Centurion Stone of Neb. v. Whelan ( 2013 )

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150 286 NEBRASKA REPORTS
Centurion Stone of Nebraska, appellee,
v. Lawrence Whelan and Jane
Whelan, appellants.
___ N.W.2d ___
Filed June 21, 2013. No. S-12-1022.
1. Courts: Appeal and Error. The district court and higher appellate courts gener-
ally review appeals from the county court for error appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appear-
ing 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. ____: ____. In instances when an appellate court is required to review cases for
error appearing on the record, questions of law are nonetheless reviewed de novo
on the record.
4. Records: Appeal and Error. It is incumbent upon the appellant to present a
record supporting the errors assigned; absent such a record, an appellate court
will affirm the lower court’s decision regarding those errors.
Appeal from the District Court for Douglas County, Thomas
A. Otepka, Judge, on appeal thereto from the County Court for
Douglas County, Craig Q. McDermott, Judge. Judgment of
District Court reversed, and cause remanded with directions.
Lawrence G. Whelan and Dennis G. Whelan, of Whelan
Law Office, and Dana C. Bradford III, of Bradford & Coenen,
L.L.C., for appellants.
Joseph J. Skudlarek for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Cassel, JJ.
Heavican, C.J.
INTRODUCTION
After having judgment entered against them by the county
court, Lawrence Whelan and Jane Whelan appealed to the
district court, acting as an intermediate court of appeals. As
part of that appeal, the Whelans offered into evidence the bill
of exceptions created before the county court. Subsequent to
the appeal hearing, the district court became aware that the
county court’s bill of exceptions was incomplete. Due to the
Nebraska Advance Sheets
CENTURION STONE OF NEB. v. WHELAN 151
Cite as 286 Neb. 150incomplete bill, the district court reviewed only the pleadings
and affirmed the judgment of the county court. The Whelans
appeal. We reverse, and remand with directions.
BACKGROUND
The Whelans entered into a contract for services and sup-
plies with Centurion Stone of Nebraska (Centurion Stone).
Disputes arose surrounding the contract. Centurion Stone
filed suit against the Whelans for breach of contract and
quantum meruit, seeking $15,973.58. The Whelans filed a
counterclaim. Following a jury trial, judgment was entered
for Centurion Stone and against the Whelans in the amount
of $8,256.75.
The Whelans appealed this judgment to the Douglas County
District Court. At a hearing before the district court, the
Whelans asked the district court to take judicial notice of the
county court transcript and offered exhibit 1, which was the
bill of exceptions of the proceedings before the county court.
Subsequently, Centurion Stone filed a motion to dismiss
the Whelans’ appeal and pointed out the incompleteness of
the bill of exceptions, specifically that tape 17 had been
lost and, with it, several hours of testimony. A hearing was
held on that motion on July 19, 2012. During the hearing,
Lawrence, who is a licensed attorney representing himself
and his wife, Jane, acknowledged that as of the date of the
appeal hearing, he was aware of certain deficiencies in the
county court record.
After taking the matter under advisement, the district court
entered an order stating:
Our Supreme Court has held that it is “incumbent upon
the Appellant to present a record which supports the errors
assigned.” [Citation omitted.] Their opportunity to do so
was at the time of the appeal which they instituted and
they did not. Rather, knowing that the Bill of Exceptions
(Ex. 1) was not complete before the hearing, Appellants
marked and offered it as an exhibit, representing it as the
complete record and asked this Court to rely upon it and
reverse the County Court.
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The district court then reviewed the pleadings and concluded
that they supported the county court’s judgment. The district
court also noted that the Whelans’ statement of errors was
filed out of time, but noted that even if the late statement
of errors was allowed, the record still did not support the
Whelans’ appeal.
ASSIGNMENTS OF ERROR
The Whelans assign that the district court erred in (1) fail-
ing to order the county court to complete the record or, in the
alternative, to remand the case to the county court for a new
trial, and (2) finding that the pleadings supported the judgment
of the county court.
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.1 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.2
[3] However, in instances when an appellate court is required
to review cases for error appearing on the record, questions of
law are nonetheless reviewed de novo on the record.3
ANALYSIS
[4] We turn first to the Whelans’ contention that the district
court erred when it failed to remand this case to the county
court for a new trial. As a general proposition, it is incumbent
upon the appellant to present a record supporting the errors
assigned; absent such a record, an appellate court will affirm
the lower court’s decision regarding those errors.4 We have
applied this rule against appellants in situations where the
1
Schinnerer v. Nebraska Diamond Sales Co., 278 Neb. 194, 769 N.W.2d
350 (2009).
2
Id.3
Id.4
Intercall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).
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CENTURION STONE OF NEB. v. WHELAN 153
Cite as 286 Neb. 150appellant has failed to properly create or request the record
before the trial court by simply examining whether the plead-
ings supported the trial court’s judgment.5
But the rule is different where the fault for the lack of an
appellate record cannot be assigned to the parties. In Terry v.
Duff,6 the court was unable to locate the bill of exceptions.
Though it was unclear whether the bill had been lost by the
clerk of the court or by one or other of the parties, this court
vacated the trial court’s judgment and remanded the cause for
a new trial. And in State v. Slezak,7 the lack of a bill of excep-
tions was attributed to the court reporter. We remanded the
cause to the district court with directions to order the county
court to prepare a new bill.8 And quite recently, in Hynes v.
Good Samaritan Hosp.,9 this court vacated a judgment and
remanded the cause for a new trial when, through no fault of
the parties, none of the testimony presented by the defendant
was preserved for appellate review.
In this case, the parties agree that the incomplete record
was the fault of the county court. Moreover, the district court
was informed and aware of the incomplete record prior to
reaching its decision. The district court should have ordered
the county court to file a complete bill of exceptions by any
manner deemed appropriate by the county court, including, if
necessary, holding a new trial in the county court. The district
court’s failure to do so was error.
5
See, e.g., Huddleson v. Abramson, 252 Neb. 286, 561 N.W.2d 580 (1997)
(bill not part of appellate record); Latenser v. Intercessors of the Lamb,
Inc., 245 Neb. 337, 513 N.W.2d 281 (1994) (bill incomplete); Scottsbluff
Typewriter Leasing v. Beverly Ent., 230 Neb. 699, 432 N.W.2d 844 (1988)
(bill incomplete); Nimmer v. Nimmer, 203 Neb. 503, 279 N.W.2d 156(1979) (no bill of exceptions created); Boosalis v. Horace Mann Ins.
Co., 198 Neb. 148, 251 N.W.2d 885 (1977) (bill incomplete); Rhodes
v. Johnstone, 191 Neb. 552, 216 N.W.2d 168 (1974) (no bill created or
praecipe filed); Jones v. City of Chadron, 156 Neb. 150, 55 N.W.2d 495(1952) (no bill created or authenticated).
6
Terry v. Duff, 246 Neb. 11, 516 N.W.2d 591 (1994).
7
State v. Slezak, 230 Neb. 197, 430 N.W.2d 533 (1988).
8
Id. See, also, State v. Benson, 199 Neb. 549, 260 N.W.2d 208 (1977).
9
Hynes v. Good Samaritan Hosp., 285 Neb. 985, ___ N.W.2d ___ (2013).
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We reverse, and remand with directions to the district court
to order the county court to file a complete bill of exceptions
with the district court or, in the alternative, to hold a new trial.
As such, we need not address the Whelans’ second assignment
of error.
CONCLUSION
The order of the district court affirming the judgment of
the county court is reversed, and the cause is remanded with
directions.
R eversed and remanded with directions.
Miller-Lerman, J., participating on briefs.