Parties to a dispute over the Salem Grain Company won nearly $12000 attorneys' fees for the defendants' failure to comply with discovery orders. The appealing parties' appeal is dismissed as neither a final nor a collateral order. Frederick v. Seeba, A-06-272, 16 Neb. App. 373`an order imposing a money judgment for attorney fees and expenses for discovery violations pursuant to Nebraska’s discovery rule 37(a)(4) does not affect a “substantial right” as required by § 25-1902 RRS Neb.to seek review of the appellant's discovery sanctions, they must meet three elements for their appeal to come within the collateral order doctrine: “[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively not reviewable on appeal from a final judgment.”Hallie Mgmt. Co. v. Perry, 272 Neb. at 85-86, 718 N.W.2d at 535 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S. Ct. 2454, 57 L. Ed. 2d 351 (1978)). the Seebas cannot meet the third condition of the collateral order doctrine, i.e., that the order is effectively not reviewable upon final judgment. Once a final determination of the merits of the case has been decided, theSeebas can appeal the imposition of attorney fees and expenses at that time, and if the appellate court determines that an error was made, the remedies available to theSeebas after appeal from a final judgment are sufficient to adequately protect their interests.

Nebraska Court of Appeals in memorandum decision affirms alimony order for $2300 monthly for 20 months when Gage County District Court considered husband's personal draws from his business as income.

• Borgman v. Borgman, A-06-949

The husband regularly drew $40 to $50K per year from his incorporated pallet business and counted the draws as a corporate loan that he would repay with bonus salary. The divorce court considered the draws as income when considering its $2300 monthly alimony award to the wife. Even if the court did not factor in these draws when calculating child support the Court of Appeals affirms the alimony award and this reasoning. the “loans” is how the couple handled their money during the marriage, and thus, it would be incongruous for the courts to ignore this additional stream of money which has provided for the parties’ lifestyle and expenses. Steve’s argument appears to be that because the “borrowing and bonus” methodology was not considered for child support purposes it cannot be considered for alimony purposes. No authority is cited for this notion, and while Lisa might have made the opposite argument on appeal for increased child support, she did not. This is not to suggest that such an argument would have been successful, but only that Steve’s argument in this regard ignores the aspects of the court’s treatment of the “borrowing and bonus evidence” that are favorable to him. Accordingly, after consideration of the entire record, we are unable to say that the trial court’s award of alimony is untenable and an abuse of discretion.

Nebraska Supreme Court announces simplified test to determine whether courts should consider parties business associations to be partnerships and holds that the standard would be a preponderance of the evidence whether in a dispute between business associates or between buseinss associates and outside parties. In re Dissolution & Winding Up of KeyTronics, S-06-690, 274 Neb. 936. The parties to the dispute worked together to market and operate automatic payment systems for automatic carwash stations. After the business failed one of the business associates sought an accounting and winding up of the operation claiming they had a partnership under Uniform P artnership A ct. S ection 67-410(1) RRS Neb. The district court denied the putative partners accounting complaint. Nebraska Supreme Court on denovo review of this equity action reverses, finding that the Plaintiff proved by a preponderance of the evidence that a partnership existed. Willson admits he is not pursuing an action for an accounting of a partnership that would be limited to the development of a key dispenser-revalue station. T hat product was never produced and did not independently garner any profits to account for. We are instead asked to determine whether K ing and Willson were partners in an enterprise that involved both the development of the key dispenser-revalue station and the sales and maintenance of the regular QuikPay line. If so, Wilson claims that K ing must account to Willson for any profits relating to all QuikPay business. The elements disputed by the parties are whether there was an “association” formed for QuikPay business, and whether such association, if created, was as “co-owners.” We have never explained, nor is there any reasoning to support, the confusing myriad of standards we have applied to what is, effectively, the same legal issue. T hus, we believe that the tenuous distinction between actions by alleged partners inter sese and actions by a third party against the alleged partnership should be abolished. By eliminating any common-law distinctions as to the burden of proof between actions alleging a partnership inter sese and actions by third parties, we bring greater predictability and consistency to partnership determinations. In our de novo review, we thus determine whether Willson established by a preponderance of the evidence that he and King were partners in a business that entailed both the development of the key dispenser-revalue station and regular QuikPay sales and maintenance We conclude that the objective, as well as subjective, indicia are sufficient to prove co-ownership of the business of selling,maintaining, and developing QuikPay. H aving already concluded that there was an association for the same, we conclude that Willson proved that he and K ing had formed a partnership for the business of selling, maintaining, and developing QuikPay.Because Willson has proved a partnership relationship with King, he is entitled to a winding up and an accounting in accordance with the A ct. T he district court erred in concluding otherwise. A ccordingly, we reverse the decision and remand the cause for further proceedings.

Omaha worker compensation insurer finds niche servicing small-town employers. BlackEnterprise.com. The nation's most profitable commercial insurer, dollar for dollar, is located in Omaha, but it's not the widely known Berkshire Hathaway Inc. It's FirstComp Insurance Co., which is making a name for itself nationwide by selling only workers' compensation insurance and targeting small businesses and small towns. The company's high profits, accompanied by growth, are the result of what FirstComp executives say is dedication to giving small-town business owners and their insurance agents simple, hands-on service that's often lacking in the insurance world. The customers of small-town agents typically include close friends and relatives, FirstComp executives said. Agents don't want to have to apologize if an insurance adjuster is rude or late paying a claim, or if a customer must negotiate a voice-mail maze to get a question answered. "It has to do with making their lives easy" and giving personal, human service, said Bob Phaneuf, president of FirstComp's underwriting group. Voice mail? Outsourcing calls to foreigners? "It'll never happen here," he said. Now FirstComp is taking two steps designed to enhance its growth at home and in the southeastern United States. It will move into five newly renovated floors this month in downtown's Central Park Plaza at 15th and Douglas Streets, and it will open its fourth regional office, in Tampa, Fla. The changes come after National Underwriter, an insurance trade journal, ranked FirstComp's six-year average operating profit, in relation to its premiums, as No. 1 among 116 companies that write commercial property-casualty policies. FirstComp's profitability ranked third out of 219 property-casualty insurers in the country. The rankings don't include earnings from investments but rather reflect a ratio of claims, operating expenses and other costs compared with premium revenue. The lower the "combined ratio," the better the profit picture. FirstComp's combined ratio over the past six years averaged 82.3, which was two points lower than the second-place company. Some companies have ratios over 100 percent and stay in the black through earnings from their investments. FirstComp has investment earnings, too, but Phaneuf said it can be dangerous to expect investments -- which can be volatile -- to bail out operating losses year after year. FirstComp's premiums for 2007 increased 39 percent to $519 million. The company increased its customers from 60,000 businesses in 26 states about a year ago to 85,000 in 28 states today. This year, the company plans to add Alabama, Delaware and West Virginia. That growth has boosted employment from 516 to 615 in the past year, including 400 in Omaha. The total should reach 700 by the end of 2008. That's why the company is adding office space at Central Park Plaza, including the floor that once housed the headquarters of ConAgra Foods, said Chris Reichert, vice president of sales and marketing. FirstComp recruits heavily from the University of Nebraska in both Omaha and Lincoln and from Creighton University, seeking people with what Reichert called an Omaha-style blend of courtesy, articulateness, knowledge, competitiveness and a desire to help customers solve problems. A typical FirstComp customer has never had a workers' compensation claim, he said. The employee involved is likely to be a close friend and key staff member who has suffered an injury or illness that is causing severe personal and business problems. So the business manager who calls FirstComp may be nervous, upset and unfamiliar with the process of filing a claim. That's why FirstComp always answers customer service calls in person, 90 percent of the time by the second ring of the phone, Reichert said. "We sound like we care, because we do care," he said. FirstComp's underwriters, customer service operators and other staff members are motivated by knowing that they can help people in difficult times. FirstComp, from its founding in 1997, also has an advantage in its computer system, which the company developed on its own, Phaneuf said. He said it is fast, easy to use and dedicated to respecting agents' time demands by being efficient and helpful. The result is that the 7,500 local agents who sell FirstComp coverage may recommend its policies even when they cost slightly more, he said. Nearly all new business comes into the company via its Internet Web site, requiring minimal staff time. That's good because each policy sale is small, averaging a $5,000 premium per year. Often it is less than $2,000. Many of the businesses are so small that they haven't been able to get regular workers' compensation insurance and instead have paid for expensive coverage from state-sponsored insurance pools. Adding up all those tiny businesses, FirstComp now has about 1 percent of the nation's workers' compensation business. In states where it has operated for many years, its share can reach nearly 10 percent. That leaves plenty of room for growth, Phaneuf said, both in new states and within states where FirstComp already operates. There are no plans to branch into other types of insurance. "We stick to our knitting," he said.

Casey's General Store employees' lawsuit for unpaid overtime goes ahead. Convenience Store News. Casey's General Stores, operator of more than 1,460 convenience stores, faces a new federal lawsuit by its cooks and cashiers who claimed the company did not pay their overtime, The Associated Press reported. The c-store chain was already sued by managers who issued similar claims, the report stated. The lawsuit, filed in U.S. District Court in Des Moines, alleges Casey's wrongfully denied overtime pay and wages to current and former Casey's hourly employees, the AP reported. Approximately 20,000 employees are included in the suit and claims exceed $5 million, according to court documents cited by the AP. "I was expected to and repeatedly did show up early and stay late for Casey's," former Iowa Casey's employee and plaintiff Connie Wineland said in a statement cited by the AP. "I want to be paid for all of the time I worked at Casey's." The employees are represented by the Peters Law Firm of Council Bluffs, Iowa; Washington-based Cuneo Gilbert & LaDuca; Stephan Zouras, of Chicago; and Hudson Mallaney & Shindler, of Des Moines. "These are hardworking employees who deserve to be paid for every minute of time they work," attorney Scott Peters told the AP. "Employees should not be expected to 'donate' their time to Casey's." A telephone message by the AP left for a Casey's spokesman was not immediately returned. The company's attorney, Eli Wirtz, declined comment to the AP. In early June 2007, CSNews Online reported two former assistant managers for the Casey's convenience chain sued the company for failure to pay them overtime wages. At that time, the company issued a statement obtained by CSNews Online. It stated: "We understand a lawsuit was filed in Federal Court yesterday by two former employees in which the claim is made that Casey's failed to properly pay overtime compensation to two or more of its assistant managers. Casey's denies this claim and intends to vigorously defend itself with respect to this lawsuit. It is Casey's policy to pay all employees for any and all time worked in accordance with federal, state and local law."

Omaha are Jiffy Lube franchisee files Chapter 11. New Hampshire Business Review. Heartland Automotive Services Inc. of Omaha, Neb., owner of several Jiffy Lube locations around the country – including West Lebanon, N.H -- has filed for Chapter 11 bankruptcy protection. Heartland is the largest Jiffy Lube franchisee in the country, according to its Web site, and operates some 438 sites in 20 states across the country including the Boston area. The company filed for Chapter 11 protection at the United States Bankruptcy Court for the Northern District of Texas on Jan. 7 in order to restructure its financial situation and resolve issues with its franchisor, Houston, Texas-based Jiffy Lube International. Ralph Tschantz, senior vice president of marketing for Heartland, said its stores, including the one in West Lebanon, will remain open during the proceedings. He also said he is not expecting a reduction in workforce. “Hopefully, consumers will notice no difference in service,” said Tschantz. “We also hope our employees will continue to have confidence in offering that service. It should be business as usual.” A man who answered the phone at the West Lebanon location but said he did not wish to be identified, confirmed that the site was operated by Heartland and was expecting to remain open during the reorganization. He also said he was not anticipating any layoffs, in fact, he said he needed to hire about five more employees to add to his current staff of 10. According to a statement on Heartland’s Web site, the company filed for Chapter 11 because of what it calls a “breakdown of negotiations with Jiffy Lube International to resolve long-simmering disputes regarding the companies’ relationship” over advertising and marketing, and support from the franchisor, product pricing from JLI’s parent, Shell Oil Co., and expansion strategies. Economic pressures in the volatile gas and oil market were also cited as reasons for the filing. Heartland said it anticipates going back to the negotiating table with JLI after the initial stabilization phase of its reorganization, which was to go heard in court on Jan. 23. If settlements still can’t be reached on the issue, Heartland said it will seek a rejection of its franchise agreements and rebrand the business. Heartland said in the statement that it had $8 million in cash on hand at the time of the filing. Representatives of JLI did not return phone calls by deadline.

Union Pacific Railroad to install track image records on trains to record accidents. Omaha.com Union Pacific Corp. is installing more than 1,600 track image recorders on locomotive cabs this year to record the track, crossings and signals in front of trains.The recordings will help with investigations after accidents. The nation's largest railroad began installing the cameras in 2005. By the end of this year, nearly 90 percent of the company's more than 6,000 over-the-road locomotives will have them. A small camera is mounted inside the locomotive's cab, providing the train crew's point of view. A microphone is placed outside to record the locomotive's air horn and bell. The video image disk can record up to five days of information. "This equipment is a valuable tool in assisting with the investigations of pedestrian or grade-crossing incidents," said Bob Grimaila, U.P.'s vice president of safety and environment. Union Pacific's rail network extends across 23 states.

Subcontractors file dozens of construction liens against Omaha area luxury homebuilder. Omaha.com. Subcontractors such as electricians and plumbers have filed about 100 construction liens this month in Sarpy and Douglas Counties against Gateway Homes, a builder of mostly $250,000 to $400,000 custom homes in the Omaha metropolitan area.The number of liens — which is unusually high against a single builder in a short period — reflects not only one builder's struggles in a slow housing market but also the trickle-down impact on subcontractors.Gateway Homes has closed its doors, stopped construction and retained Bob Ginn, an attorney specializing in bankruptcy. Gateway owner Kevin Hebner referred questions to Ginn. Asked if the company was filing for bankruptcy, Ginn said, "At this juncture, all options are still on the table." Ginn said that because he was retained only Friday, he was still familiarizing himself with the case and could not comment further. Douglas County Register of Deeds Diane Battiato said the liens against Gateway started with three in December and then ballooned to 49, with claims of unpaid debts totaling $305,616 through Monday. Sarpy County Register of Deeds Lloyd Dowding said about 50 construction liens had been filed against Gateway through Monday. Construction liens are commonly used by subcontractors or suppliers to protect themselves, Dowding said. But to have that many filed against one company in a month's time is unusual, he said. "The last time we had a great influx of construction liens was with Benchmark Homes," Battiato said. Benchmark, once the Omaha area's third-largest home builder, collapsed in March 2006 after the founder's suicide prompted subcontractors and suppliers to file more than 2,000 liens. After Benchmark filed for bankruptcy, a judge authorized the sale of more than 100 completed and mostly completed homes. Gateway Homes, which is smaller than Benchmark, was issued 23 single-family building permits in 2007 and 32 in 2006, according to the Metro Omaha Builders Association. Lee Sharpe, Gateway's field operations manager, said Hebner's Jan. 22 announcement to employees that the company was closing came as a shock because of Hebner's repeated reassurances during the housing downturn that the company was fine. Sharpe said that even though he was surprised by the closing, the signs of the company's financial struggles started about a year ago, when some subcontractors were refusing to work for Gateway because of unpaid bills. Hebner at first appeared to take care of the problems, Sharpe said. But one contractor recently appeared at the office demanding to be paid. When he wasn't, he left and immediately filed liens, calling another subcontractor, Sharpe said. "It just snowballed," Hebner said. Matt Thomas, owner of the Tile Man, a Council Bluffs company, said it appeared that a meeting Hebner called with some subcontractors in late December might have sparked some of the liens. Hebner told subcontractors that he was trying to get them money, Thomas said. "If people would have just held out and let him do his thing, we all would have gotten paid," Thomas said. "But there were a few that just didn't understand it. . . . I figured with the market so bad, that I'm going to stick it out to the end, and he just might be able to make a comeback." Thomas, who has worked as a subcontractor for Gateway for eight years, continued working on a job for Hebner until hearing of Hebner's Jan. 22 meeting with employees. "Through the grapevine, I hear that he's locked his doors. That pretty much triggered that it's over, it's done. I said, 'Pack up your tools and go, it's over,'" Thomas said. "There's no reason to go forward with your work if you know you're not going to get paid." Thomas said he filed liens against Gateway Homes on Jan. 23 and 24. Thomas said his paychecks were delayed in the past, but he didn't file liens then because he needed the work. "He gives you work, so you give him the benefit of the doubt," Thomas said. "And then it got later and later." He said he was supposed to be paid every 30 days, but he received his last payment Nov. 24. "He's a good guy, he means well, but it all caught up with him," Thomas said of Hebner.

Cattlemen lose verdict at the Eighth Circuit Court of Appeals but go away with an English lesson. 071586P.pdf 01/29/2008 Herman Schumacher v. Cargill Meat Solutions Corp. U.S. Court of Appeals Case No: 07-1586 and No: 07-1588 and No: 07-1590 U.S. District Court for the District of South Dakota - Aberdeen [PUBLISHED] [Beam, Author, with Melloy and Shepherd, Circuit Judges] The Packers and Stockyards Act Section 202(e) (7 U.S.C. § 192(e)) did not apply when Packers who paid cattlemen less for their livestock because the US Department of Agriculture published erroneous "cut-out" prices for six weeks in 2001 (Livestock Mandatory Reporting Act (LMRA)7 U.S.C. § 1635f). Cattlemen sued several large meatpackers for violating the Packers and Stockyards Act when the USDA's published prices for packers' cut-out prices were too low. Cut-out prices are the average of separate boxed beef prices. The jury found for the cattlemen on their 202(e) {market manipulation} complaint that the packers' reliance on the erroneous price data was unlawful control of the cattle market. The cattlemen lost their 202(a) {price discrimination} complaint at trial. Eighth Circuit reverses, finding 202(e) liability for the "effect of manipulating or controlling prices" required intentional conduct. "Controlling" is to the Eighth Circuit just a little nicer version of "manipulating" so either way, the plaintiffs needed to prove intent, which they did not. Reversed with directions to dismiss. "Or" (can be) interpretative or expository of the preceding word. For instance, "or" is often used in the sense of "to wit," "that is to say," or simply a broadened or narrowed explanation of the same thing. We find that Congress intended "or" to be given an explanatory interpretation. Indeed, "manipulate," according to Merriam-Webster's Collegiate Dictionary, is defined in terms of control. Thus, under the statute, control is simply a more benign and slightly less invidious way of achieving manipulation, both requiring an intentional act to animate the result. In sum, we conclude that to prove a violation of § 202(e), a plaintiff must show that a packer intentionally committed unlawful conduct. Therefore, the district court erred when it instructed the jury that a showing of intent was not required and reversal of the district court is necessary.

No intervention on appeal for insurer left out of worker compensation hearing loss case. Employee won permanent total disability from his employer in the Nebraska worker compensation court but he appealed to the review panel to back-date his date of disability. One of the employer's worker compensation insurers discovered after the award that it would be responsible for the award and petitioned to intervene in the appeal. Nebraska Supreme Court holds that although 48-161(1) permits the worker compensation court to determine coverage issues, it is not required to resolve them. The worker compensation court review panel did not err when it refused to permit the left-out insurer from defending itself during the review proceedings. Risor v. Nebraska Boiler, S-07-269, 274 Neb. 906. "(Worker compensation) proceedings are designed to furnish summary and speedy (hearings) for the particular purpose of compensating an injured employee. While, under § 48-161, the compensation court may determine the existence of insurance, such jurisdiction is not exclusive. We agree that joining an insurer and deciding coverage disputes may hinder rather than further the beneficent purposes of the Act. As such, § 48-161 does not authorize post-award intervention when the employee has chosen to bring a claim against the employer alone. " The omitted insurer likewise did not suffer a failure of procedural due process from the fact that (omitted insurer) was not notified of (injured worker’s) action against Nebraska Boiler and was not made a party to the proceedings before the review panel

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

Nebraska Supreme Court rejects defendant's double jeopardy argument against using his prior felony convictions to find him guilty as both a felon possessing a firearm and as an habitual offender. State v. Ramirez, S-06-920, 274 Neb. 873. Defendant was convicted by the district court in 2004 with use of a firearm to commit a felony, being a felon in possession of a firearm, and terroristic threats. The court also found Defendant was an habitual criminal. Defendant was acquitted by a jury of a count of possession of methamphetamine. Defendant was sentenced, collectively, to terms of imprisonment totaling not less than 25 nor more than 50 years. His trial counsel also served as counsel on direct appeal, and the only issue raised in his brief was whether his sentences were excessive. The Nebraska Court of Appeals summarily affirmed. Defendant loses his ineffective counsel action because his double jeopardy argument would fail. The fact that the predicates for §§ 28-1206 (felon in possession of a firearm) and 29-2221 (habitual offender) are defined in different terms suggests that the same conviction can be used for both status and enhancement if that conviction meets the independent requirements of each statute. it is apparent, from Nebraska’s statutory scheme, that the Legislature intended for habitual criminals to be sentenced pursuant to § 29-2221, even when convicted of violating § 28-1206. The statutes define their necessary predicate elements using different standards. Therefore the trial court did not violate the defendant's Fifth Amendment right against Double Jeopardy.

Nebraska Supreme Court affirms defendant's conviction for manufacturing a controlled substance, in this case home-grown marijuana. The Supreme Court rejects defendant's appeal that his marijuana growing qualified for the "personal use" exception in 28-401(14). Police officers' search warrant affidavit did not state stale information even though it restated informants' statements from one month earlier that the defendant was growing marijuana in his home. The court also refused to suppress defendant's incriminating statements he made after a Nebraska State Patrolman arrested the defendant at a gas station for driving on a suspended license as the police were starting to search his home. State v. Bossow, S-07-099, 274 Neb. 836 The Nebraska Supreme Court fires up the cloudy issue in 28-401(14) of how "personal use" differs from manufacturing a controlled substance. The Supreme Court finds the statute clearly included growing plants that produce controlled substances and personal use covered rolling the grass and toking up. "The plain meaning of the “personal use exception” is to avoid finding an individual liable for the felony of manufacturing a controlled substance when that individual is already in possession of the controlled substance and is simply making it ready for use, such as rolling marijuana into cigarettes for smoking or combining it with other ingredients for use." The Supreme Court also rejected the defendant's claim the information in the search warrant affidavit was stale because it contained the informants' statements that when they visited the defendant's home over one month prior marijuana was growing there. Since the growing cycle of the plant would cover that time period and the plants were not likely to disappear, the search warrant affidavit information was not stale. "Growing marijuana is not an isolated activity where the evidence supporting probable cause tends to disappear quickly.Rather, growing marijuana is a protracted process, for which there is a much greater probability that the evidence related to the crime would remain on the premises for some time. Asindicated in (State partolman's) affidavit, marijuana plants can take up to 22 weeks to mature and can grow in excess of 8 feet tall."

Junk Science update: Plaintiff's attorney who represented the plaintiff who sued alleging repressed memories of sexual abuse from her Baptist minister agrees to vacate the jury's $1.75 million plaintiff's verdict. Free Republic.com. The plaintiff's expert Dr. Daniel Brown of Harvard helped the plaintiff's case of repressed memory of sexual abuse she suffered as a child. The Defendant's counsel however submitted affidavits from real experts that Dr Brown misrepresented the "general acceptance” within the relevant scientific community of his repressed memory hypothesis. They also stated in their affidavits that Dr Brown mis-stated the theory’s error rate, according to the papers. Error rate can determine the reliability of a scientific field. The defendant's attorney argued in filings that the good doctor Brown "either intentionally or through reckless indifference to the truth, mis-stated the existence of an error rate relating to” the hypothesis." Didn't Dr Brown realize that's the Plaintiff's attorney's job?

Order of the Kneepads update: in two attorney discipline cases the Nebraska Supreme Court exuses attorneys' neglecting client matters and serial trust account violations with a short suspension in one case and a reprimand with probation in the second. Nebraska attorneys who might be trying to read the Supreme Court's tea leaves when it comes to discipline cases should factor in gender, ethnicity and how much the Bar needs the attorneys to represent our widows and orphans. Those attorneys appear to survive serious ethical lapses with negligible discipline. State ex rel. Counsel for Dis. v. Zendejas, S-06-269, 274 Neb. 829. Eduardo Zendejas appears before Native American Courts advocating for juveniles and family members. the Nebraska Supreme Court Minority and Justice Task Force in 2000 also appointed him to be its project coordinator. A client paid him $14000 to pursue a post-conviction action but after two years, the client heard nothing from the attorney. When the client complained the best the counsel for discipline could do was send Rule 9(E) inquiry letters, which don't require the attorney to immediately respond. Eventually the attorney admitted he should return most of the money to the client but even then it took him nearly two years to repay the client his retainer, less expenses. He also took weeks to actually pay the client after he told the counsel for discipline he had done so. Since the attorney was such a valuable resource for the Indian community the referee recommended a 30 day suspension. The Nebraska Supreme Court cracks the whip and imposes a whopping 120 day suspension. State ex rel. Counsel for Dis. v. Pinard-Cronin, S-07-275, 274 Neb. 851. Attorney Carol Pinard-Cronion blew her clients statute of limitations on a simple automobile collision and also accumulated multiple overdrafts in her law firm trust account. Because she mainly handled juvenile matters and for other reasons, the Supreme Court reprimands her and imposes probation for 18 months.

Nebraska Supreme Court reverses the Platte County District Court and allows the Department of Motor Vehicles to seek to enhance a driver's license suspension if the driver had a prior alcohol-related license suspension. Stenger v. Department of Motor Vehicles, S-06-1176, 274 Neb. 819 § 60-498.01 permits the hearing officer at the Administrative License Revocation hearing (ALR) the receive evidence for enhancement at a revocation hearing. A lthough 60-498.01 limits the issues under dispute, it does not prohibit evidence pertinent to the ultimate disposition of a case after those issues have been resolved. Whether a person’s driver’s license has previously been revoked is relevant evidence in determining the length of the revocation under § 60-498.02(1)(b). Therefore, § 60-498.01 allows receiving the driving abstract to enhance a revocation, and we hold that a driving abstract may be admitted in an A LR proceeding for that purpose. A party still may contest the accuracy of the abstract as to whether the party did in fact have a prior revocation. S ection 60-498.02(1)(b) explicitly provides that if a driving abstract shows that the driver had a revocation in the prior 12 years, the revocation can be enhanced to 1 year. T herefore, the Legislature clearly intended for the Department to consider such matter in the ALR proceedings

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

Nebraska Supreme Court clarifies standard it will use to evaluate claims of ineffective counsel when the defendant alleges his attorney failed to inform him of a proposed plea bargain. Supreme Court notes rulings from the Eighth, Seventh and Sixth Circuit Courts of Appeal and settle on the Sixth’s reading of Strickland v Washington to hold that the defendant must demonstrate a “reasonable probability” that, but for counsel’s deficiency, the defendant would have accepted the plea. During the trial the prosecutor noted the murder defendant's refusal to answer questions from jail guards as they processed her into jail. Although the prosecutor's reference to her knowing refusal to talk to jail personnel was an improper comment on her post-arrest silence, defense counsel's failure to object to the State's closing argument would not have changed the result of the trial because of the overwhelming evidence against the defendant. State v. Lopez, S-06-1251, 274 Neb. 756 "In the Eighth Circuit, “[t]o establish prejudice . . . the movant must show that, but for his counsel’s advice, he would have accepted the plea. To command an evidentiary hearing, the movant must present some credible, nonconclusory evidence that he would have pled guilty had he been properly advised."Engelen v. U.S., 68 F.3d 238 (8th Cir. 1995). the Seventh Circuit, citing Strickland, requires a defendant to “establish through objective evidence that there is a reasonable probability that, but for counsel’s advice, he would have accepted the plea.” Toro v. Fairman, 940 F.2d 1065 (7th Cir. 1991); We concur with the Sixth Circuit’s reading of Strickland and hold that the defendant must demonstrate a “reasonable probability” that, but for counsel’s deficiency, he or she would have accepted the plea. Magana v. Hofbauer, 263 F.3d 542, (6th Cir. 2001);We conclude, however, that Lopez cannot meet this standard. While the defendant's counsel should have objected to the prosecutor's comments, it was not ineffective counsel. "The prosecutor’s comment in closing was a Doyle violation (Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). In this case, Lopez’ silence was not used to impeach her testimony at trial, since she did not testify. It is is fundamentally unfair to implicitly promise a defendant his or her silence will not be used against him or her, then essentially using that silence against the defendant. The State’s comments in closing were a violation of Doyle. However assuming that Lopez’ counsel was deficient in failing to object to the State’s violation of Doyle, Lopez still cannot show a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different.

Nebraska Supreme Court reverses Douglas County District Court summary judgment that was in favor of plaintiffs whose attorney had forged their signatures on settlement documents, forged their settlement checks and stole their funds against their attorney's malpractice insurer. The Supreme Court holds the fraud and misappropriation exclusion clauses in the attorney's malpractice insurance policy voided coverage. On remand the Nebraska Supreme Court directs the District Court to give summary judgment to Coregis, the former attorney's malpractice insurer. Fokken v. Steichen, S-06-614, S-06-615, 274 Neb. 743. Coregis should have received summary judgment for the plaintiffs' claims that the attorney misappropriated their settlement funds by converting the funds for the attorney's use. When the District Court determined the attorney fraudulently settled the cases, the malpractice insurer wins summary judgment for the balance of the plaintiffs' malpractice claims that the attorney settled their cases for less than their true value.Steichen’s unauthorized endorsement of Miller’s and Fokken’s names constituted a dishonest act. Because the district court in both Fokken’s and Miller’s cases adjudicated Steichen of committing those dishonest acts, coverage is precluded under exclusion A (dishonesty) of the Policy for the balance of the appellees’ judgments against Steichen."

Nebraska Court of Appeals excludes a divorcing spouse's lump sum social security disability award from the couple's marital assets, but the divorce court judge should consider the social security payment when dividing the remaining assets that are marital. Dinges v. Dinges, A-06-239, 16 Neb. App. 275. Divorcing wife received a lump sum social security disability (SSDI) award of $27000 and the couple used the funds to purchase a modular home. The trial judge included the SSDI award in the couple's marital assets. The wife represented herself and also objected to the court's refusal to hold a pre-trial conference. Nebraska Court of Appeals overrules the wife's objections to the conduct of the trial judge but modifies the division of assets to exclude the social security award while still considering the award when dividing the remainder of the marital assets. "the trial court erred in stating that it “should consider the lump sum award received by wife as a marital asset subject to division in this dissolution proceeding” and then including the modular home, purchased post separation with the Social Security funds, in the marital estate. The Nebraska Supreme Court’s holding in Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006), precludes such treatment. However, we must also decide the issue discussed but not reached by the Webster court. We hold that while an offset of a Social Security award is prohibited by the anti-assignment clause of the Social Security Act (42 U.S.C. § 407(a) (2000) and the Supremacy Clause of the U.S. Constitution, a court may properly consider a spouse’s Social Security award in equitably dividing the marital property. We rely upon the “weight of authority” noted by the Webster court. See id. at 798, 716 N.W.2d at 55. Of course, such award is only one of many factors which we consider in our de novo review of the division of marital property."

Police stopping drunken driving suspects do not need to give Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) warnings to drivers before conducting interrogations immediately after the traffic stop. Nebraska Court of Appeals affirms drunk driving conviction. State v. Brauer, A-07-256, 16 Neb. App. 257 “‘The police may interview suspects not in custody and not subject to coercion in on-the-scene investigations for the purpose of determining whether a crime has been committed and who committed it.’” State v. Holman, 221 Neb. 730, 380 N.W.2d 304 (1986). Roadside questioning of a driver detained pursuant to a routine traffic stop does not constitute custodial interrogation for purposes of Miranda. (State Patrolman) placed Defendant in the cruiser to conduct on-the-scene investigation and questioning, based on his reasonable suspicion that Defendant might have been driving while intoxicated. We conclude that the county court did not err in denying Defendant’s motion to suppress his statements."

Temporary Total Disability (TTD) may extend beyond 300 weeks, Nebraska Court of Appeals affirms worker compensation court review panel order to reinstate an injured workers TTD beyond 300 weeks and awards the injured worker attorney fees for an obtaining an increased award. Heppler v. Omaha Cable, A-07-365, 16 Neb. App. 267 Under § 48-121(1), a worker’s entitlement to temporary total disability benefits is not capped at 300 weeks. We affirm the decision of the review panel in all respects.

Eighth Circuit Court of Appeals affirms "slight" downward deviation from sentencing guidelines of 180 months prison plus 6 years supervised for methamphetamine production 21 U.S.C. § 841(a)(1), (b)(1)(C). Citing Gall v. United States, No. 06-7949 and 18 U.S.C. § 3553(a)(1), (4)(A), the Eighth Circuit finds no abuse of discretion from the sentence outside the guidelines range as the trial court considered all appropriate factors while not considering inappropriate factors.063488U.pdf 12/28/2007 USA v. Robert Jon Lucas U.S. Court of Appeals Case No: 06-3488 U.S. District Court for the Southern District of Iowa - Des Moines [UNPUBLISHED] [Per Curiam, with Murphy, Smith, and Shepherd, Circuit Judges]

Nebraska Supreme Court rules that Double Jeopardy Clause prevented retrial of assault defendant whose judge recused himself from the first bench trial after starting to hear testimony and declared a mistrial. State v. Jackson, S-07-084, 274 Neb. 724The State has the burden to show that it was manifestly necessary to allow a retrial after the mistrial. we cannot determine whether the judge exercised sound discretion in calling the mistrial because of the inadequacy of the record as to the underlying reasons for the decision. Because of the constitutional implications, the State bears the burden of demonstrating the manifest necessity of a mistrial declared over the objection of the defendant in a criminal case. See Arizona v. Washington, 434 U.S. 497, 98 S . Ct. 824, 54 L. E d. 2d 717 (1978){necessity for the retrial must appear in the record, although explicit findings are not required}; The State cannot meet this burden by simply requesting the court to make a general finding of manifest necessity, as it did here, without a factual record to support the finding. Where the reason for a mistrial is not clear from the record, the uncertainty with respect to manifest necessity must be resolved in favor of the defendant

Attorney's lien filing perfected his interest in receiving attorney fees from a court judgment even though he filed the lien after discharge. Equity excused the attorney from first filing a complaint of intervention (25-328) to seek a division of a divorcing spouse's property division judgment. Meister v. Meister, S-06-873, 274 Neb. 705. After trial when the court awarded the wife a money judgment for property division, the wife dismissed her attorney and other counsel represented her on appeal. Following appeal the husband paid the judgment into court. Former attorney filed his lien in court, which the district court denied was valid because wife had dismissed the attorney. Then former attorney sued for intervention which was dismissed. Nebraska Supreme Court holds, the dismissed attorney still could file a notice of attorney lien in accordance with 7-108 RRS Neb and equity excused his failure to promptly file an intervention complaint. The Supreme Court however leaves unresolved whether attorney properly attached and perfected his lien, and if so in what amount. "Attorney’s filing of the lien after his discharge did not affect the enforceability of the lien. Although intervention is the proper method of enforcing an attorney’s lien in an original action, equity excuses attorney’s failure to intervene before the trial. O n remand, we leave it to the district court to decide whether attorney attached and perfected his lien. If so, the court should then determine the amount of the lien. We reverse, and remand.

Juvenile courts may not consider the willingness of prospective parents to adopt the children of parents against whom the State seeks to terminate parental rights (Section 43-292.02). However the court's considering the adoptive parents' willingness to adopt and other testimony was harmless error and did not impair the terminated parent's due process. In re Interest of Destiny A. et al., S-06-1380, 274 Neb. 713

Nebraska Supreme Court declines to reduce father's child support obligation for social security benefits one of his disabled children receives. Gress v. Gress, S-06-607, 274 Neb. 686. One of the father's children had downs syndrome and received $564 per month social security benefits. the decision does not specify whether the social security took the form of SSI or SSDI. The father argued that in accordance with Ward v. Ward, 7 N eb. A pp. 821, 585 N .W.2d 551 (1998) he should receive a credit for some of the social security support. The Nebraska Supreme Court declines to overrule Ward, distinguishing the situation where a disabled child has additional needs that government benefits support from one where the child is otherwise normal but receives the benefits because of the death of the parent. "it not appropriate to offset child support costs where, as here, the Social Security benefits are intended to mitigate the additional costs that accompany disabilities." The Supreme Court might have discussed whether it would distinguish between Title II disability benefits, for example benefits to children of deceased or disabled workers and Title XVI benefits which are benefits to disabled children that parents' payroll contributions do not fund.

Last week's Nebraska Supreme Court decision In re Interest of Kevin K., S-06-447, 274 Neb. 678 might shed some light on Gary Lacey's crying need for more attorney help in the Lancaster County Attorney's office. The juvenile court asserted jurisdiction over the child because he was a truant (§ 43-247(3)(b)), something the Supreme Court calls a "status crime" (§ 43-245(15) (Reissue 2004)). After the child reached 16 his mother released him from attending public school. See 79-201. The juvenile court terminated jurisdiction. The State DHHS agreed with the juvenile judge's decision to close the case. The Lancaster County Attorney did the appealing. No wonder you are short handed Gary, you are trying to keep cases in the system that should be closed. The Supreme Court, J. Stephan affirms closing the case.where a juvenile is adjudicated solely on the basis of habitual truancy from school pursuant to § 43-247(3)(b), and the status of truancy is subsequently terminated by the lawful execution of a parental release authorizing discontinuation of school enrollment pursuant to § 79-201(3)(d), a juvenile court may terminate its jurisdiction without a finding that such termination is in the best interests of the juvenile.

Nebraska Supreme Court finds personal jurisdiction proper for child's action against divorced parent who travelled to Nebraska and had his relatives do the same to take her to Canada where the parent allegedly abused the child. S.L. v. Steven L., S-06-563, 274 Neb. 646 The Lancaster County District Court dismissed the ex-wife's tort action against divorced father for allegedly abusing their child while she visited the father in Canada stating the court could not assert personal jurisdiction over the father. Nebraska Supreme Court reverses, finding for intentional injuries the pleading and other materials showed the defendants contacts to this State were sufficiently connected to Nebraska to justify personal jurisdiction over him. "one who removes a minor child from her Nebraska home under the guise of exercising a visitation right in another jurisdiction, and then intentionally subjects the child to harm before returning her to this state, could reasonably expect to be haled into a Nebraska court to answer for such conduct in a civil action brought on behalf of the child." Finally jurisdiction was appropriate in Nebraska as hearing the case here did not offend fair play and substantial justice. "Nebraska’s exercise of specific personal jurisdiction over Steven in this action would not offend notions of fair play and substantial justice.

Nebraska Supreme Court holds double jeopardy does not require reversal and dismissal of criminal charges when the defendant's counsel provides some of the evidence offered and received at trial that provided the court with evidence to avoid a directed verdict. State v. McCulloch, S-06-275, 274 Neb. 636. In a follow up to the Nebraska Court of Appeals' Mrs. Robinson case, the Nebraska Supreme Court rules that the Court of Appeals should not have reversed the defendant's conviction for sexual assault of a child younger than 13 when the defendant was older than 19 when the defendant's counsel provided some of the evidence that helped prove. State v. McCulloch, 15 N eb. A pp. 381, 727 N .W.2d 717 (2007) (McCulloch I) rehearing granted, opinion vacated and replaced with State v. McCulloch, 15 N eb. A pp. 616, 733 N.W.2d 586 (2007) (McCulloch II). The appeals court should not have ruled on direct appeal that defense counsel was ineffective for offering the crucial evidence that defendant was older than 19 at the time of the sexual assaults. Further Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. E d. 2d 265 (1988), does not confine the reviewing court's double jeopardy analysis to whether evidence the court receives solely from the State's offer was sufficient to avoid a directed verdict. "The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict...To the extent cases such as State v. Anderson, 258 Neb. 627, 605 N .W.2d 124 (2000) may be read as limiting Double Jeopardy consideration to only evidence offered by the State, they are disapproved.

US District Court for the District of Nebraska erred when it gave a methampetamine defendant credit for "minimal participation" in a drug distribution scheme. Eighth Circuit Court of Appeals reverses sentence of time served at one year because the defendant actively participated in manufacturing and distributing the drugs. 063920P.pdf 12/07/2007 United States v. Scott Goodman U.S. Court of Appeals Case No: 06-3920 District of Nebraska - Omaha [PUBLISHED] [Gruender, Author, with Colloton and Beam, Circuit Judges] the court erred when it granted him a four-level minimal participant reduction under Guidelines Sec. 3B1.2(a); on remand, the court should not consider defendant's post-sentencing rehabilitation in determining his sentence.

Nebraska Supreme Court allows Department of health and Human Services to use 1972 cost figures when allowing nursing home operator to claim depreciation reimbursement although existing operator acquired facility in 2000. Belle Terrace v. State, S-06-876, 274 Neb. 612. The Lancaster County District Court agreed with Tecumseh nursing home operator that it could use cost figures from 2000 to claim depreciation reimbursement from Medicaid for a building that was built in 1972 because the nursing home did not use the structure for its facility until 2000. Nursing home argued and the District Court agreed that the structure was not in existence before 1974, an interpretation in line with federal Medicare regulations. Nebraska Supreme Court reverses; when the Nebraska Department of Health and Human Services declines to follow federal regulations, the departments interpretation of an unambiguous term, in this case "in existence" prevailed over an interpretation the nursing home assumed applied because if this were a Medicare case, the nursing home would have won.

Nebraska motor vehicle accident guest statute § 25-21,237 (Reissue 1995) applies in action filed in district court between Nebraska residents even though accident occurred in Colorado where no guest statute applied. Heinze v. Heinze, S-06-722, 274 Neb. 595. The Nebraska Supreme Court rejects married plaintiff's contention that the district court should have allowed his action against his wife for injuries arising from an automobile accident they had in Colorado. The Supreme Court, per Justice Wright holds that Nebraska law, including Nebraska's guest statute (§ 25-21,237 (Reissue 1995)) would apply to the action husband-plaintiff filed against his wife in York County, their domicile. Justice Gerrard puts his two cents worth in,his concurring opinion, reminding the plaintiff that his attorneys should have raised one of Gerrard's pet constitutional issues, that § 25-21,237 is unconstitutional. See Le v. Lautrup, 271 Neb. 931, 716 N.W.2d 713 (2006) (Gerrard, J., dissenting). Too bad Justice Gerrard says, the plaintiff's lawyers failed to raise the constitutional issue.

Although the Nebraska Supreme Court earlier held that Neb. Rev. Stat. § 29-2281 (how to assess criminal restitution, see In re Interest of Brandon M., 273 Neb. 47, 727 N.W.2d 230 (2007) did not apply to juvenile delinquency proceedings, the Supreme Court holds that juvenile courts should use its rules for "guidance." In re Interest of Laurance S., S-06-1439, S-06-1443 , 274 Neb. 620 Nebraska Supreme Court (J. Miller-Lerman) reverses $29,000 restitution orders against two Fremont brothers who vandalized a school. Can you say "legislating from the bench?" Justice Miller-Lerman cant stand that juvenile courts don't have statutory guidelines on assessing restitution, so she helps them come up with some. $29000 was just too high a price to charge two likely career losers without considering their ability to pay. Did it occur to the supreme court that putting a little shock value into their heads might wake them up? Instead typical of her blame the victim attitude she is more concerned with the self-esteem of the delinquents. "The result of such [an order] would not be rehabilitation. Rather, it would give the [juvenile] a sense of unfairness, injustice and bitterness towards the system because the chance to reform would not be present.’”

Nebraska Supreme Court refuses to give custody to mother from Columbia who barely spoke English, felt helpless and thought social services authorities owed her something for it. Maska v. Maska, S-07-187, 274 Neb. 629 Aurora Ramirez Maska, a native of Columbia, sought custody of her two children in divorce proceedings in Buffalo County District Court. The district court awarded custody of the children to the American father during the school year with summer custody to the mother. On top of that the Court ordered the husband to pay Aurora $78 per month child support along with 46% of the kids' social security benefits, presumably from the father's disability claim. Nebraska Supreme Court affirms over Aurora's objection that the district court ruled against her because she was from Columbia, could barely speak English and felt that American welfare owed her something. Looks like a slam dunk to me that you would want 7 and 5 year old children to live with a parent who spoke English, at least during the school year. Sadly Justice Wright had to remind the parties that the Supreme Court was not ruling against her because of her nationality, rather it was in the best interests of the children to live with the American parent during the school year. Aurora’s final argument is that the district court abused its discretion by using her national origin and language as a factor against her when evaluating the best interests of the children. Her argument has no merit. The court’s decree does not state that it used Aurora’s national origin or language as a factor. (The child psychologist) recommended to the court that the primary physical custody of the children be given to Joel during the school year and to Aurora during the summer months. That is the recommendation the court adopted, and we find no abuse of discretion in the court’s decision.

Nebraska Department of Health and Human Services' appeal of State Personnel Board decision to demote its adult protection worker instead of firing her is dismissed because it was not filed in the correct county. Nebraska Dept. of Health & Human Servs. v. Weekley, S-06-292, 274 Neb. 516Plaintiff and adult protection worker for the Department of health and Human Services faced termination because she did not timely investigate a report that a vulnerable adult was in danger. The vulnerable adult died later in a fire. the Department and the employee first attended a mini-hearing session at DHHS headquarters in Lincoln but the hearing officer recommended termination. The State Personnel Board of the DAS (Department of Administrative Services) recommended discipline short of termination. DHHS appealed the Personnel Board's decision in the Dodge County Court, where the State won reinstatement of its termination decision. Supreme Court vacates, holding that according to 84-917(2)(a), the Department should have filed its district court appeal in Lancaster County where the Department and its employee first attended the informal "mini-hearing" regarding the disciplinary action the Department sought to take against the adult protection worker, even though the formal DAS termination hearing took place in Dodge County. Notwithstanding the procedural limitations and the informal nature of the “mini hearing,” ,,we conclude that the “mini hearing” in Lancaster County was the first adjudicated hearing.DHHS filed its petition for further review in Dodge County, rather than Lancaster County, and the Dodge County District Court did not have jurisdiction."

Win for home-based business from disgruntled neighbors zoning appeal on a technicality. Small accounting and tax service business won an extension to operate from the owners home for an additional five years from the Omaha zoning board. Goodman v. City of Omaha, S-06-532, 274 Neb. 539 Neighbors appealed to the Douglas County District Court but the District Court affirmed. Neighbors first filed for a new trial and then filed their notice of appeal. Supreme court dismisses appeal, holding that when the district court functions as an intermediate appellate court, a motion for new trial or similar motion does not toll the 30 day jurisdictional time limit for appealing"Section 14-414 provides that the district court’s authority is limited to the power to reverse, modify, or affirm the decision brought before that court for review. The district court acts as ab appellate court in appeals from zoning appeals boards (Kuhlmann v. City of Omaha, 251 N eb. 176, 556 N .W.2d 15 (1996). Because the district court in this case functioned as an intermediate court of appeals, and not as a trial court, the appellants’ motion for new trial did not stop the running of the time within which to perfect an appeal."

Nebraska Supreme Court reverses Douglas County Court twice in one week again from probate cases. In re Trust Created by Isvik, S-06-420, 274 Neb. 525 In re Guardianship & Conservatorship of Cordel, S-06-591, 274 Neb. 545 Douglas County Court probate cases seem to get more than their share of reversals from the Nebraska Supreme Court. Isvik: the Supreme Court reverses the Douglas County Court's "reforming" a settlor's written revocation of a trust 2 weeks before her death to change it to a trustee replacement. Also the Supreme Court refused to dismiss the settlor's estate's appeal even though it failed to have an appropriate supersedeas undertaking on time after appealing. Cordel: Supreme Court allows parent of incapacitated adult to intervene to object to an $80000 trustee fee.

Nebraska Supreme Court affirms dismissal of Douglas County security employee who while on sick leave worked a second job, even though the disciplinary citation and a supervisor referenced a mistaken allegation that his off-duty injury that lead to the employee's taking sick leave was during outside employment. Hickey v. Civil Serv. Comm. of Douglas Cty., S-06-802, 274 Neb. 554. Plaintiff injured his had during off-duty time and he received sick leave from his employer Douglas county Nebraska. Later the county discovered he was working at a second job while drawing sick leave pay. The county moved to dismiss plaintiff and plaintiff appealed. One of the plaintiff's supervisors testified mistakenly that the county dismissed plaintiff because he was injured while working a second job and sought sick leave pay for the injury. But the disciplinary notice and other employees testified that the county dismissed plaintiff for working at outside employment while drawing sick leave. Supreme Court affirms. "the record clearly establishes, despite supervisor’s confusion, that Hickey’s employment was terminated for violating section 2(a) (against outside employment on sick leave) and that he had notice of and the opportunity to defend himself against that charge. We find no due process violation."

Nebraska Court of Appeals reverses guilty verdict for second degree assault and sexual assault for the Sheridan County District Court's erroneous admission of prior crimes evidence. However the appeals court does not decide whether the District Court's failure to give the "other crimes" limiting instruction when the court allowed the evidence, as State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999) requires. State v. Sutton , A-06-1297, 16 Neb. App. 185 Evidence of prior assault between defendant and victim was not admissible under 27-404(2) RRS Neb. The court admitted the evidence and the appeals court found the error harmful beyond a reasonable doubt. The district court failed to give a Sanchez limiting instruction, but since the admission of evidence was itself reversible error, the appeals court does not determine whether the court's failure to give Sanchez limiting instructions would be reversible error."The trial court failed to state such purpose at the time of the hearing required by rule 404(3)—which was an earlier opportunity for the trial court to “state the purpose or purposes” in order to comply with the procedures mandated in Sanchez. However we need not consider whether the trial court’s failure to abide by the Sanchez requirements constitutes reversible error in the instant case, given that we have concluded that the evidence was inadmissible. We simply point it out to remind trial courts of the requirements set forth in State v. Sanchez."

No action against general contractor by subcontractor's employee from construction site accident. Eastlick v. Lueder Constr. Co., S-06-721, 274 Neb. 467 . Bricklayer fell off scaffolding he and a co-worker negligently assembled and of course his attorneys needed someone other to blame. Bricklayer sued the general contractor who had nothing to do with the masonry subcontractor's work. Dodge County District Court gave summary judgment to the general contractor and bricklayer appealed. Nebraska Supreme Court (J. Wright) affirms summary judgment. Unlike the Omaha Public Power District in Parrish v. Omaha Pub. Power Dist., 242 Neb. 783, 496 N.W.2d 902 (1993), who kept its own safety personnel constantly checking the work site, the general contractor had nothing to do with the masonry subcontractor's own scaffolding. Closer to the mark the Supreme Court finds that as in Hand v. Rorick Constr. Co., 190 Neb. 191, 206 N.W.2d 835 (1973), "the instrumentality (scaffolding) which caused the injury was not the premises, but, rather, was the equipment owned, controlled, and erected by the subcontractor, who was the employer of the injured worker. The general contractor had no right to control the subcontractor's equipment. The duty of a general contractor to employees of a subcontractor extends only to providing a reasonably safe place to work as distinguished from apparatus, tools, or machinery furnished by the subcontractor for the use of his own employees.”

Nebraska Supreme Court allows district courts to dictate work schedules of public safety employees. Hogelin v. City of Columbus, S-06-641, 274 Neb. 453. The Chief of the Columbus Fire Department required firefighters to attend extra safety training that the US Department of Homeland Security funded but the training schedule would put the firefighters over the maximum work hours that Section Section 35-302 allowed (no more than 60 hours per week, given 24 hour schedules). The head of the union complained that the evening training schedules interfered with his visitation schedule and another firefighter received a reprimand for failing to attend a training session when the fire department had already approved his trip out of town to attend a wedding in North Carolina. The firefighters right to the maximum hours restrictions in 35-302 was so important that the firefighters' collective bargaining agreement allowing the City to set work schedules did not set aside the requirements of the statute. Finally the court finds an injunction was appropriate. Remember that next time a government agency in Lincoln decides to impose extra training requirements on a small town's fire or police department.

Nebraska Supreme Court leaves jurisdictional and other questions unanswered in underinsured motorist case where the State was a defendant and worker compensation subrogee. Nebraska Supreme Court holds that § 44-6413 RRS Neb (barring uninsured/underinsured motorist claims when the statute of limitations on the underlying claim has expired) did not bar injured state employee's underinsured motorist action because the plaintiff settled her negligence claim against the primary tort-feasor within the four year statute of limitations period § 25-207 RRS Neb. Reimers-Hild v. State, S-06-203 274 Neb. 438 . The State of Nebraska and its underinsured motorist carrier raised the defense of 44-6413 that the Plaintiff sued after the statute of limitations had expired. Plaintiff was injured in an automobile accident while in the scope and course of her employment with the State of Nebraska. She received worker compensation from the State and also settled for the primary tort-feasor's liability insurer liability limits of $25000. The State had uninsured/underisnured coverage on the state vehicle the Plaintiff was in at the time of the accident but self-insured damages of up to $300000. The plaintiff did not file a tort or contract claim against the State. Instead the Plaintiff sued the State more than four years after the accident and later added its underinsured carrier . The Nebraska Supreme Court reverses, refusing to consider the defendants jurisdictional claims. "we hold that § 44-6413(1)(e) does not apply when an insured has settled his or her claim against an uninsured or underinsured motorist before the statute of limitations applicable to that claim would have expired. T he district court erred in concluding otherwise." The Surpeme Court noted several of the future questions it will no doubt play with: what will be the correct statute of limitations? Did the Plaintiff need to file either a tort, contract claim or both against the State before filing suit Did sovereign immunity or worker compensation immunity apply?

The Unicameral's boondoggle DNA testing statute's chickens come home to roost. The state convicted five defendants of robbing and murdering a 68 year old woman from Beatrice in 1985. Defendant White was convicted of murder and defendant Winslow plead to second degree murder.

• State v. White, S-06-919, 274 Neb. 419
• State v. Winslow, S-06-983, 274 Neb. 427

Three co-defendants testified against White. Nebraska Supreme Court orders DNA testing for both the defendant who went to trial (White) and the defendant who plead (Winslow). The Supreme Court orders testing because no matter how far fetched the claim, this evidence if available could produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced. See § 29-4120(5). Senator Chambers comments back in 2001 tell it all, the senators agreed that cost was no object.

Order of the Kneepads Update: Rare readmission of disbarred attorney to the Nebraska State Bar after 20 years. Nebraska Supreme Court allows readmission to the bar of attorney disbarred 20 years after twice stealing funds from his law firm. Legal profession blog. The Supreme Court disbarred John Kinney in 1987 after twice stealing over $20,000 from his law firm. The court denied his application for readmission ten years ago but this time allows it conditioned upon his passing the bar exam. Character witnesses and the court's soft spot for substance abusers carried the day for Mr. Kinney. State ex rel NSBA v. Kinney 274 Neb. 412 (2007).

Nebraska state courts retained jurisdiction to prosecute crimes involving Indians that preceded effective date of Unicameral's retrocession agreement with the Federal Government. State v. Wabashaw, S-06-642, 274 Neb. 394 Defendant was convicted of robbery and the court sentenced him as an habitual offender. The crime occurred on Indian territory. Nebraska Supreme Court affirms conviction as effective date (71 Fed. R eg. 7994 (Feb. 15, 2006)) of Nebraska's retrocession agreement (L.R. 17, Legislative Journal, 97th Leg., 1st S ess. 2356, 2358-59 (May 31,2001)) followed the crime. Congress abrogated its 1868 treaty with Indian tribes that required notice to the tribes before the State prosecuted an Indian (Public Law 280 18 U.S.C. § 1162(a) (2000)). Finally the Defendant's prior robbery conviction in South Dakota counted to enhance his sentence even though South Dakota courts (S.D. Codified Laws § 22-7-9 (2004))could not have considered the prior conviction due to passage of time (§ 29-2221 RRS Neb.).

Nebraska Insurance Guaranty Act bars all subrogation claims against insureds unless they are outside the scope of the insolvent insurer's policy. Car owner sued dealership for damages arising from repairs the plaintiff alleged were faulty. The car owner paid his $1000 deductible and his own insurer picked up the rest. The dealership's insurer became insolvent after the Plaintiffs started the lawsuit and the district court dismissed the action under the provisions of the Nebraska Insurance Guaranty Act that prohibits subrogation actions against responsible defendants. Nebraska Supreme Court agrees that the plaintiffs could not file action directly against the dealership unless the accident was beyond the coverage of the garage policy and material issues of fact prevented summary judgment for the dealership on coverage. Alsobrook v. Jim Earp Chrysler-Plymouth, S-06-383, 274 Neb. 374"Section 44-2403(4)(b) prohibits subrogation claims from being asserted against an insured of an insolvent insurer, except to the extent that the claim is outside of or in excess of the insurance policy issued by the insolvent insurer. T he district court erred in concluding, as a matter of law, that Alsobrook’s entire claim, in excess of the deductible, is barred by the A ct"

Grand Island Lawn Company Owner Pleads Guilty to Harboring Illegal Immigrants. Yahoo business. David Wortman turned himself in for arrest last month, one day after U.S. Immigration and Customs enforcement raided Cloudburst Lawn and Sprinkler and arrested 19 suspected illegal immigrants. Agents believed 11 of those arrested were from Mexico, six were from El Salvador and two were from Guatemala.Wortman was under investigation by ICE, the IRS and the U.S. Department of Labor, U.S. Attorney Joe Stecher said in a news release. Wortman was scheduled to be sentenced Jan. 22. In a plea deal, he agreed to be sentenced to 30 months in prison and to file new tax returns for 2005 and 2006. According to the criminal complaint, Wortman told federal officials that the company's gross sales in 2005 were more than $1.5 million. Stecher said Wortman cashed several checks from customers that were for less than $10,000 each but represented larger business dealings that should have been federally reported. Stecher said the 45 transactions totaled about $440,000 and were paid in groups of 22 to 108 checks. Under his plea agreement, Wortman agreed to forfeit the $440,000, not only for the unreported transactions, but also to pay $200,000 to the Labor Department to settle claims of unpaid overtime.

The Heritage Foundation and The Federalist Society Host A Reception with Supreme Court Justice Clarence Thomas Omaha, NE, October 19^th

Event details Friday, October 19, 2007 6:30 p.m. Reception 7:00 p.m. Remarks Hilton Omaha 1001 Cass Street Omaha, NE 68102

Sign up here for this special event. Justice Thomas is a national treasure and a great speaker. Just think if a few more decisions from the Supremes went his way. As John Lennon said, "Imagine!"

The Nebraska Court of Appeals should have considered the defendant's ineffective counsel appeal because his challenge to the Nebraska terroristic threats statute was merit less.

State v. Nelson, S-06-449

Although defendant filed notice in his ineffective counsel appeal that he would allege that the Nebraska terroristic threats statute (28-311.01) is unconstitutional, the Nebraska Supreme Court holds the court of appeals should have heard the appeal. "(Defendant's) mere assertion that a statute may be unconstitutional does not automatically deprive the Court of Appeals of jurisdiction over the case. To conclude otherwise would amount to ceding the regulation of our docket, and that of the Court of Appeals, to the unsupported allegations of litigants. We find that for the constitutionality of a statute to be genuinely “involved” in an appeal,"

Nebraska Supreme Court rejects "ERISA" standards when it reversed summary judgment ruling that went against disability insurance recipient.

Sweem v. American Fidelity Life Assurance Co., S-06-870

The Douglas County District Court refused to admit plaintiff's evidence that she was still disabled after the disability insurer cut her off because she had not given this information to the insurer before it decided to end her benefits. Nebraska Supreme Court rejects the defendant's suggestion that plaintiff should have provided her evidence of continued disability before the insurer made its decision to terminate benefits as ERISA plan insurers often require."We discern no good reason to apply ERISA principles to this common-law action to recover benefits claimed due under an insurance policy, and American Fidelity directs us to no other state court decision which has done so."

Justice William Connolly again hands a victory to bigger government units over smaller ones. This time he allows the reorganized Lyons-Decatur School District to bait and switch Decatur residents into believing they would have a say in whether the school district would keep their local school open. Citizens for Equal Education v. Lyons-Decatur Sch. Dist., S-06-159, 274 Neb. 278. Justice Connolly just cant help himself from finding "absurd results" from the plain meaning of statutes. This time he finds that an agreement between the residents of Decatur and Lyons when they merged their school districts in 1984 that the Decatur school would not close unless a majority of the Decatur voters approved did not mean that because that would be an "absurd" result. Section 79-419 said just that, but that would get in the way of consolidating small town schools into large ones that would support lots of extra staff. We really should be grateful for Justice Connolly for doing the Legislature's job. After all his Supreme Court justice's salary takes care of a baker's dozen of unicameral members.