Muller v. Weeder

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/26/2019 09:06 AM CST
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Nebraska Court of A ppeals A dvance Sheets
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MULLER v. WEEDER
Cite as 26 Neb. Ct. App. 938
R ichard Muller, appellee, v.
John Weeder, appellant.
___ N.W.2d ___
Filed February 26, 2019. No. A-17-803.
1. Contempt: Appeal and Error. In a civil contempt proceeding where
a party seeks remedial relief for an alleged violation of a court order,
an appellate court employs a three-part standard of review in which (1)
the trial court’s resolution of issues of law is reviewed de novo, (2) the
trial court’s factual findings are reviewed for clear error, and (3) the trial
court’s determinations of whether a party is in contempt and of the sanc-
tion to be imposed are reviewed for abuse of discretion.
2. Appeal and Error: Words and Phrases. An appellate court may, at
its option, notice plain error. 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 judi-
cial process.
3. Constitutional Law: Courts: Jurisdiction: Contempt. A court can
issue orders that are necessary to carry its judgment or decree into
effect. The power to punish for contempt is incident to every judicial
tribune. It is derived from a court’s constitutional power, without any
expressed statutory aid, and is inherent in all courts of record.
4. Contempt: Proof. Outside of statutory procedures imposing a different
standard, it is the complainant’s burden to prove civil contempt by clear
and convincing evidence.
Appeal from the District Court for Boyd County, M ark D.
Kozisek, Judge, on appeal thereto from the County Court for
Boyd County, A lan L. Brodbeck, Judge. Judgment of District
Court reversed and remanded with directions.
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MULLER v. WEEDER
Cite as 26 Neb. Ct. App. 938
Lyle J. Koenig, of Koenig Law Firm, for appellant.
Ryan D. Cwach, of Birmingham & Cwach Law Offices,
P.L.L.C., for appellee.
Moore, Chief Judge, and R iedmann and Welch, Judges.
Welch, Judge.
INTRODUCTION
John Weeder appeals from the decision of the Boyd County
District Court affirming the county court’s order finding that
he had not complied with a mediation agreement, which was
entered as a judgment, requiring him to repair his half of a
boundary fence and awarding Richard Muller $4,998.30. He
also appeals the district court’s order granting Muller’s cross-
appeal and awarding Muller an additional $1,417.50 for the
cost of tree and brush removal. Having determined, based upon
plain error review, that the county court applied the wrong
standard of proof in connection with the evidentiary hearing,
placing the burden of proof on Weeder, we reverse the district
court’s order and remand the cause with directions.
STATEMENT OF FACTS
In 2013, Muller obtained real property in Boyd County,
Nebraska, which property shares a fence line with property
owned by Weeder. In 2014, both Muller and his brother deter-
mined that the fence “was beyond repair,” leading Muller to
replace his half of the fence. After Weeder refused to replace
his part of the fence, Muller filed a fence dispute complaint in
the Boyd County Court requesting that Weeder be ordered to
pay him $5,959.34 “and costs of this action for construction,
repair or maintenance of a division fence between adjoining
properties.” The parties agreed to attend mediation and reached
an agreement on May 26, 2015. The mediation agreement pro-
vided, in relevant part:
(1) The right hand rule is agreed to as [delineating] the
fence responsibility for each party.
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....
(3) Weeder will clear trees, shrubs[,] etc[.] that could
damage the fence from his portion of the fence. Weeder
will repair or replace his portion of the fence such that
the fence will be a 4 wire fence complying with current
state statutes.
....
(6) If Weeder fails to complete the actions described in
paragraph 3 by October 15, 2015, Muller may complete
those actions. In the event that Muller complete[s] the
actions required in paragraph 3[,] Muller shall be entitled
to the entry of a judgement against Weeder in an amount
equal to the reasonable expenses incurred by Muller in
completing that work.
They also agreed that Muller had “repaired or replaced his
portion of the fence,” had cleared trees and shrubs from
his portion of the fence, and had installed a four-wire fence
which complied with the current state statute on his portion of
the fence.
Pursuant to Nebraska state statute, a lawful wire fence
shall consist of at least four wires, of a size not less than
number nine fencing wire, to be well secured to posts,
the posts to be at no greater distance than one rod from
each other; and there shall be placed between every two
of the posts one stake or post to which the wire shall be
attached. Any of such wires may be a barbed wire com-
posed of two or more single wire strands twisted into a
cable wire with metal barbs thereon averaging not more
than five inches apart, each of such single wire strands
to be of a size not less than number twelve and one-half
gauge fencing wire.
Neb. Rev. Stat. § 34-115(5) (Reissue 2016). Further, “[t]he
fences described in section 34-115 shall be at least four and
one-half feet in height; and in the construction of such fences
the spaces between the boards, rails, poles, and wires shall not
exceed one foot each, measuring from the top.” Neb. Rev. Stat.
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§ 34-116 (Reissue 2016). On December 14, 2015, pursuant to
Neb. Rev. Stat. § 34-112.02 (Reissue 2016), the county court
entered judgment in conformity with the settlement agreement.
In that same order, the court ordered that Weeder had 7 days
to comply with the settlement agreement and that if Weeder
failed to comply within 7 days, Muller “may proceed under
paragraph 6 of the [mediation] agreement to repair the fence,
[and] submit a bill showing costs necessary to comply with the
agreement.” Two days after the court ordered Weeder to fix the
fence, Tim Nolan, Raymond Wade, Michael Wade, and Aaron
Holz worked to repair Weeder’s portion of the fence, working
12 hours over a 3-day period. The men trimmed trees, added
a fourth wire to the fence, stretched and spaced wires out,
added posts “so the posts were the right distance apart,” and
set a cornerpost.
In early January 2016, Muller viewed the fence repairs
and determined that the repairs were not in compliance with
the mediation agreement or state statute. On February 10,
Muller contracted with Preferred Fencing & Cedar Removal
(Preferred Fencing) to remove and replace Weeder’s side of
the fence. Muller then provided notice to Weeder, by certi-
fied letter to Weeder’s attorney, that he was going to have
the fence replaced, the estimated cost of the replacement,
and the additional estimated cost for removal of trees and
wooded plants in the fence line. Muller testified that neither
Weeder, nor his counsel, told him not to go forward with
the fence repair or replacement; however, he admitted that
Weeder filed a motion for hearing based upon the documents
that he had provided him. The fence removal and replace-
ment occurred on or about March 10 and cost $4,998.30.
This amount included charges for 18 hours spent on removing
cedar trees that were along the fence line. Additionally, Muller
hired Kevin Thomson to clear trees and brush out of the fence
line. Thomson submitted an invoice detailing 21 hours of
work at $75 per hour less a 10-percent discount, for a total
of $1,417.50.
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Over 2 days in September and November 2016, a show
cause hearing was held as to why Weeder should not have to
reimburse Muller $6,415.80 for the costs of the tree and brush
removal and the cost of the fence removal and replacement. In
his defense of the order to show cause, Weeder called Albert
Lee, Nolan, Raymond Wade, Michael Wade, and Holz.
Lee testified that he was familiar with the fence line and
that at Weeder’s request, he inspected the fence after the
repairs had been made. He did so by walking the complete
fence line. He testified that the repaired fence was a four-wire
barbed wire fence with about 8 inches between the wires. He
also testified that the posts on Weeder’s portion of the fence
were placed approximately every 16 feet, which was approxi-
mately the same distance between the posts on Muller’s por-
tion of the fence. Lee testified that Weeder’s fence was a
mixture of old and new wire, and when asked about the size
of the wire’s gauge, he replied that it “appeared to be standard
red brand wire.” He further testified that both Weeder’s and
Muller’s portions of the fence appeared to be of the same or a
similar size gauge. Lee testified that he has been building and
maintaining fences for almost 50 years and that in his opinion,
Weeder’s fence was repaired in accordance with state statute
“[a]s [he] knew it to be” and “[a]s it was explained here [in
court]”; however, he admitted that prior to this case, he was
not aware what was required in order to make a legal fence,
and he stated, “I might add, mine isn’t.” He further admitted
that he did not know required spacing between fencing wires.
Photographs that Lee took of the repaired fence were admitted
into evidence as exhibits. Lee further admitted that one such
exhibit depicted a split cedar post and that he did not know
if it was a legal fencepost. Lee admitted that another such
exhibit showed a portion of Weeder’s fence where a “wire
[was] growing into a live tree.” Lee admitted that the tree is
not a legal post.
Nolan testified that he rents the property on both sides of
the fence. Nolan provided materials to fix Weeder’s fence. He
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estimated the materials were worth a little over $200, and he
estimated the value of the labor at $20 per hour. According
to Nolan, he and the others assisting placed posts about 15
feet apart and added a new top wire which was either 14 or
16 gauge “[r]egular barbed wire.” They then took the other
three wires off and spaced them out based on “whatever looks
right by eyesight” which he estimated was a “foot apart.” He
admitted that he did not check to see if the barbs were more
than 5 inches apart. Nolan admitted that the site depicted in
the exhibit which showed a tree with a wire growing through
it “could sure be on [Weeder’s] half [of the fence], because
there’s one tree that had wire growing through it like that.”
Nolan testified the fence he repaired met the code require-
ments that he was “familiar with.” Similarly, Raymond Wade
testified of Weeder’s repaired fence, “It’s a lot better fence than
I see on some of the others.” Michael Wade also testified that
in his opinion, the repaired fenceposts were compliant with
state statute. Michael Wade further testified that he did not
notice any difference between the gauge of the new wire and
that of the old wires and that they were placed about 10 to 12
inches apart.
Raymond Wade, Michael Wade, and Holz all corroborated
Nolan’s testimony that they worked for 12 hours over a 3-day
period repairing Weeder’s fence. Additionally, the three men
estimated the value of the labor at between $15 and $20
per hour.
Muller called three witnesses on his behalf: Thomson,
Muller himself, and Muller’s brother. Muller testified that
he viewed Weeder’s fence in early January 2016, after the
repairs had been made. His testimony is consistent with the
evidence previously set forth in this opinion. Muller also took
some photographs of the repaired fence which were received
into evidence, along with the flash drive upon which the
photographs were saved. In early February 2016, Muller con-
tracted with Preferred Fencing to repair the fence. After doing
so, he notified Weeder, by certified letter sent to Weeder’s
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attorney, that Muller intended to repair the fence to meet
state statutes. Muller testified that he received notification
of Weeder’s motion for a hearing after the fence had already
been repaired.
Muller’s brother testified that he is familiar with the parti-
tion fence, he has fenced his own property and his parents’
property, and “in [his] opinion, [Weeder’s repairs] didn’t meet
the statutes as [he] read them.”
Thomson testified that in January or February 2016, Muller
hired him to clear out the trees and brush on the south side
of Weeder’s portion of the fence and hardwood trees in the
middle of the fence line. In response to a question about the
condition and quantity of brush growing into the fence line, he
stated, “There [were] some patches that were really . . . thick.
You couldn’t even see the fence line.”
In rebuttal, Weeder called his former attorney, Steven
Brewster, who testified that in early to mid-February 2016, he
received a packet from Muller which included documents and
photographs. The documents included information that Muller
was going to replace the fence. The packet was admitted into
evidence. In response, Brewster filed a motion for further hear-
ing for the purpose of presenting to the court the condition of
the repaired fence. The court took judicial notice of Brewster’s
motion for further hearing, which was “dated February 23rd,
2016.” Brewster testified that he withdrew the motion prior
to the scheduled hearing after learning the repaired fence had
been torn out and replaced. Muller responded to Weeder’s
testimony by testifying that no one contacted him about not
removing the fence.
In a journal entry entered on December 22, 2016, the county
court found that although Weeder, or his associates, did some
work on the fence, the work was neither satisfactory, nor in
compliance with state statute, nor in compliance with the
tenor of the mediation agreement. Thus, the court found that
Muller was entitled, pursuant to the terms of the mediation
agreement, to bring the fence into compliance with the state
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MULLER v. WEEDER
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statute and did so by contracting with Preferred Fencing to
perform the fence work. Preferred Fencing performed the work
on March 12, 2016. The court found that the cost of the fence
work was $4,998.30, which the court found to be a reasonable
cost to complete the work. Thus, the court entered judgment
in Muller’s favor against Weeder in the amount of $4,998.30.
Weeder appealed, and Muller cross-appealed, to the district
court. The district court affirmed the county court’s order,
finding that Weeder had not complied with a mediation agree-
ment requiring him to repair his half of a boundary fence and
awarding Muller $4,998.30. Further, the district court granted
Muller’s cross-appeal and found the county court erred in
failing to award the cost of tree and brush removal. Thus, the
district court modified the decision of the county court by
awarding Muller an additional $1,417.50 for the cost of tree
and brush removal. Weeder timely appeals.
ASSIGNMENTS OF ERROR
On appeal, Weeder contends that the district court erred in
affirming the county court’s order on the basis that the county
court erred (1) in failing to find that Muller committed spo-
liation; (2) in finding that the fence, as repaired by Weeder,
did not meet the requirements of the mediation agreement
and state statutes; and (3) in finding that the fencing contrac-
tor’s charges were reasonable. Weeder also contends that the
district court erred in holding that the county court erred in
failing to award Muller the cost of tree and brush removal.
Finally, he contends that the district court erred in failing to
review his “as applied” constitutional challenge under the
plain error doctrine.
STANDARD OF REVIEW
[1] In a civil contempt proceeding where a party seeks reme-
dial relief for an alleged violation of a court order, an appel-
late court employs a three-part standard of review in which
(1) the trial court’s resolution of issues of law is reviewed de
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novo, (2) the trial court’s factual findings are reviewed for
clear error, and (3) the trial court’s determinations of whether
a party is in contempt and of the sanction to be imposed are
reviewed for abuse of discretion. Hossaini v. Vaelizadeh, 283
Neb. 369, 808 N.W.2d 867 (2012).
ANALYSIS
Before addressing Weeder’s assignments of error, we first
note the unusual posture of this case. The case began as a claim
filed by Muller against Weeder pursuant to Nebraska statutes
governing division fences. Prior to trial, the parties mediated
their dispute, and as required by § 34-112.02(4), the trial court
entered the agreement as the judgment in the action. In sum-
mary, the judgment required Weeder to repair his portion of the
fence in accordance with applicable statute, or, if he failed to
timely repair the fence, Muller was entitled to repair Weeder’s
portion of the fence and obtain reimbursement of the reason-
able cost of repairs from Weeder. Weeder made an attempt to
repair the fence; however, Muller deemed the attempt inad-
equate. In response, Muller had the fence repaired and sought
reimbursement of the cost of the fence by filing an application
for an order to show cause. Following that application, the
court set a hearing on the application.
At that show cause hearing, there was disagreement among
the parties on how to proceed with the factual hearing on
Muller’s application for an order to show cause. Because
Muller had filed the application with affidavits stating that he
believed Weeder failed to properly repair the fence and that
Muller was entitled to reimbursement for his repair of the
fence, the court asked Weeder to initiate evidence in opposition
to that application. That exchange is captured in the follow-
ing colloquy:
THE COURT: And now I’m asking you to call wit-
nesses, and you’re telling me you don’t want to do that.
[Weeder’s counsel]: I’m just saying, I believe it’s
[Muller’s] burden to show cause, to put in enough
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evidence that there’s any cause to show. I mean, I’m
happy to put my witnesses on, Judge, but we need — I’ll
call the guy that put in his fence first.
....
[Weeder’s counsel]: Judge, I need to be clear. Are we
allowing these basically hearsay documents to support
their case of what they’re entitled to? Don’t they have to
put on a witness to establish the amount?
THE COURT: And you don’t believe the affidavit
establishes what they’re asking for?
[Weeder’s counsel]: No, Judge. That’s an out[-]of-
court statement. That’s hearsay. I have no opportunity to
cross-examine.
THE COURT: Okay. The order to show cause is issued
to [Weeder] to appear before this Court in the Boyd
County Courthouse, Butte[,] Nebraska, on the 12th day of
September, 2016, at 1:00 p.m. for [Weeder] to show cause
why money judgment is requested in [Muller’s] applica-
tion and affidavit for order to show cause in compliance
with this Court’s order of December 14th, 2015.
[Weeder’s counsel]: I’m going to have to ask for a con-
tinuance, Judge, and subpoena these witnesses, because
we’ve got somebody saying — offering hearsay evidence
to support a money judgment to which they burned down
the evidence and then said, okay, we’re going to submit
an affidavit, and this is what you owe me. I just can’t
imagine that that passes due process, Judge. If we need to
go forward today, I’ll call my witnesses, but I need a con-
tinuance to get an opportunity to hear the witness testify,
I don’t know who did this. It’s not even signed. They’re
just two hearsay documents that — I mean, I could print
these out on my own computer.
THE COURT: So you’re suggesting that [Muller’s
counsel has] offered forged evidence?
[Weeder’s counsel]: I have no way to determine the
reliability without cross-examining the witnesses, Judge.
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THE COURT: But nonetheless, the Court’s order said
that you were to show cause, not for [Muller’s counsel]
to show cause.
Although the court expressed a willingness to grant a con-
tinuance, the hearing proceeded with Weeder producing evi-
dence first, followed by Muller. Following the hearing, the
court entered an order in favor of Muller, finding that Weeder’s
repair work was not performed in accordance with state statute
or in accord with the tenor of the mediation agreement. The
court further held that Muller was entitled to bring the fence
into compliance, proceeded to do so, and was entitled to judg-
ment for the cost of that repair. The matter was then appealed
to the district court. The district court found that the trial
court’s findings were not clearly wrong but found Muller was
entitled to an additional $1,417.50 in his cross-appeal.
[2] Although Weeder did not assign error to the trial court’s
procedural posture of the case, that is, placing the burden of
proof on Weeder to show cause why a money judgment should
not be entered against him for failing to follow the court’s prior
judgment, an appellate court may, at its option, notice plain
error. Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d
71 (2018). 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 miscar-
riage of justice or result in damage to the integrity, reputation,
and fairness of the judicial process. Id.
[3] Here, the county court placed the burden of proof on
Weeder to demonstrate that he had complied with the court’s
prior judgment. As the Nebraska Supreme Court explained
in Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661,
675, 782 N.W.2d 848, 862 (2010), disapproved on other
grounds, Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d
867 (2012):
[A] court that has jurisdiction to issue an order also has
the power to enforce it. A court can issue orders that are
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necessary to carry its judgment or decree into effect.
Nebraska courts, through their inherent judicial power,
have the authority to do all things reasonably necessary
for the proper administration of justice. And this authority
exists apart from any statutory grant of authority. We have
recently explained that the power to punish for contempt
is incident to every judicial tribune. It is derived from a
court’s constitutional power, without any expressed statu-
tory aid, and is inherent in all courts of record.
[4] However, in determining the standard of proof in con-
nection with the court’s inherent power to enforce judgments,
the Supreme Court held:
We recognize that many state courts permit parties to
prove civil contempt by a preponderance of the evidence.
And in some circumstances, Neb. Rev. Stat. § 42-358(3)
. . . permits a rebuttable presumption of contempt if a
prima facie showing is made that an obligor is delinquent
in his or her child or spousal support obligations. But
apart from a statutory mandate requiring a different stan-
dard, we do not believe presumptions or a preponderance
standard is consistent with what we have stated about
civil burdens of proof.
....
. . . Accordingly, we overrule all the cases listed in
footnote 129 to the extent that these cases hold or imply
that proof beyond a reasonable doubt is required for civil
contempt proceedings. Outside of statutory procedures
imposing a different standard, it is the complainant’s
burden to prove civil contempt by clear and convinc-
ing evidence.
Id. at 706-07, 782 N.W.2d at 881.
The trial court here appears to have shifted the burden onto
Weeder once Muller filed an affidavit stating his belief that
Weeder was in default of the court’s order. The trial court then
placed the burden of proof on Weeder to show that he was not
in contempt and ultimately granted monetary relief to Muller
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following that hearing. Without discussing the applicable bur-
den, the district court affirmed the trial court’s decision, in
part, and granted an additional judgment in favor of Muller.
Because we find that the trial court applied the wrong stan-
dard of proof in connection with the evidentiary hearing, we
reverse the decision of the district court and remand the cause
to the district court with directions to reverse the order of the
county court and remand the matter for further proceedings
consistent with this opinion. Based upon this determination,
we need not consider Weeder’s assignments of error raised on
appeal. See Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d
868 (2018) (appellate court is not obligated to engage in anal-
ysis that is not necessary to adjudicate case and controversy
before it).
R eversed and remanded with directions.