Hynes v. Good Samaritan Hosp. , 285 Neb. 985 ( 2013 )

Nebraska Advance Sheets
HYNES v. GOOD SAMARITAN HOSP. 985
Cite as 285 Neb. 985from using a written contract to effectuate the fraud committed.
In other words, DMK and Lanoha contend that the substantive
law protects securities purchasers from sellers by refusing to
enforce exculpatory clauses in prospectuses, private placement
memorandums, or subscription agreements. This issue was
not addressed by the district court. An issue not presented to
or decided on by the trial court is not an appropriate issue for
consideration on appeal.32 Furthermore, determining this issue
is not necessary to our adjudication.
CONCLUSION
The district erred by granting the motion to dismiss. When
the district court took judicial notice of the private placement
memorandum and the subscription agreements, the motion
to dismiss transformed into a motion for summary judg-
ment, which requires an evidentiary hearing. No such hearing
was held.
R eversed and remanded with directions.
McCormack, J., participating on briefs.
Wright, J., not participating.
32
State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
Kimberly L. Hynes, appellee, v. Good
Samaritan Hospital, a Nebraska
nonprofit corporation, appellant.
___ N.W.2d ___
Filed May 24, 2013. No. S-12-810.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ Compensation Court may be modified, reversed, or set aside only
upon the grounds that (1) the compensation court acted without or in excess of its
powers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order,
judgment, or award; or (4) the findings of fact by the compensation court do not
support the order or award.
2. ____: ____. In determining whether to affirm, modify, reverse, or set aside a
judgment of the Workers’ Compensation Court review panel, a higher appellate
Nebraska Advance Sheets
986 285 NEBRASKA REPORTS
court reviews the findings of the trial judge who conducted the original hear-
ing; the findings of fact of the trial judge will not be disturbed on appeal unless
clearly wrong.
3. Records: Appeal and Error. As a general rule, it is incumbent upon the appel-
lant 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. But
when a record is deficient through no fault of the appellant, the general rule does
not apply.
4. Records: New Trial: Appeal and Error. An appellate court will remand for a
new trial if a deficiency in the record, which is not attributable to the appellant,
prevents meaningful appellate review.
5. Judgments: Records: Appeal and Error. Meaningful appellate review requires
a record that elucidates the factors contributing to the lower court’s decision.
Appeal from the Workers’ Compensation Court: Michael
K. High, Judge. Judgment vacated, and cause remanded for a
new trial.
Thomas D. Wulff, of Wulff & Freeman, L.L.C., for appellant.
John C. Fowles, of Fowles Law Office, P.C., L.L.O., for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
The Nebraska Workers’ Compensation Court determined
that Kimberly L. Hynes was injured during the course and
scope of her employment with Good Samaritan Hospital (Good
Samaritan) and awarded her workers’ compensation benefits.
Good Samaritan filed a timely appeal. However, during the
preparation of the record on appeal, it was discovered that
the testimony of several witnesses could not be transcribed
because of a malfunction in equipment used by the court
reporter. Because the existing record is insufficient for mean-
ingful appellate review, we vacate the award and remand for a
new trial.
BACKGROUND
In April 2009, Hynes commenced this action for workers’
compensation benefits, alleging that at all relevant times, she
was employed as a registered nurse by Good Samaritan. Hynes
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HYNES v. GOOD SAMARITAN HOSP. 987
Cite as 285 Neb. 985alleged that while she was working as a nurse in the mental
health unit of the hospital on April 16, 2008, a patient whipped
her with the cord from a vacuum cleaner, causing bruises on
her body. Hynes further alleged that on June 2, she was bitten
and kicked by a patient, and that in early July, she was sex­
ually assaulted by one or more patients. She alleged that as a
result of these incidents, she suffered from posttraumatic stress
disorder and depression. Good Samaritan’s answer admitted
the April 16 incident but denied the later incidents. It also con-
tested the nature and extent of Hynes’ injuries.
After trial, the Workers’ Compensation Court found that all
three incidents occurred. It held that the April 16, 2008, injury
caused Hynes to suffer depression and posttraumatic stress
disorder “which was made worse by the latter two incidents.”
It concluded that Hynes was permanently and totally disabled,
and it awarded benefits accordingly. Good Samaritan filed this
timely appeal. But, as we shall discuss in further detail, the
record on appeal is incomplete.
ASSIGNMENTS OF ERROR
Good Samaritan assigns that this court does not have a
complete record of the trial proceedings and argues that we
must reverse, and remand for a new trial. In the alternative, it
contends that the trial court erred in (1) finding that the second
and third incidents occurred or that Hynes suffered a physical
injury as a result of those incidents, (2) tying the three inci-
dents together and finding Hynes’ psychiatric issues resulted
from some combination of those incidents, (3) overruling its
objections to the medical reports of Hynes’ expert witness, and
(4) awarding Hynes certain medical expenses.
STANDARD OF REVIEW
[1,2] A judgment, order, or award of the Workers’
Compensation Court may be modified, reversed, or set aside
only upon the grounds that (1) the compensation court acted
without or in excess of its powers; (2) the judgment, order,
or award was procured by fraud; (3) there is not sufficient
competent evidence in the record to warrant the making of
the order, judgment, or award; or (4) the findings of fact by
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988 285 NEBRASKA REPORTS
the compensation court do not support the order or award.1
In determining whether to affirm, modify, reverse, or set
aside a judgment of the Workers’ Compensation Court review
panel, a higher appellate court reviews the findings of the
trial judge who conducted the original hearing; the findings of
fact of the trial judge will not be disturbed on appeal unless
clearly wrong.2
ANALYSIS
On the same day that it filed its notice of appeal, Good
Samaritan filed a praecipe for bill of exceptions. The praecipe
requested all testimony presented and all exhibits offered at
trial. While preparing the requested record, the court reporter
discovered that certain testimony could not be transcribed. In
an affidavit filed in the compensation court, the court reporter
averred that the transcribed testimony of Hynes and another
witness who testified in Hynes’ case in chief was complete.
But the reporter averred that the testimony of five other wit-
nesses, including all of the witnesses who testified on behalf
of Good Samaritan, could not be transcribed due to a failure
of electronic equipment used by the court reporter. This failure
was not discovered until after the trial.
Upon learning of the problem with the record, Good
Samaritan’s counsel filed a motion with this court seeking
additional time to prepare, file, and settle the bill of exceptions.
This motion stated that approximately two-thirds of the trial
testimony had been “‘lost,’” and noted that the trial judge had
suggested a conference to determine whether the lost testimony
could be recovered. It is not clear from the record whether that
conference was held, although Good Samaritan’s brief states it
was and Hynes does not refute that statement. In any event, it
is clear that the bill of exceptions filed in the appeal includes
1
Visoso v. Cargill Meat Solutions, ante p. 272, 826 N.W.2d 845 (2013);
VanKirk v. Central Community College, ante p. 231, 826 N.W.2d 277(2013).
2
Pearson v. Archer-Daniels-Midland Milling Co., ante p. 568, 828 N.W.2d
154 (2013); Lovelace v. City of Lincoln, 283 Neb. 12, 809 N.W.2d 505(2012).
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HYNES v. GOOD SAMARITAN HOSP. 989
Cite as 285 Neb. 985only the testimony of Hynes and the witness who testified on
her behalf, as well as the trial exhibits.
The parties agree that the bill of exceptions before us is
incomplete and that neither of them is at fault for the incom-
pleteness. But they disagree as to how the lack of a complete
appellate record should affect our resolution of this appeal.
Good Samaritan contends that it requires remand for a new
trial, while Hynes contends the record, though incomplete,
is nevertheless sufficient to affirm the compensation court’s
award. Due to the nature of the missing testimony, we agree
with Good Samaritan.
[3] It is true that as a general rule, 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.3 But we have applied
this general rule only when the record deficiency is attributable
to the appellant.4
[4,5] When a record is deficient through no fault of the
appellant, the general rule does not apply.5 Instead, we will
remand for a new trial if the deficiency in the record prevents
us from providing the appellant meaningful appellate review
of the assignments of error.6 Generally, meaningful appellate
review requires a record that elucidates the factors contributing
to the lower court’s decision.7
3
InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012);
Latenser v. Intercessors of the Lamb, Inc., 245 Neb. 337, 513 N.W.2d 281(1994).
4
See, Huddleson v. Abramson, 252 Neb. 286, 561 N.W.2d 580 (1997);
Latenser v. Intercessors of the Lamb, Inc., supra note 3; Sanwick v.
Jenson, 244 Neb. 607, 508 N.W.2d 267 (1993); Rhodes v. Johnstone, 191
Neb. 552, 216 N.W.2d 168 (1974); Jones v. City of Chadron, 156 Neb.
150, 55 N.W.2d 495 (1952).
5
See, Richmond v. Case, 264 Neb. 319, 647 N.W.2d 90 (2002); Terry v.
Duff, 246 Neb. 11, 516 N.W.2d 591 (1994); State v. Slezak, 230 Neb. 197,
430 N.W.2d 533 (1988); State v. Benson, 199 Neb. 549, 260 N.W.2d 208(1977).
6
See Richmond v. Case, supra note 5.
7
J.B. Contracting Servs. v. Universal Surety Co., 261 Neb. 586, 624 N.W.2d
13 (2001).
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990 285 NEBRASKA REPORTS
Here, the incompleteness of the record clearly prevents us
from conducting a meaningful appellate review. All of the
testimony from Good Samaritan’s witnesses is unavailable.
Although the standard of review in a workers’ compensation
case is quite limited, it requires us, at a minimum, to exam-
ine whether there is “sufficient competent evidence in the
record” to warrant the award appealed from.8 And to determine
whether there is “sufficient competent evidence,” we necessar-
ily have to review all of the evidence presented at trial. Indeed,
our court rules require the production of the complete bill of
exceptions in such a situation. Specifically, “[i]f the appellant
intends to urge on appeal that a finding or conclusion is unsup-
ported by the evidence or is contrary to the evidence, the bill
of exceptions must include all evidence relevant to the finding
or conclusion.”9
It is unfortunate that the parties will be subjected to the
expense and delay of retrial. But deciding this appeal on the
existing record would do greater systemic harm. Under our
adversary system of justice, we cannot simply disregard the
fact that none of the testimony offered by Good Samaritan was
preserved for our review. Without knowing both sides of the
case, we cannot reach a principled determination of which side
should prevail on appeal.
CONCLUSION
For the foregoing reasons, we conclude that under the cir-
cumstances of this case, where the testimony of all of Good
Samaritan’s witnesses has been lost due to no fault of either
party, we cannot undertake a meaningful appellate review of
the assignments of error. Accordingly, we vacate the judgment
of the trial court and remand the cause for a new trial.
Judgment vacated, and cause
remanded for a new trial.
8
Neb. Rev. Stat. § 48-185 (Reissue 2010). See, also, Visoso v. Cargill Meat
Solutions, supra note 1; VanKirk v. Central Community College, supra
note 1.
9
Neb. Ct. R. App. P. § 2-105(2)(B)(1)(b) (rev. 2010).