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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• State v. Reddish , A-06-465

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