Nebraska Supreme Court reverses Thomas County District Court's summary judgment ordering removal of directors of cattle feeding corporation. Neiman v. Tri R Angus, S-06-118, 274 Neb. 252. District court judge ordered corporate officers removed following dispute between shareholders and the directors. Although the defendants did not offer evidence disputing removal, the Supreme Court reverses the removal under 21-2086 proceedings. Because the statute includes grounds for fraud and because fraud requires heightened proof of intent, the Supreme Court concludes all grounds for removal of directors will require heightened proof. "Nebraska's statute on judicial removal of corporate directors, § 21-2086, is an extraordinary remedy. It is not for resolving mere differences of opinion between the shareholders and the directors regarding their exercise of business judgment. Instead, it is an unusual remedy that is to be granted only upon the shareholder’s production of sufficient evidence demonstrating that the director has engaged in “fraudulent or dishonest conduct or gross abuse of authority or discretion with respect to the corporation.” § 21-2086."

Another win for trial lawyer justice in Nebraska: Nebraska Supreme Court reverses summary judgment in suit against U-Haul by user who mishandled the truck's loading ramp. Erickson v. U-Haul International, S-05-1163, 274 Neb. 236The plaintiff's parents rented a U-Haul moving van to move from Iowa to Herman, Nebraska in Washington County. The Plaintiff tried to extend the loading ramp while her father moved the truck, but the truck jumped suddenly and pinned her leg. She sued the U-Haul Center of Omaha and also the umbrella U-Haul company. District court dismissed the case against U-Haul Center finding no duty to warn and dismissed against U-Haul parent company finding no personal jurisdiction. Even though the Nebraska Unicameral has already addressed truck leasing liability issues in 25-21,239, the Supreme Court (J Connolly) predictably reverses. So why is this worthless case going back for trial? Who is going to win a negligence case when a girl and her parents are mishandling heavy equipment? This case wont go to trial and someone will pocket a nice settlement since the Supreme Court has shut off the defendants' threat of a quick dismissal.

Convicts who escaped from prison had Fourth Amendment rights until the enbanc Eighth Circuit Court of Appeals reinstated the totalitarian use of Nebraska Department of Corrections administrative arrest warrants Neb. Rev. Stat. § 83-173(11) . Missouri Appellate Law Blog reports the split decision U.S. v. Lucasfrom the Eighth Circuit Court of Appeals en banc that reinstated the escaped convict's charges on drugs and weapons charges arising from his apprehension while staying at his girlfriends house. The initial panel of the Eighth Circuit and the dissenters think the Department of Corrections' warrant insufficient to overcome the fourth amendment protection convicts have when absconding from incarceration. We'll think about that next time a convict escapes, takes hostages and is about to kill them and hope that defendant's lawyers won't be able to think up some creative defenses to the case.

Eminent law prof blawgger applauds Nebraska Supreme Court's decision to maintain SNAFU status with sentencing guidelines. Sentencing Law and Policy Blog loves Nebraska's Justice League member Joe Bataillon, US District Court, and now William Connolly Nebraska Supreme Court for refusing to bow to pressure from the Legislature to introduce some sanity to sentencing decisions. Why if we had guidelines for drug dealers, then we might have to have guidelines for electrocuting murderers, Nigerian gang-bangers, and pedophile runt-rangers.

No complaint amendment to add promissory estoppel three after the plaintiff dropped it from his breach of employment contract lawsuit. Keating v. Ironwood Golf and Country Club voluntarily withdrew his promissory Bank, supra, if the district court had allowed (Not designated for permanent publication). Premier Omaha area golf club Ironwood Country Club hired Bradley Keating to be its chief operating officer in April 2001 with a five year employment contract, subject to the parties reaching within 90 days of starting employment agreement on work performance standards. Apparently Mr. Keating ran afoul of some big names, including Howard Hawks and Thomas Fitzgerald. The club terminated him after 90 days. Keating sued for breach of contract and for breached promissory estoppel. After Ironwood filed its initial demurrer to the promissory estoppel count, Keating withdrew this from his pleading. But nearly three years later in response to Ironwoods motion for a complete summary judgment he sought to reinstate it. Nebraska Court of Appeals, unpublished decision, affirms summary judgment. "Keating sought to change his lawsuit from a straightforward breach of a written contract action to a promissory estoppel cause of action only after the hearing on Ironwood’s motion for summary judgment, nearly 3 years after Keatingestoppel cause of action. Similarly to Cimino v. FirsTierKeating to amend his pleading, the basis of his lawsuit would have been significantly altered after 3 years of proceeding to defend a case based only on a breach of contract cause of action. For these reasons, the district court did not abuse its discretion in refusing to grant Keating’s motion for leave to file an amended petition to change his theory of recovery from a breach of contract claim to one of promissory estoppel."

UNL Law College student expelled for plagiarism appealed to the Lancaster County District Court. District Court and Nebraska Court of Appeals dismiss case, holding that the Dean and Honor Committee of the law school are not "agencies" subject to the Administrative Procedures Act, nor was their expulsion decision a "contested" case.Kerr v. Board of Regents et al. ___N.W.2d___ Filed August 28, 2007. No. A-05-953. Law student Michael Kerr got caught plagiarizing three papers and then submitting the identical plagiarized material to different professors. A law school Honor Committee voted 4 to 1 to expel him and the Dean approved. Kerr alleged disparate treatment due to his race and national origin (guess) so that must have swayed the one dissenter on the committee. He then appealed to the District Court, lost and appealed to the Court of Appeals. Appeal dismissed."An “agency” is each board, commission, department, officer, division, or other administrative office or unit of the state government “authorized by law to make rules and regulations.” § 84-901(1). We have found no basis to conclude that the Honor Committee or Dean Willborn is “authorized by law to make rules and regulations,” Nor was Kerr's expulsion the result of a contested case as "there is no law requiring that the question of whether Kerr remains a College of Law student be determined by an agency (as defined by § 84-901(1)) and, in any event, as said, the Honor Committee and the dean are not agencies under such statute.

Order of the Kneepads update: Counsel for Discipline for the Nebraska Supreme Court helps poor business people find ways to blame their attorneys. The Kearney Hub reports that master litigator Kent Frobish, Assistant Counsel for Discipline of the Nebraska Supreme Court filed formal charges (pdf) against venerable Kearney attorney William Orr arising from his representing the Baristas' coffee shop principals. Disciplinary Counsel Frobish became very proficient in this job because he held a baker's dozen of private sector positions before landing in the Supreme Court's easy chair. Somehow I don't see how Baristas' people can blame Orr for all their problems. He didn't tell them not to deposit their withholding taxes to the tune of over $330K. Although the FTC fined the partners, this did not completely choke their income.

No uninsured motorist coverage for passengers who were not insured persons for an automobile's liability insurance policy, and a much smaller payday for plaintiffs' attorneys. Nebraska Supreme Court, J Stephan with Gerrard, J and Heavican CJ concurring rules for Shelter against its insured's passenger who was injured in an accident with an uninsured automobile. Jones v. Shelter Mut. Ins. Cos., S-06-310, 274 Neb. 186. Shelter excluded passengers in their insureds' vehicle who were not themselves insured persons under the policy. Although permitted drivers were covered, guest passengers were not. Plaintiff and his own uninsured carrier American Family argued Shelter's policy violated 44-6408 . 44-6408 requires liability insurers who provide insurance for bodily injury... arising out of the ownership, operation, maintenance, or use of a motor vehicle to also provide to persons insured who are legally entitled to recover compensatory damages for bodily injury (uninsured and uninsured motorist coverage). Supreme Court rules Shelter did not violate public policy by restricting the meaning of "use" of the motor vehicle to those guests who were operating or maintaining it. Justice Gerrard, concurring, cant wait to butt in and tell the Unicameral how it should write its laws. Gerrard states he is concerned about unsuspecting passengers who throw themselves at the mercy of uninsured drivers. Good enough, but how about the plaintiff attorneys who win smaller settlements because of this ruling? Don't they deserve favorable mention from their champion John Gerrard?

Will medical malpractice plaintiffs be able to bring cases against Hospitals and doctors for their advertisements? Nebraska Supreme Court, per curiam, affirms Douglas County District Court defense verdict in medical malpractice case rules that judge could exclude defendant evidence of hospital's advertisements for its walk-in emergency clinic. Supreme Court holds the advertisements did not establish a standard of care. But Court hints that in the right cases plaintiffs could bring negligent misrepresentation claims Karel v. Nebraska Health Sys., S-05-1311, 274 Neb. 175 Tina Karel's estate administrator sued Nebraska Health Systems, dba Clarkson West EmergiCare (Clarkson West), and Scott Menolascino, M.D., for medical malpractice action. Plaintiff died just a few hours after seeking treatment from the emergency clinic the second time that evening. After the defense verdict the Plaintiff appealed arguing the district court should have admitted her evidence of the defendants' print and radio advertisements produced by for the Clarkson West Emergicare clinic.Supreme Court affirms. "Neither the offer of proof nor any other part of the record affords any basis for concluding that Karel relied upon or was even aware of the marketing activities undertaken by Clarkson West when she chose to seek medical care at the facility"

Malpractice lawyers will sue other lawyers for settling cases and also for taking cases to court. Nebraska Supreme Court (J. Wright) reinstates $1.6 million malpractice verdict against Omaha's McGrath North law firm in favor of former client LaVista Keno operator Richard Bellino and his trial attorney David Domina. Bellino v. McGrath North, S-06-130, 274 Neb. 130. Lawyers beware of advising clients to accept settlements that another lawyer will say were too low, conversely don't advise a client to beat a settlement offer at trial. The Douglas County jury ruled that McGrath North's client received bad legal advice on how to dump his business partner in their Keno business and then that he would win in court. Although the district court agreed that the defendants' continuous representation through the clients unsuccessful appeal against the former partner's business opportunity lawsuit was timely and that the defendants were negligent , the district judge reduced the jury's $1.6 million to $224K. The district judge reasoned that since the client would owe his partner something eventually, no damage resulted from the attorney's conduct. Supreme Court disagrees. "After (plaintiff) did not accept (former partner's) offer, (Plaintiff's) appeal continued until this court affirmed the judgment in favor of (former partner). The jury could reasonably have concluded that but for the negligence of McGrath North, Plaintiff would have paid substantially less than $3.1 million to attain his stated goals."

Nebraska Supreme Court in two cases arising from the Amwest liquidation that started six years ago rules against landlord who sought satisfaction from defaulted tenants performance bond, but rules in favor of Florida general contractor who said it never received notice of the Amwest liquidation proceedings.

• State ex rel. Wagner v. Amwest Security Ins. Co., S-05-1267, 274 Neb. 110 (Strategic Capital Resources, Inc.)
• State ex rel. Wagner v. Amwest Security Ins. Co., S-06-049, 274 Neb. 121(Sunhouse International)

The Supreme Court affirms denying the claims of Strategic Capital Resources against its tenants performance bond to satisfy rental payments. Turns out the tenant-principal defaulted three days after the Insurance Department's notice that it would cancel the Amwest bond. "Each of the four lease bonds contained explicit conditions that must be complied with before A mwest’s liability under the agreements would arise. All four lease bonds required Strategic to provide A mwest written notice of (principal’s) default as a condition precedent to S trategic’s right to payment under the lease bonds. Amwest however did not receive notice of defaults until after cancellation. Strategic may not analogize these cases to cases arising form claims-based insurance policies as bond claims require strict compliance with preconditions for them. In the Sunhouse international case, the Supreme Court rules in favor of the claimant against a defaulted construction performance bond. The evidence showed that Amwest liquidators sent notice to the claimant's former attorneys offices. The claimant disputed that it received notice. Only later did Amwest liquidators produce an affidavit with out supporting documents stating the it did give proper notice. On denovo review Supreme Court discounts the affidavit. "we find the affidavit insufficient proof that, in accordance with § 44-4822, notice was sent to S unhouse’s last known address as reflected in A mwest’s records."

Although Justice Stephan doesn't think police officers have rights to free speech, he and his fellow Solons on the Nebraska Supreme Court think that a little law school wouldn't hurt them. Snyder v. Department of Motor Vehicles 274 Neb. 168. The Supreme Court majority throws out an administrative license suspension from Douglas County because the police officer marked "speeding over 20 mph, DUI" as the reason for the arrest. Now if the busy Omaha Police Department officer who stopped this drunk driver who was driving over 20 mph over the speed limit had been to law school, he would have known that although that's the ticket he issued to this drunk driving menace, that was a mere legal conclusion and did not state "facts" to make the wise Supreme Court justices happy. So what if Supreme Court justices and their clerks dream up these technicalities while sitting in their State Capitol chambers and law libraries, the form has TWO AND A HALF INCHES for the officer to state his reasons for arresting the suspect and the burden of the paperwork is not "onerous," even for busy policemen who must complete these forms at all hours and in all weather conditions. Dissenting Chief Justice Heavican seems to be the only judge on the court who agrees to see the real world, and finds the court decision's thwarting effective drunk driving enforcement.

Follow up: on remand the Nebraska Supreme Court again reverses the Commission on Industrial Relations in the dispute between the Hyannis Educational Association and the Grant Public School District ; Supreme Court rules in favor of school district that "deviation clauses" from union contracts between several other school districts and teachers' representatives were prevalent, whether they had open-ended or specified conditions, and therefore the CIR erred when it threw out the school district's deviation clause. Hyannis Educational Assn. v. Grant County. Sch. Dist. No. 38-0011, S-06-300The Supreme Court also declined to moot the case because of the Legislature's Class I Schools' consolidation bill from two years ago, 2005 Neb. Laws, L.B. 126.

The Nebraska Supreme Court decides that good police discipline, i.e., toeing the line, overrides Union activity and the public's right to know police officers' public safety concerns. Omaha Police Union Local 101 v. City of Omaha, S-06-403 Omaha Police Department Chief sought to discipline two officers who were police union officials for comments they made about the OPD's 911 standards. One commented that the OPD's procedures were "misleading" and this was during a union meeting. The chief tried to discipline this officer but Internal Affairs dismissed the case. A second officer wrote and article that was barely insubordinate, in that article the officer wrote an article was generally critical of the standard operating procedures for two-officer 911 calls and the manner in which the city and OPD calculated response time. Housh characterized city officials as “[a] bunch of grown men and women, supposedly leaders, acting like petty criminals trying to conceal some kind of crime.” He also stated that “[t]hey refuse to do it, they know they have screwed up, and rather than admitting guilt, they (whoever they are) will make history and try to control what is said/revealed during union meetings regarding response time.” The comments about "grown men" cant be true, because if the police administration had grown men, it would not have thought these comments while harsh amounted to a disciplinary breach. Anyway the Supreme Court gives the department what it wants, the chance to tie up anyone who questions authority and public safety and make them think twice about rocking the boat, because next time an employee criticizes his government employer he will have to navigate a maze of constitutional balancing tests, juggling and water torture.

Nebraska Supreme Court nixes North Carolina pig breeder's claim against hog farmers estate. The breeders officers mistakenly signed where the hog farm's principal should have signed to guarantee the farms breeding stock debts. Court affirms Gage County Probate Court's ruling that there was no guaranty agreement either by reforming the erroneously signed document nor by finding that the guaranty was the "leading object" of the agreement between the farm and breeder, so the court would not excuse the writing requirement of the statute of frauds (§ 36‑202(2) (Reissue 2004)). In re Estate of Dueck, S-06-538there was no written guaranty agreement between the parties. In the absence of a written agreement between GIS and Dueck, there was nothing to reform The leading object rule presumes that there has been an oral promise or some sort of an oral agreement.Dueck did not orally agree to guarantee Forward Trend’s debt to GIS, and it follows that the leading object rule was inapplicable.

Eighth Circuit Court of Appeals finds Plaintiff's railroad ballast machine product liability lawsuit was out of time after Virginia court transferred case to Nebraska. 062641P.pdf 07/25/2007 David Eggleton v. Plasser & Theurer U.S. Court of Appeals Case No: 06-2641 District of Nebraska - Omaha Track maintenance worker from Virginia was working the Defendants' Plasser RM-802 ballast cleaning machine . on Burlington Northern railroad tracks in Nebraska and suffered severe injuries while using the machine here in 1998. Within two years he sued Plasser, a German manufacturer in Virginia state court but did not pursue the case. He dismissed the state court action but refiled it within six months in Virginia federal court, taking advantage of the Virginia savings statute, § 8.01-229(E)(3). The district court ruled Virginia did not have personal jurisdiction over the defendants but transferred the case to Nebraska federal court, per 28 USC 1406. The Nebraska federal judge allowed the case to proceed and the defendants appealed. Nebraska law does not extend a plaintiff's limitations period after a voluntary dismissal. If the Nebraska limitations period applies, the Plaintiff's complaint is too late. Eighth Circuit reverses, Nebraska limitation period applies. "After filing his claims against Plasser in a timely fashion, Eggleton neglected the case for more than three years. He took a voluntary nonsuit and then re-filed the case six months later. He waited more than one year after re-filing the case to serve Plasser, thus finally giving the defendant formal notice of the pending lawsuit. While all of these actions were apparently permissible under Virginia law, Eggleton’s inertia in pursuing his case against Plasser militates against his claim of injustice in the application of Nebraska law."

Eighth Circuit Court of Appeals affirms $1.00 religious discrimination verdict against Omaha area home builder that required employees to attend motivational sessions to promote the owner's beliefs in reincarnation and other Buddhist and Hindu doctrines. Real estate developer fired salesman who was a devout member of the Assemblies of God Church for “poor leadership and lack of judgment,” although the salesman did admit to making inappropriate sexual comments to a female co-worker. Ollis’s official termination did not include any reference to sexual harassment. A principal of the developer also testified he used “muscle testing” in his decision to terminate the plaintiff. The Plaintiff objected to having to attend company events that he perceived to be cult-like indoctrination sessions, including beliefs in incarnation and other Buddhist and Hindu doctrines. The Plaintiff sued for discrimination and retaliation. The jury awarded only $1.00 of damages plus attorney fees. Eighth Circuit affirms.062852P.pdf 07/27/2007 Doyle Ollis, Jr. v. Hearthstone Homes U.S. Court of Appeals Case No: 06-2852 District of Nebraska Riley, Circuit Judge. "the record indicates Ollis held sincere Christian religious beliefs. The record also provides some support for Ollis’s contention HearthStone required Ollis to attend MBE sessions to “cleanse negative energy.” These sessions involved affirming the belief in past lives, participating in ritual-like activities, and reading Hindu and Buddhist literature. Ollis testified the MBE sessions conflicted with his religious beliefs. Ollis testified he informed Smith and Langford of the conflict between the MBE requirements and his religious beliefs. Ollis testified he expressed his disagreement with HearthStone’s core values at company meetings where Smith was present. Ollis told Smith he declined to participate in after-hours sessions designed to “clear some Mind Body Energy work.” Finally, Ollis satisfied the third element of his prima facie case, that is, he suffered an adverse employment action, termination.Although the evidence is thin, we find there was a sufficient evidentiary basis for a reasonable jury to find in Ollis’s favor on his claim of religious discrimination.

Some jurors used a slide rule and looked up the inflation rate to help them determine how much to award in wrongful death case.Nebraska Supreme Court affirms verdict of only $46k for wrongful death of a woman in her late teens. Poppe v. Siefker, S-05-670, 274 Neb. 1 Family members of woman killed in head-on collision on Interstate 80 with suicidal driver sued and the Lancaster County district court jury awarded them $46k. Plaintiffs appealed arguing the verdict was too low and the result of jurors' improper reliance on outside aids to help them calculate the present value of their award. Nebraska Supreme Court agrees that the plaintiffs failed to present clear and convincing evidence that some jurors' use of a financial slide rule and inflation rate on a post-it note presented a reasonable likelihood that the extraneous materials prejudiced the plaintiff. Although Nebraska jury instructions ask jurors to reduce their damage awards to present value, the instructions don't tell jurors how to do it. In this case, neither side offered evidence on how to do this either. The Nebraska Supreme Court affirms the verdict because although the slide rule and inflation rate were not in evidence, the court cant determine whether the jurors' use of the aids hurt or even helped the Plaintiffs. "Given that the jury was not provided any evidence on present value, nor instructed as to how present value was to be calculated, the personal financial slide calculator and the handwritten inflation rate could not have contradicted any of the evidence presented at trial. Nor could the jury have given undue weight to these items, while disregarding other evidence adduced at trial, because there simply was no evidence presented on this issue."

Defendant convicted of murder in Douglas County District Court goes to Nebraska Supreme Court for a third time but comes away empty handed. State v. Harris, S-06-062, 274 Neb. 40 The defendant in his post-conviction appeal argued that the State violated his constitutional rights by its late offer of the defendants proffer statement and the direct testimony of the Omaha Police detective who had interviewed the defendant that tended to show that the defendant personally knew the murder victim by his nickname "Homicide." Nebraska supreme court rules , with retired judge Hannon dissenting, no prejudicial constitutional error occurred even if the court should not have admitted detective's statements that contradicted the defendant's contention that he did not know the victim, it was harmless. "in a post-conviction proceeding the defendant must meet show the verdict would reasonably likely have been different absent the errors. We agree (with the trial court that no prejudice occurred). In light of the other evidence presented at trial, including the testimony of Hicks and three witnesses who stated that Harris had admitted to the crime, we conclude that Harris has failed to meet his burden on post-conviction to prove that the claimed constitutional errors relating to the Cass report were prejudicial.

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

The creditor had a judgment against the defendant for over $5000 and garnished her bank account when she had a balance of about $1500. She claimed the substitute cash exemption from 25-1552 but the county court agreed with the creditor that the exemption did not apply to garnishments. Nebraska court of appeals reverses and holds that a judgment debtor my use her cash exemption to hold off the bank garnishment. ARL Credit Servs. v. Piper, A-06-090, 15 Neb. App. 811 "a judgment debtor may assert the in-lieu-of-homestead exemption, provided by Neb. Rev. Stat. § 25-1552 (Cum. Supp. 2006), in response to a garnishment summons against the judgment debtor’s bank account. Because such exemption is authorized by statute and supported in case law and long-established practice, we reverse the county and district court judgments of the courts." However because it was not clear whether the defendant timely asked the court to exempt the property, the court of appeals reverses for further proceedings.

Train engineer PO'd the Nebraska Supreme Court; Supreme Court reverses $53K jury verdict that was in Burlington Northern employees favor after the railroad disciplined him for refusing to submit to a urine test. Jackson v. Brotherhood's Relief & Comp. Fund, S-06-177, 273 Neb. 1013. On the day the railraod asked the plaintiff to submit to a urine test, he refused,first that he had already urinated before reporting to work, next that he would not drink water because that would give him indigestion, finally that he was taking the antidepressant effexor and his doctor had diagnosed him to have prostatitis, and he claimed that a side effect of the drug was difficulty in urinating. Burlington northern suspended the plaintiff for several months, and he made a claim for reimbursement of lost income from his Union fund that compensates members for time lost due to minor disciplinary actions. The fund refused to pay and the Plaintiff sued. The Box Butte county jury ruled for the plaintiff in part from evidence that he was unable to urinate due to the drugs side effects and from the plaintiff's unverified hair samples that purported to show him drug free. Supreme Court reverses, as the Plaintiff could not establish the proper reasons to admit this mostly scientific evidence. "Insufficient foundation was laid for Jackson’s opinions regarding medical causation, the excerpts from the medical and nutrition books, the prescribing information for effexor, and the results of the forensic hair analyses. evidence that would not have made it through the front door of admissibility nevertheless made its way to the jury through the back door, cloaked as exhibits 17 and 18. We conclude that the district court abused its discretion in admitting exhibits 17 and 18 into evidence. " The court further found admitting the exhibits reversible error because nothing indicated that their admission was harmless.exhibits 17 and 18 into evidence could have unfairly prejudiced the Fund in a number of ways. because we are unable to determine that exhibits17 and 18 did not affect the result of the trial unfavorably to the Fund, we conclude that reception of that evidence was prejudicial and reversible error.

Finally a win for the dad: Nebraska Supreme Court (CJ Heavican) reverses Lincoln County District Judge Murphy's order for joint custody when neither party requested joint custody. Supreme Court finds parties have a due process right to have notice of potential rulings from the court. Zahl v. Zahl, S-06-1123Somehow the supreme court reversed the Learned Hand of the Plains, District Judge John Murphy. The parents disputed custody of their one child, born June 2004. They were married in July 2004. Father worked for Union Pacific running trains to Marysville Kansas. Mother worked for the sheriff's department. The parties separated only several months after the child was born, and mother had a child a few years older from a prior marriage, and at the time mother was in court disputing custody of that child. The court finally ordered joint custody but neither party had requested it, and at a schedule that apparently did not fit the father's railroad schedule well. Father appeals. Supreme Court reverses. When ordering joint custody under Nebraska statute § 42-364(5) (Cum. supp. 2006), a district court must specifically find that joint custody is in a child’s best interests. the district court failed to make that finding in the dissolution decree. Further, because neither party had requested joint physical custody, the evidence presented at trial was limited to which parent should have sole custody. We conclude that under this circumstance, the court must conduct a separate hearing on joint physical custody before ordering such, and that its order must specifically find that joint physical custody is in the child’s best interests. "A trial court’s authority under § 42-364(5) to order joint physical custody when the parties have not requested it must be exercised in a manner consistent with due process requirements...fundamental fairness requires that...when a trial court determines at a general custody hearing that joint physical custody is, or may be, in a child’s best interests, but neither party has requested this custody arrangement, the court must give the parties an opportunity to present evidence on the issue before imposing joint custody"

Follow up: WE'RE NUMBER ONE! Legal reform activists proclaim Nebraska most business friendly legal climate in the country. We have a "rule of law" judiciary (for now) and an attorney general who is more interested in law enforcement than taking down businesses. But I'm not sure if the authors of the report took into account our justice crusaders Connolly and Gerrard.. Overlawyered.com.

Risky Business: The Annual Boardroom Guide to Litigation in the 50 States ranks state legal environments with economics, real world corporate experience and input from state legal reform experts and puts Nebraska and Virginia on top. Why does Nebraska come out on top? "Nebraska enjoys the top ranking for its favorable litigation climate. Its liability laws lead to fair and predictable litigation results. Nebraska law does not allow punitive damages, places limits on medical malpractice lawsuits, has a 10-year statute of repose for product liability lawsuits, and does not allow joint liability for non-economic damages. The Supreme Court is led by a rule-of-law majority and Attorney General Jon Bruning is a staunch defender of the rule of law. Nebraska’s liability climate is conducive to growth and job creation..

While the Nebraska court of appeals affirmed probation for the runt rider Richard Thompson, it affirms theLancaster County District Court's 12-18 year sentence for second degree arson (Section 28-503 RRS Neb)that District Judge Colborn handed to 17 year old Benjamin Reddish ( a class III felony).

• State v. Reddish , A-06-465

"The record indicates that within a period of less than 2 months, Reddish was involved in starting nine fires, ranging from small acts of vandalism to vehicle fires to the fire resulting in this sentence, in which Reddish was responsible for completely destroying a residence under construction and causing in excess of $400,000 damage. The record also indicates that Reddish has a history of fire-related conduct, and during the presentence investigation, Reddish scored in the maximum risk range for aggressiveness and the problem risk range for antisocial behavior and violence. The fires Reddish was involved in were premeditated acts, and he pled no contest to a serious crime. The district court did not abuse its discretion in imposing this sentence. This assignment of error is without merit."

When is a good nephew a better son? Thomas Malloy died in Holt county in 2003 owning nearly 1300 acres of farm ground. He gave through his will over 300 acres to his nephew Thomas Welsh with an option to purchase 640 more. Tom Welsh's father died when the nephew was very young and he considered Tom Malloy a father figure. The Holt County Court however refused to allow Welsh a lower inheritance tax as a child under 77-2004. The court of appeals (J Sievers) agrees finding that the county court was not clearly wrong to determine while the deceased and the nephew were close they did not have a parent child relationship. In re Estate of Malloy, A-06-178, 15 Neb. App. 755"Applying in re Estate of Ackerman,250 Neb. 665, 550 N.W.2d 678 (1996), to the instant case, we conclude, for the reasons that follow, that the county court did not err in denying Welsh the status he seeks under § 77-2004. We note that our review is for error appearing on the record, considering all of the circumstances of a particular case, and we do not disturb the lower court’s factual findings unless they are clearly wrong."

Did Pamir Safi's defense counsel get the idea to persuade Lancaster County District Court Judge Cheuvront to bar the prosecution and its witnesses from using the word "rape" from an earlier case he lost (before Cheuvront bailed out altogether)? Back in 1991 attorney Clarence Mock thought defendants should be able to draw conclusions for the jury deciding a drunk driving case. Attorney Mock represented defendant Thomas Wordekemper in Cuming County Court against a drunk driving charge. The defendant tested at .135, then well over the legal limit but contended that he was veering across the driving lane to avoid puddles of water. Attorney Mock allowed the defendant to testify and his money question was: "are you guilty of the accusations that have been made against you by this prosecutor?" Defendant: No. The state objected and the court sustained the states objections. Mock appealed arguing the defendant had a constitutional right to claim his innocence including his legal conclusion that he was "not guilty." The Nebraska Court of Appeals affirmed the conviction and rejected Mock's argument: "In answering his attorney's question, the defendant could be giving an opinion concerning the existence of any or all of the elements of the crime with which he was charged..However.. the defendant should have been asked questions which either required him to testify regarding the facts or to give a lay opinion based upon his perception."04/13/93 STATE NEBRASKA v. THOMAS H. WORDEKEMPER 3 NCA 256 (1993)

Manufacturer of medicated livestock feed was a grist mill and not a medical packaging company for worker compensation insurance costs. Nebraska supreme court affirms judgment against manufacturer of medicated animal fee and in favor of Travelers Insurance, the assigned risk carrier for Nebraska worker compensation insurance. Travelers Indemnity Co. v. International Nutrition, S-06-063, 273 Neb. 943 The defendant applied for worker compensation insurance through the Nebraska assigned risk pool, which Travelers administers. When Travelers audited the insured business, it applied a retroactive rate increase, reclassified theindustry from medical packaging to grist milling, charged the assigned risk rate and sought prejudgment interest. The District court ruled in favor. The district court approved of Travelers' using the NAIC worker compensation manuals to determine worker classifications and billing policies. Nebraska Supreme Court affirms. given the plain and unambiguous language of the insurance policy and the application of the nCCI basic Manual, travelers had the authority to correct International nutrition’s classification code and retroactively apply the corresponding change in premium. travelers did not breach the insurance contract, nor did it waive its right to change the classification code as a result of its decision not to

Nebraska Supreme Court reverses Hall county district court's ruling that social worker did not have qualified immunity after police arrested a parent she was investigating for child abuse. Supreme Court takes case because a public officer who is a defendant in a Section 1983 civil rights action and claims qualified immunity may seek immediate appeal of an unfavorable trial court ruling on her qualified immunity if the decision involved solely legal questions. Williams v. Baird, S-06-889, 273 Neb. 977.

the order of the district court denying baird’s claims ofqualified immunity is not a final order under § 25-1902. However, under the collateral order doctrine,we are permitted tor eview baird’s qualified immunity claim withrespect to Williams’ firs tclaim.as such, we conclude that baird is entitled to qualifiedi mmunity on that claim, as Williams failedto allege a legally cognizable constitutional claim. We accord ingly reverse the district court’s denial of baird’s claim ofQualified immunity.

Follow up on why the pedestrian crossed the road: Nebraska Supreme Court wont let attorneys pocket a quick settlement from a co-defendant, dismiss him from the case and then go after the deep pockets for the entire case. Tadros v. City of Omaha, S-05-1538, 273 Neb. 935 The plaintiff was injured crossing at the crosswalk West Omaha. A motorist ran her over and she sustained serious injuries. The plaintiff filed a political subdivision tort claim against the city and sued the driver, but later settled and dismissed the driver for $35000. The plaintiffs injuries apparently exceeded $1million. Because poltical subdivisons are liable for up to $1milliion the court reduced the judgment. The trial court determined the parties responsibility for the accident to be 50% City, 30% driver, 20% plaintiff. City appealed when the court took off only the $35000 settlement and not the driver's 30%. Supreme court reverses because under §25-21,185.11(1) RRS Neb a defendant's obligation for an accident proportional to his percentage of fault in the accident, inlcuding the fault of dismissed defendants. Under the contributory negligence statutory scheme in nebraska,joint tort-feasors who are“defendants”in an action “involving more than one defendant” share joint and several liability to the claimant for economic damages. they are liable for the entire amount of the claimant’s economic damages which are not chargeable to the claimant,so long as the claimant’s contributory negligence is not equal to or greater than the total negligence of all persons against whom recovery is sought. but,when the claimant settles with a joint tort-feasor,the claimant forfeits that joint and several liability. the claimant cannot recover from the nonsettling joint tort-feas o r more than that tort-feasor’sp roportionate share in order to compensate for the fact that the claimant made settlement with another that may prove to be inadequate.

Our states personal injury lawyers should get paid a lot for swift justice: The Hauptman OBrien law firm took on a serious injury case just weeks after the accident and within a few months was in court getting a settlement for nearly $200,000. The clients dismissed the law firm before they accepted the settlement The lawyers sued for their justly earned fee. The Nebraska supreme court reverses, ordering the law firm to prove that its fee was reasonable,Hauptman, O'Brien v. Turco, S-05-928, 273 Neb. 924 Ahem! Concurring Justice Gerrard wants to make sure we dont chill the worthy efforts of personal injury attorneys who work a few months on a case and pocket thousands of dollars. Heed his words of wisdom, "(the client) must (have specific) objections to (show why the fees are unreasonable). Inparticular, it will generally be insufficient to simply conclude that the size of a contingent fee,compared to the length of the litigation, makes the fee unreasonable.It should therefore be the unusual circumstance that a court refuses to enforce a fully informed contingent fee arrangement because of events arising after the contract’s negotiation

Supreme Court cautions parties to be more diligent in making jurisdictional challenges especially when they are upstairs in the big court. In two cases involving probated estates the Nebraska Supreme Court allows a related case to proceed in the district court but refuses to revoke an informally appointed personal representative's status for the estate of a decedent who had died in 1987, Washington v. Conley, S-06-428, 273 Neb. 908 In re Estate of Nemetz, S-06-487, 273 Neb. 918, The Supreme Court criticizes the Legislatures giving exclusive jurisdiction of probate cases to the county courts under § 24-517 (Cum. Supp. 2006), while Neb. Const. art. v, § 9 grants the district courts common law and equity jurisdiction. In Washington the Supreme court reverses the district court's decision that it lacked jurisdiction to hear a constructive trust case that appeared to be related to a probate case in county court. The District court failed to consider the jurisdictional attack as a facial one under Rule 12b1, depending solely on the allegations in the plaintiff's complaint and thus in finding that it lacked jurisdiction, the district court erroneously relied upon information not found in Washington’s complaint, specifically, the assertions of counsel that the property at issue in this case is subject to a separate and contemporaneous probate proceeding in county court. The supreme court rejected the objections of the decedent's children to the second wife's appointment as informal personal representative nearly 20 years after the decedent's death in Estate of Nemetz. Although it appears unseemly for the widow to wait 20 years to probate an estate and shut off the children, the court concluded "the county court (properly) applied § 30-2454(b) finding no cause to remove Widow as personal representative. based on an examination for error appearing on the record."

Nebraska Supreme Court (J Miller-Lerman) reverses doctor's verdict against Norfolk Faith Regional Hospital for over $1.3 million because the court instructed the jury that the doctor was an employee of the Hospital rather than an independent contractor. Domjan v. Faith Regional Health Servs., S-05-1463, 273 Neb. 877. The court instructed the jury that the parties were in an employment relationship and further that termination was only for good cause rather than cause. The court suggested that the instruction's suggestion that the doctor was an employee and not a contractor probably swayed the jury to the doctor's favor. Further the jury instruction used the term good cause, one for employment relationships rather than "cause" from the contractor agreement, further misleading the jury. Employment good cause is the standard for a reasonable employer to dismiss and employee while contractual cause is material breach or default...in light of the actual custom of persons in the performance of contracts similar to the one involved in the specific case.” Phipps v. Skyview Farms, 259 Neb. 492, 499, 610 N.W.2d 723,730-31 (2000). Reversed for a new trial

Thank you Nebraska Supreme Court for keeping lawyers busy when business was starting to dry up. The supreme court (J Connolly, again) extends its ruling in Jackson v. Morris Communications Corp.265 Neb. 423, 657 N.W.2d 634 (2003) , that allowed retaliatory discharge actions for injured workers who sued their employers to almost any kind of adverse employment action in Trosper v. Bag 'N Save, S-05-889, 273 Neb. 855 This ruling comes at just the right time as the Nebraska Worker Compensation court most recent annual report shows that job injuries and claims have steadily fallen for the past 9 years. All is not lost for business though, because the Nebraska Supreme court will copy and paste all employment discrimination law from the glorious federal government to carry out its quest for more attorney fees and justice.

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

Nebraska Supreme Court advises District Courts not to make extra work for it by routinely certifying Section 25- 1315(1) piece-meal final orders for appeal. Supreme Court dismisses appeal from Plaintiff severely injured in 1998 on Interstate 680- while it was under construction because the appeal concerned only part of his case against the road sign contractor and the district court abused its discretion in allowing the Plaintiff to appeal on just this part of his case. Cerny v. Todco Barricade Co., S-05-877 Plaintiff was severely injured in rear end collision on a part of Douglas county I680 that was under construction. He settled claims with the other driver, the state and its main contractor. He proceeded against the Road Sign subcontractor for his own claim and the assigned claims of the other defendants. The district court granted summary judgment in favor of the road sign contractor only on the contribution and indemnity claims of the state and its contractor. The plaintiff asked the court to certify the summary judgment as final under 25-1315(1) and the District Court entered final judgment. The sign company cross appealed the court's denying its motion for summary judgment against the 2nd driver. Supreme Court dismisses appeal finding that the trial court should not have so easily found the contribution/indemnity claims were final orders. "§ 25-1315(1) was intended to prevent interlocutory appeals, not make them easier...Therefor certification of a final judgment must be reserved for the “unusual case” in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by pressing needs of the litigants for an early and separate judgment as to some claims or parties.29 the power § 25-1315(1)confers upon the trial judge should only be used “‘“in the infrequent harsh case

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

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

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

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

Nebraska Court of Appeals in an unpublished opinion agrees that summary judgment against class action plaintiffs who sued Ameritrade for failing to provide real time options' quotes should stand. Appeals Court agrees that Ameritrade did not agree to provide real options quotes to subscribers who paid $20 per month for real time stock only quotes.

Green v. Ameritrade, A-05-651

Appeals Court rejects plaintiffs action because Ameritrade did not promise in its information contract and the relevant NASDAQ agreement to provide real time options quotes, just real time quotes for actual stocks, even though the option information server was on Ameritrade premises. The appeals court additionally notes the Plaintiff did not allege any trading losses from the incomplete information. Giving the plaintiff the benefit of the doubt, the Ameritrade trading handbook that mentioned options quote did not obligate Ameritrade to provide real time options quotes, even if you assume the handbook was a contractual document. (Plaintiff) contends that because the handbook contains information regarding options trading and the real time quote service, the real time quote service includes option quotes. He is basically arguing that because the words “options” and “real time” are contained within the same document, one must infer that Ameritrade promised real time quotes for options to subscribers of the real time quote service. We conclude that such an inference is illogical. Even when the Trading Account Handbook is considered in conjunction with the agreements governing the contractual relationship, there is no basis to conclude that the handbook promises real time option quotes to real time service subscribers. Accordingly, even if the Trading Account Handbook was part of the contract between (Plaintiff) and Ameritrade, it does not contain a promise by Ameritrade to provide real time quotes for options

Follow up: Who was the former Supreme Court employee who retained access to the Nebraska Supreme Court's JUSTICE program? More details leak out after the Nebraska State Auditor pulls up the rug in the "squeaky clean" Supreme Court's crib and shows a few more roaches scurrying around. Turns out some former employees still retained access to the main JUSTICE computer system and in theory some had the capability to alter court records. Who was/were these employees? After all just two years ago someone in charge of the Supreme Court forced the resignation of the probation director Ed Birkel after a drunk driving arrest and then terminated then State Court administrator Frank Goodroe after he had been on the job about 18 months. Journal Star reporter Leah Thorsens March 30 2005 headline on the story read, "No details given on state court administrator's firing." Janice Walker, the Court administrator deputy took over, and received all the hits for the Court's extravagant seminar costs. Looks like s*** really doesn't roll uphill.

13-1315, state version of Federal Rule of Civil Procedure 54b applies also to intervention actions. Nebraska Court of Appeals (Judge Cassel) dismisses defendant's appeal in Bank's replevin lawsuit in Buffalo County District Court because other bank's intervention complaint was still pending.

TierOne Bank v. Cup-O-Coa, Inc., A-07-006

Defendant lost its replevin suit and after the District Court overruled its motion for new trial appealed the judgment but past the 30 day deadline. In the meantime 2nd bank filed an intevention complaint seeking to establish a superior lien on the property in the replevin action. Defendant did not get notice of the final order on the new trial from the District Court clerk and appealed after the 30 day deadline. While the Appeals Court suggested that the appeal would have been late because a party who does not receive notice of a final judgment must first move to vacate the judgment for lack of notice, the Court of appeals dismisses appeal because intervention action was still pending and under 25-1315 no case is final untill all claims and parties are final, unless the court certifies that a single judgment is final, as is the case in federal court civil litigation FRCP54(b). See also Malolepszy v. State, 270 N eb. 100, 699 N .W.2d 387 (2005){Supreme Court dismissed appeal in accident against State because third party claim against road contractor was not resolved}the reasoning of Malolepszy applies to a complaint in intervention. S ection 25-1315(1) refers to “more than one claim for relief,” but also adds “whether as a claim, counterclaim, cross-claim, or third-party claim.” While this language does not specifically mention a claim in intervention, neither does it limit the term to a plaintiff’s “claim.” N eb. Rev. S tat. § 25-329 (Cum S upp. 2006) refers to the “claim of the intervenor.” (Emphasis supplied.) S ee, also, N eb. R ev. S tat. § 25-328 (Cum. S upp. 2006). Moreover, § 25-1315 applies when more than one claim for relief is presented or when multiple parties are involved. S ection 25-328 allows the intervenor to “become a party” to the action. S ee In re Interest of Kiana T., 262 N eb. 60, 628 N .W.2d 242 (2001). Clearly, there are multiple parties in the instant case. The principle underlying § 25-1315 would apply equally to a claim in intervention.

Nebraska Insurance Commissioner will ask the Unicameral to close off more senior entrepreneurs. He will seek legislation to restrict selling life insurance policies to investors. Omaha.com. State Insurance Commissioner Tim Wagner said Tuesday that he agreed with changes recommended by the National Association of Insurance Commissioners on how state laws treat so-called stranger-owned or investor-owned life insurance. The insurance commissioners, meeting in San Francisco, said states should put tougher limits on when people can sell their life insurance policies to third parties. Ordinarily, selling an insurance policy to another party is not a problem, Wagner said, because an insurance policy is the property of the insured person. But some investment groups solicit people, especially the elderly, to buy policies, even lending them the money to pay the premium and also paying them substantial fees. The person walks away from the loan, and the investment group ends up owning the policy and collecting the death benefit. Insurance companies have objected, saying the investors do not have a legitimate interest in the insured person's well-being. Insurance companies also object because they base premiums partly on the fact that a large number of policies lapse before the insured person dies. Investor-owned policies always are held until the person dies. Bloomberg News reported that investors held policies with death benefits of $22.5 billion at the end of 2005, according to an insurance analyst. Some companies have stopped selling some types of insurance policies to older people because so many were being resold. The recommended state law, Wagner said, would make stranger-owned life insurance less profitable to investors. The proposed law still would allow people to sell their policies if they had legitimate reasons, such as someone with a terminal illness who needs the cash or a person going through a financial crisis such as a divorce or job loss. Nebraska and 34 other states have enacted the insurance commissioners' earlier recommended law on the subject. Wagner said he would recommend the new model law to the Nebraska Legislature next year. A key provision would prohibit people from selling policies for five years if they were paid for by nonfamily members. A policy purchased by the insured person or with a loan backed by ordinary collateral could be sold after two years. Wagner said he favors the proposed law, although there are questions about how it would be enforced. He said he didn't know how many people in Nebraska take part in stranger-owned life insurance transactions, but some businesses have applied for state licenses to handle such transactions. "That would lead you to think this is a growing segment," Wagner said. If the law passes, he said, the department could investigate a suspicious transaction reported by an insurance company. If there were a violation, the insurance company would not pay the death benefit.

No political subdivision tort claim act liability against a zoning entity that refused to grant a building permit after one of its representatives advised property owners that he would allow the permit.

Rohde v. City of Ogallala, S-06-149

Plaintiffs sued the City of Ogallala for rescinding approval it had given the Plaintiffs to rebuild on some property. The court of appeals sent the case back after Ogallala won a 12b motion in district court. Rohde v. Knoepfel, 13 N eb. A pp. 383, 693 N .W.2d 564 (2005). This time the Supreme Court affirms summary judgment because the city was immune from zoning actions under 13-910(4). Section 13-910(4) is clear and unambiguous. Political subdivisions are not liable under the PSTCA for actions based upon the revocation of a permit or license. The City revoked its decision to issue a permit allowing the Rohdes to subdivide their property because such division did not comply with City ordinances.

Nebraska Supreme Court affirms Worker Compensation award for asbestos induced mesothelioma that plaintiff's doctors diagnosed more than 20 years after his retirment from the employer but orders no disability payments to plaintiff's widow. No nod to Daubert in this opinion with shaky evidence for the plaintiff. Olivotto v. DeMarco Bros. Co., S-05-1526The plaintiff was a concrete and terrazzo installer for the defendant until his retirement in 1980Although he did not work with asbestos, former co workers testified that asbestos was around their work areas. He did not claim any occupational injury or disease. He died in 2004 from mesothelioma. His widow sought worker compensation benefits from the employer. The worker compensation court awarded disability and medical costs for the asbestos exposure. The review panel affirmed the award but reversed the disability benefits. Supreme Court affirms the award, but reverses the extra award for out of pocket expenses to the widow and agrees that the widow should not get any disability payments. Without mentioning Daubert or Nebraska cases following its rule, the Supreme Court restates its relaxed rule for admitting expert testimony on medical causation in worker compensation cases. Basically if the doctor can say anything to justify his conclusions, the court may let it in. In a workers’ compensation case, a witness must qualify as an expert and the testimony must assist the trier of fact to understand the evidence or determine a fact in issue. T he witness must have a factual basis for the opinion, and the testimony must be relevant. Veatch v. American Tool, 267 N eb. 711, 676 N .W.2d 730 (2004). A determination concerning the sufficiency of the foundation for an expert’s opinion is left to the discretion of the trial court. We conclude there was sufficient evidence to support the medical opinions of Drs. Connor and Deschamps, and the trial court did not abuse its discretion in admitting such evidence."

Parents could not make property damage claim for adult child's personal automobile because they did not have an insurable interest in the vehicle. Sayah v. Metropolitan prop. & casualty Insurance . 745 Cite as 273 Neb. 744 Someone stole son Saif's 1999 Grand Cherokee and the police found it burned, on cinder blocks with its decorative mag wheels missing. Son and parents all sued for property damage. Initially the insurance company denied the claim because it was suspicious. District court gave insurance company summary judgment because the son did not have insurance and the parents had no insurable interest. See 44-375 RRS Neb. Supreme Court affirms. a claimant under an insurance contract must show an interest in the contract that would be recognized and protected by the courts. An insurable interest is “every interest in property or any relation thereto, or liability in respect thereof, of such a nature that a contemplated peril might directly damnify the insured.” [7-10] Section 44-375 provides: “[w]hen the name of the party intended to be insured is specified in a policy, such insurance can be applied only to his own proper interest.” Under Nebraska law, to have an insurable interest, the claimant must have some legally enforceable right that would be recognized and enforced in the property at issue. Neither family use of property nor the family relationship alone gives automatic rise to an insurable property interest. A parent has no legal recourse in an adult child’s property simply by being a parent, without some other legally enforceable right. Nor does Nebraska law recognize Ali’s occasional use of Saif’s Jeep as a legal interest. When no legally enforceable interest exists, no insurable interest exists.

Lets hear it for the "squeaky clean" Nebraska Supreme Court: some in their comments accuse State Auditor Mike Foley of grandstanding his critical report of Supreme Court spending. Journal Star.com. Journal Star reporter made much of the Auditor's report on apparent overspending on Supreme Court conferences, maybe by a twice as much according to federal GSA standards. The full report though reveals more than this tip of the iceberg: a. lack of accounting for state vehicle use and meal reimbursements b. the over funded budget for the Counsel for Discipline; remember CJ Hendry wrote just about two years ago in the Nebraska lawyer that he had to raise dues because of the big holes the bad lawyers left because they wouldn't pay the court costs in their disciplinary cases. By they way, why would Mr. Mabin be asking CJ Heavican for his comments? Didn't this happen on the Champion of Justice Justice Hendry's watch? Maybe he shouldn't have left so suddenly to spend quality family time so that he could straighten this out.

District Court can't deny worker compensation insurer just because local attorneys want to keep more money from a third party settlement. Nebraska Supreme Court rules that under 48-118, equitable estoppel may not deny worker compensation insurer subrogation in third party claim. Burns v. Nielsen, S-06-030Fedex carrier was injured while delivering a package to a customer's home. During the worker compensation litigation Fedex disputed some compensation and medical treatment, but later settled the case. The employee then settled a large injury claim with the property owner from where he fell. The district court denied Fedex any subrogation on equitable principles because it disapproved of the way Fedex handled the worker compensation case. Supreme Court reverses. "the district court’s duty under § 48-118.04 to “order a fair and equitable distribution of the proceeds of any judgment or settlement” simply requires the court to determine a reasonable division of the proceeds among the parties. The court in this case erred in applying equitable principles to bar FedEx from recovering any of its subrogation interest."

Plaintiff loses auto accident case because she did not serve already deceased defendant in time. Two Justices also recommend cleaning up the civil procedure code on amending pleadings. Plaintiff in an auto accident case sued the defendant only a few months before the normal statute of limitations would have run. Plaintiffs counsel attempted service a number of times and shortly before the six month service deadline (25-217 RRS Neb)learned the defendant had passed away over year before they filed suit. Plaintiff served the defendant's son who was the decedent's administrator but did not attempt to amend the suit to name the personal representative defendant until her six month service deadline had run. Supreme Court agrees that any attempt to relate the amendment back to the suit filing date was void because there is no case after 25-217 caused the case to be dismissed. In concurring opinion, Justices Lerman and McCormack argue that the legislature should amend 25-201.02 to make the state version of FRCP 15 current with the federal version, which was amended in 1991 and then allowed relation back only if done within a time before the statute of limitations had run with the new defendant aware of the pending action. Reid v. Evans, S-05-1503"Because Reid’s lawsuit had been dismissed, her subsequent motion to amend and take advantage of relation back was a nullity, as would have been any order entered by the county court on that motion. Once Reid’s lawsuit had been dismissed, the county court lacked jurisdiction to make any further orders other than to formalize the dismissal. See id. The district court did not err in determining that the county court lacked jurisdiction to consider Reid’s motion to amend, and we affirm the district court’s decision. Concurring opinion: If the Legislature was to revise § 25-201.02 to provide language similar to the current version of rule 15(c) of the Federal Rules of Civil Procedure, a plaintiff seeking to amend and take advantage of relation back who files a motion after the statute of limitations has run but during the period allowed for service, and who otherwise meets statutory requirements, would be able to amend the complaint. Revisions to § 25-201.02 could marginally enhance the utility of statutory relation back in Nebraska.

Follow up, On second appearance in the Supreme Court, black sheep member of Aaron Ferer & Sons metal trading company loses appeal seeking stock gifts from father who founded the company while giving a pass to the company's corporate counsel. Ferer v. Aaron Ferer &; Sons Co., S-05-730Father planned to issue stock gifts to three children in business but only if they stayed actively involved with the company. Father executed stock transfer documents but did not deliver them. After dissatisfied son left the company, he revoked his gift. Supreme Court agrees with Doulgas County District Court that gift transaction did not occur. The Supreme Court also gives a pass to the company's corporate counsel who had already noted the incomplete stock gift in its record books. "Aaron argues that Harvey’s alleged 1995 gift was complete and irrevocable when the transfers were noted by E&S in the maroon books. Assuming without deciding that the maroon books were the official stock records of AFSCO and that recording the transfer in those books could constitute constructive delivery, we nonetheless conclude that the gift was defeated by Harvey’s lack of a present donative intent.