# Reply Brief — Waite v. Carpenter

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0814%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1093

## Text

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Docket No. 95-798

-

IN THE SUPREME COURT.OF
THE UNITED STATES

October 1995 term

GLENN R. WAITE,
Petitioner,
vs.
SCOTT CARPENTER, M.
Bt. Al.,

Respondents.

On Petition For Writ Of Certiorari
To The Nebraska Supreme Court and
The Nebraska Court of Appeals

PETITIONER’S REPLY BRIEF

Glenn R. Waite,
1202 West 28th St
Cheyenne, WY 82001
307-634-8712
Petitioner

Questions Presented
Petitioner rejects the Respondents
restatement of the Questions presented since
this Court always determines whether it has
jurisdiction. The Questions presented are:

(1) May the Nebraska Courts refuse to
determine the federal question of whether
the trial court violated the rights of Glenn
R. Waite, under the 14th amendment to the
U.S. Constitution, by claiming that the
trial court, under the law of the case
doctrine, lacked jurisdiction to consider
his motions when the federal question was
presented for the first time on this appeal?

(2) Can the Nebraska Courts deny Glenn
R. Waite, a resident of Wyoming, his
constitutional rights under Article IV,
section 2, clause 1, and Amendments 1 and 14
of the U.S. Constitution by holding that the
trial court,under law-of-the-case doctrine,
lacked jurisdiction to consider his motions
to vacate a judgment of dismissal alleged to
be void because a disqualified judge heard
arguments at the hearing which lead to
dismissal and the court failed to bring all
indispensable parties into court when the
Nebraska courts allow its own residents the
privilege of vacating a void judgment at any
time (even after decision is affirmed on
appeal ) and the privilege of admitting
newly discovered evidence as if no appeal
had been taken and the privilege of having
all indispensable parties whose rights will
be affected brought into court before a
final decision is rendered?

(3) Did the Nebraska trial court
violate the rights of Glenn R. Waite, under
the 14th amendment to the U.S. Constitution,
on September 3, 1991, when the court
provided him with a disqualified judge and,
on April 11, 1994, when the court had not
disposed of a Motion for Continuance and
Motion for Change of Judge and had not
provided him with an opportunity to show why
the judge should recuse himself?

ands

s 1 arti

The Respondents state [Brief Opp. ii]
that the petitioner’s list of parties is
acceptable with the exception that the
Petitioner in the underlying proceedings was
"Glenn R. Waite, Personal Representative for
the Estate of Harriet I. Waite, deceased"
not "Glenn R. Waite" as denominated in
Petitioner’s Petition for Writ of
Certiorari". However,"Glenn R. Waite" is the
only real party in interest in the cases.

It was "Glenn R. Waite" who filed the
original cases on April 8, 1995 in the name
of "Glenn R. Waite, Personal Representative
of Harriet I. Waite, deceased". On or About
August 7, 1991, the Respondents filed a
motion for summary judgment against "Glenn
R. Waite, Personal Representative of Harriet
I. Waite, deceased", not against "Glenn R.
Waite". Thereafter, one of the Personal
Representative’s attorneys entered a general
appearance and appeared at the September 3,
1991 hearing. The judgment was only against
the personal representative and another of
his attorneys prosecuted the first appeal
[App. of Pet. 32] and represented only the
personal representative interests. Then, it
was "Glenn R. Waite" who prosecuted the
second appeal [Reply Brief App. 1].

"Glenn R. Waite, Personal
Representative of Harriet I. Waite,
deceas 2d" represents the beneficial

interests of "Glenn R. Waite" in the estate
because he the sole distributee [App. of
Reply Brief 2-4]. A personal representative
of a decedent only represents the benefical
interests of the successors to the estate
assets and the rights of the decedent, but
he cannot represent the individual
constitutional rights and property rights of
the heirs. Therefore, "Glenn R. Waite" is an
indispensabie party in this proceeding in
order to represent his own federal rights.

-ii-

TABLE

2a

$
Q
Oo
lz
4
rs
tz
=
in

Questions PreSented....--eee reece eeeeeeeees i

Pime OF PETELOBe cccccccccesseccesecccceces ij

Tahle Of CONTENTS... cccccccccccsscsccceves iii
Table of AuthoOritieS.... cee cceeceseeseses LV
Opinions BELOW... cess eeeeeerereseereceees ]

Summary of the Rebuttal Argument.......+++-- l
Reasons for Granting the Writ....--.-seeeeeed

I. Respondents concede that Petitioner
raised a federal question in his
objection to the Respondents’ motion for
summary affirmance, but fail to point out
that their Motion for Dismissal &
Affirmance and Memorandum Brief for the
first time raised the "law-of-the-case
doctrine" issue which addressed
Petitioner’s rights under Art.IV, sec. 2,
cl. 1 and amendments 1 and 14 of the U.S.
i eee eee eC eee rereeeneed

II. Respondents claim that any federal
question raised by the Petitioner was not

decided adversly to the Petitioner
because the Court of Appeals overruled
the Respondents’ Motion for Summary

Affirmance. However, the Respondents fail
to point out that the Court of Appeals
did in fact decide the "law-of-the-case
doctrine" issue (which was a central
issue raised in the Respondents’ Motion
for Dismissal & Summary Affirmance)
adversly to the Petitioner by finally
holding that, under the law-of-the-case
doctrine, trial court lacked jurisdiction
to consider plaintiff’s motion...........-- 6

Table of Contents ~-Continued
Page

III. Respondents simply state that even
if Petitioner had raised a federal
question below, the two underlying
decisions found at Waite I and Waite MII
are based on sound state law that has. no
bearing on any federal issue. However,
Respondents fail to cite any state cases
to support the fact that the decision in
fact rests on an adequate and independent
state substantive ground.......ccescsevvees 7

eg te ean re peas ea 4 as LO

Cases:

Page
Abie State Bank v. Bryan, 282 US 70>,
75 Led 690 LTSDE Dc cccncccccrrereresrrveres® 8

Chicago B. & O Ry. Co. v. Illinois, 200
US 561, 50 L Ed 596, 26 S Ct 341 (1906).7, 9

Ford v. Georgia, 498 US 411, 112 L Ed2d
935, 111 5S Ct B50 (1991)--eeeeeererrrrrrre® 8

Fuentes v. Shevin, 407 U.S. 67, 32
L Ed 2d 556, 92 $ Ct 1983 (1972). eeeeeerrers 4

Goss _v. Lopez, 419 U.S. 565, 42 L Ed 2d
7125, 95 S Ct 129 (1975) ccccccscercseeeree® 4

115 N.W.773 (1908), 73ALR2d 1286.cccccccseces 4

Howlett v. Rose, 496 U.S., 110 L Ed 2d
332, 110 S Ct 2430 (1990) --eeceereerrerrrr?’ 8

In re Wecker’s Estate, 123 Neb. 504,
P43 WW. 642 (1932) -cececccercseeererrsee’’ 9

Johnson v. Mississippi, 403 U.S. 212,
29 L Ed 2d 423, 91 S Ct 1778 (1971).-+eeee 5

193 NoWe 345 (1923) eccoccccccccccerrcrreess &

Re Murchison, 349 U.S. 133, 99 L Ed 942,
75 S$ Ct 623 (4OGG) ic icdcveeresn cet Cte renee = 5

Security State Bank v- Gugelman, 230

a

Neb. 842, 434 N.W.2d 290 (1989)--++eeeeee%" 9

System Meat Co. v. Stewart, 190 Neb.

682, 211 m.W.26 902 (197s) eccccesoecere” 6, 9

Tank v. Peterson, 928 Neb. 491, 423
NW. 2d 752 (1988).--eeereerrrrrrrrrrrrrrrr® y)

SS
Oe

Table of Authorities - continued

United States v. United States Smelting, R.

& M. Co., 339 US 186, 94 L Ed 750 (1949).10

Waite v. Carpenter, et. al., 1 Neb.

App. 321, 496 N.W.2d 1 (1992)........ 1, 8, 9

Waite v. Carpenter, et. al., 3 Neb.
App. 879, 533 N.W.2d 917 (1992)..7, 8, 9, 10

Ward v. Monroeville, 409 U.S. 57, 34

Ce Se S6t, SO © GG OO 42088 « c cccccecaces 5
Wardius v. Oregon, 412 US 470, 37

L Ed2d 82, fe ww Ge a2aee Laer eheoceceeces 2een
Watkins v. Dodson, 159 Neb. 745,

68 Y.W.2 Dae CBewer 6664s 66s toes bebe scesssé 4
Wicker v. Vogel, 246 Neb. 601, 521

& fe) Be yee). |} Pee ee ee ee eee 9
Williams v. Bruffy, 102 U.S. 13:

ee Oe Fe aaa eee
Wisconsin v. Constantinea 133,

27 L Ed 2 349, 93 8S Gt SreTTTrey 4

Statutes and Other Authorities:

Neb. Rev. Stat. section 30-24
Tre De) 6506056 6b e bee ees eat ee eee ees 4

U.S. Constitution, Art. IV, sec 2, cl. 1 and

rrr 2 Me Biles os os eoeeeeebeaceeseans a
Nebraska Constitution, Art. I, sec 13...... 3

Rule 14.1 of the New Rules of the Supreme
Court, 161 F.R.D. 483 (19958) ccccccccccccce ]

-vi-

To the Honorable Supreme Court:

Petitioner, Glenn R. Waite, most
respectively requests that this Court grant
his Petition for Writ of Certiorari to the
Nebraska Court of Appeals because (1)
Petitioner set up and claimed a title,
right, privilege or immunity under the U.S.
Constitution, (2) the Nebraska Court of
Appeals decided the federal claims against
the petitioner, and (3) the decision of the
Nebraska Court of Appeals does not rest on
independent and adequate state grounds.

OPINIONS BELOW

The Respondents [Brief Opp. 1] fail to
cite the opinion of the Nebraska Probate
Court which is in the Petition [Pet. 6 and
49-58]. Apparently, the Respondents do not
want this Court to recognize the individual
rights of Petitioner 4s heir of decedent.

Rule 14.1 of the New Rules of the
Supreme Court of the United States (161
F.R.D. 483 at 492 (1995) states that the
Petition must include "orders entered in the
case by courts or admininstrative agencies".
This would include any orders by the
Nebraska Probate Court.

SUMMARY OF THE REBUTTAL ARGUMENT

Respondents do concede that Petitioner
raised a title, right, privilege or immunity

under the U.S. Constitution in the
Petitioner’s Objection to Respondents’
Motion for Summary Affirmance [Brief Opp.
4], but Respondents fail to recognize that

(1) the Nebraska Court of Appeals decided
the federal claims against the petitioner,
and (2) the decision of the Nebraska Court
of Appeals does not rest on independent and
adequate state grounds. This Court has
jurisdiction to hear the petition.

ate

+

REASONS FOR GRANTING THE WRIT OF CERTIORARI

There are three reasons why this Court
should grant the Petition for writ of
Certiorari to the Nebraska Court of Appeals:
(1) Petitioner set up and claimed a title,
right, privilege or immunity under the U.S.
Constitution, (2) The Nebraska Court of
Appeals decided the federal claims against
the petitioner, and (3) the decision of the
Nebraska Court of Appeals does not rest on
independent and adequate state grounds.

I. Respondents concede that Petitioner
raised a federal question in his objection
to the Respondents’ motion for summary
affirmance, but fail to point out that their
Motion for Dismissal & Affirmance and
Memorandum Brief for the first time raised
the "law-of-the-case doctrine" issue which
addressed Petitioner’s rights under Art. IV,
sec 2, cl. 1 and amendments 1 and 14 of the
U.S. Constitution.

The Respondents, W. Scott Carpenter,
M.D. et. al., in their Memorandum Brief in
Support of Motion for Summary Dismissal and
Affirmance argue that Section I of
Appellant’s Brief raises only issues that
should have been raised in the previous
appeal. That Memorandum Brief states:
"Clearly these issues are issues that
should have been raised, and could have
been raised, and probably were raised, by
Appellant in his previous appeal and
fully adjudicated by this court in its
previous opinion. As such, this court’s
previous opinion and the Nebraska Supreme
Court’s overruling of appellant’s
Petition for Review becomes the law of
the case and Appellant is bound by those

decisions."
In opposition to this argument by
Respondents, the Petitioner, referring to

-2-

Section I of his Appellant Brief which
claimed a federal right ("Plaintiff has a4
right of access to the courts protected by
Art. 1 sec 13 of the Nebraska Constitution
and Art. 4, sec. 2, cl. 1 and amendments 1
and 14 of the U.S. Constitution." [Petition

9]}), argued that the federal claim was a new
fact issue not disposed by the previous
appeal and stated the following to support
his federal claim:
"THE TRIAL COURT’S VIOLATION OF THE RIGHT'S
OF GLENN R. WAITE UNDER THE FOURTEENTH
AMENDMENT _TO_ THE UNITED _ STATES
CONSTITUTION IS A SUBSTANTIAL QUESTION FOR
2FVIEW IN THIS APPELLATE COURT. In
cooperation with the Appellees, the trial
court as a judicial branch of the State of
Nebraska has twice violated my rights
under the fourteenth amendment to the
United States Constitution which states:
"All persons born or naturalized in the
United States, and subject to the
jurisdiction thereof, are citizens of
the United States and of the State
wherein they reside. No State shall make
or enforce any law which shall abridge
the privileges or immunities of citizens
of the United States; nor shall any

State deprive any person of life,
liberty, or property, without due
process of law; nor deny any person
within its jurisdiction the equal

protection of the laws."
The trial court has twice deprived me of
life, liberty, or property, without due
process of law. First, in the trial court
on September 3, 1991 when 4a disqualifed
judge participated in the hearing and
Second, when the Honorable Judge Kortum
presided in the hearing on plaintiff’s
motion for new trial when a motion and
affidavit of disqualification appeared in
the court records and was not disposed of
prior to the hearing. An application for a

-3-

a

change of judge is timely if made upon the
disqualifying facts, even though this is
beyond the time normally allowed for the
application; Harrington v. Hayes County,
81 Neb.231,115 N.W.773(1908),73ALR2d 1286.

A chose in action is property of
intestate which devolves by statute of
descent upon the next of kin instantly at

death. Neb. Rev. Stat. section 30-2401

(Reissue 1989). Property acquired by
statutory entitlement is protected by the
fourteenth amendment; Fuentes v. Shevin,

407 U.S. 67, 32 L Ed 2d 556, 92 S$ Ct 1983
(1972). Where the judicial branch of the
State of Nebraska holds a hearing on
Appellees’ motion for summary judgment
raising the issue of unauthorized practice
of law of the personal representative, it
goes to matters of the personal
representative’s good name, reputation,
honor, or integrity. The requirements of
procedural due process are applicable
where a state attaches a badge of infamy
to a citizen. The due process clause
forbids a State from depriving a person of
his liberty without due process of law;
Wisconsin v. Constantineau, 400 U.S. 433,
27 L Ed 2d 515, 91 S Ct. 507 (1971) and
Goss v. Lopez, 419 U.S. 565, 42 L Ed 2d
725, 95 S Ct 729 (1975). The indispensible
elements of due process are tribunal with
jurisdiction, notice of hearing to the
proper party, and an opportunity for a
fair hearing according to applicable

principles; "Due process of law" implies
the right of the person affected to be
present before the tribunal which

pronounces judgment upon the question of
life, liberty or property, to be heard by
testimony or otherwise and to have the
right of controverting by proof every
material fact which bears on the question
of right in the matter involved; Watkins
v. Dodson, 159 Neb. 745, 68 N.W.2d 508

-i-

(1955). On pages 30 through 34 of
Appellant’s brief, Appellant discusses his
right to be heard by testimony or
otherwise, and how trial court abused this
process.

A fair trial, as required by due
process, requires not only an absence of
actual bias on the part of the judge, but
also that no man be a judge in his own
case or try cases where he has an interest
in the outcome; Tumey v. Ohio, 273 U.S.
509, 71 L Ed 749 (1926); Re Murchison, 349
U.S. 133, 99 L Ed 942, 75 S$ Ct 623 (1954);
Johnson v. Mississippi, 403 U.S. 212, 29 L
Ed 2d 423, 91 S Ct 1778 (1971); and Ward
v. Monroeville, 409 U.S. 57, 34 L Ed 2d
267, 93 S Ct 80 (1972). The unfair trial
cannot be corrected upon appeal. See Ward
Ve Monroeville, supra. A financial
interest of a court in its decision
constitutes that an unfair and partial
tribunal within the prohibition of the
14th Amendment; Tumey v. Ohio, supra. In
Tumey v. Ohio, supra, the court stated:

"Every procedure which would offer a

possible temptation to the average man

as a judge to forget the burden of

proof required to convict the
defendant, or which might lead him not
to hold the balance nice, clear and

true between the state and the accused

denies the latter due process of law."

Where the trial court denies a
litigant’s request for a hearing on the
merits and for an opportunity to show why
a judge should recuse himself, it
violates due process under the 14th
amendment; Johnson v. Mississippi, supra.
Even if a litgant failed to move under a
state statute for the disqualification of
a judge to sit, he may urge in the U.S.
Supreme Court that his trial before the
judge violated his 14th amendement
rights; Ward v. Monroeville, supra."

e
—\

It is quite clear that Petitioner set _up

and claimed _a right unr the U, Ss.
C Lo ot lief and
in his obje cates and pte nt onl brief in
opposition to the Respondents’ Motion for
Dismis & Summa irmance.

II. Respondents claim that any federal
question raised by the Petitioner was not
decided adversly to the Petitioner because
the Court of Appeals overruled the
Respondents’ Motion for Summary Affirmance.
However, the Respondents fail to point out
that the Court of Appeals did in fact decide
the “law-of-the-case doctrine" issue (which
was a central issue raised in the
Respondents’ Motion for Dismissal & Summary
Affirmance) adversly to the Petitioner by
finally holding that, under the
law-of-the-case doctrine, trial court lacked
jurisdiction to consider plaintiff’s motion.

Respondents state [Brief Opp. 8] that
the requirements that the federal question
was actually decided adversly to Petitioner
are clearly not met.

Respondents are correct that the Court of
Appeals overruled their motion for _ summary
affirmance. However, Respondents fail to
point out from the record that the Court of
Appeals did in fact rule adversly to
Petitioner on the law of the case doctrine
issue [App. of Pet. 22-25]. This issue
involved a federal question which was raised
in the Respondents’ Memorandum Brief in

Support of their Motion for Summary
Affirmance and in Petitioner’s Objection and
Memorandum Brief in Opposition to

Respondents’ Motion as set forth previously.
The law of the case doctrine does not apply
where the issues are different and the
parties are acting in different capacities;
System Meat Co. v. Stewart, 190 Neb. 682,
211 N.W.2d 902 (1973). Petitioner has

-§-

$< I ee

clearly shown that the issue in Waite II 1s
whether the trial court’s judgment in Waite
I is a valid judgment and the issue turns on
a federal question, whereas, in Waite I, the
issue was whether the pleadings were 4a
nullity and the validity of the judgment was
not raised or decided in Waite I. However,
in Waite II, the Court of Appeals decided
the validity of the first judgment which
decision turned on a federal question and
used a local rule or procedure to defeat
federal jurisdiction. In Chicago B. & 0 Ry-
Co. _ V- Illinois, 200 US 561, 50 L Ed 596, 26
S Ct 341 (1906), the court held that failure
to recognize 4 federal right or immunity,
and the decision of the case on some ground
of general or local law, necessarily has the
same effect as if the claim of Federal right
or immunity had been expressly denied.

It is quite clear that the federal
questions raised by the Petitioner were
necessary to the state court’s determination
of the law of the case doctrine issue and
were decided adversly to Petitioner by the
Nebraska Court of Appeals.

III. Respondents simply state that even if
Petitioner had raised 4a federal question
below, the two underlying decisions found at
Waite I and Waite II are based on sound
state law that has no bearing on any federal
issue. However, Respondents fail to cite any
state cases to support the fact that the
decision in fact rests on an adequate and
independent state substantive ground.

Respondents merely state [Brief Opp.
8-9] that the decisions in Waite I and Waite
II are based on sound state law without
citing any state cases to support their
position and without examining the decisions

in substance to see if the decisions do in
fact rest on independent and adequate state
-J-

substantive grounds. This Supreme Court
rejects any claims that an adequate state
ground exists where no state cases are cited
in support of this proposition; Wardius v.
Oregon, 412 US 470, 37 L Ed2d 82, 93 S Ct
2208 (1973). The Supreme Court has an
independent obligation to ascertain whether
an asserted non-federal ground independently
and adequately supports the judgment of a
state court and has a fair or substantial
basis; Howlett v. Rose, 496 U.S., 110 L Ed
2a 332, 110 S Ct 2430 (1990). Where a
federal ground being present, it is
incumbent upon the Supreme Court of the
United States, when it is urged that the
decision of a state court rests upon a state
ground, to ascertain for itself, in order

that constitutional guarantees may
appropriately be enforced, whether the
asserted state ground independently and

adequately supports the judgment; Abie State
Bank v. Bryan, 282 US 765,75 Led 690 (1931).

Is the state ground substantially adequate?

In Ford v. Georgia, 498 US 411, 112 L Ed2d
935, 111 $8 Ct 850 (1991), this Court held
that only a state practice that is "firmly
established and regularly followed" at _ the
time at which it is applied may be
interposed to prevent subsequent review
by this Court.

In Waite II, the Court of Appeals held
that, under the law-of-the-case doctrine,
trial court lacked jurisdiction to consider
plaintiff’s motion. However, in Waite II the
issues and questions are different from the
questions in Waite I.

It is an established rule of law in
Nebraska that where the issues and questions
are different between the first appeal and
the second appeal, the "law of the case
doctrine" does not apply; Nedela _v. Mares
Auto Co., 110 Neb. 108, 193 N.W. 345 (1923);

~

-4-

In re Wecker’s Estate, 123 Neb. 504, 243
N.W. 642 (1932); System Meat Co. V. Stewart,
190 Neb. 682, 211 N.W.2d 902 (1973); Tank v.
Peterson, 228 Neb. 491, 423 N.W.2d 752
(1988); Security State Bank v. Gugelman, 230
Neb. 842, 434 N.W.2d 290 (1989); and Wicker
v. Vogel, 246 Neb. 601, 521 N.W.2d 907
(1994). I find no cases in Nebraska which
thange this rule of law.

The Court of Appeals did not strictly
and regularly follow this state procedural
rule in Waite II. In Waite II, the issue is
whether the former judgment is void and
whether the trial court violated the
petitioner’s rights under the 14th amendment
to the U.S. Constitution; whereas in Waite
I, the issue was only whether or not there
was any genuine issue as to any material
fact as to whether the personal

+

representative’s pleadings were a nuiilty.

Is the state ground independent?

The U.S. Supreme Court may review th
liecision of the highest court »f 1 State,

which affirms or denies the validity of the
judgment of an inferior court over which it
has authority if such decision invoives
federal question; Williams v. Bruffy, 10;
U.S. 135 (12 Otto 248) (1880). If the state
ground is so interwoven with the federal
yround as not to be an independent matter or!
is not of sufficient breath to sustain the
judgment without any decision on the federal
ground or is a mere device to prevent
review of the decision upon the federal
question, and if a federal right or immunity
was specially set up and claimed which, if
recognized enforced, would require a
different judgment, the Supreme Court’s
jurisdiction is plai licago B. . © Ry.
Co. v. Illinois, 200 US 561, 50 L Ed 596, 26
} Ct 341 (1906).

[If Waite I is sonstitutionally invalid

©
_
oF

because the trial court and court of appeals
violated Petitioner’s 14th amendment rights,
then it would require a different judgment

in Waite II because the "law-of-the-case"
doctrine like res judicata does not apply
where the former judgment is
constitutionally invalid or not final;

United States v. United States Smelting, R.
& M. Co., 339 U S 186, 94 L Ed 750 (1949).

Furthermore, cases 38269, 38270, and
38279 assigned to Judge Robert O. Hippe in
the Scotts Bluff District are still pending
and the federal case against Judge Robert O.
Hippe and Attorney James A. Snowden is still
pending on appeal (App. of Pet. 87-88).

It is clear that the Judgment in Waite
v. Carpenter, et. al., 3 Neb. App. 879, 533
N.W.2d 917 (1992) does not rest on adequate
and independent substantive state grounds.

CONCLUSION

Petitioner, Glenn R. Waite, prays’ that
this Court will grant his petition for writ
of certiorari to the Nebraska Court of
Appeals because (1) Petitioner set up and
claimed a title, right, privilege or
immunity under the U.S. Constitution, (2)
the Nebraska Court of Appeals decided the
federal claims against the petitioner, and
(3) the decision of the Nebraska Court of
Appeals does not rest on independent and
adequate substantive state grounds. This
Court has jurisdiction under 28 U.S.C. 1257.

Respectively Submitted,

Glenn R. Waite
Petitioner

1202 West 28th St.
Cheyenne, WY 82001
307-634-8712

-10-

REPLY BRIEF APPENDIX

TABLE OF CONTENTS

Notice of Appeal rrr rer rye Peet sal cee

APPENDIX

IN THE DISTRICT COURT OF SCOTTS BLU!
COUNTY, NEBRASKA
GLENN R. WAITE, )
Plaintiff, NO.
W. SCOTT CARPENTER, M.D., NOTICE
REGIONAL WEST MEDICAL CENTER, ) OF
SCOTTSBLUFF INTERNAL APPEAL
MEDICINE GROUP,
Defendants.
TO: W. SCOTT CARPENTER, M.D.; REGIONAI WES
MEDICAL CENTER; AND SCOTTSBLUFF INTERNAI
MEDICINE GROUP AND THEIR ATTORNEYS )F
RECORD: Mark E. Novotny, 10306 Regency
Parkway Dr., Omaha, NE 68114; & James A.
Snowden, 1000 NBC Center, Lincoln, NE 68505;
Plaintiff, Glenn R. Waite,
individually, as the sole distributee and
sole beneficiary of the estate of Harriet
Waite hereby notifies you that he intends t
prosecute an appeal to the COURT OF APPEALS
/ SUPREME COURT for the State of Nebraska
from the decision of the honorable Judge
Alfred J. Kortum on April 18, 1994 in which
he overruled the Plaintiff’s Motion for New
Trial which was heard by Judge Kortum
chambers.

nated this the_2nd day yf May 1994.
GLENN R. WALI
Plaintiff
1202 West St t
ad <7

CERTIFICATE OF SERVICE

The undersigned hereby certifies that
he caused a true and correct copy of the
foregoing Notice of Appeal to be served upon
Mark E. Novotny, 10306 Regency Parkway Dr.,
Omaha, NE 68114; and James A. Snowden, 1000
NBC Center, Lincoln, NE 68508 by regular U.
S. Mail this the_2d day of__May 1994.

Glenn R. Waite

IN THE COUNTY COURT OF SHERIDAN COUNTY,

NEBRASKA
IN THE MATTER OF THE ) NO. PRIO-78
ESTATE OF HARRIET ) DISTRIBUTION OF
I. WAITE, Deceased ) ESTATE ASSETS

COMES NOW, Glenn R. Waite, Personal
Representative of the above decedent, and
hereby, pursuant to section 30-24,105 of the
Neb. Rev. Stat. (Reissue 1989), assigns,
tranfers and releases all interests in the
foliowing estate asset:

the chose in action involving a claim
for negligence in the care and treatment of
the Decedent, Harriet I. Waite,

to himself, Glenn R. Waite,
individually, who is the sole heir at law
under intestate succession and the sole
beneficiary of the decedent’s estate.

Glenn R. Waite, Personal Representative
of the above decedent, being first duly
Sworn on oath, deposes and states the
following based on personal knowledge:

Harriet I. Waite died intestate on
April 17, 1989 and her only surviving spouse
was Peter A. Waite, and her only surviving
issue were Beverly E. Sipple, natural
daughter; Doris R. Butler, natural daughter;
and Glenn R. Waite, natural son. Peter A.
Waite, Beverly E. Sipple, Doris R. Butler,
and Glenn R. Waite are the sole and only
heirs at law of the above decedent. There
are no other natural or legal heirs.

-2=-

All heirs, excepting Glenn R. Waite,
have filed with the clerk of this court 4a

written instrument of Renunciation of
Succession, Affidavit, and Assignment. This
leaves Glenn R. Waite to be the sole
surviving heir at law under intestate

succession.
Glenn R. Waite
Personal Representative
1202 West 28th St.
Cheyenne, WY 82001

STATE OF WYOMING )} ss.
‘OUNTY OF LARAMIE )

ACKNOWLEDGMENT:

Before me personally appeared Glenn R.
waite and he acknowledged the above document
and signed the execution of the above in my
presence.

Notary Public
Dated this the 29th day of November 1995.

IN THE COUNTY COURT OF SHERIDAN COUNTY,
NEBRASKA

IN THE MATTER OF THE ) NO. PRIO-78
ESTATE OF HARRIET ) DISTRIBUTION OF
I. WAITE, Deceased ) ESTATE ASSETS

COMES NOW, Glenn R. Waite, Personal
Representative of the above decedent, and
hereby, pursuant to section 30-24,105 of the
Neb. Rev. Stat. (Reissue 1989), assigns,
tranfers and releases all interests in the
following estate assets:

Any and all property, real or personal,
wherever stituated; any and all causes of
action, and any other estate assets,
wherever situated,

to himself, Glenn R. Waite,
individually, who is the sole heir at law
under intestate succession and the _ sole
beneficiary of the decedent’s estate.

Glenn R. Waite, Personal Representative
of the above decedent, being first duly
Sworn on oath, deposes and states the
following based on personal knowledge:

Harriet I. Waite died intestate on
April 17, 1989 and her only surviving spouse
was Peter A. Waite, and her only surviving
issue were Beverly E. Sipple, natural
daughter; Doris R. Butler, natural daughter;
and Glenn R. Waite, natural son. Peter A.
Waite, Beverly E. Sipple, Doris R. Butler,
and Glenn R. Waite are the sole and only
heirs at law of the above decedent. There
are no other natural or legal heirs or
interested persons in the estate. The
decedent had no debts when she died and
there have never been any claims filed
against the personal representative.

All heirs, excepting Glenn R. Waite,
have filed with the clerk of this court a

written instrument of Renunciation of
Succession, Affidavit, and Assignment. This
leaves Glenn R. Waite to be the sole

Surviving heir at law under intestate
Succession and sole distributee.

Glenn R. Waite
Personal Representative
1202 West 28th St.
Cheyenne, WY 82001
STATE OF WYOMING ) Ss.
COUNTY OF LARAMIE )

ACKNOWLEDGMENT:

Before me personally appeared Glenn R.
Waite and he acknowledged the above document
and signed the execution of the above in my
presence.

Notary Public
Dated this the__lst. day of__November_ 1995.

—
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0814%3A3. Public record. Not legal advice.