Sutton v. Killham

Decisions of the Nebraska Court of Appeals
SUTTON v. KILLHAM 257
Cite as 22 Neb. Ct. App. 257
Graham. Consequently, we conclude that there was insufficient
evidence to rebut the presumption that the guidelines should
be applied. Therefore, the district court abused its discretion
when it entered a child support order that deviated from the
child support guidelines without good cause.
Based on the child support worksheet completed by the dis­
trict court, Mindi should have been required to pay $626 per
month. We therefore modify the decree to award Christian $626
per month in child support. The trial court entered its decree on
July 19, 2013. If the trial court had ordered child support to be
paid as required by the guidelines, the first installment would
have been due on August 1. The decree as modified by this
opinion shall operate accordingly. See Pursley v. Pursley, 261
Neb. 478, 623 N.W.2d 651 (2001).
CONCLUSION
We find that the district court did not abuse its discretion
in allowing the Lincoln County action to proceed, awarding
custody of Graham to Christian, or dividing the costs of the
action equally between the parties. However, the cohabitation
restriction is impermissible, and we therefore remove it from
the parenting plan. Likewise, it was an abuse of discretion for
the district court to deviate from the child support guidelines
without good cause. Accordingly, we modify the decree to
order Mindi to pay $626 per month in child support in accord­
ance with the child support guidelines.
Affirmed as modified.
Rita A. Sutton and K ai Carlson, appellees, v.
Helen Killham et al., appellants.
___ N.W.2d ___
Filed August 19, 2014. No. A-13-635.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question
does not involve a factual dispute, determination of a jurisdictional issue is a
matter of law which requires an appellate court to reach a conclusion independent
from the trial court’s decision.
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2. Equity: Appeal and Error. On appeal from an equity action, an appellate court
tries factual questions de novo on the record and, as to questions of both fact and
law, is obligated to reach a conclusion independent of the conclusion reached by
the trial court.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdic­
tion over the matter before it, irrespective of whether the issue is raised by
the parties.
4. Final Orders: Appeal and Error. Generally, only final orders are appealable.
5. ____: ____. Under Neb. Rev. Stat. § 25-1902 (Reissue 2008), the three types
of final orders that an appellate court may review are (1) an order that affects a
substantial right and that determines the action and prevents a judgment, (2) an
order that affects a substantial right made during a special proceeding, and (3) an
order that affects a substantial right made on summary application in an action
after a judgment is rendered.
6. Final Orders: Words and Phrases. A substantial right under Neb. Rev. Stat.
§ 25-1902 (Reissue 2008) is an essential legal right.
7. Final Orders: Appeal and Error. A substantial right is affected if an order
affects the subject matter of the litigation, such as diminishing a claim or
defense that was available to an appellant before the order from which an appeal
is taken.
8. Final Orders. An order that completely disposes of the subject matter of the
litigation in an action or proceeding both is final and affects a substantial right
because it conclusively determines a claim or defense.
9. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin­
ing admissibility.
10. Trial: Evidence: Appeal and Error. To constitute reversible error in a civil case,
the admission or exclusion of evidence must unfairly prejudice a substantial right
of a litigant complaining about evidence admitted or excluded.
11. Evidence: Appeal and Error. Evidence objected to which is substantially similar
to evidence admitted without objection results in no prejudicial error.
12. Appeal and Error. An appellate court will not consider an issue on appeal that
was not presented to or passed upon by the trial court.
13. Equity. Equity strives to do justice. Equity is not a rigid concept but, instead,
is determined on a case-by-case basis according to concepts of justice and
fairness.
14. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the party’s brief.
Appeal from the District Court for Cheyenne County: Leo
Dobrovolny, Judge. Affirmed.
Robert M. Brenner, of Robert M. Brenner Law Office, for
appellants.
Decisions of the Nebraska Court of Appeals
SUTTON v. KILLHAM 259
Cite as 22 Neb. Ct. App. 257
Thomas D. Oliver for appellees.
Moore, Pirtle, and Riedmann, Judges.
Moore, Judge.
INTRODUCTION
Helen Killham and the other defendants in this case (col­
lectively the Appellants) appeal from an order of the district
court for Cheyenne County, which directed the referee to sell
the remaining interests of the parties in certain oil wells and
removed the condition that the wells be placed into production
before sale. Because we find no error in the district court’s
decision, we affirm.
BACKGROUND
This case, which originated as a dispute among the six sib­
ling beneficiaries of a trust created by their parents, has been
ongoing for well over 10 years and has resulted in numerous
court orders and four previous appeals. The first two appeals
were dismissed for lack of jurisdiction, on August 30, 2005,
in case No. A-05-847 and on March 3, 2008, in case No.
A-07-1133. An exhaustive summary of the background of the
case can be found in Sutton v. Killham, 19 Neb. Ct. App. 842,
820 N.W.2d 292 (2012) (Sutton III), affirmed 285 Neb. 1, 825
N.W.2d 188 (2013). For purposes of the present appeal, we
do not recite the full procedural background of the case here,
but set forth only those facts necessary to resolve the issues
before us.
In 2003, the district court created a receivership pursuant
to Neb. Rev. Stat. § 25-1081 (Reissue 1995) and appointed
a receiver. The receiver and successor receiver managed an
oil well or wells (the wells), pending resolution of ownership
issues related to the wells. The issues raised by the siblings
in the underlying action were apparently resolved through
mediation or court order, but the oil wells which are assets
subject to the receivership have not been disposed of. In May
2006, upon the Appellants’ request, the court appointed a ref­
eree. The referee filed a report with the court in December,
stating his opinion that the property should be sold and the
proceeds divided. He then described the property and owners
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more specifically and set forth a proposed procedure for the
marketing and sale of the property, “[p]roviding the [c]ourt
enters an order confirming th[e] report and directing sale of
the property.”
In January 2007, an intervenor in the action filed a claim
with the receiver for payment of operating expenses of an
oil well, which claim was denied by the receiver. Thereafter,
the receiver filed a motion for summary judgment which the
district court sustained, thus approving the denial of the inter­
venor’s claim. Sutton III is the appeal by the intervenor of the
grant of summary judgment in favor of the receiver, under
which appeal we affirmed the grant of summary judgment.
That decision was likewise affirmed by the Nebraska Supreme
Court on further review. Sutton v. Killham, 285 Neb. 1, 825
N.W.2d 188 (2013) (Sutton IV).
In August 2007, the district court ordered a partition sale
of the working interest in the wells and personal property
identified in the referee’s report to the court and directed the
referee to proceed with the sale, which was to be conducted
in accordance with the procedure outlined in the referee’s
report. In December 2010, the district court (in the same order
which granted the summary judgment to the receiver refer­
enced above) ordered the receiver to become the operator of
the wells and to “prepare for and commence oil production,
expending whatever necessary funds are available to establish
production again.” The court ordered the referee to proceed
with the sale as previously ordered after the receiver was pro­
ducing oil.
The record reflects that during the pendency of the appeal
addressed in Sutton III and Sutton IV, the receiver has appar­
ently been denied permission by the director of the Nebraska
Oil and Gas Conservation Commission (NOGCC) to reopen
and operate the wells. In a May 20, 2011, journal entry made
following a hearing on a motion for directives, the district
court ruled on requests by the receiver, including whether
the receiver should continue with efforts to bring the wells
into production and whether the referee should continue to
market the operating interests in the wells. The court ordered
the receiver to comply with all requirements of law to bring
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the wells into production. Because of the pending appeal, the
court found, “[A] sale at this time may not achieve the optimal
sales price, as buyers may not want to put forth their best offer
while matters concerning the wells are being litigated.” The
court authorized, but did not order, the referee to postpone
sale until the appeal was resolved. Following a status hearing
on November 21, the court directed the receiver to make an
assessment of what actions and expenses would be required
to achieve production and to advise the parties of his findings
before taking further action.
The receiver filed a motion for directives, which was heard
by the district court on January 25, 2012. The receiver offered
and the court received into evidence exhibits, including a copy
of the oil and gas lease and certain correspondence between
the receiver and the director of the NOGCC. The exhibits show
that in 2008, in connection with efforts to change the operator
of the wells, the receiver had correspondence from the direc­
tor informing him that the oil and gas lease might no longer
be valid and that the possibility existed that an application for
a “force pooling” would have to be heard by the NOGCC. At
such a hearing, the NOGCC would name the operator of the
wells in its official order. In a letter dated December 23, 2011,
the director informed the receiver as follows:
[I]t is our opinion that the oil and gas lease, under which
the continuous operations were formerly conducted, ter­
minated due to non-production and is no longer valid.
Given the fact that a large portion of the mineral real
estate has been severed from the surface real estate, we
have a number of entities now involved. Part of our
statutory charge includes the protection of the correlative
rights of all owners. Before [the NOGCC] executes any
new [f]orm . . . to authorize the sale of oil and gas, we
will require that you provide us with copies of the oil and
gas leases and the new division order title opinion.
In the event that new oil and gas leases are unable to
be obtained, [the NOGCC] has the authority to force-pool
unleased mineral interest owners under [Neb. Rev. Stat.
§] 57-909. Since there would not be an operating agree­
ment in such a situation, [the NOGCC] could also set
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262 22 NEBRASKA APPELLATE REPORTS
the terms and conditions pertaining to unpaid balances
and operating expenses. If you feel that this legal action
might be useful in this situation, you may certainly visit
with us concerning pooling in this particular case.
In a May 9, 2012, journal entry, entered following the issuance
of our opinion in Sutton III but prior to the petition for further
review that led to the Nebraska Supreme Court’s decision in
Sutton IV, the district court ruled on the receiver’s request
for directives. The court noted the substance of the director’s
December 2011 letter to the receiver.
The court then recognized that this court’s opinion in
Sutton III had no effect on the directions requested by the
receiver and that the August 2007 order directing sale of the
working interests in the wells and the December 2010 order
directing sale after production was achieved were still valid
orders. The court directed the receiver to attempt to satisfy
the NOGCC’s requirements for issuing a permit to operate the
wells and to determine if a factual basis existed to administra­
tively challenge the NOGCC’s findings with regard to the lease
at issue.
The receiver submitted a report, dated June 26, 2012, in
response to the court’s May 2012 order. In the report, the
receiver detailed some of the early history of his pumping
efforts when he was first appointed in April 2007. According
to the receiver, he repeatedly requested local operators and
pumpers to assist him in restarting the wells, but these con­
tacts declined to assist him due to the ongoing litigation.
The receiver applied to the NOGCC on at least three occa­
sions to become the operator when it became clear that no
operator “with knowledge” would consider helping him. He
reported that the last time he applied to operate the wells, the
NOGCC rejected his application and informed him the lease
was void due to a period of nonproduction lasting more than
90 days. The receiver reported that he met with the director
of the NOGCC and the director’s deputy on June 21, 2012.
According to the receiver, the director believed that the oil
and gas lease was void due to a period of nonproduction
lasting more than 90 days and that it would be inappropriate
for the receiver to operate the wells under such a lease. The
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Cite as 22 Neb. Ct. App. 257
receiver disagreed with the director’s opinion that the lease
was invalid, noting that the 90-day clause in the lease applied
only to a well that has been abandoned, and expressed his
opinion that neither well had been abandoned. The receiver
also reported that the director had informed him of steps that
any of the mineral interest holders in the wells could take in
the event the lease was invalid, including efforts to have the
other mineral interest holders sign a new lease or file a “pool­
ing application” with the NOGCC. The receiver noted that
the legal title to the minerals held by certain parties needed
to be clarified. The receiver recommended that the referee
take immediate steps to conduct a sale of the oil well equip­
ment, the mineral interests of the parties, and the current oil
and gas lease, regardless of the validity of the lease. He then
laid out a suggested course of action to accomplish a sale
without returning the wells to production. The receiver noted
that some of the parties involved in the lawsuit wanted him to
file a declaratory judgment or mandamus action to enforce the
current lease, while other parties felt that the lease was void.
The receiver opined that if he filed such an action, he would
have to join all of the parties to the present action as well as
multiple additional mineral interest holders and the NOGCC.
He felt that such an action, with any likely subsequent appeals,
would result in an additional 2 to 3 years during which the oil
wells will continue not to operate and would require the pres­
ent litigation to remain open until the partition sale took place
and was approved by the court and final distributions were
made. Given the time and resources that would be consumed
in attempting to obtain a new lease or “force pooling” inter­
ests or in filing a declaratory judgment or mandamus action,
the receiver felt that the best option was to proceed with the
recommended sale.
On March 26, 2013, after spreading the mandate following
Sutton IV, the district court heard several requests of the par­
ties, including a motion to direct action by the receiver and
the referee filed by the Appellants and an objection by the
appellees to efforts by the receiver to restore production. The
appellees called the receiver as a witness. He testified about
his contact with the NOGCC, some of which had to do with
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the steps he needed to take to become the operator of the
wells. The receiver testified that there had been no production
since 2007 because the NOGCC would not allow an operator.
The receiver testified that since being appointed receiver in
2007, he had made multiple attempts to get the oil wells in
production, all of which had been rejected by the NOGCC.
He clarified that the rejections had come from the director
and that he had not filed a request for or appeared for a hear­
ing in front of the NOGCC. The receiver testified to his belief
that under NOGCC policy, the director makes decisions with
respect to who is allowed as an oil well operator. He testified
further that he had never appealed any of the director’s deci­
sions to the NOGCC. The receiver testified that his options
at that point to get the wells in production would require him
either to request a hearing before the NOGCC, which might
lead to further litigation under the Administrative Procedure
Act if the NOGCC supported the director’s decisions, or to
file a mandamus-type action against the NOGCC to attempt
to obtain a directive regarding production. He testified that
either of those steps would require notice to parties involved
in the present litigation as well as to a reasonably extensive
list of mineral interest holders. He did not believe that it
would be fair to the parties for him to take either action due
to the time and expense involved; rather, he believed that it
would be more fitting for one of the parties to pursue any such
steps independently.
On June 27, 2013, the district court entered an order modi­
fying its prior orders requiring that the wells be made produc­
tive before sale. The court stated, “The receiver now reports
he is unable to achieve production. The [NOGCC] has denied
the receiver permission to operate, apparently as there is no
current lease covering the wells.” The court modified the
December 2010 order requiring production before sale and
removed the condition requiring production. The court stated
that in other respects, the August 2007 order for sale and the
December 2010 order remained in effect. The court directed
the referee to “forthwith” sell the remaining interests of the
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parties in the wells. The court set a further hearing for October
2013 to “determine a proper division order” and to obtain cur­
rent lists of the working interest owners and the mineral inter­
est owners.
The Appellants filed a motion for reconsideration or, in the
alternative, to alter or amend, which was heard by the district
court on July 22, 2013. The Appellants offered into evidence
numerous exhibits, including the receiver’s June 2012 report
to the court on whether the requirements to achieve production
could be satisfied and the director’s December 2011 letter to
the receiver discussed above.
On July 24, 2013, the district court entered an order denying
the Appellants’ motion, stating:
The primary concern of the [Appellants] is that they want
production resumed before the partition sale. Their argu­
ments imply the receiver has not been diligent in return­
ing production.
In his reports to the [c]ourt and the parties, the receiver
has set forth the difficulties in achieving production, and
the delays anticipated in what he sees as possible means
by which to achieve production, based on the informa­
tion he has from the [NOGCC]. Those are set forth in his
[June 2012] report . . . which was submitted in response
to the [c]ourt’s May . . . 2012 order that the receiver
report on whether the requirements to achieve production
could be satisfied.
The previous orders of the [c]ourt in this case . . .
direct sale of the working interest. The [r]eferee has
made reports, and updated the reports, as to what can be
offered for sale. The order which the [Appellants] seek
to have reconsidered simply provides that the partition
sale go forward without production. No party has offered
any solid suggestion or proposal which would cause the
[c]ourt to find the receiver’s recommendations should not
be followed.
The Appellants subsequently perfected their appeal to this
court.
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ASSIGNMENTS OF ERROR
The Appellants assert that the district court erred in (1)
receiving and relying on letters from the director of the
NOGCC, (2) determining that the NOGCC had denied the
receiver permission to operate and asserting that there was no
current lease covering the wells, (3) directing the receiver to
no longer pursue placing the oil wells into production prior
to sale and directing the referee to proceed to sale without oil
production, and (4) allowing the conduct of the receivership to
continue when the receiver ignored, avoided, and failed to act
upon numerous court directions.
STANDARD OF REVIEW
[1] When a jurisdictional question does not involve a fac­
tual dispute, determination of a jurisdictional issue is a matter
of law which requires an appellate court to reach a conclu­
sion independent from the trial court’s decision. Wisniewski v.
Heartland Towing, 287 Neb. 548, 844 N.W.2d 48 (2014).
[2] On appeal from an equity action, an appellate court tries
factual questions de novo on the record and, as to questions of
both fact and law, is obligated to reach a conclusion indepen­
dent of the conclusion reached by the trial court. Gibbs Cattle
Co. v. Bixler, 285 Neb. 952, 831 N.W.2d 696 (2013).
ANALYSIS
Jurisdiction.
[3-5] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it, irrespective of whether
the issue is raised by the parties. Carney v. Miller, 287 Neb.
400, 842 N.W.2d 782 (2014). Generally, only final orders
are appealable. Id. Under Neb. Rev. Stat. § 25-1902 (Reissue
2008), the three types of final orders that an appellate court
may review are (1) an order that affects a substantial right
and that determines the action and prevents a judgment, (2)
an order that affects a substantial right made during a special
proceeding, and (3) an order that affects a substantial right
made on summary application in an action after a judgment is
rendered. Carney v. Miller, supra.
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In determining the jurisdiction issue before the court in
this appeal, we find it helpful to discuss the jurisdiction
issues addressed in Sutton III and Sutton IV. In Sutton III,
we concluded that the order appealed from was not a final
order under Neb. Rev. Stat. § 25-1911 (Reissue 2008) because
it did not fit under any of the three types of final orders
described in § 25-1902. Nevertheless, we determined that we
had appellate jurisdiction under Neb. Rev. Stat. § 25-1090
(Reissue 2008), which provides, in part, “All orders appoint­
ing receivers, giving them further directions, and disposing of
the property may be appealed to the Court of Appeals in the
same manner as final orders and decrees.” We then proceeded
to address the merits of the intervenor’s appeal and found
that the district court properly granted summary judgment to
the receiver.
Our decision in Sutton III was affirmed by the Nebraska
Supreme Court in Sutton IV, albeit on different grounds relative
to the issue of jurisdiction. The Supreme Court disagreed with
our analysis of § 25-1902, specifically our determination that
the order in question did not fall within the second category of
orders enumerated in § 25-1902, one that affects a substantial
right made during a special proceeding. The Supreme Court
disapproved of our determination that because the denial of the
intervenor’s claim was encompassed by the receivership cre­
ated under chapter 25 of the Nebraska Revised Statutes, it was
not a special proceeding, citing its abrogation of that proposi­
tion in later cases. The Supreme Court concluded instead that
the order at issue was a final order from which an appeal may
be taken. In view of that determination, the Supreme Court
chose not to analyze the correctness of our determination
that the order was final under § 25-1090. The Supreme Court
affirmed this court’s determination with respect to the grant of
summary judgment in favor of the receiver.
Turning to the June 27, 2013, order at issue in this appeal,
it essentially did three things: (1) It modified the December
2010 order requiring production before sale and removed the
condition requiring production, (2) it confirmed that the pre­
vious orders for sale from August 2007 and December 2010
remained in effect, and (3) it directed the referee to “forthwith”
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sell the remaining interests of the parties in the wells. The
order also set a further hearing for October 2013 to determine
a proper division order. The Appellants’ motion for reconsid­
eration or, in the alternative, to alter or amend was denied on
July 24.
The Appellants assert that the order appealed from is a “final
order” because it affects a substantial right in a special proceed­
ing within the scope of § 25-1902 and because the order issued
“further directions” which may be appealed under § 25-1090.
The appellees and the successor receiver maintain that the
order appealed from is not a final order under § 25-1902 and
further that an interlocutory appeal under § 25-1090 regarding
receivers is not merited.
With regard to § 25-1902, we must determine whether the
order falls under the second type of orders enumerated therein,
one which affects a substantial right made during a special pro­
ceeding. The appellees assert that the order in question merely
continued the previous orders directing that the wells be sold
and, as such, does not affect a substantial right. The Appellants
point to the portion of the order removing the prior condition
that the wells be placed into production before sale as affect­
ing a substantial right. They argue that the order effectively
changed numerous previous final orders and diminished the
value of their property to be sold by the referee.
[6-8] A substantial right under § 25-1902 is an essential
legal right. Big John’s Billiards v. State, 283 Neb. 496, 811
N.W.2d 205 (2012). A substantial right is affected if an order
affects the subject matter of the litigation, such as diminishing
a claim or defense that was available to an appellant before
the order from which an appeal is taken. Id. Therefore, an
order that completely disposes of the subject matter of the
litigation in an action or proceeding both is final and affects a
substantial right because it conclusively determines a claim or
defense. Id.
It has been recognized that an order confirming a sale by
a receiver is a final order from which an appeal can be taken.
See, e.g., Dickie v. Flamme Bros., 251 Neb. 910, 560 N.W.2d
762 (1997); Lewis v. Gallemore, 173 Neb. 441, 113 N.W.2d
595 (1962). The question before us, however, is whether an
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order which occurs prior to the final sale and confirmation is
a final order. In In re Estate of McKillip, 284 Neb. 367, 820
N.W.2d 868 (2012), the Nebraska Supreme Court addressed
whether an order directing a referee to sell real estate is a final
order. The trial court had determined that physical partition of
the real estate was not possible without great prejudice to the
owners and therefore approved the referee’s report and ordered
the referee to sell the land at public sale. The Supreme Court
concluded that the order was a final order under § 25-1902(2)
as affecting a substantial right in a special proceeding. The
Supreme Court noted:
“In the context of multifaceted special proceedings that
are designed to administer the affairs of a person, the
word ‘case’ means a discrete phase of the proceedings. An
order that ends a discrete phase of the proceedings affects
a substantial right because it finally resolves the issues
raised in that phase.”
In re Estate of McKillip, 284 Neb. at 374, 820 N.W.2d at 875-
76, quoting John P. Lenich, What’s So Special About Special
Proceedings? Making Sense of Nebraska’s Final Order Statute,
80 Neb. L. Rev. 239 (2001).
The court in In re Estate of McKillip, in concluding that the
order directing the referee to sell the real estate was a final,
appealable order, recognized that while it may have been pos­
sible for the parties to appeal after a sale and confirmation,
judicial economy, if nothing else, required resolution of that
issue before a sale was held. The court further noted that dis­
tribution of the real estate was a major issue in the resolution
of the proceedings and that resolving the distribution of the
real estate would finally settle the issues raised in that phase
of the probate.
Turning to the case at hand and applying the foregoing prin­
ciples, we conclude that the orders appealed from affect a sub­
stantial right as defined above. The orders require the referee
to forthwith sell the oil wells, without the necessity of their
being placed into production prior to sale. The sale of the wells
is the only remaining issue in this receivership proceeding.
The removal of the requirement that the wells be placed into
production prior to sale could arguably affect the marketability
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of the wells and, as such, affects a substantial right of the par­
ties who will receive the proceeds of the sale.
Further, even if the orders before us do not affect a sub­
stantial right, we conclude that the orders are appealable under
§ 25-1090, which provides, in part, “All orders appointing
receivers, giving them further directions, and disposing of the
property may be appealed to the Court of Appeals in the same
manner as final orders and decrees.” In Sutton III, 19 Neb. Ct. App.
at 859, 820 N.W.2d at 305, this court noted that “the key last
sentence of § 25-1090” had been in the statute intact (except
for the reference to the Court of Appeals) since 1867 and that
there is no legislative history available. Using the doctrine of
statutory construction, this court concluded that the order being
appealed in that case, that the receiver was not liable for the
claim being brought by the intervenor, was a “direction” to
the receiver from which an appeal is allowable. Sutton III, 19
Neb. Ct. App. at 860, 820 N.W.2d at 306. The Supreme Court in
Sutton IV chose not to address the appealability of the order
under § 25-1090, having determined that the order was in fact
a final order under § 25-1902.
While there is little other case law available to assist us in
applying § 25-1090, we note that under the predecessor statute,
the Nebraska Supreme Court held that an order directing the
receiver of a national bank to sell the property of the bank is
an order giving a receiver “‘further directions, and disposing of
the property’” so as to be appealable. See State v. Fawcett, 58
Neb. 371, 374, 78 N.W. 636, 637 (1899).
The appellees argue that the order at issue is not a directive
to a receiver because it directed the referee to proceed with
the sale and because the Appellants, rather than the receiver,
sought further direction from the court for the receiver. We
disagree. The order in the instant case, removing the court’s
previous directive to the receiver to operate the wells and
now permitting the wells to be sold before reaching operating
status, is also a “direction” to the receiver, directing him to
cease efforts at production. Further, we note Neb. Rev. Stat.
§ 25-1087 (Reissue 2008), which permits any party to apply to
the court for further directions to the receiver “as may in the
further progress of the cause become proper.”
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We conclude that § 25-1090, being a special statute relative
to receivers, applies in this case such that we have jurisdic­
tion to hear the appeal from the orders of June 27 and July 24,
2013, which orders contained directions to the receiver to cease
efforts to bring the wells into production.
Having determined that we have jurisdiction to hear
this appeal, we now turn to the merits of the Appellants’
assigned errors.
Receipt of Letters From NOGCC.
The Appellants assert that the district court erred in receiv­
ing and relying on letters from the director of the NOGCC.
Specifically, the Appellants argue that the court should not
have received exhibits 602 through 607, which contain cor­
respondence between the receiver and the director. Those par­
ticular exhibits were first offered by the receiver and received
by the court at the January 2012 hearing without objection
from the Appellants. Exhibits 602 through 607 were reoffered
by the Appellants and received by the court at the July 2013
hearing on the motion for reconsideration. Presumably, the
Appellants are actually referring to exhibit 619, a copy of the
December 2011 letter from the director to the receiver offered
by the appellees and received by the court at the March 2013
hearing. Exhibit 619 contains the same letter as does exhibit
607, the letter from the director containing his opinion that the
lease had terminated because of nonproduction. The Appellants
objected to the offer of exhibit 619 on the bases of foundation
and hearsay and argued that the letter from the director did not
purport to be an official act of the NOGCC.
[9-11] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis­
sibility. In re Invol. Dissolution of Wiles Bros., 285 Neb. 920,
830 N.W.2d 474 (2013). To constitute reversible error in a civil
case, the admission or exclusion of evidence must unfairly
prejudice a substantial right of a litigant complaining about
evidence admitted or excluded. Martensen v. Rejda Bros., 283
Neb. 279, 808 N.W.2d 855 (2012). Evidence objected to which
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272 22 NEBRASKA APPELLATE REPORTS
is substantially similar to evidence admitted without objection
results in no prejudicial error. In re Estate of Jeffrey B., 268
Neb. 761, 688 N.W.2d 135 (2004).
At the March 2013 hearing, the receiver testified about his
reasons for recommending that the wells be sold without the
requirement of being placed into production. He testified about
his unsuccessful attempts to bring the oil wells into production
since his appointment as receiver and the rejection by the direc­
tor. The NOGCC correspondence, including the letter marked
as exhibit 619 at the March 2013 hearing, had previously been
admitted without objection at the January 2012 hearing. This
same letter concerning the director’s opinion as to the validity
of the lease was offered by the Appellants and admitted into
evidence at the July 2013 hearing on the motion for reconsid­
eration. Because the letter was admitted into evidence without
objection at other hearings, we find no prejudicial error in
the court’s receipt of exhibit 619 at the March 2013 hearing.
In addition, the letter from the director was referenced in the
receiver’s June 2012 report, which the Appellants offered as an
exhibit in the July 2013 hearing, and as such, the letter itself is
cumulative in nature insofar as it relates to whether the require­
ments to achieve production could be satisfied. This assigned
error is without merit.
Denial of Permission to
Operate Wells.
The Appellants assert that the district court erred in deter­
mining that the NOGCC had denied the receiver permission to
operate and asserting that there was no current lease covering
the wells. They argue that the court erroneously “applied the
[d]irector[’]s letters to be a final decision of the [NOGCC]”
and that the “reliance of the [d]istrict [c]ourt to assert that the
[NOGCC] had made any determination is simply mistaken,
erroneous, and contrary to law and fact.” Brief for appellants
at 26 and 27.
In its June 2013 order, the district court stated, “The receiver
now reports he is unable to achieve production. The [NOGCC]
has denied the receiver permission to operate, apparently
as there is no current lease covering the wells.” Although
Decisions of the Nebraska Court of Appeals
SUTTON v. KILLHAM 273
Cite as 22 Neb. Ct. App. 257
the court’s statement was framed in terms of denial by the
NOGCC, rather than by the director, we do not read the court’s
statement as a finding that the NOGCC has made an official
determination with respect to the operation of the wells or the
validity of the lease. Nor does the court’s statement show that
the court itself made a determination as to the validity of the
lease. The receiver testified at the March 2013 hearing that
he was unable to achieve production and that the director had
denied him permission to operate the wells. He testified that
he had not sought any formal determination from the entire
NOGCC. The court’s statement, although perhaps not worded
as carefully as it might have been, simply summarizes the evi­
dence presented to it. We see no indication that the court mis­
interpreted the evidence as to who actually denied the receiver
permission to operate the wells.
Further, our de novo review of the record reveals that the
receiver’s unsuccessful attempts to bring the wells into pro­
duction, based in part on the denial by the director, were only
part of the evidence presented to the district court. While this
evidence obviously played a big part in the district court’s
decision to remove the production requirement, the evidence
also shows that it was the anticipated difficulty and addi­
tional delays involved in making further attempts to secure
NOGCC permission to resume production which factored into
the receiver’s recommendation and the district court’s decision.
As such, we reject the Appellants’ suggestion that the district
court relied only on the letters from the director in making
its decision.
This assignment of error is without merit.
Removal of Production Requirement.
The Appellants assert that the district court erred in direct­
ing the receiver to no longer pursue placing the oil wells into
production prior to sale and in directing the referee to proceed
to sale without oil production.
[12] The Appellants argue that the district court errone­
ously suggests no current lease existed and then proceed to
argue that the evidence directly and legally established that a
valid lease still existed. They then discuss, at length, certain
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274 22 NEBRASKA APPELLATE REPORTS
oil and gas law and terminology and various lease provi­
sions. Despite arguing at length that the lease is still valid,
the Appellants correctly note that this issue was never tried
by the court. Accordingly, we decline to address the validity
of the lease. An appellate court will not consider an issue on
appeal that was not presented to or passed upon by the trial
court. Carlson v. Allianz Versicherungs-AG, 287 Neb. 628,
844 N.W.2d 264 (2014). Even if we were to consider the
Appellants’ arguments on this issue, there is still evidence
in the record that the receiver has been denied permission to
operate the wells and that the steps to achieve production will
be time consuming and expensive.
The issue on appeal here is not whether the lease is valid
but whether the district court erred in removing the require­
ment that the receiver bring the wells into production before
sale by the referee. The Appellants argue that the court’s deci­
sion “has wiped out and destroyed the partition of the mineral
& leasehold interests,” essentially leaving nothing for the
referee to sell. Brief for appellants at 37. They argue further
that sale of oil well equipment and interests in nonproducing
wells will yield a minimal purchase price. We note again that
the court did not make a determination about the validity of
the lease. The court simply removed the requirement that the
receiver bring the wells into production and directed the ref­
eree to “forthwith sell those remaining interests of the parties
in the wells.” There is nothing in the district court’s decision
or this opinion which prevents the parties from pursuing fur­
ther action before the NOGCC with respect to the validity of
the lease.
[13] Equity strives to do justice. Equity is not a rigid
concept but, instead, is determined on a case-by-case basis
according to concepts of justice and fairness. Floral Lawns
Memorial Gardens Assn. v. Becker, 284 Neb. 532, 822 N.W.2d
692 (2012). The receiver presented evidence that he had
sought permission on multiple occasions to operate the wells,
that the director denied all of his requests, and that the steps to
achieve production would be costly and time consuming. This
case has been ongoing for more than 10 years. The amended
petition in the underlying action in this case was filed at the
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SUTTON v. KILLHAM 275
Cite as 22 Neb. Ct. App. 257
end of 2002 or beginning of 2003. Under the circumstances
of this case, we conclude that the district court did not err in
removing the production requirement and directing the referee
to proceed to sale without production.
Receiver’s Conduct.
[14] The Appellants assert that the district court erred in
“allowing the conduct of the receivership to continue wherein
the [r]eceiver ignored, avoided, and failed to act upon numer­
ous directions and instructions to maintain and later commence
operations of oil wells, contrary to law and the facts.” It is not
entirely clear what the Appellants mean by this assignment
of error or where it is specifically argued in their brief. The
Appellants do make several assertions about the receiver’s lack
of due diligence in bringing the wells into production, and they
attempt to assign blame for the failure to achieve production to
both the receiver and the court. To be considered by an appel­
late court, an alleged error must be both specifically assigned
and specifically argued in the party’s brief. Rodehorst Bros. v.
City of Norfolk Bd. of Adjustment, 287 Neb. 779, 844 N.W.2d
755 (2014). To the extent that the Appellants are arguing that
the receiver disobeyed orders of the district court or commit­
ted some form of malfeasance, that issue was not presented to
or passed on by the district court. An appellate court will not
consider an issue on appeal that was not presented to or passed
upon by the trial court. Carlson v. Allianz Versicherungs-AG,
287 Neb. 628, 844 N.W.2d 264 (2014). This assignment of
error is without merit.
CONCLUSION
We find no error in the district court’s decision directing the
referee to sell the remaining interests of the parties in the oil
wells and removing the condition that the receiver place the
wells into production before sale.
Affirmed.