and the 3-year statute of repose. The record shows that the plaintiffs' 10th claim for relief, under the Securities Exchange Act of 1934, alleges a violation of 15 U.S.C. § 78o; that the plaintiffs' 11th claim for relief alleges violations of 15 U.S.C § 80b-3; and that the plaintiffs' 12th claim for relief, under the Securities Act of 1933, alleges a violation of 15 U.S.C. § 77e. The defendants argued, and the court found, that § 13 of the Securities Act, 15 U.S.C. § 77m, applies to all three of the above claimsThe 1-year statute of limitations in 15 U.S.C. § 77mruns from the date each "violation" occurred. See Caviness v. Derand Resources Corp., 983 F.2d 1295 (4th Cir. 1993). A violation of 15 U.S.C. § 77eoccurs when a person sells an unregistered, nonexempt security. See 15 U.S.C § 77l(a)(1). A violation of § 15 U.S.C. § 78o occurs when an unregistered broker sells a security. A violation of § 80b-3 occurs when an unregistered investment adviser first enters into an agreement to provide investment adviser services. See Kahn v. Kohlberg, Kravis, Roberts & Co., 970 F.2d 1030 (2d Cir. 1992). The record shows that Carter sold DFS notes to the plaintiffs more than 1 year prior to the filing of the plaintiffs' complaints. The plaintiffs contend that the district court should have tolled the statute of limitations to take into consideration that the plaintiffs did not learn of Carter's alleged misconduct and DFS' default until on or about June 15, 2000. Under 15 U.S.C. § 77m, there is no equitable tolling for failure to register claims, given that registration is a matter of public record and therefore claims alleging the sale of unregistered securities cannot be concealed. See Perry H. Bacon Trust v. Transition Partners, Ltd., 298 F. Supp. 2d 1182 (D. Kan. 2004). The trial court found that the statute of repose could not be tolled under federal law, except for Liebig's January 25, 2000, purchase, which was the only purchase by Ord or Liebig occurring within 3 years of the filing of the plaintiffs' petition on June 8, 2001. On this record, we cannot find that the trial court erred in its determination. Proper to allow amendment of Defendants' answer to assert statute of limitations defensesthe plaintiffs contend that AmFirst Bank's amendment of its answer occurred many years after the original answer was filed, years after the last discovery was taken on the issue, well after the pleadings had been ordered closed, and without good cause shown. The decision whether to allow or deny an amendment to any pleading lies within the discretion of the court to which application is made. Genthon v. Kratville, 270 Neb. 74, 701 N.W.2d 334 (2005); New Light Co. v. Wells Fargo Alarm Servs., 252 Neb. 958, 567 N.W.2d 777 (1997). See, also, Neb. Rev. Stat. § 25-852 (Reissue 1995) (statute applicable to this action because action was filed prior to statute's repeal by 2002 Neb. Laws, L.B. 876, operative January 1, 2003; amended pleadings are now governed by Neb. Ct. R. of Pldg. in Civ. Actions 15 (rev. 2003)). Although the decision whether to allow or deny an amendment to any pleading lies within the discretion of the court to which application is made, the statute is to be liberally construed and amendments are permitted where they are proposed at an opportune time and will be in the furtherance of justice. Genthon, supra; New Light Co., supra. AmFirst Bank contends that their amendment comported with Nebraska law, given that they proposed their amended answer nearly 3 months before the trial was originally scheduled to take place and nearly 6 months before the summary judgment hearing actually occurred. The trial court agreed with AmFirst Bank, stating that AmFirst Bank's amendment of its answer was in furtherance of justice and did not prejudice the plaintiffs, given that there were more than 90 days before the commencement of trial. On this record, we cannot say that the trial court abused its discretion

Former General Re chief likely faces SEC enforcement lawsuit over Berkshire Hathaway subsidiary's transactions with American International Group WORLD-HERALD10-7 Ronald E. Ferguson, former head of Berkshire Hathaway Inc.'s largest insurance division, may be sued by the U.S. Securities and Exchange Commission, Berkshire said today. The Omaha-based investment company headed by Warren Buffett said attorneys representing Ferguson reported that he had received notice from the SEC related to its investigation of nontraditional insurance products.A person who receives such a notice can respond to the commission's staff before it recommends whether the commission should file a civil action. The SEC could ask a court to bar Ferguson from serving as an officer or director of a publicly held company and to impose other civil penalties.Ferguson was chief executive of Berkshire's General Reinsurance division until Oct. 1, 2001. He provided consulting services to the company until May 20, 2005, when General Re ended the consulting agreement after Ferguson refused to answer questions posed by investigators from the SEC and the U.S. Justice Department.Authorities are investigating alleged accounting irregularities involving transactions between General Re and American International Group Inc. The SEC alleged that General RE's sales of finite risk re-insurance products were in reality disguised loans whose purpose was to inflate Aig's earnings.

8th Circs affirm 12b6 dismissal and summary judgment for Acceptance Insurance Company and key executives in shareholder suit alleging that Ins. Company failed to disclose enough information on effect California court ruling would have on size of construction insurance claims. Insufficient pleadings to show violations of Section s 11 and 15 of the Federal Securities Act.WORLD-HERALD 08/29/05 In re Acceptance Insurance Litigation: Jerome S. Richman v. Acceptance Ins. Co. Case No. 04-2078 District of Nebraska, October 7, 2005 Dismissal of Section 11 and 15 of the Securities Act claims in shareholder liability suit regarding the adequacy of reserves by insurer are affirmed, as the shareholders failed to assert facts that the reserves were in adequate in light of the (California Supreme Court's) Montrose decision. Denial of motion to amend complaint was not an abuse of discretion, as amendment would be futile. Grant of summary judgment on Exchange Act claim was also proper, as scienter requirements were not met. Evidence supporting scienter was inadmissible under Daubert standards.. The 8th Circuit Court of Appeals agreed last month with the U.S. District Court in Omaha that it should have dismissed a five year old shareholder lawsuit against Acceptance Insurance Cos. Plaintiffs bought shares of Acceptance stock between March 10, 1998, and Nov. 16, 1999. The shareholders had alleged that Acceptance and officers Kenneth Coon, Georgia Mace and John Nelson had issued "false, misleading and incomplete information" in public documents and press releases, saying the company was in good financial condition Because of those statements, the lawsuit said, some people bought shares of company stock. The lawsuit also included Acceptance directors and financial advisers. After the company announced on Nov. 15, 1999, that it would take a charge of $50 million to shore up its reserves because of added insurance claims, the value of its stock fell by $300 million. Acceptance filed for protection under the U.S. Bankruptcy Code earlier this year. A key reason for Acceptance's financial trouble, the appeals court said, was a court ruling in California that broadened the potential claims it would have to pay under insurance policies it had written to cover construction companies. After that court ruling, Acceptance's reserves were not adequate to meet its future claims. Appeals Judges Michael J. Melloy, Gerald W. Heaney and George G. Fagg ruled that the shareholder groups did not show that the company or its officers made false or misleading statements or omitted information in their financial reports. Acceptance issued general statements about the possible adverse effect of legal rulings, including possible losses, the appeals court said. Attorneys for the shareholder group did not return calls seeking comment on the ruling. Those filing the lawsuit were the Lawrence I. Batt P.C. Profit Sharing Plan and Trust; Jerome S. Richman, co-trustee of the Joe Sonken Trust; Diana L. Kinder; and the Barbara Winer Revocable Trust.

Hey Bob Bartle, have you tried to get a job with Ronnie Earle's Office? Lincoln Attorney seeks to subpoena witness from 1971 Omaha Black Panther bombing now living in Spokane Washington. This is yet another futile Edward Poindexter motion to set aside his early 70's conviction for murdering Omaha Police Officer Larry Minard. Judge considers jurisdiction in 1970 murder case Lincoln Journal StarAn appeal by Ed Poindexter, one of two men convicted in the 1970 bombing death of an Omaha police officer, could hinge on a narrow legal question — can Poindexter compel a resident of another state to provide evidence that could be key to the appeal? Douglas County District Judge Richard J. Spethman heard opposing views on the question at a hearing Friday. He will rule later. Attorneys for Poindexter want the judge to issue papers to a court in Spokane, Wash., asking that court to compel Spokane resident Gabriel Peak to provide the attorneys a voice sample. Poindexter contends Peak is the former Duane Peak, a key witness for the state in the 1971 trial of Poindexter and co-defendant David Rice. A Douglas County District Court jury convicted the men that May in the bombing death of Larry Minard, an Omaha police officer. Minard was killed Aug. 17, 1970, when he approached a suitcase booby-trapped with dynamite in a vacant house in north Omaha. He and other officers had been lured to the house by a 911 caller who claimed to have seen a woman being dragged inside. Peak, then a teenager, in trial testimony said he placed the call and he implicated Poindexter and Rice in the plot. Both men received life sentences, and Peak was ordered held in a juvenile detention facility. Peak apparently left the state shortly after his release in the early 1970s. His whereabouts where largely unknown until about a year ago, when a private investigator apparently located him in Spokane. Attorneys for Poindexter have said Gabriel Peak’s social security number and birth date match those of Duane Peak. Poindexter’s attorney, Bob Bartle of Lincoln, said in an interview this week the state’s case collapses without Peak’s testimony. Bartle wants to compare Peak’s voice now with the voice on the 911 tape from Aug. 17, 1970. Supporters of Poindexter and Rice said the voice on the tape was that of a man, and not a teenage boy. The state has said the issue of Peak’s testimony has already been weighed, and found to be credible, by courts considering Rice’s appeals. The Nebraska Supreme Court affirmed his conviction in 1972. Although District Judge Warren Urbom in an habeas corpus proceeding ruled the Police volated the defendant's 4th amendment rights in searching his residence and seizing explosives, SCOTUS held that 4th amendment cases were not appealable on federal habeas corpus. Stone v. Powell, 428 U.S. 465, (1976). The 8th Circuit threw out other proceedings in 1991 and the Nebraska Supreme Court did the same in 1983. The Nebraska Supreme Court found that the state's failure to turn over a letter from the 911 witness and his voice tape for testing did not violate Brady v maryland. At the hearing Friday, Brent Bloom, chief deputy Douglas County Attorney, told Spethman the process Poindexter is attempting to use to get the voice sample is reserved for matters involving courts from different countries. “It’s an extremely unusual procedure ... only for service of process for someone in a foreign country,” Bloom said. Bartle said the state of Nebraska’s rules of discovery permitted the procedure. He also rejected Bloom’s claim that the motion should be denied because Peak’s credibility has already been considered by courts. Bartle said Poindexter was not a party to the earlier cases, brought by Rice’s attorneys. Spethman did not say how soon he would rule on the motion.

Mysterious black brief case leads to Scotts Bluff County Courthouse evacuation; previously there had been turmoil within the Scotts Bluff County Attorney's Office Omaha. com A black briefcase delivered to the County Attorney's Office prompted an evacuation of the Scotts Bluff County Courthouse.Interim County Attorney Doug Warner said the briefcase, wrapped in packing tape and labeled with the return address "UR TOOK, Nothing Street, Billings, Montana," was delivered Thursday morning with the mail. Scottsbluff Police Detective Bob Rader said officers X-rayed the package and then opened it, determining that it did not contain dangerous materials. The briefcase contained paperwork, he said. Sheriff Jim Lawson said the safety of courthouse employees and the public was the primary concern. "While it (an evacuation) may be an inconvenience, it is always better to err on the side of safety," he said. Lawson said investigators would seek to determine who sent the package and whether charges would be filed. Last month, the preceding SB County Attorney resigned citing West Nile sickness and th eoffice had fired and then immediately rehired an assistant prosecuting attonrey

Supremes hold that State Public Service Commission has authority to regulate Metropolitan Utilities District's bid to market natural gas to customers of other utilities. In re Application of Metropolitan Util. Dist., 270 Neb. 494 October 7, 2005. No. S-04-662. State regulators have authority over the Metropolitan Utilities District's bid to sell natural gas to other utilities' customers, the Nebraska Supreme Court ruled Friday. "The Nebraska Public Service Commission (Commission) dismissed the application of the Metropolitan Utilities District of Omaha (MUD) for certification as a competitive natural gas provider (CNGP). The district court "affirmed," finding that the Commission lacked jurisdiction. The Commission appeals, contending that it has jurisdiction over MUD under Neb. Rev. Stat. §§ 66-1848 and 66-1849 (Reissue 2003). MUD argues, however, that the Commission lacks jurisdiction because of Neb. Rev. Stat. § 57-1306 (Reissue 2004). We determine that the newer and more specific statutes, §§ 66-1848 and 66-1849, apply and give the Commission jurisdiction over MUD's application. Accordingly, we reverse, and remand for further proceedings." The high court reversed a Lancaster County District Court decision that said the Nebraska Public Service Commission lacked jurisdiction over the publicly owned utility. We determine that per "Neb. Rev. Stat. §§ 68-1811 (Reissue 2003) and 66-1849 the Commission is a required party in the action and could appeal the court's order." "MUD is correct that § 57-1306 states that the Commission does not have jurisdiction over a metropolitan utilities district except for disputes brought under §§ 57-1301 to 57-1307. But the statutes specifically pertaining to CNGP's were passed later and provide the Commission with jurisdiction over all CNGP's. In particular, § 66-1848 defines a CNGP as a person who sells gas for consumption by a retail end user. It then excludes metropolitan utilities districts only in areas in which it provides natural gas service through pipes it owns--which is not the case here. This more specific provision of § 66-1848 trumps the general provisions of § 57-1306, particularly when considering the stated legislative desire that the Commission's powers "shall be liberally construed." See § 66-1804(2)." But the lower court still will have to decide whether MUD should be certified as a competitive natural gas provider and allowed to market gas outside its territory. The utility sought approval to market gas in 2003. Utility officials said they made the request after receiving inquiries from a couple of major industries wanting to save money on their gas bills. The Public Service Commission turned down the application. Commissioner Anne Boyle said the panel found no indication that the Legislature ever intended for public utilities to market natural gas. Marketing gas is different from providing gas to customers within the MUD territory, because it would be done on a selective basis and gas would be sold on whatever terms the two parties agreed to. The utility appealed the commission's decision in District Court, which ruled that the commission had no authority over the utility. The commission, in turn, appealed to the Nebraska Supreme Court. Cornerstone Energy, Aquila and NorthWestern Energy all joined on the side of the commission. Officials from Aquila, a private competitor to MUD, were happy with the Supreme Court decision, said spokeswoman Jan Davis. But they aren't ready to declare victory until they see how the district court rules on the marketing issue, she said. MUD officials were muted in their reactions as well. President Tom Wurtz said the utility will continue to fight the case in the lower court and, if need be, in the Legislature. He said companies should be able to turn to MUD to save money on gas. Allowing MUD to market natural gas also could help with economic development by reducing the cost of doing business. The case has no effect on current customers and operations, said Dan Crouchley, general counsel for MUD. It also has no effect on the utility's dispute with the commission over building natural gas lines into Sarpy County, he said

City of Beatrice adds KC Mo based gas supplier Aquila after EPA notifies city that it may have to pay clean up costs from coal tar contamination on property Aquila sold it. Omaha.Com The City of Beatrice has filed its second lawsuit in less than a week in an attempt to shield itself from liability in a hazardous-waste cleanup near the Big Blue River. The city sued Aquila Inc. of Kansas City, Mo., Wednesday, saying an Aquila subsidiary knew about coal tar contamination but didn't disclose it when it sold the land to Beatrice. A coal gasification plant had been situated there. The city bought the flood plain land in 1996 with federal grant money. In May, the federal Environmental Protection Agency notified the city that it would be one of the parties responsible for cleaning up the site at an estimated cost of $1 million. On Sept. 30, the city sued Kirkham, Michael and Associates, an Omaha-based engineering consulting firm that conducted an environmental review of the site.

Whoaa—Supremes affirm a District court summary judgment, from Judge Burns no less. Construction contractor who gave personal guaranty to Nebco for supplying cement could not present sufficient evidence that his subsequent self-incorporation abrogated his existing guaranty. Summary judgment for Plaintiff affirmed. NEBCO, Inc. v. Adams, 270 Neb. 484 October 7, 2005. No. S-04-652. NEBCO, Inc., on behalf of its division Ready Mixed Concrete Company (Ready Mixed), filed an action in the district court for Lancaster County against appellant, Randy Adams, seeking payment pursuant to a personal guaranty contract which Adams had executed to guarantee the cost of purchases of concrete by Adams' business from Ready Mixed. Adams' business was identified in the guaranty as "Adams Concrete Construction." At the time Adams signed the guaranty, Adams Concrete Construction was a sole proprietorship. Adams' business was subsequently incorporated as "Adams Concrete Construction Inc." As he argued in district court, Adams claims on appeal that the guaranty is limited to the debts of the sole proprietorship and does not extend to the debts of the corporation. Adams therefore contends that he is not liable for the debts incurred by his corporation, which debts NEBCO sought to recover in this action. The district court determined that Adams was liable on the guaranty and granted NEBCO's motion for partial summary judgment on the issue of liability. The parties stipulated to damages without prejudice to the issue of liability, and the court entered judgment in favor of NEBCO. Adams appeals. Because we conclude that Adams is liable under the guaranty for the debts at issue, we affirm. [Whether subsequent incorporation of a party to the guaranty contract abrogates the guaranty depends on the intention of the parties and the extent it alters their business relationship] Fehr Bros. v Scheinman, 121 A.D.2d 13, 19, 509 N.Y.S.2d 304, 308 (1986), stated: The test which has evolved is to determine whether the changes in the entity, the debts of which . . . are guaranteed[,] significantly alter the business dealings between the debtor and the creditor and the nature of the guarantor's undertaking, in particular the degree of risk the guarantor is being obligated to assume. Whether changes in the principal [debtor] are of sufficient magnitude to justify releasing a guarantor is a determination courts must make on a case-by-case basis. Fehr Bros., Inc. v. Scheinman, 121 A.D.2d 13, 509 N.Y.S.2d 304, 307-08 (1986). Courts agree that minimal changes do not affect a guarantor's obligation. See Annotation, Change in Name, Location, Composition, or Structure of Obligor Commercial Enterprise Subsequent to Execution of Guaranty or Surety Agreement as Affecting Liability of Guarantor or Surety to the Obligee, 69 A.L.R.3d 567, 572 (1976). The incorporation did not change the relationship between Ready Mixed and Adams' business. Referring to the record, there was no evidence that Adams' business underwent a change which altered Adams' relationship to his business. To the contrary, based on the evidence presented by NEBCO, Adams continued to control his business after incorporation with no resulting change in the risk he had undertaken as guarantor of the business account. NEBCO presented evidence showing it was entitled to judgment on the guaranty contract if the evidence was uncontroverted at trial. The burden shifted to Adams, and Adams did not present evidence which showed the existence of a material issue of fact that prevented judgment.

Follow up: Supreme Court modifies July opinion against Police Union in dispute with City of Omaha in retaliation claim but still upholds ruling in City's favor. Following 8th Circuit decisions Spears v. Mo. Dept. of Corr. & Human Resources, 210 F.3d 850 (8th Cir. 2000) and Meyers v. Starkethe Supreme Court holds that it will apply Title VII definition of "adverse employment decisions" to public employee first amendment retaliation claims. Fraternal Order of Police v. County of Douglas, (modified opinion) 270 Neb. 469 Filed October 7, 2005. No. S-04-611. For public employee free speech retaliation claims:" In Spears v. Mo. Dept. of Corr. & Human Resources,, 210 F.3d 850 (8th Cir. 2000), a title VII action, the plaintiff brought a retaliation claim against the department of corrections. The district court granted summary judgment in favor of the department, concluding that the plaintiff had failed to establish any adverse employment action and, thus, had not presented a prima facie case of retaliation. The court of appeals affirmed. To establish a prima facie case of retaliation, a plaintiff must show, among other things, that the plaintiff suffered an adverse employment action at the hands of the employer. See id. "An adverse employment action is a tangible change in working conditions that produces a material employment disadvantage." Id. at 853. "Termination, reduction in pay or benefits, and changes in employment that significantly affect an employee's future career prospects meet this standard . . . but minor changes in working conditions that merely inconvenience an employee or alter an employee's work responsibilities do not . . . ." (Citation omitted.) Id. See, also, Meyers v. Starke, 420 F.3d 738 (8th Cir. 2005) (employing title VII language as to what constitutes adverse employment action in First Amendment case)."

Supremes dismiss petition for further review when attorney failed to attach $50 filing fee; holds new fee is jurisdictional. Neb. Rev. Stat. § 33-103 (Reissue 2004) Petitioning parties received warning letters of the new filing fee. Robertson v. Rose, 270 Neb. 466 Filed October 7, 2005. No. A-04-449.. This matter is before us on a petition for further review filed by Benjamin D. Rose, appellee. Because we conclude the petition was not timely filed, the petition is dismissed. This is a motor vehicle accident negligence case in which Veronica R. Robertson, appellant, sued Rose. Following a jury verdict in favor of Rose, the district court for Box Butte County denied Robertson's motion for new trial. Robertson appealed. On July 22, 2005, the Nebraska Court of Appeals, in a memorandum opinion, reversed the judgment of the district court which had denied Robertson's motion for a new trial. The Court of Appeals remanded the cause for a new trial.As noted in the clerk's letter to Rose, § 33-103.01 was amended by L.B. 348, § 6, effective July 1, 2005, to provide in relevant part: "At the time of filing a petition for further review to the Supreme Court from the Court of Appeals, there shall be paid to the clerk the sum of fifty dollars as a docket fee in lieu of any other filing fees." Further, Neb. Ct. R. of Prac. 2F(1) (rev. 2002) was amended June 15, 2005, to provide in relevant part: As of July 1, 2005, pursuant to Neb. Rev. Stat. § 33-103 as amended by L.B. 348, § 6, a docket fee of $50 shall be paid to the Clerk of the Supreme Court at the time of the filing of the petition for further review. This docket fee shall be waived for an indigent person who has been granted leave to proceed in forma pauperis on appeal by the trial court. In a like manner, the payment of the $50 fee to docket a petition for further review is now mandated by § 33-103 and is therefore deemed jurisdictional. See, also, rule 2F(1). A petition for further review, albeit tendered to the clerk within 30 days after the Court of Appeals has issued its decision, is not properly filed unless and until the required docket fee is timely paid.

“I think any parent would agree that a claim such as this would have a higher value, but there’s a cap of $1 million,’’ Arnold Elementary School Student sex-assault victim's mother files tort claim against Lincoln Public School District Lincoln Journal Star The mother of a 5-year-old boy who was sexually assaulted in the bathroom of Arnold Elementary has filed a $1 million claim against Lincoln Public Schools, under the Nebraska Political Subdivision Tort Claim Act. The claim alleges the district’s negligence resulted in the Sept. 22 assault.Nebraska law requires that such a claim be filed with the clerk or custodian of official records of the responsible political subdivision before a lawsuit is filed (§13-905 RRS Neb)and within one year of the incident(§13-919 RRS). The district has six months to act on the claim(§13-906). The claim alleges the district is negligent because: * It didn’t have an effective security system in place. * It failed to supervise kindergartners and allowed them to go to the bathroom alone. *It allowed a stranger to walk into the school and didn’t warn the boy’s mother about the possibility. Police arrested Joseph A. Siems Jr. shortly after he walked into the school and into the bathroom where, he told investigators, he waited for a child. A secretary saw Siems come into the building, didn’t recognize him and went to get a supervisor. Police suspect that’s when the boy went to the bathroom and was confronted by Siems. Staff locked down the school and called 911. In the meantime, the boy told his teacher what had happened. Prosecutors charged Siems, 27, with first-degree sexual assault. Vince Powers, the attorney representing the mother and her son, said the claim is a way to get help for the mother to pay for health care expenses, and to ensure a system is put in place so such an incident doesn’t happen again. “The only true way to prevent this from happening again is through the civil justice system, so the school system understands that there are consequences when they fail to protect children,’’ Powers said. The district is in the process of reviewing its security policies and included money in this year’s budget to hire a security specialist. The specialist hasn’t been selected yet but in the meantime the district has hired a consultant and is forming a committee to review existing policies. LPS Superintendent Susan Gourley said she couldn’t comment on pending litigation or confidential student matters. The claim seeks the maximum amount allowed under state law.§13-926 “I think any parent would agree that a claim such as this would have a higher value, but there’s a cap of $1 million,’’ Powers said.

CJ Roberts questions clever lawyers drafting in Kansas vs Indian Tribe gas tax dispute

SCOTUS considers Kansas fuel tax case from 10th Circuit that held State could not tax fuel sales on Indian lands; Rookie CJ Roberts asks interesting question about "bright young lawyers" drafting legislation to influence policy Kansas City Star WASHINGTON - The Supreme Court on Monday heard arguments in a Kansas case involving the power of states to tax fuel sold on Indian reservations, a source of increasing conflict as more retailers thrive on tribal lands. Summary of 10th Cir. Case here. At issue is whether Kansas can tax distributors who sell fuel to a gas station owned and operated by the Prairie Band Potawatomi tribe. Gamblers driving to the tribe's casino 15 miles north of Topeka, Kan., often stop for gas at the reservation's "Nation Station." The Denver-based 10th U.S. Circuit Court of Appeals ruled that the tax violated . tribal sovereignty even though it was not directly imposed on the tribe. A lawyer for the state argued Monday that Kansas is not trying to regulate tribal activity, but is simply taxing non-Indian companies, based outside the reservation, that distribute fuel to tribal operators. All the tax money goes to keeping up state roads used by Kansas drivers on their way to the casino. "The why, when and where of the tax is all off-reservation and non-Indian," said Theodore Olson, the former U.S. solicitor general, arguing on behalf of Kansas. The tribe asserts that it collects its own taxes on the fuel to help maintain the reservation's road system, recognized as one of worst in the nation. Allowing the state to impose a fuel tax runs contrary to federal policy encouraging economic development on tribal lands, said Ian Gershengorn, lawyer for the tribe. Several justices questioned whether the tribe was simply making an economic complaint - that it could not impose its tax on top of the state tax and still sell gas at competitive prices. They pointed to the Kansas law, changed in 1995, which states the tax burden is on the distributor, not the tribe. "Every upstream tax raises the price of goods and services," Justice Stephen Breyer said. "If that's the basis for saying it's an interference, then every tax is an interference." The power of states to tax activity on Indian reservations has long been a source of conflict between states and Indian tribes. As more businesses move onto reservations, states have tried to stem the loss of revenue. Thirteen other states that impose a motor fuel tax and have Indian reservations within their borders filed a friend-of-the-court brief, asserting the taxes are needed to fund highway construction and maintenance. The U.S. Justice Department filed a friend-of-the-court brief siding with the Indian tribe. Deputy Solicitor General Edwin Kneedler said the burden of the tax falls on the tribal gas station, regardless of how the Kansas fuel-tax statute is worded. Chief Justice John Roberts, on the bench for the first time, asked Olson whether "some bright young lawyer" encouraged the Kansas legislature to change the fuel tax statute just to make it more favorable for the state. "It suggests we shouldn't give too much weight to that," Roberts said. Olson said the legislature was entitled to deference. He warned that a ruling for the tribe would jeopardize the state's authority to tax other off-reservation vendors who provide services to Indian tribes. Kansas Attorney General Phill Kline, who was in the high court on Monday but did not make oral arguments, has said the case could have widespread ramifications on state-tribal relationships across the nation. The states supporting Kansas are Arizona, California, Connecticut, Idaho, Iowa, Massachusetts, Missouri, New Mexico, North Dakota, Oklahoma, South Dakota, Utah and Wyoming. The case is Wagnon v. Prairie Band Potawatomi Nation, 04-631 (10th Circuit); the cornell univeristy summary of the case before SCOTUS IS here

Another wrench thrown in the system by result oriented Supreme Court ruling: NCA affirms summary judgment for Dawes County in political subdivision tort claim-premises liability case where County plead immunity under Nebraska Recreational Land Liability Act., despite ambiguity from this years Supreme Court Iodence v. City of Alliance decision that seems to question whether political subdivions will remain subject to the Rec Lands Immunity act. Bronsen v. Dawes County, 14 Neb. App. 82 Filed October 4, 2005. No. A-04-237. Carolyn Bronsen filed a claim in the district court for Dawes County, Nebraska, against Dawes County (the County) and Fur Trade Days, Inc. (FTD), seeking damages for injuries she sustained after tripping and falling in a depression or hole in the lawn of the Dawes County courthouse while attending the Fur Trade Days celebration in Chadron, Nebraska. The district court granted motions for summary judgment filed by the County and FTD, finding that both the County and FTD were immune from liability pursuant to the Nebraska Recreational Land Liability Act., Neb. Rev. Stat. §§ 37-729 to 37-736 (Reissue 2004). For the reasons stated herein, we affirm.Bronsen (disputes) the premise that the courthouse lawn is the type of property that ought to be protected under the RLA, as well as the court's finding that her activities at the time of her accident amounted to "recreational purposes" under the act. Bronsen also argues that the County's conduct was willful or malicious. We address each of these arguments separately below. The Nebraska Supreme Court first considered whether the RLA applied to governmental entities in Watson v. City of Omaha, supra. In Watson, the court held that the term "owner," as used in the RLA, includes a political subdivision as well as a private person. In so holding, the Watson court "concede[d] for the sake of argument that the original purpose of the [RLA] was to encourage private landowners to offer their lands for use by the public." 209 Neb. at 840, 312 N.W.2d at 258. The court also considered the language of the Political Subdivisions Tort Claims Act, which subjects a political subdivision to liability for the negligent acts or omissions of its employees "in the same manner and to the same extent as a private individual under like circumstances." See Neb. Rev. Stat. § 81-8,215 (Reissue 2003)[State tort claims act]. The Watson court concluded that whatever the Legislature's intent at the time of the enactment of the RLA, the definition of "owner" in the act was sufficiently broad to cover a public entity. The court observed that the Legislature in enacting the Political Subdivisions Tort Claims Act was presumed to have knowledge of previous legislation, including the RLA. The court concluded that the intent of the Legislature, as reflected by the clear language of both the Political Subdivisions Tort Claims Act and the RLA, was to grant the same rights and privileges to both governmental and private landowners. The court, in considering the facts of Watson, which involved "[s]lippery slide activities," held that while such activities were not specifically included within the definition of "recreational purposes" found in the RLA, the definition was broad enough to include the "normal activities afforded by public parks." Watson v. City of Omaha, 209 Neb. 835, 841-42, 312 N.W.2d 256, 259 (1981). We are mindful of the reservations about the continued application of Watson expressed by the concurring opinion in the recent case Iodence v. City of Alliance, 270 Neb. 59, 700 N.W.2d 562 (2005), but as noted by the dissenting opinion in Iodence, the ruling in Watson is still the law. The doctrine of stare decisis is grounded on public policy and, as such, is entitled to great weight and must be adhered to unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and mischievous or unless more harm than good will result from doing so. Holm v. Holm, 267 Neb. 867, 678 N.W.2d 499 (2004). Summary judgment proper on finding no willful or malicious faultwe cannot say that the district court erred in finding no willful or malicious action on the part of the County. summary judgment properIn sum, the pleadings and evidence admitted at the hearing on the County's and FTD's motions for summary judgment disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the County and FTD were entitled to judgment as a matter of law. Viewing the evidence in a light most favorable to Bronsen and giving her the benefit of all reasonable inferences deducible from the evidence, we find no error in the district court's grant of the motions for summary judgment.

Stenberg v Carhart case was last SCOTUS ruling dealing with abortion issue, 2000. This term SCOTUS takes up Stenberg issue, this time whether parental notification laws must account for the health of the minor pregnant girl. ABORTION NOTIFICATION Ayotte v. Planned Parenthood of Northern New England At issue: Is a state law requiring parental notification for minors seeking abortion too restrictive? The case: New Hampshire's legislature in 2003 passed a law making it illegal for an abortion to be performed on a minor unless a parent or legal guardian is notified in writing 48 hours in advance. The only exception is if the procedure is necessary to prevent the mother's death. The arguments: A federal appeals court dismissed the law as too restrictive, since it did not provide broader exceptions to protect the health of the minor when her life was not threatened. New Hampshire claims existing laws provide for such health contingencies. At least 33 states have parental notification laws. The impact: No legal issue continues to resonate more with Americans than abortion. The last time the high court intervened in an important abortion-related case was in 2000, when it threw out a Nebraska law banning a controversial late-term procedure opponents call "partial-birth" abortion. Similar legal arguments are present in the Ayotte case. Since the court's 1973 Roe v. Wade ruling that legalized abortion, various states have tried to place restrictions and exceptions on access to the procedure, prompting a string of high court "clarifications" on the issue over the years. A more subtle but potentially monumental argument in Ayotte involves what legal standard should be applied when courts review abortion laws. The judge in this case allowed courts to ban enforcement of such laws before they take effect. Precedent allows for a less-tolerant standard of review, but that standard has never been applied within the abortion context. Currently, justices have applied the "no undue burden" standard when deciding whether abortion laws are too restrictive.

Enbanc 8th Circ reverses decision excluding drug evidence seized at Omaha bus terminal

Our fave liberal District Judge Battaillon had held taking the luggage from the bus luggage hold to a room and then obtaining the defendant's consent to search violated the defendant's 4th amendment rights. 3 judge panel agreed last year. Now enbanc 8th circuit rules search and seizure was proper. Majority and dissent dispute effect of '84 scotus ruling US v. Jacobsen as to whether there was an initial seizure of the luggage. 10/03/05 United States v. Va Lerie Case No. 03-3394 District of Nebraska [Riley, Author, for the court en banc] Police officer's action in taking defendant's checked luggage from a bus and to a room of the bus terminal in order to seek defendant's consent to search the luggage did not constitute a seizure because the removal did not: (1) delay defendant's travel or significantly impact defendant's freedom of movement, (2) delay the timely delivery of the checked luggage or (3) deprive the bus line of its custody of the checked luggage; further, defendant voluntarily consented to a search of the luggage. District court's order suppressing the seizure of drugs found in the luggage is reversed, and the case is remanded for further proceedings. Judge Wollman, concurring. Judge Colloton, joined by Judge McMillian, Judge Arnold, Judge Bye and Judge Smith, dissenting.A divided panel of this court affirmed the district court’s suppression of the evidence obtained as a result of the search of Va Lerie’s luggage. United States v. Va Lerie, 385 F.3d 1141, 1150 (8th Cir. 2004). In reaching this conclusion, the panel majority held Va Lerie’s luggage “was seized within the meaning of the Fourth Amendment when [Investigator] Eberle had the bag removed from the bus, taken to a room inside the rear baggage terminal, and detained while the officer endeavored to locate the bag’s owner and obtain consent to search the bag.” Id. at 1148. Because the government conditioned its consent argument on prevailing with its seizure argument, the panel held the government “waived the argument that [Va Lerie]’s consent purged the taint of the illegal seizure if an illegal seizure occurred.” Id. at 1148-49. Thus, the panel never considered “whether the district court clearly erred in its findings concerning the voluntariness of defendant’s alleged consent.” Id. at 1150. Two panel members urged the en banc court to “re-visit the issue of what constitutes a seizure in the context of a temporary removal and inspection of packages and luggage that have been sent or checked with common carriers.” Id. at 1151 (Melloy, J., concurring); id. (Riley, J., dissenting). The en banc court vacated the panel’s opinion and granted rehearing en banc. seizure standardthe seizure standard prohibits the government’s conversion of an individual’s private property, as opposed to the mere technical trespass to an individual’s private property. See, e.g., United States v. Karo, 468 U.S. 705, 712-13 (1984) (explaining the existence of a mere technical physical trespass to an individual’s property “is only marginally relevant to the question of whether the Fourth Amendment has been violated,” as “[a] ‘seizure’ of property occurs when ‘there is some meaningful interference with an individual’s possessory interests in that property’”) (quoting Jacobsen, 466 U.S. at 113); Jacobsen, 466 U.S. at 124-25 (stating “the field test [of the white substance] did affect respondents’ possessory interests protected by the [Fourth] Amendment, since by destroying a quantity of the powder it converted what had been only a temporary deprivation of possessory interests into a permanent one”); issue: whether taking the baggage from the bus hold to the back room constituted a seizureArmed with the Supreme Court’s enunciation of Fourth Amendment seizure principles, we ask whether law enforcement’s removal of a commercial bus passenger’s checked luggage from the bus’s lower luggage compartment to a room inside the bus terminal to seek the passenger’s consent to search the luggage constitutes some meaningful interference with the passenger’s possessory interests in his luggage.holding: No "seizure" occurredWe conclude the NSP’s removal of Va Lerie’s checked luggage from the bus to a room inside the terminal to seek consent to search did not constitute a meaningful interference with Va Lerie’s possessory interests in his luggage. Therefore, no Fourth Amendment seizure occurredWas the Defendant's consent to search effectiveBecause we reverse the district court on the seizure issue, we must examine the district court’s consent decision. If Va Lerie voluntarily consented to the search of his luggage, then no Fourth Amendment violation occurred in this case. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); United States v. Brown, 345 F.3d 574, 579 (8th Cir. 2003).dig at judge battaillonWithout the benefit of viewing Investigator Eberle and Va Lerie as they testified, the district court conducted a de novo review of the record. After reviewing the record, the district court rejected the magistrate judge’s recommended finding that Va Lerie voluntarily consented to the search of his luggage.Given our holding that the NSP was not constitutionally forbidden to remove the checked luggage from the bus to present the luggage to Va Lerie to seek consent to search, we would be hard-pressed to conclude such a presentation would be any different than simply asking Va Lerie for permission to search his checked luggage. See, e.g., Brown, 884 F.2d at 1311-12 (holding airline passenger voluntarily consented to a search of his checked luggage). COLLOTON, Circuit Judge, with whom McMILLIAN, ARNOLD, BYE and SMITH, Circuit Judges, join, dissenting.I believe the court’s holding conflicts with the Supreme Court’s decision in United States v. Jacobsen, 466 U.S. 109 (1984). I therefore respectfully dissent.There is no viable distinction between this case and Jacobsen on the question whether governmental authorities effected a seizure. Although Va Lerie entrusted possession of his luggage to Greyhound, NSP investigators exerted dominion and control over the luggage for their own purposes. That is, they identified the luggage for investigation, took physical possession and control of the garment bag at the bus, and moved it to a non-public room in the bus station, where three or four investigators were present. United States v. Va Lerie, No. 8:03CR23, 2003 WL 21956437 (D. Neb.Aug. 14, 2003), at *1, 4; United States v. Valerie, 2003 WL 21953948 (D. Neb. June10, 2003), at *1 (report and recommendation). They did so for the purpose offurthering their law enforcement investigation of potential drug trafficking by summoning Va Lerie and seeking his consent to search the luggage. Valerie, 2003 WL 21956437, at *1. According to Jacobsen, therefore, this action by the NSP investigators constituted a seizure. 466 U.S. at 120 n.18.The Supreme Court did not regard the initial seizure in Jacobsen as a close question: The DEA’s possession and control of the package “clearly constituted a ‘seizure.’” 466 U.S. at 120 n.18 (emphasis added). This although the Jacobsens were merely intended recipients who had never actually possessed the package, the initial seizure would have occasioned no delay in delivery, and the package was examined by a government agent at the invitation of Federal Express, in the office of the private carrier, in the same manner that Federal Express previously had examined it. Jacobsen must be our guiding light. Absent a revision of doctrine by the Supreme Court, the NSP investigators effected a “seizure” of Va Lerie’s bag, and the order of the district court should be affirmed.