Petition for Rehearing — Marvin v. Fraternal Order of Eagles Aerie #200 (No. 08-657)

08-65 =

IN THE

Supreme Court of the United States

Lawrence D. Marvin,

Petioner

.

Fraternal Order of Eagles Aerie #200,

Respondents

On petition for Rehearing for Writ of Certiorari to the

Nebraska Supreme Court

PETITION FOR WRIT OF CERTIORARI

(MR.) LAWRENCE D. MARVIN

Pro se

[OOF Building Suite 201

635 North Main Street

Fremont, Nebraska 68025

1-402-372-8978

American citizen pro se

bo

1

QUESTIONS PRESENTED

Do you the Court understand or comprehend

that the Respondents are still overtly en-

croaching on this Petitioner’s land and that in

so doing, they are still repeatedly creating

hazards to Life and Safety of Lawrence D.

Marvin-owner of Fee-Simple real estate, also

the hazards are a threat to Marvin’s family,

guests and the public invited onto the com-

mercial property; and the most shameful,

ridiculous and obnoxious fact is that these

present hazards are also a threat to the Life

and Safety of the Respondents, their members,

and their public guests all of whom may need

to use this designated permanent fire exit

egress walkway back to the public alley, in an

emergency. ?

Do you the Court comprehend that Petitioner

only removed the most flagrant obstruction,

which was a thirty six inch humongously

heavy item, which was intentionally place by

hired agents, right in the middle of the des-

ignated forty eight inch wide fire exit egress

permanent walkway route, that leads to the

public alley on the west end of both properties,

and such an obstruction violated our laws,

rules, and regulations of Life Safety Codes

under which Lawrence D. Marvin had a non-

delegatable duty and responsibility to remove

immediatly and that the Respondents also had

the same duty and responsibility under their

Liquor License and also under their buildings

2. continued)

occupancy limits permit from the government?

Why didn’t the Court comprehend that the

Respondent arrogantly, with impunity, vio-

lated the Court Order Remedy #23784, which

should give weight to reduce damages to 50%

or less; as joint Tortfeasor and/or stare decisis?

Why does this Court System look the other

way on trespass of posted property and writ-

ten request to leave, without reducing dam-

ages and waste?

Why doesn’t the Supreme Court comprehend

that the only real damage was to the warran-

ty?

Why doesn’t the Court comprehend that our

Constitution(s) reserve to the citizens all

rights not given to the government. So, if

Court Order #23784 is worthless; if Marvin’s

posted property signage is worthless; the

registered letter from Marvin to Respondent to

get off or the condenser is abandoned and

forfeited, is worthless; and the visits by the

local and State Fire Officials is worthless; and

the dealine of 48 hours has passed is worth-

less; then why shouldn’t damages be reduced

under self-help as self defense and minmizing

damages by preventing tragidies of death and

injuries of dozens of people, family, guests, and

public, which could run into the millions of

1

dollars or does the Court ever recall sending

~~]

10.

property owners to prison and the lawsuits

bankrupt said land owners?

Why shouldn't this Petitioner get some of the

damages and interest returned from the su-

persedeous bond which was trned over to the

Respndents? Or is this petitioner to finance

wrongful behaviors of the Respondents, who

can act abve the law with 100% impunity?

What is a joint tortfeasor, if the Respondents

can unilaterally create fiat leases without pay-

ment of consideration and acceptance by this

petitioner?

Why should this repeated wrongful behavior

presist, like we witnessed resistence to school

integration and school busing, until the Courts

decided to supervise the enforcement of their

court order, so when are you, the Court, going

to supervise the enforcement of Court Order

#23784 which created as a remedy for

Lawrence D. Marvin; this petitioner?

What is the value of stare decises of conver-

sion-Justification 342F Supp. 1048, 1062 if my

United States Supreme Court can’t reduce my

damages; but President Obama can have a

second chance from the Court at getting his

Oath of Office taken according to law?

iv

CERTIFICATE

I Lawrence D. Marvin as Petitioner do hereby swear

that this is my appeal, and that it if made is good faith and not

as a delay tactic.

This petition complies to the Rules as I have read

them and 1s 3000 words or less.

LAWRENCE D. MARVIN, pro se

™

PARTIES TO THE PROCEEDINGS

Lawrence D. Marvin

Pro se petitioner

IOOF Building

635 North Main Street

Fremont, Nebraska 68025

Fraternal Order of Eagles Aerie #200

represented by

S. Nicholas Boggy

Sidner, Svoboda, Schilke, Thomsen

Holtorf, Boggy, and Nick

340 East Military Avenue

Fremont, Nebraska 68025

v1

RELATED PROCEEDINGS

Court Order #23784 REMEDY for Marvin,

ordering FOE Aerie #200 to get off and stay off Mar-

vin’s land. (see Court Exhibit #3)

vil

TABLE OF CONTENTS

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Constitutional Provisions

Statutory Provisions

Evidentiary Provisions

Other Materials

Unconstitutional to require citizens to condone

and/or finance criminal behavior

Clean Hands Doctrine-Old English Court of

Equity

U.C.C. to enforce Civil Rights

PETITION FOR REHEARING FOR WRIT OF

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CONSTITUTIONAL AND STATUTORY................... rs)

Provisions Involved

STATEMENT OF "TRGE CABG 6. oxiicsivnescoeerenseseennees 6

Proceedings Below

Statement of Relevant Facts

REASONS FOR GRANTING THE PETITION FOR

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INDER TO APPENDS. «.+.:1<s00s.-0vsseueans eee 12

A) Dodge County Court

B) Dodge County Court history of case and its

final order

1) Nebraska Court of Appeals

D) Nebraska Supreme Court and Nebraska

Court of Appeals

E}) Dodge County Court

F) Dodge County Court

G) Supreme Court of the United States

1

TABLE OF AUTHORITIES

NONE - Just general knowledge of three branches of

government.

The Declaration of Independence

The Constitution of the United States of America

84th Congress 2nd Session House Document #459

Government Printing Office

Washington, 1956

Major Joint Tortfeaser

Nebraska Revised Statutes

81-501 through 81-541 Assembly Building Permit

28-520 through 28-521 Trespass

28-300 through 28-311.01 Terrorism

Federal CFR 1910.36.

Abuse of Process

Abuse of Discretion

The Commercial Clause of U.S. Constitution with

Protection under the law. Civil Rights Act 1964

2

PETITION FOR REHEARING FOR

WRIT OF CERTIORARI

Petitioner Lawrence D. Marvin respectfully

appeals and prays that a Rehearing for a Writ of Cer-

tiorari be issued to put a stop to the repeated overt

wrongful behavior of Respondents of obstructing

Marvin's fire exit egress, and on modern day Terror-

ism, Hate Crimes, and repeated First Degree Crimi-

nal Trespass by the Respondent, and the Court’s

errors in no EXTENUATING CIRCUMSTANCES, or

mitigating circumstances to reduce the damages set

by the Dodge County Court of Nebraska, for Respon-

dent being a Joint Tortfeasor by overtly initiating

their wrongful trespass, and refusing to leave.

OPINIONS BELOW

¥ Dodge County Court reproduced appeal as

Case Number CI05-1045. Judgement March 9, 2007

Dodge County District Court Case Number

7-223. Same as County Court July 6, 2007

3. Nebraska Court of Appeals Case Number

A-07-0857. Same as County Court

4. Nebraska Supreme Court Case Number has

not been assigned. July 16, 2008. Refused Petition

for further review

oD. U.S. Supreme Court petition for Writ of Certio-

rari is denied

4

JURISDICTION

Nebraska Court System, had uncontested Ju-

risdiction, neither party objected to jurisdiction.

~

o

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This petition for Writ of Certioran implicates

the Fourteenth Amendment to our United States

Constitution, The Patriot Act of 2001, Ricco laws, as

well as failure to consider Nebraska Life Safety Stat-

utes, trespass statutes, Terrorism statutes, and con-

tempt of Court Order and refusal to leave Marvin’s

property, also federal CFR 1910.36 through 1910.36

(f) (2).

The Fourteenth Amendment in relevant part

as follows:

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 shal!

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 to any person within

its jurisdiction the equal protection of the laws.

U.S. Constitution Amend. XIV, sec. 1.

This petition for Writ of Certiorari also quotes

excerpts from Nebraska Revised Statutes 81-502,

81-514, 81-538, 81-527, Court Order #23784 which is

in Exhibit in file, and regulatory building occupancy

permits for Marvin’s assembly areas in his building.

NRS28-300 and 28-311;28-520 and 28-521

6

STATEMENT OF THE CASE

A. PROCEEDINGS BELOW

Petitioner was convicted of conversion, while

Paragraph 3. reads, “While it is uncontroverted that

the condenser unit belonging to the plaintiff was

trespassing on the defendant’s property, the Court

can find no defense for the defendant’s actions of con-

verting the plaintiffs property.”

The Court makes no comment that the peti-

tioner testified that the condenser was obstructing

plaintiffs exit egress and petitioner had the nondel-

egatable duty to remove the condenser unit. So, peti-

tioner is now petitioning the United States Supreme

Court on the enforce federal CFR1910.36 and other

remedies under Nebraska Revised statutes 81-501 to

81-538

7

B. STATEMENT OF RELEVANT FACTS

The Respondents overtly violated Court Order

Remedy #23784 which orders them to stay off Peti-

tioners land anc specifically states air-conditioning

units, which took from 1977 to 1987 to get the Re-

spondents moving towards compliance of removing

their air-conditioning units the day before contempt

was held, so they were purged of their contempt.

In April 2004 the Respondents did place a

large and heavy thirty six inch cube of an air cooling

unit right in the middle of the Forty Eight inch wide

designated permanent fire Exit egress pathway from

both buildings, as per this photograph, which very

clearly obstructs and/or blocks said egress as you can

very clearly see in the photos in Exhibits.

As a general rule, both buildings have had he

bulk of occupants in the evenings, so how would hu-

mans exiting in an emergency squeeze around or over

the top of said obstruction in the dark of night and in

near stampede? And guess who is the first person to

be liable for allowing such and impediment to remain

obstructing this permanent fire exit egress walkway

route. Also, isn’t this perpetual battle the major

reason for Marvin’s wife to divorce him and protect

her half of the assets from an impending disaster of

twenty million dollars and incarceration for negligent

homicide as has been the case in Rhode Island night

Club fire and obstructed exits. Also, fire officials

know of hundreds of similar disasters and the Courts

are also aware of these disasters and that is why

we have Life Safety Codes, but who enforces them.

Well, Lawrence D. Marvin obtained the Court Order

#23784, which the Respondents clearly and overtly

eo)

znored. Marvin sent a written request by registed

aail to get off or forfeit said item, which the Re-

pondents clearly and overtly ignored; Marvin had

he Local and State Fire Official intervene and said

atervention was clearly and overtly ignored by the

espondents; Also, the 48 hours waiting period was

ong past. So the 5 hours needed was given.

| Marvin knows that two wrongs do not make

. right, however, under duress of complying with

iis lawful obligations of his 1977 and 1998 Life and

safety updates for building occupancey levels, Mar-

yin is required by laws, rules and regulations to not

illow aisles, exits, and fire exit egress permanent

walkway routes to become or remain obstructed. So,

vith the history of the Respondents Fiat Lease which

chey drug out from 1977 to 1987, when the 48 hours

ziven to get off had long past, and the installation

only took five hours, then the installer could have

removed the unit without damage in less than five

hours. So, this entire charade, sting, terrorist act,

Hate Crime, or whatever should not have gone un-

punished by Court Order #23784, the local and State

Fire Officials, and by the Respondents themselves,

so Marvin was compelled under duress or coercion to

remove said obstruction. The Respondents did open

their barroom exit door and look out to see if Mar-

vin got electrocuted when they heard the loud minor

explosion of the high powered electrically charged

line was snipped. The Respondents refused to claim

the unit within 24 hours when contacted by Marvin’s

attorney, but the Respondents were clearly intent on

causing Marvin to finance their overt and wrongful

trespass which clearly makes them a joint Tortfeasor

9

so they should only get 50% or less; preferably noth-

ing, but since we need new case law they should only

get one dollar as Nominal damages so this case stays

on the books, and the Court can supervise it like the

Court had to supervise school integration and school

busing. This is what the Petitioner requests.

1@

REASONS FOR GRANTING THE PETITION FOR

REVIEW

The Court Syste acknowledges that the photos and

testimony clearly shows the area to be narrow and junky. But

they clearly ERROR in being oblivious that the thirty six

inch condenser is obstructing the forty eight inch wide exit

egress walkway in violation of NRS 81-514 or federal CFR

1910.36 as per this photograph.

The Court admits the TRESPASS but ERRORS in

not assessing first or second degree trespass on posted prop-

erty on which Court Order #23784 was a Remedy to keep

the Respondents off, and the Respondents refusal to leave on

receiving written notice from Marvin and verbal notice from

Fire Officials.

The Court does not admit that fiat leases without ac-

ceptance and consideration are invalid, illegal or void and the

Respondents had no right to place the condenser on Marvin’s

real estate and leave it as abandoned junk like the second unit

in the Exhibit. The Court System has errored in not

comprehending that the Respondents were the major

joint-tortfeasor who initiated their overt act of tres-

pass and refused to leave. They created the threats

to Life and Safety and up to now have done so with

impunity. Where is the shared costs and liability?

ile od

CONCLUSION

Does this petitioner have the God given Righ};+

and Constitutional right to say where his charity d«

lars go?

If two wrongs do not make a right, then why j,

overt wrongful acts of violating Court Order #237844

violating posted property, refusal to leave when

receiving written Notice of abandonment and forfei:_

ture; visits from the Fire Officials; after consulting

with their own attorney who represented the pro se,

contempt action in 1987 and Marvin’s request for

easement in 1998, and still on the job in 2004, over}

encroachments, namely three or more encroach-

ments.

We do have laws to protect Life and Safety ojr

all our people, including 9-11-01 Terrorism Act; Pa-.

triot Act; Hate Crimes; RICCO; and other laws, rulles

and regulations.

I want the damages reduced and see that I gret

a refund of damages and interest. I also certainly

feel that I am intitled to rents and legal fees for the

repeated overt wrongful acts of the Respondents

which were initiated by the Respondents, which

clearly shows they are a joint-tortfeasor and equally,

or more so, responsible for the damages and waste,

because, if they had not trespassed and refused to

leave, then Petitioner would not have had to use self

help.

ol-

Dated February 6, 2009

Respectfully submited

(Mr.) Lawrence D. Marvin

IOOF Building Suite 2D

635 North Main Street

Fremont, Nebraska 68025

(402) 372-8978

American Citizen pro se

12

APPENDICES

County Court of Dodge County

Case No CI05-1045

Nebraska Fraternal order of Eagles,

Aerie #200 - Plaintiff

vs

Lawrence D. Marvin - Defendant

March 9, 2007

This bench trial on the plaintiffs first and second

causes of action and the defendant’s counterclaim

came before the Court on December 11, 2006. Ap-

pearing in court were S. Nicholas Boggy as counsel

for the plaintiff and Daniel Bracht as counsel for and

with the defendant, Lawrence Marvin. The Court

heard sworn testimony from Samuel Denoyer, Ardon

Toelle, Bob Niles and Lawrence Marvin. The Court

received Exhibits 1 through 23 into evidence. The

Court heard argument from counsel and took this

matter under advisement with leave to file briefs in

this matter. The Court subsequently received a brief

from Mr. Boggy and Mr. Bracht.

The Court, from the evidence presented and

being duly advised in the premises, hereby finds and

orders as follows:

PLAINTIFF’S FIRST CAUSE OF ACTION

1. The tort of conversion is any distinct act of

dominion wrongfully exerted over another’s personal

13

property in denial of or inconsistent with the nghis of

the owner or secured party. Otto Farms v. First Na-

tional Bank of York, 228 Neb. 287, 422 N.W. 2d 331

(1988); Jessen v. Blackard, 159 Neb. 103, 65 N.W. 2d

345 (1954).

2. The plaintiff has met its burden of proof for

the tort of conversion based on the defendant’s letter

(Exhibit No. 4) and the defendant’s testimony on di-

rect examination by Mr. Boggy in which he stated he

knew it was the plaintiffs property, he took pruning

shears and cut the electrical and freon lines, he did

not advise the plaintiff that he had the unit, that he

considered the property forfeited, and that he owned

it.

3. While it is uncontroverted that the con-

denser unit belonging to the plaintiff was trespassing

on the defendant’s property, the Court can find no

defense for the defendant’s actions of converting the

plaintiffs property. The measure of damages regard-

ing the conversion of the condenser unit, is the mar-

ket value of the converted property at the time and

place of conversion. Otto Farms, 228 Neb. at 293,

422 N.W. 2d at 336. See also NJI 2d 4.27 (Damages

- Conversion of Property). The testimony of Arden

Toelle and Exhibits 12 and 13 establish the market

value of the converted property at the time of conver-

sion.

4. The plaintiff has pled special damages for

the spoilage of food and beverage resulting from the

defendant’s conversion of the condenser unit. Accord-

ing to Nebraska Jury Instructions, special damages

may be pled and evidenced in a conversion action.

NJI 2d 4.27-1. The plaintiff established special dam-

ages by the testimony of Bob Niles and Exhibit 16.

14

The Court further finds that the spoilage of inven-

tory is the proximate cause of the defendant’s conver-

sion for the condenser unit and that special damages

should be awarded. The Court is not allowing the

payment of plaintiffs officials for amounts that have

not been expended by the plaintiff. therefore, the la-

bor damages stated in Exhibit 17 will not be allowed.

PLAINTIFF’S SECOND CASE OF ACTION

5. The plaintiffs second cause of action for

damages to the plaintiffs concrete wall is denied for

lack of proof of damages. The Court will not address

the issue of statute of limitations defense due to the

lack of proof of damages. For this reason, the plain-

tiffs second cause of action for damages is denied.

The Court further finds that the county court lacks

subject matter jurisdiction to enter any form of in-

junctive relief as to the conduct of the parties in this

matter.

DEFENDANT'S COUNTERCLAIM

6. The defendant’s counterclaim is denied for

lack of proof of damages.

JUDGMENT

7. The Court awards damages for conversion

in favor of the plaintiff and against the defendant in

amount of $4,005.28, and special damages in favor of

the plaintiff and against the defendant in the amount

of $1,089.00 for a total judgment of $5,094.28, plus

costs of this action in the amount of $42.00.

BY THE COURT:

15

Fa | r rt r TY De = Pee raciz=a

B)) County Court of Dodge Cou nty Nepraska

Case No Cl 107-223

Nebraska Fraternal Order of Eagles,

Aeric #200 - Plaintiff

Lawrence D. Marvin - Defendant

July 6, 2007

The matter of the appeal from the decision

of t2e County Court came on for hearing on July

3 9007. The Appellant/Defendant was present in

ey30n and represented by his attorney, Daniel P.

Brecht. The attorney for the Appellee/Plaintiff S.

Nicholas Boggy was present in person. Evidence was

received. Arguments made.

Judgment of the County Court was filed on

March 9, 2007 and the Appellant/Defendant timely

filed a Notice of Appeal on April 6, 2007. The Bill of

Exceptions was filed on May 9, 2007. The Statement

of Errors was filed approximately 41 days later, on

June 29, 2007.

In appeals from the County Court, the District

Court shall review the case for error appearing on

the record made in the County Court. Consideration

of the cause will be limited to errors properly as-

signed and discussed.

When reviewing a judgment for errors appear-

ing on the record, the inquiry is whether the deci-

sion conforms to the law, is supported by competent

evidence and is neither arbitrary, unreasonable nor

16

capricious.

Upon reviewing the record on appeal from

the Dodge County Court, and after presentation of

the arguments, the COURT FINDS AND ORDERS

THAT:

1. The County Court did not err in regard to

the law and that there was competent evidence to

support the finding that the Plaintiff had met its bur-

den of proof for the tort of conversion. Additicnally,

assuming without deciding that the County Court

erred in the receipt of Exhibit 16, such err would be

harmless as other testimony setting forth the amount

of damages had previously been received without

objection. Therefore, the Court finds that the award

of special damages was established by competent evi-

dence and , therefore, was not err. Lastly, the Court

finds that the County Court did not err in entering

judgment in favor of the Plaintiff and against the

Defendant and in denying the Defendant’s Counter-

claim.

IT IS THEREFORE ORDERED that the Judg

ment of the Dodge County Court be and hereby is

affirmed.

IT IS FURTHER ORDERED that this matter

be, and hereby is, remanded to the Dodge County

Court for execution of the Judgment in accordance

with this Order.

IT IS FURTHER ORDERED that the Clerk of

the District Court certify a copy of this order to the

Dodge County Court, along with costs incurred in

this court.

Dated this 6th day of July, 2007

BY THE COURT

17

Gc IN THE NEBRASKA COURT OF APPEALS

Case N. A-07-857

Fraternal Order of Eagles Aerie #200, Appellee

Lawrence D. Marvin, Appellant.

May 27, 2008

SIEVERS, MOORE, and CASSEL, Judges.

SIEVERS, Judge.

Pursuant to authority granted to this court under

Neb. Ct. R. of Prac. 11B(1) (rev. 2006), this case was

ordered submitted without oral argument.

FACTUAL BACKGROUND

The Fraternal Order of Eagles Aerie #200

(Eagles) owns property at 649 North Main Street in

Fremont, Nebraska, where the business and social

activities of the lodge are conducted. Immediately to

the south is property owned by Lawrence D. Marvin.

The property line between the Eagles’ real estate and

Marvin's real estate lies approximately 12 inches

south of the Eagles’ building and the Eagles have an

easement of approximately 36 inches on the north

edge of Marvin’s real estate. The easement is limited

in purpose to that of a fire escape and exit plus an

entrance to the building located on the Eagles’ real

estate. From the photos and testimony the area in

question could be described as a rather junky and

18

and narrow alleyway or walkway.

Sas aacoltse G1 A aawothFhlaadu asthe

court for Dodge County, a judgment was entered on

February 27, 1980, in which the court found that the

Eagles had encroached upon Marvin’s property “by

erecting two air conditioning units without [Mar-

vin’s} permission.” After finding that Marvin had no

adequate remedy of law, the Eagles were enjoined

from encroaching upon Marvin’s property “as set

forth above and [Eagles] is ordered to remove the two

air conditioning units within 90 days from [the] date

hereof.’ In approximately 1987, there was additional

litigation between these parties to enforce the above-

described injunction by a contempt proceeding. That

matter did not proceed to judgment, as the Eagles re-

moved the offending unit from the area of easement.

In early April 2004, it was determined that

the Eagles’ walk-in cooler, where various food and

beverage items were stored, was going bad. The air

conditioner/condenser, then located on the roof of the

Eagles building, was checked and it was determined

that a new unit was necessar with a degree of ur-

gency. Evidence adduced by the Eagles was that

because of the need to get the new unit operaticnal

quickly, it was placed temporarily on cement blocks

between Marvin’s building and the Eagles’ building-

-on the easement area--rather than up on the roof

where the old unit was located. The Eagles’ evidence

was that no one in a position of authority a the time

of these occurrences was aware of the past litigation

and court orders involving the easement between the

two buildings.

On April 16, 2004, the Eagles received a letter

a ee ee

13

from Marvin which is in evidence as exhibit 4. Sum-

marized, the letter asserted that the new air condi-

tioner/condenser was trespassing on Marvin’s land

and that he had asked the Fremont Fire Chief and

the Deputy Nebraska Fire Marshall to have the Ea-

gles remove the air conditioner/condenser within 48

hours. Marvin’s letter asserted that he would “en-

force my right, at my convenience and in my way...”

after 48 hours from when the Eagles received his

letter if the unit was not removed. Marvin’s letter

closed with the assertion: “I consider said air condi-

tioning unit donated and forfeited to me.”

After receiving Marvin’s letter, Robert Niles,

the secretary of the Eagles, made arrangements for

a survey with the intent that if the unit was not in a

proper place or was in violation of earlier court pro-

ceedings, it would be moved.

However, on April 26, Niles learned that the

air conditioner/condenser was gone so he called po-

lice, as well as Arden Toelle of Toelle Refrigeration.

Toelle testified that when he arrived he found that

the electrical lines to the air conditioner/condenser

had been cut, although power was still in the line;

the refrigeration lines were gone; and the entire unit

was gone. Toelle located a replacement unit in South

Dakota and installed it on April 28, 2004. Niles

testified that the removal of the air conditioner/con-

denser caused the Eagles to loose beverage and food

products in the cooler having a value of $1,089.72,

and they had the cost of getting and installing a new

unit.

PROCEDURAL BACKGROUND

The Eagles sued Marvin on July 7, 2005. In

20

legal elements necessary to prove a conversion. Mar-

vin admittedly removed the air conditioner/condens-

er and admittedly still had it in his possession at the

time of the trial. It is true that the evidence shows

a technical trespass by placement of the air condi-

tioner/condenser within the area of the easement and

outside of the purposes of the easement.

Conversion has been defined as “...any distinct

act of dominion wrongfully exerted over another’s

personal property in denial of or inconsistent with

his rights therein.” Allen v. Dealer Assistance, Inc.,

207 Neb. 455, 460,299 N.W.2d 744,747 (1980). In

Polley v. Shoemaker, 201 Neb. 91,266 N.W.2d 222

(1978), the Supreme Court pointed out that the tort

of conversion is confined to those “major interferenc-

es with the chattel, or with the plaintiffs rights in it,

which are so serious, and so important as to justify

the forced judicial sale to the defendant.” 201 Neb. at

95, 266 N.W.2d at 225.

We do not believe that it can seriously be

contended that the cutting of the power and refriger-

ant lines to the air conditioner/condenser along with

hauling it away and secreting it from the Eagles does

not satisfy the requirement of a serious or major

interference with the chattel owned by the Eagles.

Marvin’s defense, as we understand it, is that be-

cause a trespass was occurring and he is under a

duty to mitigate damages, cutting the unit loose from

its connections and hauling it away was mercly miti-

gation of damages. Marvin advances the argument

despite the absence of any evidence of definable dam-

ages flowing from the placement of the unit over the

boundary line for this brief period of time. Obvious-

ly, Marvin engaged in self-help but such went beyond

21

simply getting the unit off of his easement. Rather,

Marvin damaged the unit by cutting the power and

refrigerant lines, took possession of it, and secreted it

from the Eagles.

The facts of this case indisputably prove a

conversion. While it is relatively easy to imagine cir-

cumstances in which self-help would be justified and

lawful in the face of a trespass in order to mitigate

damages, the trespass by the Eagles was hardly of

the kind that Marivn would be justified in bypassing

the lawful remedies and resorting to self-help--partic-

ular of the kind engaged in here.

Marvin complains of the trial court’s admis-

sion of exhibit 16, a handwritten listing of food items

that the Eagles claimed were spoiled by removal of

the air conditioner/condenser. The supporting testi-

mony for exhibit 16 was from Robert Niles, secretary

of the Eagles club, who testified that one of his job

duties was to pay bills, including for food and bever-

ages. Niles testified that he, along with Mark and

Rose Grude, the cooks, sat down and examined in-

voices and bills as well as the weights of the damaged

meat and prepared the list. However, Niles admit-

ted that the writing was Rose Grude’s and therefore

he did not prepare the document. However, Niles

further testified that he was present and person-

ally examined the invoices for the price per pound as

well as the poundage of the spoiled meat which Rose

Grude wrote down to formulate exhibit 16, totaling

$1,089.72 for lost food and beverage. The district

court found that even if exhibit 16 was improperly

admitted over the hearsay and foundation objection

of Marvin, there was testimony proving the

22

amounts contained thereon and therefore the judg-

ment for damaged food and beverage was not errone-

ous. After reviewing the evidence, the district court

did not err in so concluding.

CONCLUSION

Marvin’s assignments of error are without

merit and the affirmance of the county court’s judg-

ment by the district court is hereby affirmed.

AFFIRMED.

23

D) NEBRASKA SUPREME COURT

AND NEBRASKA COURT OF APPEALS

OFFICE OF THE CLERK

P.O. BOX 98910

2413 STATE CAPITOL BUILDING

LINCOLN, NE 68509

(402) 471-3731

July 16, 2008

Daniel P. Bracht

BRACHT LAW FIRM

127 E. Walnut Street*

P.O. Box 252

West Point, NE 68788

IN CASE OF: A-07-000857, Fraternal Order of

Eagles Aerie #200 v. Marvin

The following internal procedural submission

or filing by a party:

Pet Appellant for Further Review & Brf sub-

mitted or filed 06/23/08 has been reviewed by the

court and the following order entered:

Petition for further review overruled

Respectfully,

CLERK OF THE SUPREME COURT

AND COURT OF APPEALS

24

IMPORTANT NOTICE

Due to the reduced number of cases awaiting sub-

mission to the Supreme Court and Court of Appeals,

and as part of the courts’ continuing efforts to reduce

case-processing time, future requests for brief

date extensions will be closely scrutinized. See

Neb. Ct. R. of Prac. 6F and 9A. Pursuant to Neb. Ct.

R. of Prac. 10A, if an appellant’s default for failure

to file briefs is issued, appellant “is required to file

a brief within 10 days after receipt of such notice.

Appellant’s failure to file a brief in response to the

notice of default subjects the appeal to dismissal.”

PLEASE BE ADVISED THAT THESE RULES

WILL BE STRICTLY ENFORCED.

25

IN THE DISTRICT COURT OF

DODGE COUNTY, NEBRASKA

CASE NO. CI07-223

FRATERNAL ORDER OF EAGLES, Aerie#200,

Plaintiff,

VS

LAWRENCE D. MARVIN,

Defendant.

AUGUST 20, 2008

Now on this 20th day of August, 2008, this

matter came before the Honorable John E. Samsor,

District Judge, on the mandate of the Nebraska

Court of Appeals filed herein on the 19th day of Au”

gust, 2008. .

The Court being fully advised in the premis?®

FINDS, ORDERS, ADJUDGES, AND DECREES: |

1. That the Mandate of the Nebraska Court of

Appeals affirming the appeal of the judgment of tP®

Court shall be spread upon the Judgment records of

this Court as required by law; and

2. That the costs of appeal to the foregoing

court are hereby ordered to be paid by Appellant qnd

are taxed at $122.00.

BY THE COURT:

26

F) IN THE COUNTY COURT OF DODGE

COUNTY, NEBRASKA

FRATERNAL ORDER OF EAGLES, Aerie #200,

Plaintiff,

VS.

LAWRENCE D. MARVIN,

Defendant.

AUGUST 25, 2008

THIS MATTER came on for hearing on the 28th day

of July, 2008, on the Motion of the Plaintiff for an

order directing that payment of the supersedeas bond

in the amount of $5,500.00 deposited with this Court

by the Defendant be paid to the Plaintiff. The Plain-

tiff appeared by its attorney, S. Nicholas Boggy. The

Defendant, Lawrence D. Marvin, appeared person-

ally and pro se. Evidence was adduced and the Court

being advised in the premises finds as follows:

1. On the 16th day of July, 2008, the Nebras-

ka Supreme Court overruled the Defendant’s petition

for further review.

2. Subsequent to the Supreme Court’s ruling,

the Defendant filed a “Desire of Stay of the Mandate

or Motion Recalling the Mandate” with the Nebraska

Supreme Court.

3. On the 15th day of August, 2008, the Ne-

braska Court of Appeals issued a mandate for this

Court to enter judgment in conformity with the judg-

ment and opinion of this Court, which mandate was

filed with the District Court of Dodge County on

27

August 19, 2008, and with this Court on August 20,

2008.

4. Through July 28, “008, the total amount

of the judgment, including interest, plus costs, was

$5,698.08.

IT IS THEREFORE ORDERED that the Clerk

of the County Court shall pay the sum of $5,500.00,

earlier deposited by the Defendant, Lawrence D.

Marvin, to the Plaintiff, Fraternal Order of Eagles,

Aerie #200.

BY THE COURT:

28

x) Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

January 21, 2009

Mr. Lawrence D. Marvin

100F Building

Suite 201

635 North Main Street

Fremont, NE 68025

R: Lawrence D. Marvin

V. Fraternal Order of Eagles Aerie #200

No. 08-657

Dear Mr. Marvin:

The Court Today entered the following order

in the above-entitled case: The petition for a writ of

certiorari is denied.

Sincerely,

William K Suter, Clerk