Flodman v. Robinson ( 2015 )

Decisions of the Nebraska Court of Appeals
FLODMAN v. ROBINSON 943
Cite as 22 Neb. Ct. App. 943
in danger. Butler had no way of determining whether or not
the passenger was in need of assistance without conducting
a stop of Rohde’s vehicle, and he was not required to delay
an attempt to determine if assistance was needed in order to
obtain a warrant and, in fact, could have been considered der-
elict had he failed to act promptly to ascertain if the passenger
was in need of assist­ance. See State v. Moore, 129 Wash. App.
870, 120 P.3d 635 (2005). Thus, considering the totality of
the circumstances surrounding the stop, it was reasonable for
Butler to stop Rohde’s vehicle to determine if his female pas-
senger was in need of assistance and the community caretak-
ing exception justified the stop of Rohde’s vehicle.
VI. CONCLUSION
In sum, having determined that the community caretaking
exception also applies to passengers or occupants in a vehicle
and that it applied in the instant case to justify the stop of
Rohde’s vehicle to check on the welfare of the female passen-
ger, we affirm Rohde’s conviction and sentence.
Affirmed.
Burdette Flodman and Phyllis Flodman, appellees,
v. Corky Robinson, doing business as
The Vacuum Company, appellant.
___ N.W.2d ___
Filed June 9, 2015. No. A-14-510.
1. Small Claims Court: Appeal and Error. The district court and higher appellate
courts generally review judgments from a small claims court for error appearing
on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appear-
ing 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. Sales: Notice: Time. Neb. Rev. Stat. § 69-1603(1) (Reissue 2009) provides the
buyer with a right to cancel a home solicitation sale until midnight of the third
business day after the seller has given notice of the buyer’s right to cancel.
Decisions of the Nebraska Court of Appeals
944 22 NEBRASKA APPELLATE REPORTS
5. Sales: Notice. Neb. Rev. Stat. § 69-1603(2) (Reissue 2009) requires the buyer’s
notice of cancellation to be sent by mail and addressed to the seller. The buyer’s
notice of cancellation is considered given at the time it is mailed.
6. ____: ____. Neb. Rev. Stat. § 69-1604(1) (Reissue 2009) contains the language a
seller is required to include in the notice of cancellation.
7. ____: ____. As an alternative to the language provided in Neb. Rev. Stat.
§ 69-1604(1) (Reissue 2009), § 69-1604(2) permits a seller to use the language
provided by the Federal Trade Commission in a notice of cancellation.
8. Time: Words and Phrases. For purposes of Neb. Rev. Stat. § 69-1603(1)
(Reissue 2009), “business day” is defined as any calendar day except Sunday or
any federal holiday.
9. Sales: Notice. Neb. Rev. Stat. § 69-1604(5) (Reissue 2009) permits a buyer to
cancel a home solicitation sale in any manner and by any means if the seller has
not complied with the requirements in § 69-1604(1).
10. Sales: Notice: Time. The seller’s inclusion of an incorrect date for the buyer’s
right to cancel in a home solicitation sale is more than a technical violation of the
statute and does not comply with Nebraska law.
11. Rules of Evidence: Proof: Words and Phrases. The best evidence rule, also
known as the original document rule, as expressed in Neb. Rev. Stat. § 27-1002
(Reissue 2008), states that the original writing, recording, or photograph is
required to prove the content of that writing, recording, or photograph.
12. Rules of Evidence: Proof. When a duplicate writing or document is offered
as evidence, the burden of raising an issue concerning the authenticity of the
original writing or document, or showing circumstances of unfairness to prevent
admissibility of a duplicate, is on the party opposing the duplicate’s admission
into evidence.
13. Small Claims Court: Rules of Evidence. Pursuant to Neb. Rev. Stat. § 25-2806
(Reissue 2008), the formal rules of evidence do not apply in small claims court.
14. Small Claims Court. The setting in small claims court affords the parties the
opportunity to obtain a prompt and just determination in an action involving
small amounts while expending a minimum amount of resources.
15. ____. The small claims setting is vastly different from the relatively more com-
plex and time-consuming litigation that occurs in county or district courts.
16. Courts: Appeal and Error. A court cannot err with respect to a matter not sub-
mitted to it for disposition.
Appeal from the District Court for Polk County, Patricia
A. Lamberty, Judge, on appeal thereto from the County Court
for Polk County, Stephen R.W. Twiss, Judge. Judgment of
District Court affirmed in part and in part reversed, and cause
remanded with directions.
Kelly M. Thomas, of Svehla Law Offices, P.C., for appellant.
No appearance for appellees.
Decisions of the Nebraska Court of Appeals
FLODMAN v. ROBINSON 945
Cite as 22 Neb. Ct. App. 943
Moore, Chief Judge, and Irwin and Riedmann, Judges.
Moore, Chief Judge.
Corky Robinson, doing business as The Vacuum Company,
appeals from an order of the district court for Polk County,
which found in favor of Burdette Flodman and Phyllis
Flodman in connection with their claim arising out of a
purchase of a vacuum cleaner from Robinson. Sitting as
an appellate court, the district court affirmed an order of
the small claims division of the Polk County Court. In this
appeal, Robinson asserts that the county court erred when it
determined that the cancellation notice contained in the pur-
chase agreement violated the statutes regulating home solici-
tation sales. Robinson also argues that the county court should
not have accepted a copy of the purchase agreement into evi-
dence and that the court erred in requiring him to return the
Flodmans’ two previously owned vacuum cleaners. For the
reasons that follow, we affirm in part, and in part reverse and
remand with directions.
FACTUAL BACKGROUND
On December 19, 2013, Robinson visited the Flodmans at
their home with the objective of selling them a vacuum cleaner.
The Flodmans eventually purchased one of Robinson’s vacuum
cleaners for $510. As part of this transaction, the Flodmans
gave Robinson two of their old vacuum cleaners, a “Dyson
Ball” and a “Rainbow.” Robinson accepted $500 in full satis-
faction of the price of the vacuum cleaner.
To memorialize the sale, Robinson prepared and delivered to
the Flodmans two copies of his standard purchase agreement.
Robinson retained a third copy for his records. Robinson’s
purchase agreement contains a description of the sale as well
as an advisement regarding a buyer’s right to cancel. The
advisement, in all capital letters, informs the buyer that he
or she “‘MAY CANCEL THIS TRANSACTION AT ANY
TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS
DAY AFTER THE DATE OF THIS TRANSACTION. SEE
THE ATTACHED NOTICE OF CANCELLATION FORM
FOR AN EXPLANATION OF THIS RIGHT.’” Phyllis signed
Decisions of the Nebraska Court of Appeals
946 22 NEBRASKA APPELLATE REPORTS
the agreement, certifying that she was given notice of her
rights as a buyer and that she had received two copies of
the agreement.
The separate notice of cancellation is printed to the side of
the purchase agreement. The notice, reproduced in its entirety
below, advises the purchaser:
BUYER’S RIGHT TO CANCEL
NOTICE OF CANCELLATION
Date of Transaction __ /__ /__
You may CANCEL this transaction, without any
Penalty or Obligation, within THREE BUSINESS DAYS
from the above date. If you cancel, any property traded
in, any payments made by you under the contract or sale,
and any negotiable instrument executed by you will be
returned within TEN BUSINESS DAYS following receipt
by the seller of your cancellation notice, and any security
interest arising out of the transaction will be canceled.
If you cancel, you must make available to the seller at
your residence, in substantially as good condition as when
received, any goods delivered to you under this contract
or sale, or you may, if you wish, comply with the instruc-
tions of the seller regarding the return shipment of the
goods at the seller’s expense and risk.
If you do make the goods available to the seller and the
seller does not pick them up within 20 days of the date
of your Notice of Cancellation, you may retain or dispose
of the goods without any further obligation. If you fail to
make the goods available to the seller, or if you agree to
return the goods to the seller and fail to do so, then you
remain liable for performance of all obligations under
the contract.
To cancel this transaction, mail or deliver a signed and
dated copy of this Cancellation Notice or any other writ-
ten notice, or send a telegram, to. The Vacuum Company,
1805 S 9th St. Lincoln Ne. 68502
NO LATER THAN MIDNIGHT OF __ /__ /__
I HEREBY CANCEL THIS TRANSACTION.
(Date) ____________
(Buyer’s Signature) _____________________
Decisions of the Nebraska Court of Appeals
FLODMAN v. ROBINSON 947
Cite as 22 Neb. Ct. App. 943
In addition to the above, Robinson’s standard purchase agree-
ment also specifies that he does not accept any other form of
communication in place of the requirement for written cancel-
lation. Finally, the form explains that all sales are final after
the 3-day cancellation period elapses.
On the notice of cancellation given to the Flodmans,
Robinson noted that the date of the transaction was “12/19/13.”
Robinson also indicated that the Flodmans had to exercise
their right to cancel no later than midnight of “12/22/13.” A
review of the calendar shows that December 22, 2013, was
a Sunday.
On the morning of Saturday, December 21, 2013, Phyllis
contacted Robinson by telephone to advise him that she
did not like the vacuum cleaner she and her husband had
purchased. Robinson acknowledged that this telephone call
occurred. In response, Robinson told Phyllis that she needed
to “put [her] letter in the mailbox.” During this telephone
conversation, Robinson also agreed to return to the Flodmans’
home after Christmas to look at the vacuum cleaner he had
sold them.
Robinson returned to the Flodmans’ home 12 days after the
sale had been completed. During this visit, Phyllis informed
Robinson of her desire to cancel the sale. Relying on the
notice of cancellation in the purchase agreement, and the
Flodmans’ failure to mail in the completed notice of cancella-
tion, Robinson declined to permit the Flodmans to return the
vacuum cleaner.
The Flodmans filed a small claims action against Robinson
in the Polk County Court seeking to return the vacuum cleaner
they had purchased from Robinson and to recover the money
they had paid Robinson for that vacuum. The Flodmans also
sought to have Robinson return the vacuum cleaners they had
traded to him at the same time they purchased the new vacuum
cleaner. In their filed claim, the Flodmans alleged that the two
vacuum cleaners they had given Robinson were valued at $800.
On February 13, 2014, the county court held a hearing on the
Flodmans’ claim.
At the hearing, the Flodmans contended that Phyllis’ tele-
phone call to Robinson on December 21, 2013, was sufficient
Decisions of the Nebraska Court of Appeals
948 22 NEBRASKA APPELLATE REPORTS
to cancel the sale. The Flodmans also asserted they had given
Robinson a Dyson vacuum cleaner and another vacuum cleaner
as part of the sale. During their testimony, the Flodmans could
not agree whether the second vacuum cleaner was a “Kirby” or
a “Rainbow.” They asked the court to order Robinson to return
those two vacuum cleaners.
Robinson explained to the court that his purchase agree-
ment form complied with all applicable law pertaining to home
solicitations. He testified that he had conversations with the
Attorney General’s office in both Nebraska and Kansas and
received their approval for his form. Robinson maintained that
he had the right to refuse the Flodmans’ attempted cancellation
of the sale because they had not complied with the terms of
the purchase agreement. Finally, Robinson disagreed with the
Flodmans’ claim that they had traded two vacuum cleaners as
part of the sale. Rather, Robinson testified that “the bearings
were out of” the two old vacuums, that “[he] can’t get much
for that old of a model,” and that the vacuums were given to
him to dispose of.
On February 25, 2014, the county court entered an order
in which it found in favor of the Flodmans. The court deter-
mined that the transaction between the Flodmans and Robinson
was controlled by Neb. Rev. Stat. §§ 69-1601 to 69-1607
(Reissue 2009). Further, the court concluded that the language
in Robinson’s standard purchase agreement and accompanying
notice of cancellation complied with Nebraska law pertaining
to home solicitation sales. However, the county court found
that Robinson incorrectly completed his form because of his
indication that December 22, 2013, was the last day for the
Flodmans to exercise their right to cancel the sale. Because
December 22 was a Sunday, and, therefore, not a business day,
the court found that Robinson’s notice of cancellation did not
comply with Nebraska or federal law.
Due to the fact that Robinson’s notice of cancellation did not
comply with the applicable statutes, the county court concluded
that the law permitted the Flodmans to exercise their right to
cancel in any manner and by any means they chose. Thus, the
Flodmans’ telephone call to Robinson on December 21, 2013,
canceled the sale. The county court ordered that the Flodmans
Decisions of the Nebraska Court of Appeals
FLODMAN v. ROBINSON 949
Cite as 22 Neb. Ct. App. 943
were entitled to the return of any money paid to Robinson in
addition to the return of the two vacuum cleaners they had
tendered to him as part of the sale. The Flodmans were ordered
to return to Robinson the vacuum cleaner they had purchased
upon Robinson’s compliance with the court’s order.
Robinson appealed the county court’s order to the district
court. At oral arguments before the district court, Robinson
maintained that his purchase agreement and attached notice
of cancellation complied with all applicable law. Robinson
also claimed that his copy of the purchase agreement relating
to the sale to the Flodmans contained December 23, 2013, as
the final date for the Flodmans to exercise their right to can-
cel. Robinson believed that the tripartite paper did not allow
the entire date to copy through. He informed the court that he
attempted to adduce his copy of the purchase agreement into
evidence at the small claims court, but was prevented from
doing so by the clerk magistrate. Finally, Robinson argued to
the district court that the Flodmans had requested he recycle
their two old vacuum cleaners and that he did so as a free
service to them. He asserted that a trade-in would have been
reflected on the purchase agreement.
On May 7, 2014, the district court entered an order affirm-
ing the judgment of the county court. The district court did
not find any errors on the record. Robinson now appeals to
this court.
ASSIGNMENTS OF ERROR
Robinson assigns three errors. He asserts, restated, that the
county court erred by (1) concluding the notice of cancellation
did not comply with Nebraska law, (2) allowing the Flodmans
to introduce a carbon copy of the purchase agreement when
the original was available, and (3) finding that the Flodmans
had traded their two vacuum cleaners as part of the sale
with Robinson.
STANDARD OF REVIEW
[1] The district court and higher appellate courts generally
review judgments from a small claims court for error appear-
ing on the record. See, Neb. Rev. Stat. §§ 25-2733 and 25-2807
Decisions of the Nebraska Court of Appeals
950 22 NEBRASKA APPELLATE REPORTS
(Reissue 2008); Hara v. Reichert, 287 Neb. 577, 843 N.W.2d
812 (2014).
[2,3] 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 arbi-
trary, capricious, nor unreasonable. First Nat. Bank of Unadilla
v. Betts, 275 Neb. 665, 748 N.W.2d 76 (2008). However, in
instances when an appellate court is required to review cases
for error appearing on the record, questions of law are nonethe-
less reviewed de novo on the record. Id.
ANALYSIS
Contents of Purchase Agreement
and Cancellation Notice.
[4,5] As the county court accurately stated in its order,
this case comes within the Nebraska statutes governing home
solicitation sales, §§ 69-1601 to 69-1607. In this case, the
provisions within §§ 69-1603 and 69-1604 determine the out-
come. Section 69-1603(1) provides the buyer with a right to
cancel a home solicitation sale until midnight of the third busi-
ness day after the seller has given notice of the buyer’s right
to cancel. Section 69-1603(2) requires the buyer’s notice of
cancellation to be sent by mail and addressed to the seller. The
buyer’s notice of cancellation is considered given at the time
it is mailed.
[6,7] Section 69-1604(1) contains the language a seller is
required to include in the notice of cancellation. Subsection (1)
specifically states:
Whenever a buyer has the right to cancel a home solicita-
tion sale, the seller’s contract shall contain a notice to be
printed in capital and lowercase letters of not less than
ten-point boldface type and appear under the conspicuous
caption: BUYER’S RIGHT TO CANCEL; which shall
read as follows: You may cancel this agreement by mail-
ing a written notice to (Insert name and mailing address
of seller) before midnight of the third business day after
you signed this agreement. If you wish, you may use this
Decisions of the Nebraska Court of Appeals
FLODMAN v. ROBINSON 951
Cite as 22 Neb. Ct. App. 943
page as that notice by writing “I hereby cancel” and add-
ing your name and address.
§ 69-1604(1). As an alternative, § 69-1604(2) permits a seller
to use the language provided by the Federal Trade Commission
in its trade regulation rule as long as that language provides at
least equal information as that required by § 69-1604(1). The
Federal Trade Commission requires the following language in
a notice of cancellation:
Notice of Cancellation
[enter date of transaction]
______________________________________________
(Date)
You may CANCEL this transaction, without any
Penalty or Obligation, within THREE BUSINESS DAYS
from the above date.
If you cancel, any property traded in, any payments
made by you under the contract or sale, and any nego-
tiable instrument executed by you will be returned within
TEN BUSINESS DAYS following receipt by the seller of
your cancellation notice, and any security interest arising
out of the transaction will be cancelled.
If you cancel, you must make available to the seller at
your residence, in substantially as good condition as when
received, any goods delivered to you under this contract
or sale, or you may, if you wish, comply with the instruc-
tions of the seller regarding the return shipment of the
goods at the seller’s expense and risk.
If you do make the goods available to the seller and the
seller does not pick them up within 20 days of the date
of your Notice of Cancellation, you may retain or dispose
of the goods without any further obligation. If you fail to
make the goods available to the seller, or if you agree to
return the goods to the seller and fail to do so, then you
remain liable for performance of all obligations under
the contract.
To cancel this transaction, mail or deliver a signed
and dated copy of this Cancellation Notice or any other
written notice, or send a telegram, to [Name of seller],
Decisions of the Nebraska Court of Appeals
952 22 NEBRASKA APPELLATE REPORTS
at [address of seller’s place of business] NOT LATER
THAN MIDNIGHT OF [date].
I HEREBY CANCEL THIS TRANSACTION.
(Date) ________________________________________
(Buyer’s signature) ______________________________
16 C.F.R. § 429.1 (2013) (emphasis in original).
The notice of cancellation on Robinson’s form adopts the
language from the Federal Trade Commission’s rule. As is
evident from above, the language from the Federal Trade
Commission’s rule provides information that is at least equal to
Nebraska’s required language in § 69-1604(1). Thus, the lan-
guage in Robinson’s standard notice of cancellation complies
with Nebraska law.
[8,9] The difficulty in this case arises because Robinson’s
cancellation notice for the particular transaction with the
Flodmans contains an incorrect date. The purchase agreement
displays December 22, 2013, as the final day for the Flodmans
to have exercised their right to cancel the sale. The question is
whether December 22 was a business day. The Nebraska stat-
utes governing home solicitation sales do not define “business
day.” Based on the Legislature’s reference in § 69-1604(2) to
the Federal Trade Commission’s rule, we believe it is appro-
priate to adopt the Federal Trade Commission’s definition
of “business day” for Nebraska home solicitation sales. The
Federal Trade Commission defines “business day” as “[a]ny
calendar day except Sunday or any federal holiday (e.g., New
Year’s Day, Presidents’ Day, Martin Luther King’s Birthday,
Memorial Day, Independence Day, Labor Day, Columbus Day,
Veterans’ Day, Thanksgiving Day, and Christmas Day.)” 16
C.F.R. § 429.0(f) (2013). Applying this definition of “business
day” to the present case, we observe that although December
22 was the third day after Robinson’s sale to the Flodmans,
it was a Sunday, not a business day. Therefore, Monday,
December 23, should have been the last day for the Flodmans
to exercise their right to cancel. Under § 69-1604, subsection
(5) specifies that a buyer may cancel a home solicitation sale
in any manner and by any means if the seller has not complied
with the requirements in subsection (1).
Decisions of the Nebraska Court of Appeals
FLODMAN v. ROBINSON 953
Cite as 22 Neb. Ct. App. 943
Thus, the next question in this case is whether Robinson’s
failure to fill in the blank with the correct date causes the can-
cellation notice to run afoul of § 69-1604. If it did, then the
Flodmans’ telephone call to Robinson would suffice to cancel
the sale. See § 69-1604(5). Robinson contends the cancellation
notice in question was effective because there is nothing in
the Nebraska statutes or case law which requires any type of
“fill-in-the-blank” date on a cancellation notice. He correctly
observes that § 69-1603(1) requires only a statement that the
buyer has 3 business days to cancel a sale.
Despite Robinson’s contentions, we agree with the county
court’s conclusion. Our review of the legislative history of
this statutory section regarding home solicitation sales reveals
that the purpose of the section was to “provide the consum-
ers of the State of Nebraska some protection in the field of
home solicitation sales.” Committee Statement, L.B. 212,
Committee on Miscellaneous Subjects, 83d Leg., 1st Sess.
(Apr. 2, 1973). Keeping that purpose in mind, the protection
provided to the buyer by the cancellation period of 3 business
days required in § 69-1603(1) would be frustrated if a seller
were permitted to advise the buyer of an incorrect expiration
date for the buyer’s right of cancellation. We recognize that
Nebraska law does not require Robinson to include a spe-
cific date for the expiration of the buyer’s right to cancel on
the notice of cancellation. However, in order to comply with
Nebraska law once a buyer elects to include a specific date,
it is axiomatic that the correct date should be used in order to
require the buyer to strictly comply with the provisions in the
cancellation notice.
Our research has revealed that there is no authority constru-
ing the home solicitation statutes in Nebraska. Similarly, there
is very little guidance from other states with respect to the
inclusion of a specific date for cancellation of a home solici-
tation sale. While Robinson cites to various cases decided
under the Federal Truth in Lending Act for the proposition
that technical violations of cancellation notices may be over-
looked, this authority does not address the particular situa-
tion with which we are presented—namely, the inclusion of
Decisions of the Nebraska Court of Appeals
954 22 NEBRASKA APPELLATE REPORTS
an incorrect cancellation date. Our independent research has
not revealed any cases in the realm of state home solicitation
statutes or under federal regulations in which the inclusion of
an incorrect date in a cancellation notice was addressed, let
alone excused.
Nonetheless, we find some guidance from the Connecticut
Supreme Court’s decision in Wright Bros. Builders, Inc. v.
Dowling, 247 Conn. 218, 720 A.2d 235 (1998). In that case,
the Connecticut court was called upon to determine whether
the failure to include the date of the transaction or the date
by which the transaction could be canceled on the notice
of cancellation precluded enforcement of the contract. We
pause to note that this case involved Connecticut’s Home
Improvement Act which incorporated provisions from that
state’s Home Solicitation Sales Act. Among the adopted
provisions was the requirement for a notice of cancellation
which is similar to the notice Robinson uses on his form.
Connecticut law requires the notice of cancellation to include
the name of the seller, the address of the seller’s place of
business, the date of the transaction, and the date, not ear-
lier than the third business day following the date of the
transaction, by which the buyer may give notice of cancel-
lation. See Conn. Gen. Stat. Ann. § 42-135a (West 2012).
The Connecticut Supreme Court further noted that although
compliance with the Home Improvement Act was mandatory,
such compliance did not have to be “technically perfect.”
Wright Bros. Builders, Inc. v. Dowling, 247 Conn. at 231, 720
A.2d at 241. Turning to the specific contract, the Connecticut
Supreme Court concluded that the seller’s failure to fill in the
blanks with the date of the transaction and the date by which
the buyer could cancel the sale was not fatal. The court con-
cluded that the missing information could have been gleaned
from even “the most cursory review of the contract.” Id. at
233, 720 A.2d at 242. The failure to include the dates on the
notice of cancellation did not rise to the level of noncompli-
ance with the law.
[10] The reasoning in Wright Bros. Builders, Inc. leads
us to the opposite conclusion in this case. While failure to
Decisions of the Nebraska Court of Appeals
FLODMAN v. ROBINSON 955
Cite as 22 Neb. Ct. App. 943
include a date for cancellation may be a technical violation
overcome by inclusion of the 3-day cancellation language,
including an incorrect date on the notice of cancellation
is clearly more than a technical violation of the statute.
Inclusion of an incorrect date may lead a buyer to conclude
that his or her right to cancel an unwanted sale had expired,
when in reality it had not. Such a practice by a seller would
infringe on the buyer’s protection under § 69-1603(1).
To summarize, because Robinson’s cancellation notice for
this particular transaction contained an incorrect date for the
expiration of the Flodmans’ right to cancel, it did not com-
ply with Nebraska law. That being the case, the Flodmans
were permitted to cancel the sale by any means they chose.
We determine that Phyllis’ telephone call to Robinson on
December 21, 2013, canceled the sale.
Copy of Purchase Agreement.
During the small claims hearing, the Flodmans offered
into evidence exhibit 3, one of the two copies of the pur-
chase agreement they received from Robinson. The trial court
concluded that this purchase agreement displayed December
22, 2013, as the final day for the Flodmans to exercise their
right to cancel the sale. Robinson did not object to the intro-
duction of this exhibit at trial or notify the court of a pos-
sible discrepancy regarding the date on the copy. However,
on appeal to the district court, Robinson contended that the
clerk magistrate did not allow him to introduce the original
purchase agreement into evidence at the small claims hear-
ing. Robinson asserted that the original purchase agreement
correctly displayed December 23 as the final day for the
Flodmans’ right of cancellation. The district court rejected
this argument.
Now, Robinson argues that the county court erred when it
permitted the Flodmans to introduce a copy of the purchase
agreement into evidence when the original was available. He
contends that the admission of the copy of the purchase agree-
ment into evidence prejudiced him because it was not the best
evidence of the contents of the purchase agreement.
Decisions of the Nebraska Court of Appeals
956 22 NEBRASKA APPELLATE REPORTS
[11,12] The best evidence rule, also known as the original
document rule, as expressed in Neb. Rev. Stat. § 27-1002
(Reissue 2008), states that the original writing, recording, or
photograph is required to prove the content of that writing,
recording, or photograph. See State v. Kula, 260 Neb. 183,
616 N.W.2d 313 (2000). The purpose of this rule is to prevent
fraud, inaccuracy, mistake, or mistransmission of critical facts
contained in a writing, recording, or photograph when its con-
tents are an issue in a proceeding. See Equitable Life v. Starr,
241 Neb. 609, 489 N.W.2d 857 (1992). When a duplicate writ-
ing or document is offered as evidence, the burden of raising
an issue concerning the authenticity of the original writing or
document, or showing circumstances of unfairness to prevent
admissibility of a duplicate, is on the party opposing the dupli-
cate’s admission into evidence. Id.
[13-15] We reject Robinson’s arguments for a number of
reasons. First, Robinson’s reliance on the best evidence rule
is misplaced because the formal rules of evidence do not
apply in small claims court. See Neb. Rev. Stat. § 25-2806
(Reissue 2008). The setting in small claims court affords the
parties the opportunity to obtain a prompt and just determina-
tion in an action involving small amounts while expending
a minimum amount of resources. Henriksen v. Gleason, 263
Neb. 840, 643 N.W.2d 652 (2002). The small claims setting
is vastly different from the relatively more complex and time-
consuming litigation that occurs in county or district courts.
See id.
Additionally, even if the best evidence rule were to apply to
small claims court, Robinson still had the burden to raise the
issue to the court. Because he failed to raise any objection at
the small claims hearing regarding the authenticity or contents
of the Flodmans’ copy of the purchase agreement, his argu-
ments must also fail. See Equitable Life v. Starr, supra.
[16] Finally, Robinson’s argument regarding his inability
to introduce his copy of the purchase agreement at the small
claims hearing is without merit. Robinson states that he
attempted to introduce the original into evidence during his
case in chief at the small claims hearing, but was prevented
by the clerk magistrate. We have not discovered any such
Decisions of the Nebraska Court of Appeals
FLODMAN v. ROBINSON 957
Cite as 22 Neb. Ct. App. 943
attempt in the bill of exceptions from the small claims hearing
or any objection on the record to the clerk’s refusal to mark
such an exhibit. Further, Robinson does not cite to any such
example in his brief. A court cannot err with respect to a mat-
ter not submitted to it for disposition. Huber v. Rohrig, 280
Neb. 868, 791 N.W.2d 590 (2010).
Therefore, based on the above reasons, we find Robinson’s
claim as to the best evidence rule to be without merit.
County Court’s Finding That Vacuum
Cleaners Were Trade-ins.
Finally, Robinson assigns error to the county court’s conclu-
sion that the Flodmans had traded two vacuum cleaners as part
of the transaction with Robinson. He contends that he made no
promise that the Flodmans’ vacuum cleaners would be treated
as trade-ins. Robinson argues that he simply provided a free
disposal service for the Flodmans.
At the small claims hearing, there was little evidence pre-
sented to establish how the parties intended to handle these
two vacuum cleaners in the sale. The Flodmans introduced
evidence in the form of an instruction manual to demonstrate
that they gave Robinson a Dyson vacuum cleaner. Phyllis
testified that this Dyson vacuum cleaner was 3 years old. The
record is less clear as to the specifications of the second vac-
uum cleaner; Burdette testified that it was a “Rainbow,” while
Phyllis maintained that it was a “Kirby.” Neither Burdette nor
Phyllis testified to the value of either of these vacuum clean-
ers, and they did not specifically testify that the two vacuum
cleaners were to be treated as trade-ins for the vacuum cleaner
purchased from Robinson. Robinson testified that both of the
Flodmans’ vacuum cleaners were old, had worn-out bearings,
and were given to him for disposal.
In addition to the parties’ testimony, the purchase agree-
ment sheds some light on this issue. The purchase agree-
ment contains a typed notation on line 10 which states,
“Customer Requests FREE Disposal-recycle of old Vacuum.”
Above that line, Robinson appeared to write “Dyson” and
“R.B.” Robinson’s initials are in a box next to these handwrit-
ten notes.
Decisions of the Nebraska Court of Appeals
958 22 NEBRASKA APPELLATE REPORTS
The county court found that the Flodmans were entitled
to the return of their two vacuum cleaners. We conclude this
determination was clearly erroneous. The record from the
small claims hearing does not contain any testimony from the
Flodmans to support their contention that they believed they
were giving these vacuum cleaners as trade-ins. In fact, the
Flodmans’ evidence at the small claims hearing related only to
the identification of the two vacuum cleaners. As noted above,
their evidence as to this issue was not clear.
Because of the Flodmans’ failure to introduce evidence to
support their contention that their two vacuum cleaners should
be considered trade-ins, Robinson’s testimony as to these vac-
uum cleaners was not contradicted. He testified that the two
vacuum cleaners were given to him for disposal. He described
each of these vacuums as “old” and stated that “the bearings
were out” on each. The contents of the purchase agreement,
while not the best example of clarity, also provided additional
support for Robinson’s claims that these vacuums were given
to him for disposal.
Based on this record from the small claims hearing, we
conclude that there was not competent evidence to support
the order requiring Robinson to return the two vacuums to the
Flodmans and that the district court erred by affirming that
portion of the county court’s order.
CONCLUSION
We find no error on the record in the county court’s receipt
of exhibit 3, one of three copies of the purchase agreement.
We also find no error in the county and district courts’ conclu-
sion that the cancellation notice in the purchase agreement,
with the handwritten cancellation deadline, did not conform to
Nebraska law such that Flodmans’ oral cancellation was suf-
ficient. We therefore affirm the judgment of the county court
to the extent that it ordered Robinson to return the $500 paid
to him by the Flodmans and ordered the Flodmans to return to
Robinson the vacuum cleaner that they purchased from him.
However, we conclude the county court’s finding that the two
vacuum cleaners previously owned by the Flodmans were
trade-ins and that they were entitled to return of the vacuums
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF NERY V. ET AL. 959
Cite as 22 Neb. Ct. App. 959
is not supported by competent evidence. We therefore reverse
that portion of the district court’s order affirming this finding,
with directions to the district court to remand the cause to the
county court with directions to reverse and vacate that portion
of the order.
Affirmed in part, and in part reversed
and remanded with directions.
In re I nterest of
Nery V. et al.,
children under18 years of age.
State of Nebraska, appellee, v. Mario V., Sr.,
and I da V., appellees, and Rosebud Sioux
Tribe, intervenor-appellant.
___ N.W.2d ___
Filed June 9, 2015. No. A-14-654.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. ____: ____. An appellate court reviews questions of law independently of the
juvenile court’s conclusions.
3. Indian Child Welfare Act. The substantive portions of the Indian Child Welfare
Act and the corresponding portions of the Nebraska Indian Child Welfare Act
provide heightened protection to the rights of Indian parents, tribes, and children
in proceedings involving custody, termination, and adoption.
4. Juvenile Courts: Evidence: Proof. In adjudication cases, the standard of proof
for the active efforts element in Neb. Rev. Stat. § 43-1505(4) (Reissue 2008) is
proof by a preponderance of the evidence.
Appeal from the County Court for Hall County: Philip M.
Martin, Jr., Judge. Affirmed.
Lloyd E. Guy III for intervenor-appellant.
Megan Alexander, Deputy Hall County Attorney, for appel-
lee State of Nebraska.
Susan M. Koenig, of Mayer, Burns, Koenig & Janulewicz,
guardian ad litem.