Nebraska Supreme Court affirms judgment that non-compete agreement between and insurance agency and one of its brokers was enforceable even after the broker's original employer had merged with another firm. The successor company had valid consideration for a non-compete agreement that barred the defendant from soliciting the company's customers for 2 years after his termination. The Nebraska Supreme Court upheld the trial court's damage calculation by which the Douglas County District Court determined the damages from breaching the non-compete agreement by finding the amount of revenue the defendant generate from the prohibited customers for two years after his termination minus the expenses the plaintiff would have incurred had it retained the business. While the trial court rejected the plaintiff's CPA experts conclusions, it accepted some of his findings as to revenues and expenses. Because the court took the expert's testimony as fact testimony, it did not need to determine if the CPA's testimony passed the Daubert test. Aon Consulting v. Midlands Fin. Benefits, S-06-1256, S-07-034 , 275 Neb. 642

Building supplier sued widow of deceased construction company owner for over $1 million of defaulted construction loans that the defendant and her husband had guaranteed. The Douglas County District Court after cross-motions for summary judgment dismissed the bank's complaint. Nebraska Supreme Court reverses, awarding full judgment to the plaintiff. The Supreme Court finds the widow did not limit her liability to $525000 in their company's financing agreement with the Plaintiff, and further the plaintiff's releasing deeds of trust on the defendant's office buildings in 1991 did not impair the widow's collateral because she allowed new substantial loans with other banks to encumber the same property. Builders Supply Co. v. Czerwinski, S-06-1138, 275 Neb. 622We recognize that the A greement contains language relative to the $525,000 upon which Czerwinski relies. However, aguaranty is an independent contract that imposes responsibilities different from those imposed in an agreement to which it is collateral. S ee National Bank of Commerce Trust & Sav. Assn. v. Katleman, 201 Neb. 165, 266 N.W.2d 736 (1978). It is the guaranty agreement that contains the express condition on the guarantor’s liability and that defines the obligations and rights of both guarantor and guarantee. Id. T he language relied upon by Czerwinski in the A greement relative to the $525,000 merely described B uilders’ obligation to extend credit to B enchmark to a specific amount.the record indicates that she signed deeds of trust on the office building in 1999 and 2000 for $100,000 and $600,000 respectively, suggesting that she was aware of the availability of the office building to serve as collateral in a substantial amount. T he $600,000 encumbrance remained into 2006, the inference from which is that through her actions, Czerwinski impaired the office building collateral rather than B uilders

Eighth Circuit Court of Appeals won't party on. 20 USC 1091(r) excluded some students from eligibility for federal student loans if they have a record of drug convictions. Students for a Sensible Drug policy sued to invalidate the laws in the District Court of South Dakota, contending the laws result in double punishments, contrary to the Double Jeopardy Clause. Eighth Circuti Court of Appeals affirms, finding the law is a civil remedy and the exclusion provisions relate rationally to the purpose of keeping dope head kids out of college. Protestants for the Common Good, and United Church ofChrist, Justice and Witness Ministries,joinded the case as amici, wonder what side they were on? 071159P.pdf 04/29/2008 Students for Sensible Drug Pol v. Margaret Spellings U.S. District Court for the District of South Dakota [PUBLISHED] [Benton, Author, with John R. Gibson and Wollman, Circuit Judges]"section 20 USC 1091(r) is meant to deter other students from possessing or selling drugs on campus, it also encourages rehabilitation, school safety, a drug-free society, and ensuring tax dollars are spent on students who obey the laws. The statute is rationally related to these alternative purposes. “The Act’s rational connection to a nonpunitive purpose is a ‘[m]ost significant’ factor in our determination that the statute’s effects are not punitive.” And the statute is not excessive in relation to these alternative purposes."

Prosecutors ask the 10th Circuit Court of Appeals to reconsider its ruling granting a new trial to former QWest executive Joseph Nacchio. Omaha.com "Prosecutors have asked a federal appeals court to review an earlier decision granting a new trial to former Qwest Chief Executive Joe Nacchio. The federal prosecutors asked the full 10th U.S. Circuit Court of Appeals Wednesday to reconsider the case and affirm Nacchio's conviction.A three-judge panel of the appeals court last month threw out Nacchio's conviction on 19 counts of insider trading. It ruled that the trial judge incorrectly excluded the defendant's expert testimony from an expert in economics and securities fraud. Nacchio was convicted last year of illegally selling $52 million worth of stock when he knew that Denver-based Qwest Communications International was at financial risk but didn't tell investors."

Guatemala man gets 20-32 years in Kearney stabbing Journalstar.com A Guatemala man has been sentenced to 20 to 32 years in prison for stabbing his girlfriend and her sister in their northwest Kearney apartment. Mauro Yos-Chiguil pleaded guilty in March to second-degree murder and felony second-degree assault charges in Buffalo County Court. Authorities have said the 33-year-old Yos-Chiguil stabbed his girlfriend and mother of his twin sons in her head, shoulder, chest and stomach. She was released after treatment at a local hospital. Also injured was the girlfriend’s teenage sister. After he completes his sentence, Yos-Chiguil could face deportation. Authorities have said he is an illegal immigrant

Governor Heineman appoints Attorney Rob Otte to replace Lancaster County District Court Judge Earl Witthof. Journalstar.com The Governor forgot that judge slots are for career public sector lawyers. "Dave Heineman’s office announced the appointment of 51-year-old Robert Otte on Friday. A spokeswoman for Heineman said Otte will be replacing Judge Earl Witthoff, who retired in March. Otte is a partner at the law firm of Morrow, Poppe, Otte & Watermeier. The governor’s office said Otte has handled real estate and other business law cases and has trial experience in state and federal courts. Otte is a 1978 graduate of the University of Nebraska in Lincoln and was awarded his law degree from UNL law school in 1981.

Saunders County murder case from 1977 could end up in juvenile court. Journalstar.com. "A 48-year-old man charged in a 30-year-old murder could see his case transferred to juvenile court.Jeffrey D. Glazebrook was 17 when May McReynolds, a 97-year-old retired school teacher, was raped on Nov. 6, 1977. She died two weeks later as a result of injuries suffered during her attack. Glazebrook, an inmate at the Tecumseh State Correctional Institution, was charged in conjunction with the crime in March, after a cold case investigator found that DNA from hairs found on McReynolds’ night clothes matched Glazebrook’s DNA. Glazebrook appeared in Saunders County District Court on Friday morning, where he was expected to enter a plea to first-degree murder and first-degree sexual assault charges. Instead, said Tom Klein, Glazebrook’s attorney, Judge Mary Gilbride advised Glazebrook that he may be able to have his case transferred to juvenile court. After Friday’s hearing, Klein said he was not yet sure if he would ask to have Glazebrook’s case transferred. “I had not had the opportunity to discuss that with him,” Klein said. There is no statute of limitations on transferring a first-degree murder charge to juvenile court, Saunders County Attorney Scott Tingelhoff said. Even so, it’s rare to transfer a case from to juvenile court so many years after the crime. “It’s a unique situation,” he said. Glazebrook is currently serving a sentence of 16 1/2 years to 38 years for the 1991 rape of a 45-year-old Lincoln woman. His projected release date is in July 2010. He is next scheduled to appear in Saunders County District Court 8:30 a.m. May 30. Klein said he expected Glazebrook would either enter a plea or a request to have the case transferred to juvenile court during that hearing.

Nebraska Supreme Court denies Goodyear's claim that the Nebraska Department of Revenue should have created regulations to define what sales tax credits Goodyear could receive for property purchases before the Revenue Department could deny credits to Goodyear under the LB775 business tax incentive programs. Goodyear Tire & Rubber Co. v. State, S-06-1103, 275 Neb. 594The Nebraska Supreme Court denied Goodyear's appeal that it was entitled to credits for sales taxes on some equipment and parts purchases. Goodyear also appealed because the Nebraska Department of Revenue did have have regulations to interpret the disputed sections of the law. The Supreme Court held the Revenue Department did not need the regulations. "In the present case, § 77-4111 requires the Commissioner to adopt and promulgate those rules and regulations, but only those rules that are necessary for carrying out the purposes of L.B. 775. The purpose of L.B. 775 is to “accomplish economic revitalization of Nebraska” and to “encourage new businesses to relocate to Nebraska, retain existing businesses and aid in their expansion, promote the creation and retention of new jobs in Nebraska, and attract and retain investment capital in the State of Nebraska.”We conclude that promulgating rules and regulations regarding interpretation of qualified property is not necessary for carrying out those purposes."

Residents of the Ponca Hills area in Omaha appealed the Douglas County Board Equalization's decision to exempt residential properties an Omaha Catholic Diocese there used for lay ministry. Nebraska Supreme Court dismisses their appeal finding that the neighbors did not have standing to appeal the County's decision to exempt real estate from taxation with a petition in error to the Douglas County District Court. McClellan v. Board of Equal. of Douglas Cty., S-06-1072, 275 Neb. 581 "The Legislature’s stated purpose in the Tax Equalization and Review Commission Act (TERC) (Neb. Rev. Stat. § 77-5007) was to create an efficient mode of review by a single body which would provide a more consistent review of tax exemption and equalization decisions made by a board of equalization. The language of § 77-202.04 very specifically lists who may appeal from exemption decisions. The Legislature did not see fit to allow every indirectly affected taxpayer to appeal from the exemption status of someone else’s property. Instead, the Legislature determined that giving standing to the county assessor to appeal the grant of an exemption was sufficient to protect the public’s general interest in what properties are included on the tax rolls."

Nebraska Supreme Court finds a way around the law of the case doctrine on an appeal following remand. The Nebraska Supreme Court excepts law of the case doctrine and reconsiders worker compensation review panel's decision on injured worker's first trial that the worker compensation court judge should consider both the labor markets where the worker was injured and where she presently lived when evaluating the workers lost earning capacity. Money v. Tyrrell Flowers, S-07-681, 275 Neb. 602. At first trial judge found found the plaintiff had permanent and total disability because after her injury she moved to a small town that had few jobs. The worker compensation review panel reversed, requiring the trial judge to consider both the large and small towns' job markets. On retrial the trial judge found permanent total disability because the plaintiff was an "odd lot worker." The review panel then affirmed the trial court's odd lot worker ruling. Nebraska Supreme Court affirms, ruling that even if the the law of the case doctrine would have limited the trial court on retrial to considering the plaintiff's disability in the two labor markets, the Nebraska Supreme Court's intervening Giboo v. Certified Transmission Rebuilders 746 N.W.2d 362 (2008) decision merited excepting the first review panel's law of the case decision.

Nebraska Steps To Forefront Of Efforts To Protect Seniors And Secure Social Purpose Of Life Insurance. Insurance Newsnet.com Nebraska lawmakers have acted to protect senior citizens and to secure the good social purpose of life insurance as financial protection for families and businesses, said Frank Keating, president and CEO of the American Council of Life Insurers (ACLI). By a final vote of 40-2, the Nebraska Senate approved Legislative Bill 853, which would deter a practice called stranger-originated life insurance (STOLI). In STOLI transactions, speculators such as hedge funds, or their representatives, induce seniors to purchase life insurance solely to sell the death benefits to the speculators. The speculators hope to profit when the seniors die, and the sooner they die, the higher the profits. LB 853, which is based on model legislation developed by the National Association of Insurance Commissioners (NAIC), would require the speculators in STOLI arrangements to wait at least five years before acquiring the rights to the death benefits, thus reducing the economic incentives for STOLI. This five-year period applies only to STOLI policies and would not affect the ability of good-faith life insurance consumers to sell their policies if they decide they no longer need or want their life insurance protection. “STOLI transactions pose numerous risks to seniors and we applaud Nebraska lawmakers for being among the first in the nation to adopt strong measures against this abuse. Life insurance is for financial protection of families and businesses. It should never be purchased solely as an investment scheme for hedge funds. Fortunately, states around the nation are following Nebraska’s lead and considering legislation to deter this abuse of their seniors,” Keating said. “Nebraska Insurance Director Ann Frohman and Sen. Rich Pahls (District 31-Omaha), who chairs the Banking, Commerce and Insurance Committee, took the lead in advancing the vital consumer protections in LB 853 over the objections of the hedge funds who profit from these abuses. Nebraska seniors—indeed, all consumers—can thank them for standing up for the people of Nebraska,” Keating said. The bill now goes to Gov. Dave Heineman (R), who is expected to sign it. The American Council of Life Insurers (ACLI) is a Washington, D.C.-based trade association whose 353 member companies account for 93 percent of the life insurance industry’s total assets in the United States, 93 percent of life insurance premiums and 94 percent of annuity considerations. In addition to life insurance and annuities, ACLI member companies offer pensions, including 401(k)s, long-term care insurance, disability income insurance and other retirement and financial protection products, as well as reinsurance. ACLI's public Web site can be accessed at www.acli.com.

Nebraska Supreme Court considers whether divorced wife may compel business executive husband to undergo medical examination so she could purchase a $1million life insurance policy to secure his payments. Nebraska Judicial Branch Case Summaries April 29 through May 2, 2008. S-07-529, Mary Kay Davis (Appellant) v. Henry Alan Davis (Appellee)

Douglas County District Court, Judge Patrick Mullen

Attorneys: William G. Dittrick and Kirk S. Blecha of Baird Holm (Appellant); John S. Slowiaczek and Virginia A. Albers of Lieben, Whitted, Houghton, Slowiaczek, and Cavanagh (Appellee).

Civil: Marital Dissolution

Proceedings Below: Parties stipulated to a “Post-Marital Agreement” which provided for dissolution of the marriage and division of property. The district court upheld the agreement and dissolved the marriage. Shortly thereafter, Mary attempted to take out life insurance on Henry’s life, which required that Henry submit to a physical examination. Henry declined and Mary petitioned for the district court to order Henry’s compliance. The district court denied Mary’s request and this appeal followed.

Issues: Whether the district court erred when it failed to order Henry to submit to a physical exam for purposes of allowing Mary Kay to obtain a life insurance policy on Henry’s life.

Red Lake Indian Tribal Court lacks jurisdiction on highway within reservation boundaries, Eighth Circuit Court of Appeals rules in affirming defendant's summary judgment from the US District Court for Minnesota. Falmouth Institute American Indian Law Blog. The Court of Appeals for the Eighth Circuit ruled that the Red Lake Nation court did not have the authority to hear a case involving a car accident on the reservation in which a non-member was involved. In Nord v. Kelly (No. 07-1564) the court affirmed a district court decision that the tribe did not have jurisdiction to hear a lawsuit brought by a tribal member against a non-member, non-Indian, for damages sustained in accident that took place on a state highway within the reservation. The tribal court took over four years to deny the defendant's motion to dismiss the tribal court lawsuit against him for a car accident. Then he filed a declaratory judgment action in Federal Court , District of Minnesota to declare no jurisdiction for the case. The Eighth Circuit Court of Appeals affirms summary judgment for the defendant who had filed the declaratory complaint. "Consistent with the reasoning of Strate v. A-1 Contractors, 520 U.S. 438, 442 (1997) (holding "tribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question"), we give effect to the plain language of the right-of-way granting instruments. There is no indication in the public records that the Red Lake Band retained any "gatekeeping right" over the public highway, no assertion that the right-of-way is no longer maintained as part of the State's highway, and no assertion that any statute or treaty grants or retains tribal authority over nonmembers in this situation. See Strate, 520 U.S. at 456. Therefore, the Red Lake Band has no "right of absolute and exclusive use and occupation" of that land, id. (internal marks omitted), and the public highway at issue, as in Strate, is the equivalent of alienated, non-Indian land for purposes of regulating the activities of nonmembers.

During a dental malpractice trial in Gage county district court the judge kept a trial schedule so tight that the jury heard the entire case in one week with over sixty hours of trial time. Malchow v. Doyle, S-06-219, 275 Neb. 530The jury verdict went to the dentist and the plaintiff appealed claiming the grueling trial schedule and possible juror misconduct prejudiced the plaintiff. Nebraska Supreme Court finds no abuse of discretion in the lengthy court sessions and no juror misconduct after it refused to admit affidavits from jurors who claimed the foreman was injecting his own legal standards of proof into the case. The Supreme Court did modify the court's discovery sanction against the defendant to remove the plaintiff's expert's extra costs to prepare for testimony when the defendant delayed submitting discovery materials. "the trial was conducted over a 5-day period and 62 hours were devoted to the trial. T he record does not show that either party was restricted in the presentation of its evidence. Malchow has not demonstrated that she was prejudiced in presenting her case based on the length of each trial day, and she is not entitled to an inference that the jury resented her because of the length of the trial. We conclude that the district court did not arbitrarily place time limits on either party or restrict the presentation of evidence. Thus, the court did not abuse its discretion in overruling any motions for mistrial on the basis of the conduct of the trial." juror’s knowledge about the burden of proof is personal knowledge that is not directly related to the litigation at issue and is not extraneous information. Doyle did not pay certain specified fees to Miloro in advance as agreed upon, which resulted in the deposition’s being canceled. We conclude that the district court abused its discretion in ordering Doyle to pay the $6,000 charged by Miloro as compensation for time he spent preparing for the deposition. Whether Miloro needed to spend 12 additional hours to prepare for a 2-hour discovery deposition by Doyle is not the question, but, rather, whether Doyle should have been ordered to pay such charges. We conclude that the district court’s order on this issue was in error.

Excellent example of the Nebraska Supreme Court's use of the "absurdity" method of statutory interpretation: An agricultural services company sued the personal representative of an estate for its past due account. J.R. Simplot Co. v. Jelinek, S-06-666, 275 Neb. 548The Nebraska Supreme Court agreed with the estate's personal representative that the agricultural services company missed its deadline to file suit against the estate. The services the company provided to the estate's farming operations were not "administrative expenses" that do not have a four month limitation period on them because these expenses arose from the contract between the company and the personal representative. Section 30-2485(b)1 includes contracts with the personal representative in the claims subject to the four month deadline. The Nebraska Supreme Court falls back on the "absurdity" argument, " If this court were to adopt Simplot’s reasoning—that the services in question should be considered administration expenses—then § 30-2585(b)(1) (sic) would be rendered virtually meaningless." Indeed, there is no 30-2585(b)1 in my code book.

Appeal dismissed from multiple count lawsuit against former business partner and associates because trial court did not dismiss the plaintiff's cause of action in its entirety. Poppert v. Dicke, S-06-741, 275 Neb. 562 Disgruntled business partner sued other partners and associated professionals for breach of fiduciary duty and plead various claims against several parties. The district court dismissed the plaintiffs suit against the business partner for breach of fiduciary duty and certified it as final, appealable order. However the district court did not dismiss the plaintiff's suit for unjust enrichment and diverting profits. Because some of the remaining claims were identical with the dismissed claims, the district court failed to issue a certified final order. Nebraska Supreme Court dismisses appeal. 25-1315 requires the court to certify as appealable a final order as to a "claim for relief." "Claim for relief" and "cause of action" are synonymous, although theory of recovery is not. A cause of action comprises the common facts that establish the defendant's liability to the plaintiff although the difference between a cause and a theory is not too clear. Although the district court dismissed some of the plaintiff's theories of recovery, it did not dispose entirely of his cause of action against his partner. Therefore the Supreme Court lacked jurisdiction over the appeal. A “claim for relief” within the meaning of § 25-1315(1) is equivalent to a separate cause of action, as opposed to a separate theory of recovery. A cause of action consists of the fact or facts which give one a right to judicial relief against another; a theory of recovery is not itself a cause of action. the district court’s order dismisses some of those theories of recovery, i.e., “causes of action” Nos. 1 through 3, but does not dismiss all of them. The district court’s order was not a “‘final order’ . . . as to one or more but fewer than all of the causes of action.”

The defendant in a methamphetamine possession case from Buffalo County requested a special prosecutor because an associate attorney with his defense counsel's law firm moved to the prosecuting attorney's office. The former associate was not involved with the defendant's case while working for either office. Nebraska Supreme Court rejects the defendant's per se rule for disqualification, instead interpreting Model Rule 1.11 to allow the judge discretion to require proper screening procedures to ensure client confidentiality. State v. Kinkennon, S-07-654, 275 Neb. 570 "A per se rule would result in the unnecessary disqualification of prosecutors where the risk of a breach of confidentiality is slight, thus needlessly interfering with the prosecutor’s performance of his or her constitutional and statutory duties. Furthermore, a per se rule would unnecessarily limit mobility in the legal profession and inhibit the ability of prosecuting attorney’s offices to hire the best possible employees because of the potential for absolute disqualification in certain instances. Whether the apparent conflict of interest justifies the disqualification of other members of the office is a matter committed to the discretion of the trial court. What constitutes an effective screening procedure will depend on the particular circumstances of each case. However, at a minimum, the disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the office with respect to the matter. S imilarly, the other lawyers in the office who are involved with the matter should be informed that the screening is in place and that they are not to discuss the matter with the disqualified lawyer.

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

Nebraska Supreme Court denies defendant's claim of ineffective appellate counsel and opens the door slightly to post-conviction discovery proceedings, but holds further discovery would not have helped the defendant. State v. Jackson, S-06-1041, 275 Neb. 434. the defendant in his post-conviction action sought discovery from the prosecutor regarding any evidence the prosecutor had that would show that a drug dealer ordered another hit man to kill the man that the defendant was convicted of killing. The trial court overruled the defednat's request. The Supreme Court agrees that discovery was not appropriate in this case under State v. Thomas, 236 Neb. 553, 462 N.W.2d 862 (1990)., but suggests it might allow some discovery in the future. "when a postconviction discovery request is for evidence that the defendant would not have known to request until after the trial, the postconviction stage is the prisoner’s first opportunity to make such a request...there should be a limited exception for discovery requests concerning evidence which the prosecution withheld from the defendant at trial when there is a reasonable possibility that the requested evidence, if it exists, could have resulted in a different outcome at trial."

A records storage management company charged its law firm customer a $10,000 fee to permanently remove all of its records from the storage facility. The Omaha law firm filed a declaratory judgment complaint against the company claiming the removal fee was an illegal penalty provision. the Douglas County District Court agreed finding the removal fee was a penalty and not a legitimate liquidated damages fee. The Nebraska Supreme Court reverses holding the removal fee was neither a liquidated damages provision nor a penalty, rather it was a fee for a service. Berens & Tate v. Iron Mt. Info. Mgmt., S-07-193, 275 Neb. 425 The district court erred in finding that the “Permanent Withdrawal” fee was unenforceable. We conclude that the “Permanent Withdrawal” fee is neither a liquidated damages clause nor an illegal penalty provision. Rather, the provision is an enforceable contractual term that sets forth the payment required for services to be performed under the contract. T he judgment of the district court is reversed."

Nebraska Supreme Court affirms dismissal of wife's fraudulent transfer complaint against ex-husband to reach business he liquidated to avoid including its assets in the couple's marital estate. Reed v. Reed, S-06-757, 275 Neb. 418. Shortly before the husband filed for divorce his parents repossessed stock they held in the couple's business; the husband also liquidated his interest in a real estate development partnership. Wife sued to reclaim her marital share of these interests using the Uniform Fraudulent Transfer Act (UFTA) Neb. R ev. S tat. §§ 36-701 to 36-712 (Reissue 2004). The Hall County District Court dismissed her complaint, the Supreme Court affirms. "a spouse’s right to an equitable distribution of the marital estate is not a “right to payment” under the UFTA . A ccordingly, the UFTA does not apply in cases where, as here, an individual believes that his or her former spouse fraudulently transferred assets before the divorce to prevent those assets from being equitably distributed as part of the marital estate. Instead, such a claim is perhaps more properly litigated as a claim for dissipation of marital assets."

Nebraska Unicameral amends medical lien statute Section 52-401 to clarify that medical providers may only claim their discounted fees and charges when they accepted discounts from private health insurance or health benefit plans. Amended law now allows chiropractors to file liens, but does not public insurance. Stinson Morrison Health Care E-Alert. "On March 10, 2008, Nebraska Governor Dave Heineman approved LB 586, amending Neb. Rev. Stat. 52-401, the Medical Lien Statute. The changes went into effect when approved. Of importance to health care providers is that the changes to the statute clarify that a provider's charges under a perfected lien are only subject to reduction when the provider has contracted for a discount or other limitation with a private medical insurance or health benefit plan. The limitation does not apply to reimbursement under public programs such as Medicare and Medicaid. The provider's option, if available, to pursue full payment when a public program is primary is not affected by LB 586. In 2004, the Nebraska Supreme Court ruled in Midwest Neurosurgery, P.C. v. State Farm Ins., that when a provider has entered into a managed care contract to accept a rate less than its full charge, the lower contracted rate becomes the provider's usual and customary charge for purposes of the Medical Lien Statute. Since that time there has been a question whether that decision applied to public programs such as Medicare. The changes made by LB 586 make it clear the discount provisions only apply to private programs; not public. When a patient has health benefits under a public program as his/her primary insurance, the provider has all options available under those public rules including, to waive billing Medicare and pursue the potential liability settlement at full charges. In addition to the above, LB 586 brought chiropractors under the statute's umbrella. Chiropractors now have the protections and the obligations of the Medical Lien Statute. Remember, that the Medical Lien Statute does not require a provider to pay the injured party's attorney's fees and costs. While these attorney's fees have precedence over a provider's lien, the provider is not obligated to pay, in any proportion, those fees. Also of note, a late amendment provides that even when there is a contractual discount or other limitation, the full provider charge is the measure of damages for medical expenses and not the discounted rate. This last amendment may, or may not, be a subject for future legislative sessions.

Nebraska Supreme Court agrees that the Worker Compensation Court may grant default judgments under § 48-162.03(1) but the party moving for a default judgment must give the defaulted party notice of the motion under Worker Compensation Court rule 3. Cruz-Morales v. Swift Beef Co., S-07-812, 275 Neb. 407 The plaintiff sued the Defendant Swift Beef for a work injury and Swift received proper service of process. Swift failed to answer and the plaintiff moved for a default judgment but sent the notice to the wrong address for the Defendant's third party administrator. "we (under 48-162.03) conclude that the Workers’ Compensation Court has statutory authority to enter default judgments, however the Plaintiff needed to send proper notice to the defendant. Worker Compensation Court rule 3 which requires notice of the motion is not more restrictive than Supreme Court pleading rule 5 which does not require notice of a default judgment in general civil actions, see Phillips v. Monroe Auto Equip. Co., 251 Neb. 585, 558 N.W.2d 799 (1997) {worker compensation court rules may not be more restrictive than civil court rules as to admitting evidence}.

Injured worker who sometime after her work-related accident moved from Omaha to a smaller community could ask the court evaluate her lost earning capacity based upon her access to the labor market in the smaller community, as long as she could show her move was in good faith. Giboo v. Certified Transmission Rebuilders, S-07-139, 275 Neb. 369 "when an employee injured in one community relocates to a new community, the new community will serve as the hub community from which to assess the claimant’s earning capacity, provided that the “change of community was done in good faith, and not for improper motives.” Like the South Dakota Supreme Court (Reede v. State, Dept. of Transp., 620 N.W.2d 372 (S.D. 2000)), we believe the claimant carries the burden to establish that the move was made in good faith and not for the purpose of exaggerating the extent of his or her difficulty in finding suitable employment. If the claimant cannot show a legitimate motive behind his or her post-injury relocation, the community where the claimant resided at the time the injury occurred will serve as the hub community."

Immigrant who earlier plead guilty to two separate drug related felonies and had already served those sentences filed to withdraw those guilty pleas because he discovered the Federal Government would consider him deportable. Defendant plead guilty to the cases before Section 29-1819.02 required the court to advise immigrants of the consequences of pleading guilty to their immigration status. Nebraska Supreme Court holds the district court did not have jurisdiction to hear his motions to withdraw his guilty plea after already serving his sentences . State v. Rodriguez-Torres, S-06-1351, 275 Neb. 363 "Although § 29-1819.02 gives the trial court some discretion to allow a defendant to withdraw a guilty plea, the statute does not provide a separate procedure to accomplish that after the defendant’s conviction has become final. Since Nebraska statutes do not authorized any procedure allowing for the present action, the district court was without jurisdiction to address the merits of R odriguez-Torres’ motion."

Nebraska Supreme Court resolves tangled fee dispute between Law Offices of Ronald J Palagi and its former associate Steven Howard over a $2 million injury verdict from Phelps County District Court and some other large cases. Nebraska Supreme Court dismisses former associates appeal of the Buffalo County District Court's attorney lien division order {motion to alter or amend judgment to correct clerical errors did not toll 30 day appeal deadline}, affirms division of fees from same large case from Douglas County District Court and award of extra attorney fees for Palagi's untimely payment of a fee bonus to Howard under the Nebraska Wage Payment Collections Act. Nebraska Supreme Court invalidates provisions of the parties employment agreement that purported to require the associate attorney to turn over fees earned from cases the associate takes from the law firm after resigning as violating the Model Rule 5.6 {restrictions on lawyer's right to practice}. The Supreme Court also rules against the law firm's claim that the associate attorney's actions to advise the firms clients that he was leaving the firm violated the associate's fiduciary duty to the law firm because the law firm could not prove that the attorney's actions caused the firm any loss. Law Offices of Ronald J. Palagi v. Howard, S-06-384, S-06-665, S-07-757, 275 Neb. 334

The Lancaster County District Court dismissed the State Attorney General's complaint against tobacco companies participating in the tobacco Master Settlement Agreement because the State of Nebraska agreed to arbitrate any annual payment reductions. The Nebraska Supreme Court affirms, while finding the District Court's dismissal in favor of arbitration was an appealable order, the Master Settlement Agreement arbitration requirement applied to whether the States adequately and diligently enforced tobacco marketing restrictions against companies that did not participate in the 1998 Master Settlement Agreement. State ex rel. Bruning v. R.J. Reynolds Tobacco Co., S-06-1027, 275 Neb. 310the district court’s order compelling arbitration and dismissing the State’s action for declaratory judgment was a final order and that this court has jurisdiction to determine this appeal. We further conclude that the district court did not err in determining that the MSA requires arbitration of the dispute over diligent enforcement of the qualifying statute. We therefore affirm the court’s order compelling arbitration and dismissing the State’s action for declaratory judgment.

Nebraska Supreme Court remands defendant's methamphetamine possession conviction to Sarpy County District Court to find whether the police incidentally seized narcotics following a valid arrest or whether the defendant voluntarily consented to further police searching of his residence. State v. Gorup, S-07-450, 275 Neb. 280 Sarpy County and Bellevue law enforcement staked out the defendant's residence and arrested him as he exited the apartment. The police observed knives on a table and entered the apartment although the defendant was outside the premises at all times. The police then seized a closed zippered shaving kit case and asked the defendant's permission to open it. The police found methamphetamine. "The district court found that the protective sweep of Gorup’s apartment was unlawful and that the search incident to a valid arrest might have been unlawful. It concluded, however, that the warrantless search of the black zippered case was lawful under the inevitable discovery doctrine because Gorup’s consent was voluntary The district court reached the issue of the validity of Gorup’s consent, but it did not definitively determine whether the search incident to a valid arrest exception applied. If the district court had concluded that the first search was valid, it would not have needed to analyze the validity of Gorup’s consent to the subsequent search. Where a search following an illegal entry is justified based on alleged consent, a court must determine whether that consent was voluntary, and in addition, the court must determine whether the illegal entry tainted that consent. U.S. v. Robeles-Ortega, 348 F.3d 679 (7th Cir. 2003). the court erred in failing to consider the appropriate factors to determine whether the search was an exploitation of the prior illegality. The district court should have considered the above factors in determining whether Gorup’s consent was obtained by the exploitation of the detectives’ prior search. T hus, we remand the cause for consideration of such factors. See Brown v. Illinois, 422 U.S. 590, 95 S . Ct. 2254, 45 L. E d. 2d 416 (1975){proximity of illegal search to confession or consent, flagrancy of conduct, intervening events determine whether illegal search taints subsequent confession or consent to search}

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

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

Nebraska Supreme Court agrees that group of relatives who inherited estate property from an expiring QTIP needed to reimburse the estate for estate taxes even though the second decedent who passed on the QTIP property had purported to waive reimbursement in his will. In re Ervin W. Blauhorn Revocable Trust, S-06-531, 275 Neb. 256 Husband and wife who had no children of their own set up a Qualified Terminal Interest Property Trust (QTIP) which would take effect when the first spouse died. When the wife died the widower took over the QTIP property. When he died the beneficiaries of the deceased wife's QTIP objected to paying his estate taxes that became due from the QTIP property. The husband's will purported to waive reimbursement claims, but not specifically for QTIPs. The Hamilton County Court ordered the QTIP beneficiaries to reimburse the estate. Nebraska Supreme Court affirms and holds the waiver was not specific enough to waive the QTIP beneficiaries' reimbursement requirement. Also the Supreme Court agrees that the county court properly admitted the estate attorney's affidavit in which the attorney attested to the total estate tax return and a hypothetcial tax return that excluded the QTIP property. "The language of article X of E rvin’s trust agreement, which was signed after the effective date of the current version of 26 USC § 2207A, indicated that there was to be no right of reimbursement against recipients or beneficiaries. However, we conclude that such was insufficient to waive the trust’s right of reimbursement under that section. A s is detailed above, this is so because there was no reference to § 2207A, or even to the QTIP trust or property, in article X, and thus no language “specifically indicat[ing] an intent to waive any right of recovery under this subchapter” as required by § 2207A. T he county court did not err in ordering the S charvins to reimburse the trust for a portion of the federal estate tax paid by the estate, and the S charvins’ first assignment of error is without merit. Messner, as the attorney who actually completed the federal estate tax return for the estate, was competent to testify to the amount he calculated as being due on that return. In addition, Messner was competent to testify about the alternative calculation he performed wherein he omitted B onnie’s property from the estate.

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

Order of the Knee pads update: Nebraska Supreme Court denies reinstatement following disbarment over 10 years ago when attorney was convicted of tax evasion and has not completed restitution to the US Government for over $66k nor to the IRS on his total tax liability that was between $300 and $400k. Legal profession blog. "The Nebraska Supreme Court denied an application for reinstatement of a disbarred attorney. The attorney had been suspended for a false representation and then disbarred in 1997 for an income-tax conviction. Counsel for Discipline had opposed reinstatement notwithstanding a favorable referee's finding on present good moral character. The court agreed with Counsel for Discipline, concluding that the underlying conviction (which involved failure to pay taxes over a ten-year period)and his failure to make restitution militated against restoration to practice." State ex rel. Counsel for Dis. v. Scott, S-97-584, 275 Neb. 194 The Nebraska Supreme Court did not consider its reinstatement ruling in Counsel for Discipline v Mills (Mills II) when it reinstated an attorney whom it had suspended for filing false declarations with the IRS in an estate case but in the meantime the US Government had successfully prosecuted for filing the false forms. The Nebraska Supreme Court found a way to let him in.

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

On his third trip to the Nebraska Supreme Court for driving while intoxicated second offense defendant Lloyd, the Supreme Court holds that the Douglas County Attorney's office did not miss the 29-110 statute of limitations for retrying him for DWI 2nd offense. State v. Lloyd, S-06-1113, 275 Neb. 205 The Supreme Court initially ruled that the City of Omaha could not prosecute him under the Omaha municipal code driving while intoxicated 2nd offense section because the municipal dwi code section was inconsistent with state law ( State v. Loyd, 265 Neb. 232, 655 N.W.2d 703 (2003).. Then the Douglas County Attorney refiled the cases against the defendant for DWI 2nd offense under Nebraska statutes § 60-6,196(2) and the Nebraska Supreme Court dismissed the defendant's interlocutory appeal because his statute of limitations objection was not a final order State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005).. Finally after the Douglas county court found defendant guilty of DWI2ndMcCormack) rules the Douglas County Attorney did not miss the 18 month statute of limitations under 29-110 because the time the case was pending on appeal tolled the limitations period. “pending” means: “Begun, but not yet completed; unsettled; undetermined; in process of settlement or adjustment. T hus, an action or suit is ‘pending’ from its inception until the rendition of final judgment.”Loyd’s case remained pending while on appeal to the district court and this court. T he statute of limitations under § 29-110(1) was tolled during that period, and the March 18, 2003, complaint was timely filed."

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

Jackpot Justice Update: Nebraska Supreme Court (J Gerrard) hands over another deep-pocket to plaintiffs' attorneys and they won't let a ruling from the "slipping backward" days stand in their way. DeWester v. Watkins, S-06-230, 275 Neb. 173 "In this case, the district court entered summary judgment for Kyle based on the rule announced in Vilas, and theCourt of Appeals affirmed that judgment because the doctrine of vertical stare decisis compelled it to strictly follow Vilas. The estate argues that Vilas was wrongly decided and should be overruled. We agree. We are persuaded by the Restatement, the reasoning of other courts to have decided the issue, and our ownauthority giving effect to the clearly articulated public policyof the Motor Vehicle Operator’s License Act, that negligent entrustment should be defined with reference to control of theentrusted property, and a defendant’s ownership of the propertyis not a prerequisite for liability for negligent entrustment. In other words, to be liable for negligent entrustment, the defendant must have had the authority to permit or prohibitthe entrustee’s use of the entrusted property. But control ofthe entrusted property is the essential element of a negligententrustment claim, not legal ownership. To the extent that Vilas holds otherwise, it is overruled.

When York County Jail inmate Holmstedt sued the county and various officers for civil rights violations under 42 USC Section 1983 he did not identify whether he was suing them as individuals or as officials of the County. Nebraska Supreme Court follows rule of the Eighth Circuit Court of Appeals (Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999))that the plaintiff must clearly identify that civil rights defendants are individuals or the court will assume they were acting in their official capacities. Since the plaintiff did not properly serve the defendants as county officials under § 25-510.02(2). Holmstedt v. York Cty. Jail Supervisor, S-05-906, 275 Neb. 161 "the The Court of Appeals for the Eighth Circuit has held that in order to sue a public official in his or her individual capacity, “a plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant is sued only in his or her official capacity.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). See, also, Baker v. Chisom, 501 F.3d 920 (8th Cir. 2007) (stating that requiring express statement that defendant is sued in individual capacity is consistent with Federal Rules of Civil Procedure). in order to meet the pleading requirement in § 1983 actions, “litigants wishing to sue government agents in both capacities should simply use the following language: ‘Plaintiff sues each and all defendants in both their individual and official capacities.’” Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989) the rule followed by the Court of Appeals for the Eighth Circuit is reasonable and addresses a valid concern regarding providing sufficient notice to individual defendants, especially where a legal action could result in personal liability. The Eighth Circuit rule is simple for a court to apply, and it is not difficult for a plaintiff to comply with the rule. Having concluded that Holmstedt sued the individual defendants solely in their official capacities, we consider the defendants’ motions to dismiss pursuant to rule 12(b)(2), (4), and (5). We conclude that Holmstedt failed to properly serve the defendants in their official capacities and that therefore, the district court did not err in granting the motions to dismiss pursuant to rule 12(b)(2), (4), and when a motion to dismiss raises rule 12(b)(6) grounds and any combination of rule 12(b)(2), (4), and (5) grounds, the court should consider the rule 12(b)(2), (4), and (5) grounds first and should then consider the rule 12(b)(6) grounds only if it determines that it has personal jurisdiction and that process and service of process were sufficient. See Sinochem Intern. v. Malaysia Intern. Shipping, ___ U.S. ___, 127 S. Ct. 1184, 167 L. Ed. 2d 15 (2007)

No Daubert gate keeping required when expert relies on scientific manual that the defendant did not dispute. Nebraska Court of Appeals with Judge Sievers dissenting affirms four judgments totalling over $3.5 million from automobile collisions occurring at the intersection of Highway 30 and Newberry Road in Lincoln County. While the State Department of Roads placed stop signs on both sides of the intersection, one flagged, posted a stop ahead sign and an additional sign that the intersection highway was ahead, the Court of Appeals agreed with the Lincoln County District Court the state negligently placed the right side stop sign too far away from the intersection because the sign was out of drivers' cone of vision. The Court of Appeals upholds allowing plaintiffs' expert witnesses to testify that the Department of Roads failed to comply with the State's Traffic Manual because the State failed to object to its own manual. That according to the Court of Appeals majority removed the experts' testifying about the manual from the Court's Daubert gate keeping function. Kirkwood v. State, A-05-1226, A-06-630 , 16 Neb. App. 459The Department of Roads does not challenge (plaintiff’s expert's) qualifications as an expert. The State also does not challenge the scientific validity and reliability of the Manual, upon which expert based his opinions. Rather, the State’s point of contention centers on expert’s interpretation of provisions of the Manual. For that reason, we conclude that no Daubert analysis was necessary. See, e.g., Perry Lumber Co. v. Durable Servs., 271 Neb. 303, 710 N .W.2d 854 (2006) (concluding that no Daubert analysis of methodology was necessary where party asserting error did not challenge scientific validity and reliability of methodology set forth in publication providing guidelines for scientific method of fire investigation). Dissenting Judge Sievers would reverse and dismiss all claims because the drivers' negligence in running the stop signs intervened as causes of the collisions. "Even if the State was negligent in its signing of the intersection, such was not a proximate cause, and that even if it could be considered a proximate cause, (the negligence of the drivers who failed to stop at the sign) combined with the comparative in one of the cases of the (plaintiff who turned in front of one of the drivers who failed to stop) constitute efficient intervening causes."

Nebraska court of appeals dismisses partial appeal of partnership dispute between daughter-in-law and parents of her deceased husband because the Dundy County District Court failed to make specific findings that the the daughter-in-law's partial appeal should proceed under 25-1315 RRS Neb. Jones v. Jones, A-05-1076, 16 Neb. App. 452. Daughter-in-law acting as her deceased husband's personal representatives sue his parents for a partnership accounting along with other contractual and tort actions. The District Court granted the in-laws directed verdict on the plaintiff's accounting claim and on its own agreed to certify the directed verdict as "final" for appeal purposes under 25-1315 RRS Neb. Later the District Court granted the in-laws summary judgment on the remaining cases. The Court of Appeals had initially dismissed the appeal from the directed verdict, then recalled and consolidated it with the appeal of the remaining counts. Finally the Court of Appeals dismisses the first appeal. the trial court apparently attempted to certify as final the judgment for directed verdict out of which this appeal arises. The Nebraska Supreme Court disapproved routine 25-1315 certifications in Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007) when it held the trial court must make specific findings to justify the partial appeal to avoid "piecemeal...appeals..occasioning... the use of more judicial resources...than...required (for a single appeal)."

Divorced wife sought increased child support and alimony from stock broker ex-husband in 2006 from the Scotts Bluff County District court following their divorce in 2002. The husband now lived in India working for Lehman Brothers and earned $550,000 per year plus extra "expatriate compensation" of nearly $10,000 per year. The wife went from earning about $29000 per year soon after the divorce to nothing as of the time she filed the modification. The Nebraska Supreme Court agrees to the District Corut's increase of child support to $4,250 per month for two children and $3,250 per month for one child. T he court denied, however, Lana’s request to increase R obert’s alimony obligation. Nebraska Supreme Court agrees to the child support increase, but denies the alimony increase. Also although the expatriate compensation counts as income for child support purposes the trial court correctly deviated from the guidelines when it accounted for the husbands increased expenses while working in India, including nearly $8000 monthly rent, hiring a private driver and expensive plane trips home. Simpson v. Simpson, S-06-1461, 275 Neb. 152 "The evidence reflects that the additional living expenses incurred by R obert while living in Mumbai are significant. A mong those expenses are rental paymentsof $7,905 per month. R obert’s employer would not allowhim to drive a car in India, and he therefore had to employ a full-time driver. A lso, each trip to and from the United States for holidays, visitation, et cetera, cost $3,000 to $6,000 per trip in airfare. T hese are additional expenses that R obert would

The Nebraska Legislature's version of the Revised Uniform Partnership agreement (RUPA) states its policy that partnership statutes should mostly serve as gap-filling provisions when the parties partnership agreement does not address an issue regarding the partnership. Moreover the State states with the RUPA that it prefers partnerships keep operating while dealing fairly with departing partners rather than having partner departures routinely cause partnership dissolution. The Nebraska Supreme Court rejects withdrawing partner's demand that the Lancaster County District Court should have ordered the parties partnership dissolved when the partner who chose to continue the business failed to timely buy-out the withdrawing partner according to their agreement. Shoemaker v. Shoemaker, S-06-319, 275 Neb. 112 "The UPA ’s default rules are gap-filling rules that control only when a question is not resolved by the parties’express provisions in an agreement. Section 67-404 carries out the legislative intent to make the partnership provisions the controlling rules and the 1998 UPA provisions the default rules. Section 67-431 provides that a partner’s voluntary withdrawal no longer results in mandatory dissolution; it results in a partner’s “dissociation.” S ection 67-433(1) manifests a legislative intent to create separate paths—dissolution and winding up or mandatory buyout—through which a dissociated partner can recover partnership interests: “If a partner’s dissociation results in a dissolution and winding up of the partnership business, sections 67-439 to 67-445 [dealing with dissolution and winding up] apply; otherwise, sections 67-434 to 67-438 [dealing with mandatory buyout] apply.”26 The comment to § 603 of RUPA , the section upon which § 67-433 is patterned, specifically provides that it operates as a “‘switching’” provision. "To maintain a sensible and consistent scheme and to give effect to every provision.28 When read together with § 67-404 (partnership agreement controls except for limited exceptions) and § 67-433 (providing separate paths of dissolution or mandatory buyout), we conclude dissolution for a partner’s voluntary withdrawal under § 67-439(1) is a default rule. Section 67-439(1) applies only when the partnership agreement does not provide for the partnership business to continue. Moreover, the 1998 UPA specifically requires that we apply and construe the act “to effectuate its general purpose to make uniform the law with respect to the subject of the act among states enacting it. " "UPA ’s rule of mandatory dissolution upon a partner’s withdrawal is a default rule. It “applies only [absent] an agreement affording the other partners a right to continue the business.”Under the partnership agreement, Harley did not have the right to force the partnership’s dissolution when Don elected to continue the business. the partnership agreement to mandate a buyout of a withdrawing partner’s interest, but it failed to specify a remedy for the partnership’s failure to pay, or to timely pay, the buyout price. Therefore, because the agreement is silent on this point, the default rules of the 1998 UPA apply.Although Don failed to timely pay the buyout price, absent a remedy provision in the agreement, Harley’s remedy was statutory. H is statutory remedy against the partnership did not include dissolution, and he waived the remedy of judicial valuation. Therefore, section 12 of the agreement provided the method for determining his interest’s value."

Nebraska Supreme Court retains "reasonable suspicion" test and rejects Eighth Circuit's "de minimis" test for detaining suspects the police stop for traffic violations longer for conducting Illinois v Caballes drug dog sweeps, but if it wanted to make it stick it should have ruled on state law. State v. Louthan, S-07-593, 275 Neb. 101 Norfolk area police and state patrolmen stopped a driver whom they suspected of selling methamphetamine for expired plates and making an improper turn. After the police officer completed his traffic stop he requested the suspect remain to have a drug dog sniff the vehicle. After two sweeps the dog detected methamphetamine and the police found the narcotics in the defendant's wallet. The sniff, search and recovery of the drugs took an additional 12 minutes after the end of the traffic stop. Nebraska Supreme Court affirms search finding that the police had reasonable suspicion to detain the suspect beyond the time police needed to complete the traffic stop. a suspect for further drug dog surveillance after completing a traffic stop. While the Eighth Circuit Court of Appeals in similar cases allowed very brief "deminimis" detentions after completed traffic stops (See eg US v Alexander 05-3378 (2006) {four minutes was a de minimis detention}), the Nebraska Supreme Court holds that the United States Supreme Court ruling in Illinois v Caballes requires "reasonable suspicion" to detain suspects as soon as the traffic stop concludes. "there is a constitutionally significant line of demarcation between a routine traffic stop and one in which a dog sniff is conducted after the investigative procedures incident to the traffic stop have been completed.We agree that “the threshold questionis whether the officer had an appropriate basis upon which to detain the citizen” after concluding the routine traffic stop. We conclude that the “reasonable suspicion” test is the appropriate, necessary, and correct standard for resolving that question."

Wife who couldn't get her ex-husband to file correct QDROs for nearly six years gets the Nebraska Supreme Court on her side. Blaine v. Blaine, S-06-927, 275 Neb. 87 Wife and Husband divorced in October 1998 and the divorce court ordered the Husband to draft Qualified Domestic Relations Orders (QDROs) for two qualified accounts and one individual retirement account to give half of the accounts to the wife as of February 3 1998. The husband did not finally accomplish completing the QDROs until 2006, six years later. The trial court and the lawyers must have assumed they could divide IRA accounts with a QDRO, a dangerous and mistaken assumption. See Qualified Domestic Relations Order HandbookBy Gary A. Shulman Section 21.01 and Bougas v. Commissioner, T.C. Memo 2003-194 In the meantime one of the 401k accounts had declined considerably in value. Some of the accounts had moved into other assets such as IRA. After the wife instituted contempt proceedings the husband prepared the QDROs and the judge awarded the wife have of the accounts current value. Nebraska Supreme Court, with Justice Stephan dissenting reverses and orders the trial court to direct the husband to issue correct QDROs or other orders to divide the retirement assets and finding a way to give the wife half the value of the assets as of February 1998. Blaine v. Blaine, S-06-927, 275 Neb. 87 "(The Nebraska Supreme Court) remands the cause with directions. Specifically, the district court is directed to (1) determine the value of each of the disputed accounts as of February 3, 1998, and (2) supervise the entry of QDRO’s transferring one-half of the February 3, 1998, value of each account to Stephanie. I f the balance of any of the accounts is insufficient to satisfy the award, then the district court, assisted by the parties, should determine how Dennis will comply with the decree. Justice Stephan dissenting argues the majority erred by equating ownership in the disputed retirement accounts with their value as of the target date of February 3 1998. "The majority would have the husband bear the risk of any decline in market value from target date until the entry of the QDRO, even if that entry were accomplished in a timely manner, and the wife would lose the benefit of any appreciation in the value of the assets during the same period. The decree does not direct this. Instead, the decree is entirely silent as to how market gains or losses occurring after the target date and prior to entry of the QDRO’s are to be treated by the parties in dividing the retirement plans “equally.”

Initiative 300 vampire rises from the grave with LB 1174. Nebraska Unicameral. Senator Dierks introduced son-of Initiative 300, the family farm constitutional amendment with modifications to placate the eighth circuit court of appeals. The bill allows the disabled to participate in farm entities that are not corporations and allows out of state residents to participate as family farmers in this state.

Nebraska State Unicameral kills LB1148 that proposed banning confinement crates for gestating sows. Omaha.com Peripatetic Lincoln Senator Dianna Schimek found other priorities after introducing LB1148 that was former Mayor Don Wesley's and the Humane Society's brainchild. Sponsors of the withdrawn bill sought to phase out confinement pens for pregnant sows. Livestock producers consider it an economical practice that allows farmers to monitor food, water, health and pregnancies. "LB 1148 came to life after Kevin Fulton, a Litchfield farmer, made repeated calls to the Humane Society of the United States, prodding them to promote Nebraska legislation to phase out gestation crates as it had done in Oregon. The national organization hired Lincoln lobbyist Don Wesely, a former state senator and former Lincoln mayor, to find someone to introduce the proposal, which would have phased out gestation crates by 2014.Sen. Phil Erdman, chairman of the Legislature's Agriculture Committee, filed the kill motion against LB 1148. He said he was prepared to find 24 co-sponsors, had that been necessary.Hog operations are being bullied and targeted by the Humane Society of the United States, Erdman said. Fulton said the humane society was reluctant to tackle the issue in a major farm state.Fulton, who raises grass-fed cattle, is a public speaker who supports sustainable agriculture. The Humane Society of the United States has organized successful petition drives against gestation crates in Florida and Arizona, two states with minimal hog numbers.The society maintains that confinement, which restricts animals from turning around and socializing with other animals, is cruel and inhumane.Pressure from the society and the public has prompted some major food retailers, including Burger King, Wendy's and Hardees, to issue statements encouraging a phase-out of gestation crates. Smithfield Foods Inc., the world's largest hog producer, has said it would phase out the use of gestation crates. Advocates and some veterinarians, however, say confinement is preferable to group housing partly because it avoids the tendency of pregnant sows to become violent with one another. In a policy statement on hog confinement, the American Veterinary Medical Association says that all current forms of housing have advantages and disadvantages for animal welfare.The veterinary group recommends more research into technology and study of economical viability before ending current confinement practices.Smaller pork producers would be affected most if they were forced to change their method of handling sows, said Larry Sitzman, executive director of the Nebraska Pork Producers Association. "The large producers have the resources and the ability to make major changes," Sitzman said, "whereas a family producer will just drop out of the marketplace."

Justice Connolly and his Gang of Six thought they had abolished the death penalty through the back door by banning Nebraska's electrocution method (State v. Mata, S05-1268). The Unicameral is unlikely to authorize lethal injection during Ernie Chambers' farewell session. So the Nebraska Supreme Court left Mata's death sentence in place without a means to carry it out. But does this mean the Supreme Court could or even should prescribe how to carry out the death penalty in a manner that complies with Nebraska Constitution Article I Section 9 (Nebraska version of the 8th Amendment of the US Constitution). See Can Nebraska Restore Its Death Penalty Without Legislation?, Crime and Consequences Blog. The Supreme Court left 29-2528 in place, which requires the Supreme Court to reverse a death penalty case, grant a new trial, or set an execution date. The last iteration of STATE v. REEVES, S-99-064, 258 NEB. 51199-064 January 7, 2000 HTML] plainly shows the Supreme Court's unwillingness to re-sentence defendants. That leaves a death penalty without a method the legislature approved, but the law's requirement that the State of Nebraska can only prescribe the method of execution was part of the law the Supreme Court invalidated (25-2532 RRS Neb.). What is next if the Nebraska Supreme Court is serious about carrying out its proper function but immediate hearings to institute rules of executing death row inmates. Now that would be interesting, and if it refused would a writ of mandamus against the Supreme Court be far off?

Colorado executive of Con-Agra spin-off settles SEC complaint with a fine. Omaha.com A former executive at United Agri Products has agreed to settle allegations by the Securities and Exchange Commission that he participated in improper accounting practices that also affected Omaha-based ConAgra Foods Inc., the SEC said. Randy Cook, former president of North American operations at Colorado-based UAP, did not admit or deny the allegations as he agreed to pay $367,429 in repayments and penalties, subject to court approval, the commission said Friday. The commission alleged that Cook and others participated in accounting practices that resulted in overstated operating results in 1999 and 2000, impacting UAP and its former parent company, ConAgra Foods. As a result, the SEC alleged, Cook obtained inflated bonus and other profit-based compensation.Other defendants previously agreed to settlements, the SEC said. Last year, ConAgra agreed without admitting or denying the allegations to pay a $45 million civil penalty to resolve an SEC complaint of improper and at times fraudulent accounting from fiscal years 1999 through part of 2005. That complaint included financial results of United Agri Products.

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