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The NE Law Express is available to members of the Nebraska State Bar at no additional charge.

Nebraska State Bar Association NE Law Express for February 1, 2008

Use our Short Cuts to link to the area of today's
NE Law Express that interests you.

Cases affecting the following practice areas are summarized in today's NE Law Express:

Habeas Corpus, Venue
Incarceration, Mistaken Release, Credit for Time at Liberty
Partnership, Definition

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Case Summaries

Habeas Corpus, Venue

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The Nebraska Supreme Court holds here that a prisoner who was mistakenly released and did not attempt to report the premature release to officials, was not entitled to credit on his sentence for time that he was at liberty.

Anderson v. Houston, 274 Neb. 916 (2008)

Supreme Court Headnotes

Judgments:

1. Jurisdiction: Appeal and Error. A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court’s decision.

Habeas Corpus:

1. Appeal and Error. On appeal of a habeas petition, an appellate court reviews the trial court’s factual findings for clear error and its conclusions of law de novo.

Jurisdiction:

1. Appeal and Error. If the court from which an appeal was taken lacked jurisdiction, the appellate court acquires no jurisdiction.

2. Venue: Waiver. Litigants cannot confer subject matter jurisdiction upon a tribunal by acquiescence or consent. In contrast, venue provisions confer a personal privilege which may be waived by the defendant.

3. Final Orders: Appeal and Error. A trial court is divested of jurisdiction when a party perfects appeal of a final order.

Habeas Corpus.

1. An application for habeas relief may be made to any one of the judges of the district court or to any county judge. ••• The habeas corpus writ provides illegally detained prisoners with a mechanism for challenging the legality of a custodial deprivation of liberty.

2. Jurisdiction. An application for a writ of habeas corpus to release a prisoner confined under sentence of court must be brought in the county where the prisoner is confined. And where proceedings are instituted in another county, it is the duty of the court, on objection to its jurisdiction, to dismiss the proceedings. ••• Where application is made for a writ of habeas corpus to the district court of a county other than that in which the prisoner is confined and the officer in whose custody the prisoner is held brings the latter into court and submits to the jurisdiction without objection, the prisoner is then under confinement in the county where the action is brought, and the court has authority to inquire into the legality of his or her restraint.

3. Proof. To secure habeas corpus relief, the prisoner must show that he or she is being illegally detained and is entitled to the benefits of the writ.

4. Final Orders: An order denying habeas corpus relief qualifies as a final order. ••• An order granting habeas corpus relief qualifies as a final order.

a. Proof. The test of finality for the purpose of an appeal in a habeas corpus proceeding is not necessarily whether the whole matter involved in the action is concluded, but whether the particular proceeding or action is terminated by the judgment.

Sentences:

1. Equity. Credit for time erroneously at liberty is an equitable doctrine and should be applied only where equity demands its application. ••• No equitable relief is required where a prisoner causes his or her own premature release from prison, thwarts governmental attempts at recapture, or misbehaves while at liberty. ••• Where it is clear that a prisoner had knowledge of a government mistake and made no effort to correct it, equity does not demand credit for time at liberty. ••• Prisoners who had knowledge of a governmental mistake and yet made no effort to correct it—like prisoners who actively cause or prolong a premature release or commit crimes while at liberty—do not deserve sentence credit under the equitable doctrine.

2. Notice. To preserve the right to credit for time spent at liberty, a prisoner who knows his or her release is erroneous must make a reasonable attempt to notify authorities of the mistake. ••• Although the prisoner need not continue to badger the authorities, a reasonable attempt may well include voicing an objection at the time of release or contacting authorities a short time later in order to clarify his or her status.

3. Proof. The prisoner carries the burden to show that the complexity in calculating his or her release date, or some cognitive deficiency, prevented him or her from realizing the release was premature. The government has what essentially amounts to a burden of production to provide the prisoner with any and all records relevant to this inquiry. Such records would include any copies of the original sentencing order, as well as any records related to earned release time, work release, commutations, and any other such materials.

Date Filed and Case No.: February 1, 2008. Nos. S-05-1561, S-06-206.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/february/feb1/s05-1561.pdf

Court Appealed From: District Court for Douglas County: Marlon A. Polk, Judge.

Attorneys for the Appeal: Jon Bruning, Kimberley Taylor-Riley, and Ryan Gilbride for Robert Houston, Director, Nebraska Department of Correctional Services, appellant. Michael D. Nelson, Cathy R. Saathoff and April L. O’Loughlin for David J. Anderson, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Heavican , C. J.

Summary: David J. Anderson, was convicted of two counts of theft by unlawful taking, and a Class III and IV felonies. Anderson was sentenced concurrently to 3 to 5 years’ imprisonment for the Class III felony and 20 months’ to 5 years’ imprisonment for the Class IV felony. On July 8, 2003, the Nebraska Department of Correctional Services (Department) mistakenly released Anderson from incarceration a mere 3 months into his sentence. If Anderson had remained in custody, he would have been eligible for parole on July 14, 2004, with a mandatory release date of July 14, 2005. After the Department discovered its mistake, on September 16, 2003, it filed a motion for capias in the Douglas County District Court. Anderson did not appear at a scheduled hearing on the motion (September 24) so that same day, the district court issued an order directing any law enforcement officers to arrest Anderson. Although the clerk’s office did not issue that warrant for approximately 14 months, in the interim, Douglas County filed a motion for declaration of forfeiture of Anderson’s bail bond (for missing the September 24 hearing.) The court entered a default judgment forfeiting Anderson’s bond. Nine months after the bond forfeiture proceeding, police arrested Anderson during a routine traffic stop and he was then returned to the Nebraska State Penitentiary in Lancaster County. After accounting for the time Anderson was absent from prison, the Department found that his recalculated parole eligibility date was January 9, 2006, and that his new mandatory release date was January 9, 2007. Anderson then filed a writ of habeas corpus and the court granted Anderson’s writ. In response, the Department filed a notice of appeal, (case No. S-05-1561.) And the Nebraska Supreme Court grated their request to bypass the Nebraska Court of Appeals.

Did the district court have jurisdiction? The Department claims that the district court for Douglas County did not have subject matter jurisdiction over Anderson’s habeas petition because Anderson was confined in Lancaster County. The Court said that the argument was actually a challenge to venue, rather than subject matter jurisdiction. (litigants cannot confer subject matter jurisdiction upon a tribunal by acquiescence or consent but venue provisions confer a personal privilege which may be waived by the defendant.) While any and all district courts in Nebraska have subject matter jurisdiction over habeas claims, the question of venue lies in the rule that application for a writ of habeas corpus to release a prisoner confined under sentence of court must be brought in the county where the prisoner is confined and where proceedings are instituted in another county, it is the duty of the court, on objection to its jurisdiction, to dismiss the proceedings. However, the Court found in Gillard v. Clark, 105 Neb. 84, 179 N.W. 396 (1920) as precedent (a narrow exception)

[W]here application is made for a writ of habeas corpus to the d[i]strict court of a county other than that in which the prisoner is confined, and the officer in whose custody the prisoner is held brings the latter into court and submits to the jurisdiction without objection, the prisoner is then under confinement in the county where the action is brought, and the court has authority to inquire into the legality of his restraint.

The Court believed this exception applies here. The Douglas County District Court therefore had authority to consider the legality of Anderson’s restraint.

Was Anderson entitled to day-for-day credit toward his sentence for the time that he (an erroneously released prisoner) spent at liberty? In making this argument, Anderson invoked a line of cases under which erroneously released prisoners received sentence credit based on the belief that prematurely releasing and then reincarcerating a prisoner impermissibly interferes with the prisoner’s right to expeditiously pay his or her debt to society. The Court reviewed the cited authority and noted that by asking for day-for-day credit toward his sentence. Anderson relied solely on the “equitable doctrine of credit for time spent at liberty” outlined in one of the cases. Reviewing and applying the cases where that doctrine was applied, the Court held that prisoners who had knowledge of a governmental mistake and yet made no effort to correct it—like prisoners who actively cause or prolong a premature release or commit crimes while at liberty—do not deserve sentence credit under the equitable doctrine. Such a prisoner has essentially acquiesced in the loss of his or her right to a continuous sentence. To preserve the right to credit for time spent at liberty, a prisoner who knows his or her release is erroneous must make a reasonable attempt to notify authorities of the mistake. The Court said that the record did not conclusively resolve whether Anderson tried to inform officials that his release was premature. It therefore found it necessary to remand this cause for the trial court to determine whether Anderson tried to inform officials of their mistake and, if not, whether Anderson reasonably did not know his sentence was set to expire.

What of the 14-month lag from the date the district court authorized Anderson’s recapture and the date the warrant was actually issued? On remand, the Court directed that the district court make findings regarding the circumstances surrounding lag and determine whether Anderson had or should have had notice of the September 24 hearing on the Department’s motion for capias. The parties should also present evidence with regard to Douglas County’s motion to declare a forfeiture of Anderson’s bond. On remand, the parties should also present evidence as to why the arrest warrant for Anderson was not issued immediately after it was authorized by the district judge.

Conclusion: The Court concluded that the Douglas County District Court had jurisdiction over Anderson’s habeas petition. Anderson was confined in Douglas County at the time of the initial hearing in this case, and the Department waived jurisdiction at the initial hearing. They further concluded that the district court erred in granting Anderson’s habeas claim. The equitable doctrine of sentence credit for time spent at liberty should not apply in cases where the prisoner (1) caused or prolonged the premature release, (2) committed crimes while at liberty, or (3) knew the release was premature yet failed to bring the mistake to the government’s attention. Because the Court could not determine, based on this record, whether Anderson attempted to inform authorities of their mistake, they found it necessary to remand with the instructions set out above.

Incarceration, Mistaken Release, Credit for Time at Liberty

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Anderson v. Houston, 274 Neb. 916 (2008)

Supreme Court Headnotes

Judgments:

Habeas Corpus:

1. Appeal and Error. On appeal of a habeas petition, an appellate court reviews the trial court’s factual findings for clear error and its conclusions of law de novo.

Jurisdiction:

1. Appeal and Error. If the court from which an appeal was taken lacked jurisdiction, the appellate court acquires no jurisdiction.

3. Final Orders: Appeal and Error. A trial court is divested of jurisdiction when a party perfects appeal of a final order.

Habeas Corpus.

3. Proof. To secure habeas corpus relief, the prisoner must show that he or she is being illegally detained and is entitled to the benefits of the writ.

4. Final Orders: An order denying habeas corpus relief qualifies as a final order. ••• An order granting habeas corpus relief qualifies as a final order.

Sentences:

Date Filed and Case No.: February 1, 2008. Nos. S-05-1561, S-06-206.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/february/feb1/s05-1561.pdf

Court Appealed From: District Court for Douglas County: Marlon A. Polk, Judge.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Heavican , C. J.

The Court believed this exception applies here. The Douglas County District Court therefore had authority to consider the legality of Anderson’s restraint.

Partnership, Definition

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In this case, the Nebraska Supreme Court answers the questions of the burdens of proof as to whether a partnership was created.

In Re Dissolution & Winding Up of Keytronics, 274 Neb. 936 (2008)

Supreme Court Headnotes

Partnerships:

1. Co-ownership generally addresses whether the parties share the benefits, risks, and management of the enterprise such that (1) they subjectively view themselves as members of the business rather than as outsiders contracting with it and (2) they are in a better position than others dealing with the firm to monitor and obtain information about the business.

2. Appeal and Error. In considering the proper standard of review for the question of the existence of a partnership, an appellate court applies the standard of review generally applicable to the underlying action.

3. Equity: Appeal and Error. An action for the dissolution of a partnership and an accounting between partners is one in equity and is reviewed in the appellate court de novo on the record.

4. Intent. A business qualifies under the “business for profit" element of Neb. Rev. Stat. § 67-410(1) (Reissue 2003) so long as the parties intended to carry on a business with the expectation of profits. ••• If the parties’ voluntary actions form a relationship in which they carry on as co-owners of a business for profit, then they may inadvertently create a partnership despite their expressed subjective intention not to do so. ••• Being “co-owners” of a business for profit does not refer to the co-ownership of property, but to the co-ownership of the business intended to garner profits.

5. Proof. The burden of establishing the partnership is upon the party asserting that such a relationship exists. ••• In an action inter sese between alleged partners, the party asserting the existence of a partnership must prove that relationship by a preponderance of the evidence. ••• The objective indicia of co-ownership are commonly considered to be: (1) profit sharing, (2) control sharing, (3) loss sharing, (4) contribution, and (5) co-ownership of property. The five indicia of co-ownership are only that; they are not all necessary to establish a partnership relationship, and no single indicium of co-ownership is either necessary or sufficient to prove co-ownership.

6. Words and Phrases. Co-ownership distinguishes partnerships from other commercial relationships such as creditor and debtor, employer and employee, franchisor and franchisee, and landlord and tenant.

Date Filed and Case No.: February 1, 2008. No. S-06-690.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/february/feb1/s06-690.pdf

Court Appealed From: District Court for Buffalo County: John P. Icenogle, Judge.

Attorneys for the Appeal: Mitchel L. Greenwall for Scott Willson, appellant. Bradley D. Holbrook for Don King, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: McCormack, J.

Summary: The issue in this case is whether a business partnership was formed between Don King and Scott Willson and, if so, what business activities were part of that partnership. The Uniform Partnership Act of 1998 (the Act), at § 67-410(1), states that “the association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership.” Willson brought an action for the winding up and an accounting, alleging formation of a partnership, and King counterclaimed for wrongfully withholding property, denying the partnership. The district court found that King and Willson had “pooled resources, money and labor,” but found no partnership existed because there was no “specific agreement.” Alternatively, the court found that because King did not commit his preexisting business to any specifically formed partnership, the scope of the partnership did not encompass any activity-garnering profits. Willson appealed the district court’s order.

Did the district court err in finding that there was no partnership under Nebraska law? The Nebraska Supreme Court noted that § 67-410(1) of the Act defines that a partnership is formed by “the association of two or more persons to carry on as co-owners a business for profit” and explains that this is true “whether or not the persons intend to form a partnership.” The Court found it obvious that the relationship between King and Willson is “of two or more persons” and that a business qualifies under the “business for profit” element of § 67-410(1) so long as the parties intended to carry on a business with the expectation of profits. Here, the elements disputed by the parties were whether there was an “association” formed for QuikPay business (the “QuikPay” system is a cashless vending system for carwashes) and whether such association, if created, was as “co-owners.” The Court began its analysis by saying that the existence of a partnership is a question of fact under the evidence and that this is an action for an accounting (which lies in equity with a de novo on the record standard of review. By eliminating any common-law distinctions as to the burden of proof between actions alleging a partnership inter sese and actions by third parties the Court said that the burden of proof in partnership determinations is preponderance of the evidence. The Court believed the evidence was clear that King and Willson formally associated to develop a key dispenser-revalue station (to recharge Quikpay “keys”) and that further, this association expanded in scope to encompass all QuikPay operations. The Court concluded on its review of the record that the objective, as well as subjective, indicia were sufficient to prove co-ownership of the business of selling, maintaining, and developing QuikPay. Having already concluded that there was an association for the same, they concluded that Willson proved that he and King had formed a partnership for the business of selling, maintaining, and developing QuikPay.

Conclusion: Because Willson proved a partnership relationship with King, the Court said he is entitled to a winding up and an accounting in accordance with the Act. The district court erred in concluding otherwise. Accordingly, they reversed the decision and remanded the cause for further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.