Articles Posted in Civil Procedure

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The Supreme Court affirmed as modified the district court’s order dismissing with prejudice Plaintiff’s complaint for lack of personal jurisdiction. Plaintiff, an attorney, filed a complaint for breach of contract against Defendant. The trial court dismissed the complaint with leave to amend. Plaintiff then filed an amended complaint including claims for tortious conversion and a violation of Nebraska’s Uniform Deceptive Trade Practices Act. The Supreme Court affirmed the dismissal of the complaint, holding (1) neither general nor specific personal jurisdiction over Defendant existed; but (2) the district court erred in dismissing the complaint with prejudice. The court modified the district court’s order to a dismissal without prejudice. View "Nimmer v. Giga Entertainment Media, Inc." on Justia Law

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While dating April, Johnson made threats concerning April’s relationship with her former husband Edward. The night before April’s death, Johnson was upset that Edward had repaired April’s van. April’s neighbors reported hearing loud arguing in the early morning hours of December 11, 2011. On December 12, April did not report to work. Officers found April’s body. A pathologist opined that her death was a homicide caused by a stab wound to her abdomen and suffocation, On December 15, Johnson was arrested in Michigan driving April’s van, which contained Johnson’s blood-stained T-shirt and shoes. The DNA matched April’s profile. Johnson was convicted of first-degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. On appeal, Johnson unsuccessfully claimed that the court erred by admitting cumulative, gruesome autopsy photographs; brought a Batson challenge; and challenged testimony and exhibits about Johnson’s DNA profile. Johnson’s motion for post-conviction relief alleged ineffective assistance of counsel for failing to move for discharge on the basis of speedy trial, failing to object to the prosecutor’s voir dire comments, failing to properly examine various witnesses, failing to argue after moving for a directed verdict, failing to object to the state’s closing argument, failing to sever one count, and failing to allow Johnson to testify. The Nebraska Supreme Court affirmed the denial of the motion without holding an evidentiary hearing. Johnson failed to allege sufficient facts to demonstrate violation of his constitutional rights. View "State v. Johnson" on Justia Law

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An insured obtained life insurance policies and named her trust as the owner. Her insurance agent stole the renewal premiums. The policies lapsed. The insured and the trust’s beneficiaries sued the trustee; the trustee brought a third-party claim against the agent. The court bifurcated the trial. Pursuant to a jury verdict on the first stage, the court entered an order against the trustee. Before trial on the third-party claim, the court certified its order as final. The Nebraska Supreme Court dismissed an appeal for lack of jurisdiction, holding that the certification under Neb. Rev. Stat. 25-1902 was an abuse of discretion. The court expressed concern with the propriety of the court’s determination that there was no just reason for delay. The intent behind the statute was to prevent interlocutory appeals, not to make them easier. The court should ordinarily make specific findings setting forth the reasons for its order. Here, the court’s order merely used the language of the statute and did not explain why certification was appropriate. The court noted the interrelationship of the claims and that a delay of three-four months before the third-party complaint would be ready for trial would not likely cause an unusual hardship. View "Rafert v. Meyer" on Justia Law

Posted in: Civil Procedure

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The Supreme Court reversed the decision of the court of appeals reversing the district court’s exclusion of untimely disclosed expert opinions regarding medical bills in order to enforce progression orders in an automobile negligence case. The court of appeals reversed the judgment in favor of Defendants, concluding that the district court abused its discretion in excluding, as a discovery sanction, nearly all of Plaintiff’s medical bills, as well as testimony from Plaintiff’s expert witness that the bills were reasonable and necessary. The Supreme Court reversed, holding (1) the district court did not need to apply the factors set forth in Norway v. Union Pacific Railroad, 407 N.W.2d 146 (Neb. 1987) to enforce its progression order; and (2) it was not an abuse of discretion to exclude evidence disclosed more than one year after the discovery deadline imposed by the court’s progression order. View "Putnam v. Scherbring" on Justia Law

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The Supreme Court reversed the district court’s dismissal of this appeal, applied the savings clause of Neb. Rev. Stat. 25-1144.01, and reinstated the appeal, holding that, contrary to the conclusion of the district court, the notice of appeal was timely filed. Plaintiff sued Defendants to collect amounts due on a guaranty. The jury returned a verdict in favor of Plaintiff. One day after judgment on the verdict was entered, Plaintiff filed a motion for costs and Defendants filed a motion for new trial. The court granted the motion for costs and overruled the motion for new trial. Defendants then filed a notice of appeal. The court of appeals dismissed the appeal as untimely. The Supreme Court reversed and reinstated the appeal, holding that the appeal time did not start to run until the motion for new trial was ruled upon, and because Defendants filed their notice of appeal within thirty days of that date, their appeal should not have been dismissed as untimely. View "Lindsay International Sales & Service v. Wegener" on Justia Law

Posted in: Civil Procedure

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The Supreme Court affirmed the district court’s order denying an intervener’s motion to intervene in her own behalf in this complaint alleging breach of a lease. Streck, Inc. filed a complaint against the Ryan Family, LLC alleging that the LLC breached a lease agreement containing an option to purchase real property and seeking specific performance. After the LLC responded, a member of the LLC moved to intervene in her own behalf and on behalf of the LLC. The district court denied the motion. The Supreme Court affirmed, holding that the intervenor failed to allege a direct and legal interest sufficient to support intervention in the litigation between the LLC and Streck. View "Streck, Inc. v. Ryan Family, LLC" on Justia Law

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In this appeal from an order denying intervention in a corporation dissolution, the Supreme Court affirmed, holding that the intervenors were seeking only to relitigate matters already decided by the court. Specifically, the court held (1) because the intervenors were seeking to use intervention as a vehicle for relitigating issues previously determined by the court, the complaint in intervention was properly stricken; and (2) the intervenors’ argument that even if their interests did not support statutory intervention the district court should have permitted them to intervene as a matter of equity was not appropriate for consideration on appeal. View "Wayne L. Ryan Revocable Trust v. Ryan" on Justia Law

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J.S., a student at a middle school, was suspended for fifteen days for a post made on a social media website that caused a substantial disruption at her school. J.S. requested an administrative hearing to contest her removal. The superintendent and board of education each upheld J.S.’s suspension. J.S. filed a petition with the district court to appeal the board’s decision. The district court affirmed, concluding that the suspension did not exceed the authority provided by Neb. Rev. Stat. 79-264 and 79-267. J.S. appealed. The Supreme Court dismissed the appeal for lack of jurisdiction, holding that J.S. failed to seek district court review in the mode and manner provided by statute, and therefore, the district court lacked subject matter jurisdiction under the Student Discipline Act. As a result, the district court’s decision was void. View "J.S. v. Grand Island Public Schools" on Justia Law

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In this dispute arising from a party’s failure to perform on a promissory note Steven Anderson filed a complaint against Steve Finkle alleging breach of contract and quantum meruit or unjust enrichment. After trial but before the trial court issued its order, Anderson died. Thereafter, the district court issued an order awarding Anderson the amount of the promissory note plus interest. Finkle filed a motion for new trial and then the estate filed a motion for revivor. The district court overruled Finkle’s motion and granted the estate’s motion reviving the matter in the name of the personal representative of the estate. The Supreme Court dismissed the appeals in both cases, holding (1) because of Anderson’s death, the district court lacked jurisdiction to enter judgment and deny Finkle’s motion for new trial, and therefore these orders were void, and Finkle’s first appeal did not divest the district court of its jurisdiction; and (2) this court was without jurisdiction to entertain Finkle’s appeal of the order of revivor because it was not a final order. View "Anderson v. Finkle" on Justia Law

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Linda Clarke filed suit against First National Bank of Omaha (FNB) alleging that she, rather than Gregg Graham, was the owner of a certificate of deposit. FNB filed a third-party action seeking recovery against Graham to the extent FNB was liable to Clarke. The parties filed competing motions for summary judgment. The district court granted summary judgment for Clark against FNB and in favor of FNB against Graham. Graham filed a motion for new trial. Before the court had ruled on the motion, Graham filed his notice of appeal. FNB filed a motion for summary dismissal, arguing that the court of appeals lacked jurisdiction because the notice of appeal was prematurely filed. The court of appeals overruled the motion for summary dismissal. The Supreme Court dismissed the appeal for lack of jurisdiction, holding that Graham’s notice of appeal was prematurely filed and, therefore, was without effect. View "Clarke v. First National Bank of Omaha" on Justia Law