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."