Bohling v. Bohling , 304 Neb. 968 ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/20/2020 12:08 AM CDT
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    BOHLING v. BOHLING
    Cite as 
    304 Neb. 968
    Robert Bohling, appellant, v.
    Kimberly Bohling, appellee.
    ___ N.W.2d ___
    Filed January 31, 2020.   No. S-19-225.
    1. Summary Judgment: Appeal and Error. In reviewing a summary
    judgment, an appellate court views the evidence in the light most favor-
    able to the party against whom the judgment was granted, and gives
    that party the benefit of all reasonable inferences deducible from the
    evidence.
    2. ____: ____. An appellate court affirms a lower court’s grant of summary
    judgment if the pleadings and admitted evidence show that there is no
    genuine issue as to any material facts or as to the ultimate inferences
    that may be drawn from the facts and that the moving party is entitled to
    judgment as a matter of law.
    3. Appeal and Error. Appellate review of a district court’s use of inherent
    power is for an abuse of discretion.
    4. Evidence: Records: Appeal and Error. A bill of exceptions is the only
    vehicle for bringing evidence before an appellate court; evidence which
    is not made a part of the bill of exceptions may not be considered.
    5. Records: Affidavits: Appeal and Error. The fact that an affidavit used
    as evidence in the district court was filed in the office of the clerk of
    the district court and made a part of the transcript is not important to
    a consideration and decision of an appeal in the cause to an appellate
    court. If such an affidavit is not preserved in a bill of exceptions, its
    existence or contents cannot be known by the appellate court.
    6. Judicial Notice: Records: Appeal and Error. Papers requested to be
    judicially noticed must be marked, identified, and made a part of the
    bill of exceptions.
    7. Judicial Notice: Evidence. Judicial notice of an adjudicative fact is a
    species of evidence.
    8. Summary Judgment: Proof. A party moving for summary judgment
    makes a prima facie case for summary judgment by producing enough
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    BOHLING v. BOHLING
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    304 Neb. 968
    evidence to demonstrate that the movant is entitled to judgment if the
    evidence were uncontroverted at trial.
    9. Appeal and Error. An appellate court may, at its discretion, discuss
    issues unnecessary to the disposition of an appeal where those issues are
    likely to recur during further proceedings.
    Appeal from the District Court for Johnson County: Ricky
    A. Schreiner, Judge. Reversed and remanded for further
    proceedings.
    Angelo M. Ligouri, of Ligouri Law Office, for appellant.
    Richard R. Smith for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Cassel, J.
    INTRODUCTION
    After a will contest was transferred from the county court
    to the district court, the proponent sought and obtained a sum-
    mary judgment determining that the decedent’s will was valid.
    The contestant appeals. Because the bill of exceptions does
    not contain the proponent’s evidence, only the contestant’s
    evidence is properly before us. Obviously, with literally no evi-
    dence to support it, the summary judgment for the proponent
    must be reversed. And because the matter is likely to recur
    upon remand, we briefly address Neb. Ct. R. § 6-1526 (rev.
    2018), “Summary Judgment Procedure.”
    BACKGROUND
    Will Contest
    Willis Bohling died in March 2018. Kimberly Bohling,
    Willis’ daughter, filed an application for informal probate in
    county court. In response, Willis’ son, Robert Bohling, filed an
    objection to the application for informal probate and a formal
    petition for adjudication of intestacy, determination of heirs,
    and appointment of a special administrator. Two days after the
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    BOHLING v. BOHLING
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    304 Neb. 968
    county court entered an order noting Robert’s objection, Robert
    filed a notice of transfer to district court.1 Kimberly filed addi-
    tional pleadings in the county court, and shortly thereafter, the
    county court clerk certified the will contest proceeding to the
    district court. Kimberly then moved for summary judgment.
    Motion for Summary Judgment
    Under § 6-1526(A), at the time Kimberly filed her motion
    for summary judgment, she was required to simultaneously file
    an evidence index and an annotated statement of undisputed
    facts. She did not do so. Instead, she attached to her motion
    her own affidavit and an affidavit of the attorney who prepared
    the will.
    Nineteen days later, in an apparent attempt to comply with
    § 6-1526(B), Robert filed an “Annotated Statement of Disputed
    Facts” and an “Evidence Index in Opposition.” He also filed
    five affidavits, which were itemized in his evidence index.
    Later that day, Kimberly filed a brief addressing the merits of
    her motion for summary judgment. A few days later, Robert
    filed an opposing brief.
    At the hearing on Kimberly’s summary judgment motion,
    Kimberly requested the district court to take judicial notice
    of Willis’ will. Specifically, Kimberly’s counsel stated: “[T]he
    will itself, . . . I would like to offer that for the purpose of this
    hearing or have the Court take judicial notice of it. It should
    have been filed with the Petition for Informal Probate.” After
    the court inquired whether Kimberly was requesting the court
    to take judicial notice and her counsel responded affirmatively,
    the court stated: “So noted.” But the will was not marked
    or received as an exhibit, and its content does not otherwise
    appear in the bill of exceptions.
    Kimberly’s counsel then stated that Kimberly would also
    “offer the affidavits that we have previously submitted with
    our Motion for Summary Judgment. I don’t believe those have
    1
    See Neb. Rev. Stat. § 30-2429.01 (Cum. Supp. 2018).
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    been separately marked, but they are required to be submit-
    ted to the Court and I’m asking the Court to consider those.”
    He added: “They would have been attached to the Motion for
    Summary Judgment.” In response, the court stated: “There
    is an affidavit attached to the original Motion for Summary
    Judgment. It looks like it was filed January 4th of 2019. I will
    review those and consider those as well.” But the affidavits
    were not marked as exhibits and do not appear in the bill of
    exceptions. Kimberly’s counsel then stated: “I think that’s the
    extent of my evidence, Your Honor.”
    Robert offered and the court received exhibits 1 through 7
    into evidence, which consisted of an affidavit from Robert, an
    affidavit from Willis’ girlfriend, three affidavits from friends of
    Willis, the objection to the petition for informal probate, and,
    in a single document, the objection to the motion for summary
    judgment and the annotated statement of disputed facts. These
    exhibits appear in the bill of exceptions.
    Robert then objected to any evidence presented by Kimberly,
    based upon her failure to submit an evidence index or an anno-
    tated statement of undisputed facts “pursuant to [§] 6-1526.”
    He argued that the failure to comply with § 6-1526 must con-
    stitute grounds to deny the motion. Kimberly acknowledged
    that she did not comply with the rule. She argued that denial of
    the motion was inappropriate, because Robert was not preju-
    diced by her failure when her motion contained the evidence
    to be presented and her brief contained a statement of facts
    with annotations to the evidence.
    The district court overruled Robert’s objection. The court
    stated:
    You are prepared for a Motion for Summary Judgment
    this morning. I’m going to overrule that [objection]. I’m
    going to take [Kimberly’s counsel’s] affidavits, receive
    those and those attachments to his motion. . . .
    [Robert’s counsel], I do appreciate the statement of —
    of what exactly is in dispute here on your end of it and it
    makes it so much easier for the Court.
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    [Kimberly’s counsel], I would appreciate next time — I
    try to run — I try to give counsel some leeway on these
    and let everybody try their case. I’m interested in trying
    things and getting things settled on the facts instead of
    strict compliance with the rules.
    Despite the court’s statements regarding receiving Kimberly’s
    affidavits, they were not marked as exhibits and do not appear
    in the bill of exceptions. After hearing arguments, the court
    took the matter under advisement. On February 10, 2019, the
    court’s summary judgment, styled as an order granting sum-
    mary judgment, was entered. The summary judgment deter-
    mined that Willis left a valid will.
    Robert filed a timely appeal, which we moved to our docket.2
    ASSIGNMENTS OF ERROR
    Robert assigns, condensed and restated, that the district court
    erred in granting the motion for summary judgment when (1)
    it failed to require Kimberly to present prima facie evidence in
    support of her motion; (2) Kimberly failed to file an evidence
    index and an annotated statement of undisputed facts with her
    motion, pursuant to § 6-1526; and (3) it found no dispute of
    material fact as to the ambiguity in Willis’ will, testamentary
    capacity, and undue influence.
    STANDARD OF REVIEW
    [1,2] In reviewing a summary judgment, an appellate court
    views the evidence in the light most favorable to the party
    against whom the judgment was granted, and gives that party
    the benefit of all reasonable inferences deducible from the
    evidence.3 An appellate court affirms a lower court’s grant
    of summary judgment if the pleadings and admitted evidence
    show that there is no genuine issue as to any material facts or
    as to the ultimate inferences that may be drawn from the facts
    2
    See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
    3
    Williamson v. Bellevue Med. Ctr., ante p. 312, 
    934 N.W.2d 186
    (2019).
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    and that the moving party is entitled to judgment as a matter
    of law.4
    [3] Appellate review of a district court’s use of inherent
    power is for an abuse of discretion.5
    ANALYSIS
    Summary Judgment
    A motion for summary judgment is to be granted “if the
    pleadings and the evidence admitted at the hearing show that
    there is no genuine dispute as to any material fact and that the
    moving party is entitled to a judgment as a matter of law.”6
    “The evidence that may be received on a motion for sum-
    mary judgment includes depositions, answers to interrogato-
    ries, admissions, stipulations, and affidavits.”7
    But, here, our bill of exceptions contains only Robert’s evi-
    dence. Kimberly’s evidence does not appear in the bill.
    [4,5] This court has stated on numerous occasions that a bill
    of exceptions is the only vehicle for bringing evidence before
    an appellate court; evidence which is not made a part of the bill
    of exceptions may not be considered.8 In 1959, we explained
    at length:
    “An affidavit used as evidence in the district court cannot
    be considered on an appeal of a cause to this court unless
    it is offered in evidence in the trial court and preserved in
    and made a part of the bill of exceptions. . . . The fact that
    an affidavit used as evidence in the district court was filed
    in the office of the clerk of the district court and made a
    part of the transcript is not important to a consideration
    and decision of an appeal in the cause to this court. If
    4
    
    Id. 5 Lombardo
    v. Sedlacek, 
    299 Neb. 400
    , 
    908 N.W.2d 630
    (2018).
    6
    Neb. Rev. Stat. § 25-1332(1) (Cum. Supp. 2018) (emphasis supplied).
    7
    
    Id. 8 See
    Gomez v. Gomez, 
    303 Neb. 539
    , 
    930 N.W.2d 515
    (2019).
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    such an affidavit is not preserved in a bill of exceptions,
    its existence or contents cannot be known by this court. .
    . . A judgment of the district court brought to this court
    for review is supported by a presumption of correctness
    and the burden is upon the party complaining of the
    action of the former to show by the record that it is erro-
    neous. It is presumed that an issue decided by the district
    court was correctly decided. The appellant, to prevail in
    such a situation, must present a record of the cause which
    establishes the contrary. . . .9
    This requirement is not new. In 1934, we set forth as “the
    settled law of this state” the principle that “error must affirm­
    atively appear of record and that affidavits and other written
    documents used as evidence on a hearing in the district court
    cannot be considered by the [S]upreme [C]ourt unless they
    are made a part of the record by being embodied in a bill of
    exceptions.”10 There, we cited numerous cases, dating back to
    a case from 1886.11 The 1886 opinion, in turn, cited to many
    more cases, the earliest being from 1877.12
    We have often recited the rule or variations thereof, but we
    have not explained its underlying rationale; at least, we have
    not done so recently. In 1963, we set forth one straightfor-
    ward variation: “The bill of exceptions is the only vehicle for
    bringing evidence before the court on appeal.”13 To support
    that particular articulation, we cited an Alabama case.14 In that
    case, the Alabama Supreme Court stated that “[t]he bill of
    9
    Peterson v. George, 
    168 Neb. 571
    , 576-77, 
    96 N.W.2d 627
    , 631 (1959)
    (citations omitted).
    10
    Berg v. Griffiths, 
    127 Neb. 501
    , 502, 
    256 N.W. 44
    , 45 (1934).
    11
    See McMurtry v. State, 
    19 Neb. 147
    , 
    26 N.W. 915
    (1886).
    12
    See Ray v. Mason, 
    6 Neb. 101
    (1877).
    13
    Everts v. School Dist. No. 16, 
    175 Neb. 310
    , 315, 
    121 N.W.2d 487
    , 490
    (1963).
    14
    See Sovereign Camp, W. O. W. v. Wiggins, 
    238 Ala. 424
    , 
    191 So. 470
         (1939).
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    exceptions, as it appears, in the record is all that the court can
    or will consider.”15 For that proposition, the Alabama Supreme
    Court relied upon Pearce v. Clements.16 In Pearce, the Alabama
    Supreme Court began by stating that “[b]ills of exceptions are
    the mere creatures of statute, being entirely unknown to the
    common law . . . .”17 It described its precedent of interpreting
    the strict procedures of a bill of exceptions and discussed the
    necessary production of evidence, stating:
    A record is something which is proved by its mere pro-
    duction and inspection, whether of the original or of a
    copy, and nothing can be construed to be a part of it,
    which does not appear, on the face of it, to be such, with-
    out the aid of oral evidence, explanatory of clerical errors
    which may have crept into such judicial proceedings,
    whether errors of omission or errors of commission.18
    The Pearce court concluded that these principles applied with
    equal force to bills of exceptions, where the law has placed
    several exacting safeguards around the execution of a bill of
    exceptions. Likewise, a bill of exceptions in Nebraska is a
    creature of statute.19 And it is one with ancient origins.20 We
    have engaged in this extended discussion to explain why we
    adhere to the “settled law” and the statutory basis compelling
    our fidelity.
    [6,7] Kimberly’s request for judicial notice did not cir-
    cumvent the necessity of presenting evidence in a bill of
    exceptions. Papers requested to be judicially noticed must be
    marked, identified, and made a part of the bill of exceptions.21
    15
    
    Id. at 427,
    191 So. at 472.
    16
    Pearce v. Clements, 
    73 Ala. 256
    (1882).
    17
    
    Id. at 257
    (emphasis in original).
    18
    
    Id. at 258
    (emphasis in original).
    19
    See Neb. Rev. Stat. § 25-1140 (Reissue 2016).
    20
    See 1877 Neb. Laws, § 2, p. 11.
    21
    See In re Estate of Radford, 
    297 Neb. 748
    , 
    901 N.W.2d 261
    (2017).
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    The will and Kimberly’s affidavits were not included in the
    bill of exceptions; thus, they are not properly before us. But
    this should not be read to suggest that offering an exhibit is
    a proper occasion for the exercise of judicial notice. Judicial
    notice of an adjudicative fact is a species of evidence.22 We
    do not read the colloquy between Kimberly’s counsel and the
    court as a true request for judicial notice of an adjudicative
    fact, but, rather, as an unauthorized substitute for the proper
    method of making an evidentiary record.
    Similarly, the presence of the proffered will and Kimberly’s
    proposed affidavits in the transcript does not bring them before
    us as evidence. As we recited above, the fact that an affidavit
    used as evidence in the district court was filed in the office of
    the clerk of the district court and made a part of the transcript
    is not important to a consideration and decision of an appeal in
    the cause to this court. If such an affidavit is not preserved in
    a bill of exceptions, its existence or contents cannot be known
    by this court.23
    [8] So, on appeal, we confront a bill of exceptions that con-
    tains only Robert’s evidence. But the absence of Kimberly’s
    evidence is not attributable to any fault on Robert’s part.
    Kimberly failed to have her exhibits properly marked and
    received. And the district court acquiesced in the improper pro-
    cedure. A party moving for summary judgment makes a prima
    facie case for summary judgment by producing enough evi-
    dence to demonstrate that the movant is entitled to judgment if
    the evidence were uncontroverted at trial.24 Because Kimberly
    was the moving party, she bore the burden to prove a prima
    facie case. And because Kimberly did not produce her evidence
    in a manner so as to be included in a bill of exceptions, she
    effectively failed to make a prima facie case. Accordingly, the
    22
    
    Id. 23 Peterson
    v. George, supra note 9.
    24
    Kaiser v. Union Pacific RR. Co., 
    303 Neb. 193
    , 
    927 N.W.2d 808
    (2019).
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    summary judgment must be reversed and the cause must be
    remanded for further proceedings.
    § 6-1526
    [9] Robert argues that because Kimberly failed to file an
    evidence index and an annotated statement of undisputed facts,
    her motion for summary judgment should have been denied for
    failure to comply with § 6-1526. An appellate court may, at
    its discretion, discuss issues unnecessary to the disposition of
    an appeal where those issues are likely to recur during further
    proceedings.25 Although it is not necessary to the disposition of
    this appeal, we discuss § 6-1526 because it is likely to recur
    upon remand.
    The rule was prompted by legislative action. In 2017,
    the Legislature amended the summary judgment statutes to
    “require[] a party to provide citations to the record to support
    its assertion that a fact cannot be or is genuinely disputed.”26
    It did so by amending § 25-1332. In response, we adopted
    § 6-1526 in 2018. This rule provides specific procedures to
    carry out the purpose of the statutory amendment.
    In order to accomplish the legislative goal of judicial econ-
    omy, § 6-1526 was crafted for three reasons. First, it benefits
    parties by making the parties’ respective claims as to undis-
    puted or disputed facts clear and precise. Second, it serves both
    trial and appellate courts by exposing the precise claims of the
    parties. The parties’ briefs are not an effective substitute for
    an evidence index and an annotated statement of undisputed
    or disputed facts. A judge should not have to scour through a
    party’s brief to identify factual claims that are intermixed with
    legal arguments. Third, it was adopted to focus the parties and
    the court on the specific factual contentions.
    25
    In re Interest of Noah B. et al., 
    295 Neb. 764
    , 
    891 N.W.2d 109
    (2017).
    26
    Ecker v. E & A Consulting Group, 
    302 Neb. 578
    , 583, 
    924 N.W.2d 671
    ,
    676 (2019). See, also, 2017 Neb. Laws, L.B. 204.
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    Trial courts should have some discretion to adapt procedures
    to the needs of a particular case, and an appellate court will not
    intervene except where the discretion is abused. But trial courts
    should not condone a party’s failure to follow § 6-1526 merely
    because the party finds it inconvenient or unfamiliar. There
    is a systemic value to the prompt and inexpensive resolution
    of disputes. Section 6-1526 should not be lightly ignored. We
    encourage district courts to set deadlines in compliance with
    the rule and require parties to submit necessary materials.
    CONCLUSION
    For the reasons set forth above, we reverse the judgment of
    the district court and remand the cause for further proceedings.
    Reversed and remanded for
    further proceedings.