What's New

Check here regularly to find out what's new at our firm, and, perhaps, more importantly, what's new in the legal world. You will find important developments posted here that may have a direct impact on you or your business.

NEW YEAR, NEW CHANGES TO EMPLOYMENT LAW

2009 saw the most significant changes to employment law in 15 years. Last year brought changes to the way employers treat employees who seek accommodations for disabilities, to the process by which employers grant employees leave for medical reasons, and to the way employers request employment eligibility information from new employees. In the Fall of 2008, the President signed into law the Americans with Disabilities Act Amendment Act ("ADAAA"), which amends the Americans with Disabilities Act significantly (see Changes to the ADA). This new law went into effect on January 1, 2009. The Department of Labor amended the regulations of the FMLA which went into effect on January 16, 2008 (see FMLA Regulation Changes). Finally, on December 17, 2008, the U.S. Citizenship and Immigration Services (USCIS) submitted to the Federal Register an interim final rule to revise Form I-9, Employment Eligibility Verification (see I-9 Forms).

OPEN MEETINGS CASE OF MAJOR IMPORTANCE/DISCOVERY ISSUE

Howard Olsen and John Simmons were successful in the Nebraska Court of Appeals in reversing and vacating most of a judgment against Banner County for Open Meetings Violations. The case is very instructive for Political Subdivisions in their work at compliance with the Open Meetings Act. The case involved meetings by the Commissioners and by the Commissioners in their capacity as the Board of Equalization. The Court determined that the Board of Equalization was a separate entity but that joint notices, joint agendas and joint minutes with the Commissioners was acceptable as long as it was clear which entity was considering what items. The Court commented that the better practice is to do separate notices, agendas and minutes. The Court also considered arguments about the sufficiency of the notices/postings and determined that it was a legislative matter not subject to review. The Court voided two of the Banner County meetings because no notice was given for either, but discussed in great detail the right of Banner County to cure. The Court also discussed the attorney fee section of the Open Meetings Act, cut significantly the fees awarded by the District Court and declined to award fees upon appeal.

The Court also addressed a related matter of discovery. The District Court had granted a Motion to Compel and ordered Banner County to provide discovery(its public records) at the office of Appellee's Counsel. The Court awarded $720 in fees to Appellee's Counsel. Because the County Clerk is charged with the custody of public records, the Clerk copied the records and provided them as ordered. The Court of Appeals found the District Court had abused its discretion, vacated the award of fees and noted that to the extent the request for production was for public records, they are equally assessible to all parties. The Opinion is attached.

Wolf v. Grubbs, A-07-1071, 17 Neb. App. 292, http://court.nol.org/opinions/2009/january/jan13/a07-1071.pdf

VERDICTS

Congratulations to Howard P. Olsen, Jr. for a successful defense of Western Sugar Cooperative Corporation in Heth vs. Western Sugar which was a wrongful death case arising in the District Court of Scotts Bluff County, Nebraska. The jury found the Decedent was more than 50% responsible for his own death.

The issues surrounded the changing of a flat tire on a semi truck and trailer in the confines of a Western Sugar shop. Once the repair was completed, the driver re-assumed control of the vehicle and pulled it out of the shop only to discover minutes later that he had driven over the decedent.

Evidence was adduced on the issues of lock-out/tag-out and reasonable care. The decedent used experts D. Way Johnston and Ronald Bredemeyer from Texas and defendant used expert Norris Hoover from Fay Engineering Corp. of Denver, Colorado.

Congratulations to John Simmons for a favorable decision in the court case of Renter v. Siedenburg. Plaintiff had sought to remove her son's name from an annuity worth in excess of $300,000. The district court held that in the absence of any claim of fraud, the annuity documents were conclusive upon the rights of the parties and the son's name could not be removed without his consent.

Congratulations to John Simmons for obtaining a defense verdict in the District Court case of Angelina Palomo v. US Bank. Ms. Palomo had sought damages in excess of $100,000 for injuries sustained in an after hours fall at the bank's ATM machine. In a general defense verdict, the jury apparently rejected plaintiff's contention that there was anything hazardous about the bank's machine.

Congratulations to Howard P. Olsen, Jr. and John A. Selzer for their successful jury verdict in the District Court case of In Re: Estate of Robert P. Anderson wherein the jury set aside two Wills with the finding that the same were procured by undue influence and reinstated a previous Will which gave their clients (the grandchildren of Robert P. Anderson) one half of the estate. They had been virtually removed from the new Wills.

The jury found that the surviving daughter of Robert P. Anderson had the opportunity and the requisite disposition to exercise undue influence, that her father Robert P. Anderson was susceptible of undue influence and the later Wills were the result of the undue influence. After a week's trial, the jury was out less than two hours before bringing in their verdict.

Howard and John called seventeen witnesses. There were no substantive issues with regard to testamentary capacity, so the only issue was undue influence. One of the interesting sub-issues was the admission by the Court of evidence of disposition remote to the time of the Will execution based upon the fact that there was sufficient evidence of disposition at or about the time of the Wills' execution to justify under In re Heineman's Estate, 144 Neb. 442, 13 N.W.2d 569 at 572 (1944) that the later evidence was relevant. See "Undue Influence" under Articles.

This case was affirmed by the Nebraska Court of Appeals in a Memorandum Opinion and Judgment on Appeal filed August 15, 2006. The Court of Appeals Opinion was 37 pages and contained some of the following more memorable quotes:

"Paul's requests that Lawrence backdate documents that would benefit himself and Barbara is strong evidence of their predisposition to do virtually anything to benefit themselves."

"The resulting wills left virtually all of Robert's very substantial estate to the individuals who, from all appearances, seized upon Sam's untimely death to enrich themselves."

"In this appeal, we conclude that the evidence supporting the claim that the 1998 wills were the product of undue influence by Barbara and Paul was abundant, if not overwhelming."

Howard and John are grateful to John F. Simmons for the strong brief writing in this case.

After the jury verdict in the Anderson case, Howard and John filed a case in Wyoming to set aside a deed that had been given to the surviving daughter and her husband for the Decedent's ranch. The Honorable John C.

Brooks of the Eight Judicial District, County of Goshen, State of Wyoming, rendered a 12 page opinion rejecting the daughter's attempts to quiet title in the ranch in her exclusively and rather quieting title in the Trustee for the benefit of the grandchildren in one half of the ranch. That case is now on appeal to the Wyoming Supreme Court.

Judge Brooks had to consider issues of undue influence under Wyoming law.

Howard, along with Rick Ediger, was involved in other family litigation in 2006 which included a dispute between a father and son with regard to a 5,000 acre ranch in northwestern Nebraska. That case was tried in front of the Honorable Paul D. Empson and on May 30, 2006. Judge Empson awarded a judgment in favor of Howard's client, Virgil Kleensang (the father), in the amount of $318,356. The issue in that case surrounded the ownership of a cattle herd and whether a gift had been made of the entire herd. The Court essentially held that there was no clear and unmistakable intention to make a gift of the entire herd and that the parties had a 50/50 deal as had been agreed to many years ago. That case is presently under appeal to the Nebraska Court of Appeals.