Houser v. American Paving Asphalt ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/20/2018 01:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
HOUSER v. AMERICAN PAVING ASPHALT
Cite as 299 Neb. 1
Tom Houser, appellant and cross-appellee,
v. A merican Paving Asphalt, I nc.,
appellee and cross-appellant.
___ N.W.2d ___
Filed February 16, 2018. No. S-16-778.
1. Courts: Appeal and Error. The district court and higher appellate
courts generally review appeals from the county court for error appear-
ing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
3. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record but not complained of at
trial, which prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscarriage of
justice or result in damage to the integrity, reputation, and fairness of the
judicial process.
4. Courts. The district court has certain inherent powers by virtue of being
a court.
5. ____. Nebraska courts, through their inherent judicial power, have the
authority to do all things reasonably necessary for the proper administra-
tion of justice.
6. Courts: Judgments: Jurisdiction: Appeal and Error. An intermedi-
ate appellate court may timely modify its opinion, which is consistent
with the generally recognized common-law rule that an appellate court
has the inherent power to reconsider an order or a ruling until divested
of jurisdiction.
7. Courts: Appeal and Error. In cases where no statement of errors was
filed, but the record showed that the district court considered an issue
that was also assigned to a higher appellate court, the Supreme Court or
the Court of Appeals may consider that issue.
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299 Nebraska R eports
HOUSER v. AMERICAN PAVING ASPHALT
Cite as 299 Neb. 1
8. Courts: Time: Appeal and Error. The district court has discretion to
extend the time for filing a statement of errors.
9. ____: ____: ____. On appeal from the county court, a district court’s
ruling on a motion to extend the time for filing a statement of errors will
be reviewed for an abuse of discretion.
Appeal from the District Court for Douglas County, Leigh
A nn R etelsdorf, Judge, on appeal thereto from the County
Court for Douglas County, M arcena M. Hendrix, Judge.
Judgment of District Court affirmed in part, and in part reversed
and remanded with directions.
David J. Koukol, Sharon A. Hansen, and Michael W. Milone,
of Koukol & Johnson, L.L.C., for appellant.
James B. McVay, of Tiedeman, Lynch, Kampfe, McVay &
Respeliers, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Per Curiam.
I. NATURE OF CASE
A homeowner brought a breach of contract action against
the company that laid his asphalt driveway, after the driveway
prematurely began to deteriorate. The county court entered
judgment in favor of the homeowner, but on appeal, the dis-
trict court significantly reduced the award. The parties dis-
pute whether review of the county court’s verdict is limited
to plain error, because the asphalt company failed to timely
file its statement of errors to the district court. The parties
also dispute whether there was sufficient evidence that it was
reasonable and necessary for the homeowner to contract for a
stopgap repair of patchwork replacement of broken sections
and, subsequently, for a 2-inch overlay of the entire driveway.
Finally, the asphalt company contests attorney fees awarded to
the homeowner in relation to the company’s late production
of documents that were the subject of an order to compel in
county court.
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HOUSER v. AMERICAN PAVING ASPHALT
Cite as 299 Neb. 1
II. BACKGROUND
In 2008, Tom Houser entered into a written contract with
American Paving Asphalt, Inc. (American Paving), to con-
vert his 1,440-foot limestone driveway into an asphalt drive-
way. Houser had negotiated the contract with Mark Hall, the
co-owner of American Paving. Hall had proposed a 3-inch
asphalt overlay on top of the existing limestone, at a cost
of $16,000.
According to Houser, after signing the contract with
American Paving for a 3-inch overlay, he discussed with Hall
concerns about the lack of traction during the winter on the
steepest part of the driveway. According to Houser, Hall pro-
posed traction indentations in about 300 feet of the driveway
that would be made by raking through the asphalt. According
to Houser, Hall proposed that they lay an extra 2 inches of
asphalt depth where the traction strips would be placed.
There was no written contract regarding the traction strips,
but it is undisputed that American Paving charged $1,500 for
the added work. In addition, there was evidence that Hall had
recommended to Houser that he seal-coat the driveway.
Several months after the installation of the asphalt overlay,
Houser paid Hall an additional $1,500 to seal-coat the drive-
way and repair some cracks that had already occurred. The
invoice for the repair and seal coat stated that American Paving
“[w]ill fill any cracks that surface from sealcoating job at no
cost to homeowner.” In total, Houser paid American Paving
$19,000 for the asphalt driveway.
More cracks continued to occur in the asphalt driveway.
By 2010, larger chunks of the driveway began to break apart
and cracks of various sizes were visible on the majority of the
driveway. American Paving stopped responding to Houser’s
requests for repairs, and Houser sued American Paving in
county court for breach of contract.
1. Evidence of Breach
Houser presented the expert testimony of Douglas Dreessen,
a registered professional civil engineer, who opined that the
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299 Nebraska R eports
HOUSER v. AMERICAN PAVING ASPHALT
Cite as 299 Neb. 1
driveway was defective and did not substantially conform to
the contract. Dreessen explained that there are two important
elements to asphaltic cement paving. First, the subgrade must
be compacted. Second, the thickness of the pavement must be
adequate to support the type of traffic anticipated. With regard
to thickness, Dreessen also testified that it is important for the
pavement to be uniform so that there are not weak areas that
will tend to give out.
Dreessen testified that absent instruction to the contrary, his
goal as a professional engineer is to design asphalt driveways
with a 20-year design life. Over American Paving’s parol
evidence objection, Houser also testified at trial that Hall
told him the driveway would last at least 20 years. At trial,
Hall denied making such a guarantee or that it was an indus-
try standard.
Dreessen visually inspected the driveway in 2013. He
observed numerous “alligatored” areas where failure was
occurring. Given that the driveway was only 5 years old at
the time of the inspection, this was considered a “premature
failure” of the driveway. A report prepared by Dreessen’s civil
engineering firm noted significant weathering, oxidization, rav-
eling, and wearing away of the surface.
Dreessen had his staff conduct tests to determine the pave-
ment thickness and compaction. They bored into six different
areas throughout the length of the driveway where it appeared
to be thickest and not yet cracked or broken. The samples dem-
onstrated a thickness ranging from 13⁄4 to 21⁄2 inches, with an
average measurement of 2 inches. Based on the results of the
tests conducted, Dreessen opined that the cracking and distress
of the asphalt driveway occurred because the asphalt was too
thin and was placed on an inadequate base due to nonuniform
and subgrade compaction.
Dreessen opined that Houser’s driveway was not constructed
in substantial compliance with the specifications of the con-
tract. In his work, Dreessen regularly supervised contractors to
ensure that their work was in substantial compliance with the
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HOUSER v. AMERICAN PAVING ASPHALT
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specifications and plans. In his experience, contract specifica-
tions for asphalt depth referred to the depth after it was rolled
and compacted. He stated that the depth of the asphalt would
never be measured before it was compacted, because “[w]hen
we specify for an asphalt project, we need to be able to go
back and verify what is on the plans . . . .” Further, Dreessen
stated that the work did not comply with the specifications
in the contract that it be graded and compacted to maxi-
mum strength.
2. Evidence of Damages
Houser testified that for a couple of years after American
Paving stopped making repairs, Houser sealed the cracks him-
self as they continuously appeared. Then, in 2012, Houser hired
Asphalt Maintenance, Inc., to replace several large sections
that had begun to break apart into larger chunks. Houser paid
Asphalt Maintenance $5,110 for replacing the severely dam-
aged sections of the driveway, plus $550 for sealing various
cracks in the remaining lengths of the driveway. Houser had
obtained more than one bid and chose Asphalt Maintenance
because it had presented the lowest bid.
But Houser considered Asphalt Maintenance’s work only
a “stopgap measure before the winter of 2012.” Houser was
attempting only to address the areas of the driveway that were
the most damaged and might come up in more large pieces
when he used a snowplow. Over American Paving’s objection,
Houser testified that he thought that the repairs by Asphalt
Maintenance were necessary.
After the 2012 repairs, the driveway continued to deterio-
rate. The 2013 report by Dreessen’s firm noted that the oxi-
dation and raveling observed at the time of the report would
combine to allow for additional pathways for water and air to
continue the weathering process and extend the cracking dur-
ing freeze-thaw cycles. Houser also testified that with various
repaired patches, the driveway “looked terrible” overall, with
a variegated light-and-dark pattern.
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299 Nebraska R eports
HOUSER v. AMERICAN PAVING ASPHALT
Cite as 299 Neb. 1
As a solution to this continuing deterioration and the patch-
work appearance due to previous repairs, Houser chose to
have a 2-inch asphalt overlay placed on the entire length of the
driveway. Houser generally indicated, over objection, that he
had reached the 2-inch overlay solution after consultation with
others. And Houser testified, over objection, that without add-
ing a 2-inch overlay, he would have continued to have to pay
to replace additional sections.
The asphalt company Houser contracted with charged
$26,189.09 for the 2-inch overlay. Again, Houser had obtained
more than one bid and chose the contractor who presented
the lowest bid. Even with the 2-inch overlay, Houser antici-
pated additional cracking and costs associated with repairs in
the future.
On cross-examination, Houser admitted that certain areas
of the driveway, approximately 150 to 200 feet, were still in
relatively good condition and not “defective.” However, he
believed that most of the driveway was unacceptable and he
did not “feel like taking a roller coaster ride going up my
driveway where its two inches higher and not.”
At the time of trial, it had been about 11⁄2 years since the
overlay had been installed. Houser testified that there had been
a noticeable change in the amount of deterioration. He said:
“[It l]ooks like a nice, smooth asphalt driveway. It has a small
handful of cracks in it in a couple of areas where apparently
the deterioration underneath is continuing, but otherwise the
driveway has held up very well.”
Houser testified that he anticipated having to seal-coat the
driveway. Houser explained that he had paid to seal-coat the
original asphalt driveway per American Paving’s instructions.
Over American Paving’s hearsay, relevance, and discovery
objections, Houser testified that he had recently entered into a
contract to seal the driveway at a cost of $3,250.
Houser submitted evidence of the cost of Dreessen’s inspec-
tion, testing, and analysis, which was $1,705. He also submitted
evidence of the cost of Dreessen’s time testifying as an expert
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HOUSER v. AMERICAN PAVING ASPHALT
Cite as 299 Neb. 1
witness, $2,886.10. Houser entered into evidence the costs of
deposing an American Paving employee and Hall, $371.50 and
$421.25, respectively, in preparation for trial. Houser sought
court costs in the amount of $69. Houser asked for a total of
$40,551.94 in damages. The court ordered the parties to submit
briefs after trial. American Paving did not submit a brief.
3. Verdict, Attorney Fees,
and Sanctions
American Paving moved to disqualify the trial judge and for
a mistrial on the ground that the judge had allegedly engaged
in activities on her cell phone during trial. The court overruled
American Paving’s motion.
American Paving later filed a second motion to disqualify
and for a mistrial, asserting the same conduct of the trial
judge engaging with her cell phone during trial. But the sec-
ond motion further alleged that Hall had filed a complaint
with the Nebraska Commission on Judicial Qualifications,
which complaint was under investigation. The court overruled
the motion.
On June 17, 2015, the county court entered judgment in
favor of Houser in the amount of $40,551.94. In its order,
the court set a hearing for Houser’s oral motion for attorney
fees. After the judgment, Houser submitted an affidavit sup-
porting costs and fees incurred with respect to the discovery
delays, motion for sanctions, and the motions to disqualify.
On September 22, the court ordered $1,514 in sanctions and
attorney fees to be paid to Houser. On October 22, the court
overruled American Paving’s motion for new trial.
4. A ppeal to District Court
American Paving filed a notice of appeal to the district court
on November 10, 2015.1 On that same date, it filed its praecipe
for the bill of exceptions and transcript.
1
See Neb. Rev. Stat. § 25-2729 (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
HOUSER v. AMERICAN PAVING ASPHALT
Cite as 299 Neb. 1
(a) Filing Statement of Errors
Out of Time
American Paving did not timely file its statement of errors.
Neb. Ct. R. § 6-1518 provides in relevant part:
Within 10 days of filing the bill of exceptions in
an appeal to the district court, the appellant shall file
with the district court a statement of errors which shall
consist of a separate, concise statement of each error a
party contends was made by the trial court. Each assign-
ment of error shall be separately numbered and para-
graphed. Consideration of the cause will be limited to
errors assigned and discussed, provided that the district
court may, at its option, notice plain error not assigned.
Neb. Ct. R. § 6-1452(A)(7) (rev. 2011) is virtually identical.
The bill of exceptions in American Paving’s appeal was
filed with the district court on January 7, 2016. Court rules
do not require that any notice be given to the parties when the
bill of exceptions has been filed in the district court, and thus,
the parties did not receive notice when the bill of exceptions
was filed.
On February 1, 2016, the district court sent the parties a
notice of intent to dismiss the appeal in the event that they
failed to submit a proposed scheduling order within 30 days.
On March 21, American Paving filed its brief with the district
court and served it on Houser.
Thereafter, on April 15, 2016, American Paving filed a
motion for leave to file a statement of errors out of time. A
hearing was held on the motion on April 21. American Paving
relied on Neb. Ct. R. § 6-1519, which allows courts to suspend
applicable local rules upon good cause in order to prevent
manifest injustice: “Upon the showing of good cause, a rule
may be suspended in a particular instance in order to avoid a
manifest injustice.”
American Paving’s attorney asserted that he did not learn
until March 2, 2016, that the bill of exceptions had been filed.
On that date, he “happened to check with the Clerk of the
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299 Nebraska R eports
HOUSER v. AMERICAN PAVING ASPHALT
Cite as 299 Neb. 1
District Court.” The attorney explained that he was under the
mistaken impression that the district court would notify him
when the bill of exceptions had been filed. In an affidavit, the
attorney averred that “in prior years,” notice was sent to the
parties when the bill of exceptions had been filed. Furthermore,
American Paving’s attorney explained that he did not realize
the legal impact that failing to timely file a statement of errors
could have.
American Paving’s attorney argued that the rule regarding
filing a statement of errors within 10 days of the filing of the
bill of exceptions should be kept “in perspective”:
The rule is simply a procedural tool designed to frame
the issues to be addressed in the appeal to the district
court. It’s not designed for anything other than to allow
you, as the judge, as the sitting judge, and the Appellee,
as a responder, to know what the heck I’m going to talk
about at this hearing and what the issues are in terms of
the appeal.
The court stated that it had sent out a notice of intent to dis-
miss on February 1, 2016. In light of that fact, the court found
it “frustrating” that American Paving did not bother to inquire
whether the bill of exceptions had been filed until March 2.
American Paving’s attorney acknowledged that he could
have checked every week to see whether the bill of exceptions
had been filed and that he failed to do so. But as to the delay
between the letter of February 1, 2016, and the filing of the
statement of errors, the attorney argued that, either way, the
April 15 filing of the statement of errors was late. On May 4,
the court sustained American Paving’s motion to file the state-
ment of errors out of time.
(b) Statement of Errors
In its statement of errors, American Paving asserted that the
county court had erred by (1) finding that Houser offered suf-
ficient evidence to show that American Paving breached the
contract for installation of the asphalt driveway, (2) finding
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HOUSER v. AMERICAN PAVING ASPHALT
Cite as 299 Neb. 1
that Houser offered sufficient evidence as to the reasonable-
ness and necessity of the cost of repairs, (3) awarding certain
costs to Houser that are not permitted by law, (4) failing to
recuse herself as requested given her improper actions during
trial and her bias in favor of Houser, (5) finding that sanctions
against American Paving were appropriate, and (6) awarding
attorney fees to Houser.
(c) Order
The district court concluded that the county court did not
abuse its discretion in denying American Paving’s motion to
disqualify and for a mistrial.
Citing to Neb. Ct. R. Disc. § 6-337, the district court found
no error in the county court’s order of attorney fees as a sanc-
tion for failing to produce the requested records in a timely
fashion. Section 6-337(b) allows the court to order “reasonable
expenses, including attorney fees, caused by the failure [to
comply with a discovery order], unless the court finds that the
failure was substantially justified or that other circumstances
make an award of expenses unjust.”
The district court found there was competent evidence to
support the county court’s determination that American Paving
had breached its contract with Houser and that such breach was
the proximate cause of damage to Houser.
The court affirmed damages in the amount of only $5,660.
The court found that the photographs and testimony estab-
lished the necessity of the patchwork repair by Asphalt
Maintenance of sections of the driveway that had broken into
chunks. But it found the evidence insufficient to support the
reasonableness and necessity of the 2-inch overlay.
The court concluded that the county court abused its discre-
tion in awarding as costs2 expenditures for expert reports and
testimony. The court found that only $861.75 for depositions
and court costs was properly awarded as costs. It remanded the
2
See Neb. Rev. Stat. § 25-1708 (Reissue 2016).
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HOUSER v. AMERICAN PAVING ASPHALT
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case to the county court with directions to enter a judgment
reflecting damages in the amount of $6,521.75.
Subsequently, a hearing was held on Houser’s motion for
attorney fees incurred in responding to American Paving’s
motion to file its statement of errors out of time and for a
continuance. Houser submitted into evidence an affidavit sup-
porting a total of $2,756.75 in costs and fees. The district court
overruled the motion.
Houser appeals, and American Paving cross-appeals.
III. ASSIGNMENTS OF ERROR
Houser assigns that the district court erred in (1) granting
American Paving’s motion for additional time to file its state-
ment of errors and allowing anything other than plain error
review, (2) failing to find that a 2-inch asphalt overlay was
a reasonable procedure to make the driveway conform to the
contract, and (3) ruling that the $26,189.09 cost of the overlay
was unreasonable and unsupported by competent evidence.
On cross-appeal, American Paving assigns that the district
court erred in finding (1) that there was sufficient evidence
to sustain damages in the amount of $5,660 and (2) that the
county court did not abuse its discretion in awarding to Houser
$1,514 in attorney fees.
IV. STANDARD OF REVIEW
[1,2] The district court and higher appellate courts generally
review appeals from the county court for error appearing on
the record.3 When reviewing a judgment for errors appearing
on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.4
3
See, Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins. Co., 295
Neb. 419, 889 N.W.2d 596 (2016). See, also, Neb. Rev. Stat. § 25-2733
(Reissue 2016).
4
Id.
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[3] Plain error exists where there is an error, plainly evident
from the record but not complained of at trial, which prejudi-
cially affects a substantial right of a litigant and is of such a
nature that to leave it uncorrected would cause a miscarriage
of justice or result in damage to the integrity, reputation, and
fairness of the judicial process.5
V. ANALYSIS
1. Plain Error R eview
American Paving filed a statement of errors in the district
court, but only after the district court granted its motion to
extend the 10-day window established by the statement of
errors rule.6 In arguing that the district court erred in grant-
ing the extension, Houser relies upon the suspension rule7
empowering a district court to “suspend[]” another uniform
district court rule. In the district court, American Paving cited
the suspension rule in support of its motion. Houser contends
that the district court’s review should have been limited to
plain error.
But both parties’ arguments are based on a flawed prem-
ise—that a district court, sitting as an intermediate appellate
court, has no power to grant a motion to extend the time to file
a statement of errors, except pursuant to the suspension rule. In
the sections that follow, we will expose the flaws in that prem-
ise, review our case law, and apply the correct rule to settle the
standard of review.
(a) Flaws of Premise
The first flaw is the lack of any textual support in the state-
ment of errors rule. It contains no language suggesting the
5
State ex rel. Unger v. State, 293 Neb. 549, 878 N.W.2d 540 (2016);
Zwygart v. State, 270 Neb. 41, 669 N.W.2d 362 (2005).
6
§ 6-1518.
7
§ 6-1519.
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district court lacks the power to extend the 10-day window. It
simply states:
Within 10 days of filing the bill of exceptions in
an appeal to the district court, the appellant shall file
with the district court a statement of errors which shall
consist of a separate, concise statement of each error a
party contends was made by the trial court. Each assign-
ment of error shall be separately numbered and para-
graphed. Consideration of the cause will be limited to
errors assigned and discussed, provided that the district
court may, at its option, notice plain error not assigned.
This rule shall not apply to small claims appeals.8
The 10-day provision in the first sentence is addressed
to the appellant, not the district court. There is no language
expressly or impliedly prohibiting a district court from extend-
ing the time.
Reading a prohibition into the rule would require us to add
words to the third sentence, as if it read, “Consideration of
the cause will be limited to errors assigned and discussed in
a timely filed statement of errors, provided that the district
court may . . . .” Just as it is not within the province of the
courts to read a meaning into a statute or regulation that is not
warranted by the language,9 rules should be read likewise. We
must limit the rule’s meaning to its plain language.
The second flaw is the absence of any statutory basis for the
premise. The right of appeal in Nebraska is purely statutory.10
Statutes in chapter 25, article 27, establish the power of a dis-
trict court to hear appeals from county court. And these statutes
teach three lessons.
One dictates that the district court’s standard of review
shall be for “error appearing on the record made in the county
8
§ 6-1518 (emphasis supplied).
9
See, McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300
(2006); Utelcom, Inc. v. Egr, 264 Neb. 1004, 653 N.W.2d 846 (2002).
10
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
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court.”11 The statement of errors rule must be interpreted to
operate within the context of these statutes. And our discussion
of case law will demonstrate that we have done so.
Another permits this court to establish rules but does not
support the premise. It authorizes the Nebraska Supreme Court
to prescribe rules governing the “ordering, preparing, signing,
filing, correcting, and amending of the bill of exceptions.”12
But this language does not permit us to artificially limit the
district court’s discretion to extend the time for filing of a
statement of errors.
Another statute makes it clear that timely filing of a state-
ment of errors cannot be deemed jurisdictional. It specifies
that filing of the notice of appeal and deposit of the docket
fee are the only steps required to vest the district court with
jurisdiction of the appeal.13 Our discussion of the case law will
show that we have characterized the statement of errors rule in
full accord with this statutory command.
Another flaw is the premise’s inconsistency with other
uniform district court rules. There are other sections of the
Uniform District Court Rules of Practice and Procedure which
specify procedures but where the district court undoubtedly
has power to grant relief without relying on the suspension
rule. For example, even though a rule requires that “citation of
Nebraska cases shall include the . . . North Western Reporter
citation,”14 a court can surely exercise its discretion to accept
a brief containing only citations to the Nebraska Reports or
the Nebraska Appellate Reports. This illustrates the absurdity
of applying the suspension rule to matters generally within the
district court’s discretion.
[4,5] The final flaw, and perhaps the most important one,
is its implicit characterization of district courts. The district
11
§ 25-2733(1).
12
§ 25-2733(2).
13
§ 25-2729(2).
14
Neb. Ct. R. § 6-1505(C).
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court has certain inherent powers by virtue of being a court.15
“The term ‘inherent power of the judiciary’ means that which
is essential to the existence, dignity and functions of the court
from the very fact that it is a court.”16 Nebraska courts, through
their inherent judicial power, have the authority to do all things
reasonably necessary for the proper administration of justice.17
[6] And when sitting as an intermediate appellate court, the
district court has inherent power common to appellate courts.
For example, in State v. Hausmann,18 we reiterated that an inter-
mediate appellate court may timely modify its opinion, which is
“consistent with the generally recognized common-law rule that
an appellate court has the inherent power to reconsider an order
or [a] ruling until divested of jurisdiction.” And the Nebraska
Court of Appeals found no error in a case where the district
court, sitting as an appellate court, accepted a supplemental
bill of exceptions on rehearing.19 Surely, an appellate court has
inherent authority to regulate such things as timing of record
preparation, extension of brief dates, and argument dates.
(b) Lessons From Case Law
Finally, several lessons can be drawn from this state’s
reported decisions. First, and foremost, this court has never
held that a district court lacks the power to extend the time for
filing a statement of errors or that its power to do so is limited
15
See, e.g., Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017); In
re Interest of Luz P. et al., 295 Neb. 814, 891 N.W.2d 651 (2017); Jacob v.
Nebraska Dept. of Corr. Servs., 294 Neb. 735, 884 N.W.2d 687 (2016); In
re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016); Carrel v.
Serco Inc., 291 Neb. 61, 864 N.W.2d 236 (2015); Marcuzzo v. Bank of the
West, 290 Neb. 809, 862 N.W.2d 281 (2015).
16
In re Integration of Nebraska State Bar Ass’n, 133 Neb. 283, 288, 275
N.W. 265, 267 (1937).
17
Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848
(2010), disapproved on other grounds, Hossaini v. Vaelizadeh, 283 Neb.
369, 808 N.W.2d 867 (2012).
18
State v. Hausmann, 277 Neb. 819, 826, 765 N.W.2d 219, 225 (2009).
19
State v. Osborne, 20 Neb. Ct. App. 553, 826 N.W.2d 892 (2013).
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by the suspension rule. This is not surprising given that early
on, we characterized the rule as “simply a procedural tool
designed to frame the issues to be addressed in the appeal to
the district court.”20
Second, in cases where no statement of errors was filed and
the district court reviewed for plain error, the higher appellate
court likewise reviewed for plain error only.21
[7] Third, in cases where no statement of errors was filed,
but the record showed that the district court considered an
issue that was also assigned to a higher appellate court, the
Supreme Court or the Court of Appeals may consider that
issue.22 Thus, in a case where the defendant did not file a state-
ment of errors, the Court of Appeals looked to the “proceed-
ings and argument before the district court”23 to see whether a
claimed error was mentioned. In another case, the defendant’s
notice of appeal from county court stated that she was appeal-
ing due to an excessive sentence.24 Based on an assignment
of error in the defendant’s brief, the district court considered
whether the county court abused its discretion in sentencing the
20
Lindsay Ins. Agency v. Mead, 244 Neb. 645, 648, 508 N.W.2d 820, 823
(1993) (referring to predecessor version of current county court rule).
21
See, Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301, 854 N.W.2d
774 (2014); State v. Hays, 253 Neb. 467, 570 N.W.2d 823 (1997); In re
Estate of Morse, 248 Neb. 896, 540 N.W.2d 131 (1995); State v. Harper,
19 Neb. Ct. App. 93, 800 N.W.2d 683 (2011); State v. Burns, 16 Neb. Ct. App.
630, 747 N.W.2d 635 (2008); State v. Fiedler, 5 Neb. Ct. App. 629, 562
N.W.2d 380 (1997).
22
See, State v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005); Lindsay Ins.
Agency v. Mead, supra note 20; State v. Zimmerman, 19 Neb. Ct. App. 451,
810 N.W.2d 167 (2012); First Nat. Bank of Omaha v. Eldridge, 17 Neb.
App. 12, 756 N.W.2d 167 (2008); State v. Boye, 1 Neb. Ct. App. 548, 499
N.W.2d 860 (1993). See, also, State v. Cardona, 10 Neb. Ct. App. 815, 639
N.W.2d 653 (2002) (considering issue not raised in timely filed statement
of errors, because district court’s order showed it considered and ruled
upon issue).
23
State v. Engleman, 5 Neb. Ct. App. 485, 489, 560 N.W.2d 851, 856 (1997).
24
State v. Griffin, supra note 22.
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defendant. On appeal to this court, the State argued that appel-
late review was limited to plain error due to the defendant’s
failure to file a statement of errors. We disagreed with the dis-
trict court that an assignment of error in a brief to the district
court could constitute compliance with the rule, but we treated
the issue of excessive sentence as assigned error because the
defendant “specifically raised the issue of excessive sentence
in her notice of appeal which was filed in the county court . . .
and included in the transcript filed in the district court.”25
Fourth, the review conducted when a statement of errors is
filed, but not within the 10-day window, has varied. In a case
where the district court reviewed the record for plain error
only, the Court of Appeals similarly conducted a plain error
review.26 But in a case where the district court considered
the errors raised in the untimely filed statement of errors, the
Court of Appeals likewise considered those errors.27 In that
case, the district court granted a motion to file the statement
of errors out of time, and the Court of Appeals stated that “it
was within the district court’s discretion to allow [the appel-
lant] to file its statement of errors and to consider the issues
raised therein.”28
In an appeal in a criminal case, this court determined that “an
exception to the rule . . . was necessarily in order.”29 There, the
defendant’s new counsel filed an untimely statement of errors
which did not contain a claim of ineffectiveness of trial coun-
sel. The Court of Appeals reversed the district court’s judgment
based on ineffectiveness of counsel. The State sought further
review by this court, claiming that the Court of Appeals erred
in considering ineffectiveness of counsel, because it was not
contained in the statement of errors and because the statement
25
Id. at 584, 705 N.W.2d at 57.
26
State v. Harlan, 1 Neb. Ct. App. 184, 488 N.W.2d 374 (1992).
27
General Serv. Bureau v. Moller, 12 Neb. Ct. App. 288, 672 N.W.2d 41 (2003).
28
Id. at 295, 672 N.W.2d at 47.
29
State v. Gerstner, 244 Neb. 508, 513, 507 N.W.2d 490, 493 (1993).
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of errors was untimely filed. We reasoned that “[n]ew defense
counsel’s failure to assign the claim of ineffectiveness of coun-
sel and the resultant delay in submitting the statement of errors
were excusable.”30
On the other hand, in Miller v. Brunswick,31 this court
refused to consider the errors assigned on appeal, stating that
no errors were properly assigned to the district court due to the
untimely filing of the statement of errors. There is no indica-
tion in Miller that the district court gave permission to file the
untimely statement of errors.
[8] On the whole, our case law teaches that there is flex-
ibility in applying the statement of errors rule. The district
court has discretion to extend the time for filing a statement
of errors.32 It has discretion to consider errors brought to its
attention in ways other than a timely filed statement of errors.
And in light of the purpose of this “procedural tool,” we see
no reason to unduly constrict the district court’s discretion. Of
course, this discretion is not unlimited. And we provide some
guidance for the exercise of this discretion.
The situation here is analogous to one where an appellant’s
brief in the Supreme Court or the Court of Appeals does not
contain an assignments of error section. One of our court
rules requires a section of the appellant’s brief to contain,
under an appropriate heading, “[a] separate, concise statement
of each error a party contends was made by the trial court
. . . .”33 Like the district court’s statement of errors rule, our
rule cautions that “consideration of the case will be limited to
errors assigned and discussed,” but that “[t]he court may, at
its option, notice a plain error not assigned.”34 In contrast to
the district court’s rule, our rule is grounded in statute, which
30
Id.
31
Miller v. Brunswick, 253 Neb. 141, 571 N.W.2d 245 (1997).
32
See General Serv. Bureau v. Moller, supra note 27.
33
Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2014).
34
Id.
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requires that “[t]he brief of appellant shall set out particularly
each error asserted . . . .”35
We have never interpreted § 2-109(D)(1)(e) to leave us
powerless to consider errors that were not properly presented.
But we have repeatedly stated that we may proceed as though
the party failed to file a brief entirely or, alternatively, may
examine the proceedings for plain error.36 We believe that the
district court should have the same flexibility.
[9] Thus, we hold that on appeal from the county court, a
district court’s ruling on a motion to extend the time for filing a
statement of errors will be reviewed for an abuse of discretion.
Numerous situations are possible. For example, an appellant
may recognize the omission before an opponent or the court
has responded. An opponent may have responded, but only in a
summary fashion. An opponent may have submitted a full brief
relying on the omission. Or the omission may not have been
noted until after the appeal was submitted to the district court.
The specific circumstances should drive the court’s exercise of
discretion. And it is important whether the circumstances are
rooted in the moving party’s own neglect.
(c) Resolution
Here, American Paving submitted a brief to the district
court, which brief set out the errors it alleged were made by the
county court. Houser then filed its responsive brief, evidently
noting American Paving’s failure to file a statement of errors.
Only then did American Paving seek permission to file the
statement of errors out of time.
The circumstances were ordinary and rooted in American
Paving’s own neglect. The bill of exceptions was filed on
January 7, 2016. And on February 1, the district court’s letter
35
Neb. Rev. Stat. § 25-1919 (Reissue 2016).
36
See, Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014); In re Interest
of Samantha L. & Jasmine L., 286 Neb. 778, 839 N.W.2d 265 (2013);
In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011); City
of Gordon v. Montana Feeders, Corp., 273 Neb. 402, 730 N.W.2d 387
(2007).
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notified the parties of the hearing date and briefing deadlines.
While the letter did not expressly state that the bill of excep-
tions had been filed, at a minimum, it should have alerted the
parties to inquire. American Paving admitted that it did not do
so until March 2, and it provided no explanation not rooted in
its own neglect. Although American Paving submitted a brief
to the district court on March 21, even then it did not file the
statement of errors. It was not until after Houser’s brief was
submitted that it dawned on American Paving to seek exten-
sion of the time. And by then, Houser had briefed the merits
of the appeal.
We conclude that under these circumstances, the district
court abused its discretion in granting the motion to extend
the time for filing of a statement of errors. Because the district
court abused its discretion, its review in this case should have
been limited to plain error. In turn, our review of the county
court’s judgment will be limited to plain error.
2. Houser’s A ppeal
Houser appeals the district court’s reversal of the county
court’s determination that $26,189.09, the cost of the 2-inch
overlay, was recoverable as part of Houser’s damages for the
breach of contract. Houser asserts that under the proper, plain
error standard of review, there was no plain error in this aspect
of the county court’s award. We agree and find that there was
no plain error in the county court’s assessment of $26,189.09 in
damages for the 2-inch overlay. Thus, the district court erred in
reversing that portion of the county court’s verdict.
We note that Houser did not assign as error in this appeal
the district court’s reversal of the county court’s inclusion
in its determination of damages the amount of the cost for
seal-­coating the driveway. Nor did Houser assign as error the
district court’s reversal of the county court’s award as costs
Houser’s expenditures for his expert reports and testimony.
Finally, Houser did not assign as error the district court’s
denial of his motion for attorney fees incurred responding to
American Paving’s motion to file its statement of errors out of
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time. He does not argue that we should revisit these aspects of
the district court’s opinion. Therefore, we do not.
3. A merican Paving’s Cross-A ppeal
In its cross-appeal, American Paving asserts that the district
court erred in affirming the county court’s assessment as dam-
ages the cost of patchwork repairs prior to the 2-inch overlay
and in affirming the award of $1,514 in sanctions in relation
to American Paving’s late production of discovery materials.
As discussed, these errors were not properly assigned to the
district court and we therefore limit our review to plain error.
We find no plain error in the county court’s determination
that the evidence supported as damages reimbursement for
Houser’s expenditures in patchwork repairs prior to the 2-inch
overlay. Neither do we find plain error in its award of $1,514
in sanctions for American Paving’s failure to timely turn over
certain discovery materials. We accordingly affirm the district
court’s judgment inasmuch as it affirmed the award of $1,514
in discovery sanctions and $5,660 in repairs.
American Paving did not raise in its cross-appeal any issue
pertaining to the district court’s determination to affirm the
county court’s award of $861.75 in costs. We therefore also
affirm this aspect of the district court’s judgment.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court with respect to the county court’s determina-
tion that damages included $5,660 in patchwork repairs, that
Houser should be awarded $1,514 as discovery sanctions, and
that Houser should be awarded $861.75 in costs. We reverse
the district court’s judgment with respect to its reversal of the
county court’s determination that Houser’s damages included
$26,189.09 for the 2-inch overlay. We remand the cause to the
district court with directions to remand to the county court with
directions to enter a judgment in accordance with this opinion.
A ffirmed in part, and in part reversed
and remanded with directions.