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Muller v. Weeder

Court of Appeals of Nebraska

February 26, 2019

Richard Muller, appellee,
v.
John Weeder, appellant.

         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 sanction 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 judicial 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, Mark D. Kozisek, Judge, on appeal thereto from the County Court for Boyd County, Alan L. Brodbeck, Judge. Judgment of District Court reversed and remanded with directions.

         [26 Neb.App. 939] 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 Riedmann 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 determined 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 provided, in relevant part:

(1) The right hand rule is agreed to as [delineating] the fence responsibility for each party.
(3) [26 Neb.App. 940] 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 ...

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