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Centurion Stone of Nebraska v. Whelan

Supreme Court of Nebraska

June 21, 2013

Centurion Stone of Nebraska, appellee,
v.
Lawrence Whelan and Jane Whelan, appellants.

1. Courts: Appeal and Error. The district court and higher appellate courts generally review appeals from the county court for error appearing 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. __: __. 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.

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 [286 Neb. 151] incomplete 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 supplies 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 ...


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