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LINDA N. v. WILLIAM N. 607

Cite as 289 Neb. 607

Linda N., on behalf of a minor child, Rebecca

appellee and cross-appellant, v. William N.

appellant and cross-appelle

___ N.W.2d ___

Filed December 5, 2014. No. S-14-152.

1. Judgments: Injunction: Appeal and Error. A protection order is analogous to 

an injunction. Accordingly, the grant or denial of a protection order is reviewed 

de novo on the record.

2. Evidence: Appeal and Error. Where the credible evidence is in conflict on a 

material issue of fact, an appellate court considers and may give weight to the 

circumstances that the trial judge heard and observed the witnesses and accepted 

one version of the facts rather than another.

3. Judgments: Pleadings: Affidavits. In order to obtain a domestic abuse protection order, the petitioner must file a petition and supporting affidavit in the district court.

4. Legislature: Courts. The Legislature is deemed to be aware of existing Nebraska 

Supreme Court precedent when it enacts legislation.

5. Legislature: Intent. The legislative intent of the language in Neb. Rev. Stat. 

§ 42-903 (Cum. Supp. 2014) is to allow a victim of abuse, law enforcement, and 

prosecutors to take steps toward preventing a threatened act of domestic abuse 

from actually becoming an act that leads to physical harm of the victim.

6. Trial: Evidence: Words and Phrases. The “credible threat” language in Neb. 

Rev. Stat. § 42-903 (Cum. Supp. 2014) means that the evidence at trial must 

include some threat of intentional physical injury or any other physical threat.

7. Judgments. Where there is no threat of harm to the petitioner, a domestic abuse 

protection order is not appropriate.

8. Judgments: Pleadings: Courts. A county court or district court has the statutory 

authority to issue a harassment protection order, where the petition was instead 

for a domestic abuse protection order.

9. Actions: Parties: Appeal and Error. An appellate court reviews a case on 

the theories pursued by the parties, not on a theory that the parties might 

have raised.

10. Pleadings: Appeal and Error. An appellate court is obliged to dispose of a 

case on the basis of the theory presented by the pleadings on which the case 

was tried.

11. Appeal and Error. A party cannot complain of error which the party has invited 

the court to commit.

12. ____. An appellate court will not consider an issue on appeal that the trial court 

has not decided.

13. ____. When an issue is raised for the first time in an appellate court, it will be 

disregarded inasmuch as a lower court cannot commit error in resolving an issue 

never presented and submitted to it for disposition.
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14. Actions: Judgments. If a judge deems appropriate, at a hearing on a domestic 

abuse or harassment protection order, a judge should explain the requirements for 

both domestic abuse and harassment protection orders and allow the petitioner to 

choose which theory to pursue.

15. Judgments: Pleadings: Affidavits. At a hearing on a domestic abuse or harassment protection order, where a petitioner decides to pursue the alternative theory 

to the petition and affidavit filed, the court should allow a continuance where 

requested and leave an ex parte protection order temporarily in place.

16. Due Process: Words and Phrases. While the concept of due process defies precise definition, it embodies and requires fundamental fairness.

17. Constitutional Law: Due Process. Generally, procedural due process requires 

parties whose rights are to be affected by a proceeding to be given timely notice, 

which is reasonably calculated to inform the person concerning the subject and 

issues involved in the proceeding; a reasonable opportunity to refute or defend 

against a charge or accusation; a reasonable opportunity to confront and crossexamine adverse witnesses and present evidence on the charge or accusation; 

representation by counsel, when such representation is required by constitution or 

statute; and a hearing before an impartial decisionmaker.

Appeal from the District Court for Valley County: Karin 

Noakes, Judge. Reversed and remanded with directions.

Chris A. Johnson and Joshua A. Johnson, of Conway, Pauley 

& Johnson, P.C., for appellant.

Michael S. Borders, of Borders Law Office, and Brandon B. 

Hanson, of Hanson Law Offices, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, M

Miller-Lerman, and Cassel,

McCormack, 

NATURE OF CASE

In early 2014, Linda N., on behalf of her minor child, filed 

a petition for a domestic abuse protection order against the 

minor child’s father, William N. An ex parte domestic abuse 

protection order was issued by the district court, and William 

requested a show cause hearing on the ex parte order. The evidence against William included many text messages including 

vulgar language and name-calling. Upon hearing, the district 

court upheld its domestic abuse protection order. William 

appeals, stating that the district court erred in considering his 
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LINDA N. v. WILLIAM N. 609

Cite as 289 Neb. 607

conduct “abuse” under Neb. Rev. Stat. § 42-903 (Cum. Supp. 

2014). Linda maintains that William’s conduct should be 

considered abuse. She also cross-appeals, arguing that the district court should have issued a harassment protection order 

instead of a domestic abuse protection order.

BACKGROUND

A petition and affidavit to obtain a domestic abuse protection order was filed against William in the district court on 

January 2, 2014, by Linda on behalf of her minor child. The 

stated rationale for such protection order was verbal abuse of 

the child by William in what Linda felt to be a “threat to [the 

minor child].” Further, Linda states that the way William spoke 

to the child was “very disgusting [and] disturbing.” Further, 

“It upsets [the minor child] and is causing her a lot of stress.” 

Following the petition and affidavit, an ex parte domestic 

abuse protection order was filed on January 2. William then 

requested a hearing on the order.

At a show cause hearing on January 21, 2014, the minor 

child, who was 16 years old, testified against William, and 

William also testified. An exhibit was received into evidence of 

the text messages that had been sent between the minor child 

and William. The text messages showed that William repeatedly texted the minor child, stating that Linda was a “drunk” 

or “piece of loser shit,” that the minor child’s boyfriend was a 

“fag” and “pussy,” and that William was going to file charges 

against Linda and the minor child’s boyfriend. William called 

the minor child “an asshole” and told her she could “kiss [his] 

ass.” William texted the minor child: “Im ur dad u will one 

day regret all of ur sick rude twisted desgusting [sic] ignorant 

shit. I never ever harmed u or hurt u. I love u and miss u so 

much u ass.” Many more texts were exchanged between the 

minor child and William in which William continued the namecalling and vulgar language. William threatened to take Linda 

and the minor child to court.

At the hearing, the minor child testified that the texts 

from William scared and intimidated her. She further testified that she felt threatened by the texts. William testified 
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that the arguments between the minor child and himself were 

provoked by the actions of the minor child’s boyfriend, with 

whom William had argued. William testified that he did not 

keep track of all of the texts between the child and himself but 

asserts that she had sent provoking texts to him as well, including that “[he is] not her dad anymore, [he does not] belong in 

her life anymore, that [he is] nothing to her anymore.” William 

stated that he was very upset about the breakdown of his relationship with his daughter and that though his messages were 

not justified, he felt misunderstood.

Following the show cause hearing, the district court issued 

an order affirming the domestic abuse protection order. William 

appeals the domestic abuse protection order. Linda defends the 

entry of the domestic abuse protection order, but also crossappeals, arguing that the district court erred in failing to grant 

a harassment protection order.

ASSIGNMENTS OF ERROR

William contends that the district court erred in affirming a 

domestic abuse protection order preventing him from contacting or interacting with his daughter, because his actions did not 

constitute “abuse” under § 42-903(1).

On cross-appeal, Linda contends that the district court erred 

in issuing a domestic abuse protection order instead of a 

harassment protection order at the show cause hearing.

STANDARD OF REVIEW

[1] A protection order is analogous to an injunction.1

Accordingly, the grant or denial of a protection order is 

reviewed de novo on the record.2

[2] Where the credible evidence is in conflict on a material 

issue of fact, an appellate court considers and may give weight 

to the circumstances that the trial judge heard and observed 

the witnesses and accepted one version of the facts rather 

than another.3

1 Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010).

2 Id.

3 Torres v. Morales, 287 Neb. 587, 843 N.W.2d 805 (2014).
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LINDA N. v. WILLIAM N. 611

Cite as 289 Neb. 607

ANALYSIS

Domestic Abuse Protection 

The issue presented by William is whether, under 

§ 42-903(1)(b), a domestic abuse protection order was properly 

sustained when the child received mean and crude texts from 

William, but had no threats made to her physical well-being. 

Phrased another way, the issue is whether verbal abuse via text 

message is enough to constitute “abuse” meriting a domestic 

abuse protection order.

[3] Nebraska’s Protection from Domestic Abuse Act allows 

a victim of domestic abuse to obtain a protection order against 

a member of his or her household upon a showing of abuse 

before the district court.4 In order to obtain such an order, the 

petitioner must file a petition and supporting affidavit in the 

district court.5

Abuse is defined under this act as

the occurrence of one or more of the following acts 

between household members:

(a) Attempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous 

instrument;

(b) Placing, by means of credible threat, another person in fear of bodily injury. . . ; or

(c) Engaging in sexual contact or sexual penetration 

without consent as defined in section 28-318.6

Under the statute, “household members” include children.7

The statute goes on to define “credible threat” as

a verbal or written threat, including a threat performed 

through the use of an electronic communication device, 

or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct that is made by a person 

with the apparent ability to carry out the threat so as to 

4 Neb. Rev. Stat. § 42-924 (Cum. Supp. 2014).

5 Id.

6 § 42-903(1) (emphasis supplied).

7 § 42-903(3).
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cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or 

her family. It is not necessary to prove that the person 

making the threat had the intent to actually carry out 

the threat.8

In 2012, this statute was amended. The definition of abuse 

under § 42-903(1)(b) was changed from “[p]lacing, by physical menace, another person in fear of imminent bodily injury”9

to “[p]lacing, by means of credible threat, another person in 

fear of bodily injury.”10

In Cloeter v. Cloeter,

11 the Nebraska Court of Appeals 

interpreted the prior version of § 42-903(1)(b) to include 

only a narrow definition of abuse. There, an ex-wife sought 

a domestic violence protection order against her ex-husband. 

The ex-wife submitted evidence that, over a series of weeks, 

she had received text messages from her ex-husband containing single letters that could potentially form the word 

“behead.”12 The ex-wife was frightened by this and took it as 

a threat.13 In the same month, the ex-wife found a “2 by 4” 

board on her driveway that she understood as a threat from 

the ex-husband, because 2 years previously, the two corresponded about how a 2 by 4 could be used as a weapon.14 The 

Court of Appeals determined that these alleged threats were 

not enough to constitute a “physical menace,” nor were the 

alleged threats “imminent” enough to constitute abuse under 

§ 42-903(1)(b).15

[4] Soon after the Cloeter decision, the Nebraska Legislature 

then amended § 42-903(1). The Legislature is deemed to be 

aware of existing Nebraska Supreme Court precedent when 

8 § 42-903(1)(b).

9 § 42-903(1)(b) (Reissue 2008) (emphasis supplied).

10 § 42-903(1)(b) (Cum. Supp. 2014) (emphasis supplied).

11 Cloeter v. Cloeter, 17 Neb. App. 741, 770 N.W.2d 660 (2009).

12 Id.

13 Id.

14 Id. at 744, 770 N.W.2d at 664.

15 Cloeter v. Cloeter, supra note 11.
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LINDA N. v. WILLIAM N. 613

Cite as 289 Neb. 607

it enacts legislation.16 The legislative history expressly states 

that the Legislature intended to overturn the language in the 

Cloeter decision.

[5] The legislative history of the amendment indicates 

that the Legislature wished to allow a “victim of abuse, law 

enforcement, and prosecutors to take steps toward preventing a threatened act of domestic abuse from actually becoming an act that leads to physical harm of the victim.”17 The 

Legislature believed the language of Cloeter almost made it 

such that a victim had to be presently assaulted in order to 

file a protective order.18 At the legislative hearing, an attorney testified further to the purpose behind the amendment. 

He stated:

The initial impetus for looking at a change to the language in 42-[903] was as a result of the Cloeter decision from the Court of Appeals in 2008. The court’s 

interpretation of the word “imminent” was so restrictive 

that in order to qualify for a protection order, a petitioner 

would have to be basically getting assaulted at the time 

the application was being made. . . . So why the credible 

threat language? . . . By requiring the petitioner to show 

that the respondent has posed a credible threat, the judge 

has the authority to grant a protective order when that 

judge believes the petitioner has presented a credible case 

that they feel threatened. Just as importantly, though, that 

judge will also have the authority to deny a protective 

order when that judge does not believe the petitioner has 

presented such a credible case.19

Even given the broader “credible threat” language used 

in the newest version of § 42-903, there is no evidence that 

William expressed threats to harm the minor child. In the 

16 In re Interest of Antone C. et al., 12 Neb. App. 466, 677 N.W.2d 190 

(2004).

17 Introducer’s Statement of Intent, L.B. 310, Judiciary Committee, 102d 

Leg., 1st Sess. (Jan. 26, 2011).

18 See Judiciary Committee Hearing, L.B. 310, 102d Leg., 1st Sess. (Jan. 26, 

2011).

19 Id. at 35-36.
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more recent case of Torres v. Morales,

20 the trial judge specifically asked whether there had been any “physical contact or 

threats of any nature made by anybody.” The witness answered 

negatively. Because there had been none, we determined that 

the court was proper in determining that there had been no 

intentional physical injury or credible threats. The “incidents” 

reported were intoxicated arguments and, on several incidents, 

yelling matches and name-calling.21

[6] In comparison, William’s conduct through text message 

in this case should not be considered abuse under § 42-903(1). 

No evidence of intentional physical injury or physical threats 

can be adduced from the evidence at trial. William admittedly 

sent “morally abhorrent” texts to the minor child.22 The texts 

contained crude language and excessive name-calling. The 

minor child stated that she felt threatened by these text messages. William had asserted that she was his daughter and 

“none of this is over until i say its over.” However, nowhere 

in the text messages was there any reference to physical harm 

by William, either occurring or threatened. Neither is there any 

evidence of past physical abuse. We find the “credible threat” 

language in § 42-903 to mean that the evidence at trial must 

include some threat of intentional physical injury or any other 

physical threat.

[7] Since there was no threat of harm to the minor child, a 

domestic abuse protection order would not be appropriate in 

these circumstances. For the reasons discussed in the next section of this opinion, we cannot consider whether a harassment 

protection order might have been warranted. Therefore, we 

reverse the decision of the district court.

Harassment Protection 

Linda argues on cross-appeal that the district court erred in 

failing to consider a harassment protection order instead of a 

domestic abuse protection order.

20 Torres v. Morales, supra note 3, 287 Neb. at 593, 843 N.W.2d at 811.

21 Torres v. Morales, supra note 3.

22 Brief for appellant at 5.
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LINDA N. v. WILLIAM N. 615

Cite as 289 Neb. 607

A harassment protection order is proper when a person 

has “engage[d] in a knowing and willful course of conduct 

directed at a specific person which seriously terrifies, threatens, or intimidates the person and which serves no legitimate 

purpose.”23 A course of conduct is “a pattern of conduct composed of a series of acts over a period of time, however short, 

evidencing a continuity of purpose, including a series of acts of 

. . . telephoning, contacting, or otherwise communicating with 

the person.”24 The stated purpose for a harassment protection 

order is to “protect victims from . . . individuals who intentionally follow, detain, stalk, or harass them or impose any restraint 

on their personal liberty” and, particularly, to deal with stalking 

offenses.25 We have defined stalking to mean “the extensive, 

ongoing, and escalating nature of . . . conduct” showing intent 

to intimidate the victim.26

The “form petition” for both a domestic abuse protection 

order and a harassment protection order are barely distinguishable.27 As we have stated, the only differences between the two 

are that they have “different titles, that the abuse protection 

form asks for the relationship of the respondent, and that the 

abuse protection form asks the petitioner to list the most recent 

incidents of ‘domestic abuse,’ instead of the most recent incidents of ‘harassment.’”28 Further, between domestic abuse and 

harassment protection orders, we have held that a particular 

form is not required for the particular relief requested.29 We 

held that it is proper for a lower court judge to look at the substance of the petitioner’s actual request, instead of “simply the 

title of the petition.”30

23 Neb. Rev. Stat. § 28-311.02(2)(a) (Reissue 2008).

24 § 28-311.02(2)(b).

25 § 28-311.02(1).

26 In re Interest of Jeffrey K., 273 Neb. 239, 244, 728 N.W.2d 606, 611 

(2007).

27 Mahmood v. Mahmud, supra note 1.

28 Id. at 395, 778 N.W.2d at 431.

29 Id.

30 Id.
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In Mahmood v. Mahmud,

31 a petition for a domestic abuse 

protection order was filed by an ex-wife against her ex-husband. 

The petition set forth in detail many events constituting harassment and describing a history of harassment. However, the 

petition set forth no alleged violence against the ex-wife. The 

lower court entered an ex parte harassment protection order 

instead of a domestic abuse protection order. The harassment 

protection order was upheld after a hearing. We affirmed, holding that the domestic abuse form petition was sufficient to put 

the ex-husband on notice that the ex-wife sought a harassment 

protection order and sought to enjoin the ex-husband from 

continuing to harass, threaten, telephone, communicate, or otherwise disturb the peace of the ex-wife.32

[8] We specifically held in Mahmood that a county court 

or district court has the statutory authority to issue a harassment protection order, where the petition was instead for a 

domestic abuse protection order.33 We further held that “[w]hile 

Nebraska’s § 28-311.09(6) provides that the standard forms 

shall be the only ones used, this does not mean that without 

the proper standard form, the court lacks authority to act.”34

A trial court has discretion, authority, and jurisdiction to issue 

a harassment protection order, even though the petitioner had 

filed a petition for a domestic abuse protection order.35

But the legal theory supporting a domestic abuse protection 

order is significantly different from the theory underlying a 

harassment protection order. As we have already explained, the 

former requires proof of “abuse” as specifically defined by the 

Legislature. The only definition of that term which could conceivably apply to the facts of the present case is provided by 

§ 42-903(1)(b): “Placing, by means of credible threat, another 

person in fear of bodily injury.” But the minor child was never 

asked whether, nor did she testify that, the text messages sent 

31 Mahmood v. Mahud, supra note 1.

32 Id.

33 Id.

34 Id. at 395, 778 N.W.2d at 431.

35 See id.
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by William placed her in fear of bodily injury. Thus, Linda 

failed to prove an essential element of the statutory claim for a 

domestic abuse protection order.

On cross-appeal, Linda now attempts to induce this court 

to allow her to change legal theories at the appellate level—a 

request that violates several well-settled and fundamental principles. We decline to do so.

[9,10] First, an appellate court reviews a case on the theories 

pursued by the parties, not on a theory that the parties might 

have raised. This court has repeatedly stated that an appellate 

court is obliged to dispose of a case on the basis of the theory 

presented by the pleadings on which the case was tried.36 In 

this case, Linda filed a petition and affidavit for a domestic 

abuse protection order, an ex parte domestic abuse protection 

order was issued, and a show cause hearing was held on the 

domestic abuse protection order. At no point was the district 

court presented with a harassment theory.

[11] Second, a party cannot complain of error which the 

party has invited the court to commit.37 In this case, Linda 

was represented by counsel, she chose to seek a domestic 

abuse order, and she did not seek to change her theory at the 

show cause hearing. On cross-appeal, she now assigns that the 

district court “erred by issuing a domestic abuse protection 

order instead of a harassment protection order.” But any error 

in the district court’s failure to consider a harassment protection order flowed directly from Linda’s decision to pursue a 

theory of domestic abuse and her adherence to that theory 

throughout the hearing. Thus, she directly invited any error 

on this point.

[12,13] Third, we have consistently stated that an appellate 

court will not consider an issue on appeal that the trial court 

has not decided.38 This flows from a related principle. When 

an issue is raised for the first time in an appellate court, it 

36 See, e.g., Robison v. Madsen, 246 Neb. 22, 516 N.W.2d 594 (1994); 

Wilson v. Misko, 244 Neb. 526, 508 N.W.2d 238 (1993).

37 Moyer v. Nebraska City Airport Auth., 265 Neb. 201, 655 N.W.2d 855 

(2003).

38 See, e.g., Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009).
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will be disregarded inasmuch as a lower court cannot commit 

error in resolving an issue never presented and submitted to 

it for disposition.39 The district court did not consider the fitness of a harassment protection order. It was not asked to do 

so. Its determination was strictly limited to the appropriateness of a domestic abuse order. This court’s review should be 

similarly limited.

[14,15] Although the Court of Appeals’ decision in Sherman 

v. Sherman40 authorizes a trial court to consider both a domestic abuse protection order and a harassment protection order, 

if the circumstances warrant, the Court of Appeals’ opinion 

provides no support for changing theories at the appellate level. 

In Sherman, an ex parte domestic abuse order was originally 

entered, but at hearing, the judge advised the petitioner to 

change her petition to a harassment protection order. The Court 

of Appeals held:

[W]hen presented with a situation in which an ex parte 

domestic abuse protection order has been entered, but 

at the hearing, it becomes apparent that the matter may 

more properly be considered as a harassment protection 

order, the judge should explain the requirements for both 

domestic abuse and harassment protection orders and 

allow the petitioner to choose which theory to pursue. If 

the petitioner chooses to pursue the alternative theory to 

the petition and affidavit filed, and the respondent objects, 

the court should inquire if the respondent is requesting a 

continuance, which should be granted, if so requested, 

while leaving the ex parte protection order temporarily 

in place.41

[16,17] The key to the procedure approved by the Sherman

court is that it occurs before the trial court, requires the 

petitioner to make an informed choice of legal theory, and 

protects the due process rights of both parties by trying the 

case only on the theory elected by the petitioner. While the 

39 Maycock v. Hoody, 281 Neb. 767, 799 N.W.2d 322 (2011).

40 Sherman v. Sherman, 18 Neb. App. 342, 781 N.W.2d 615 (2010).

41 Id. at 347-48, 781 N.W.2d at 620-21 (emphasis supplied).
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concept of due process defies precise definition, it embodies 

and requires fundamental fairness.42 Generally, procedural due 

process requires parties whose rights are to be affected by 

a proceeding to be given timely notice, which is reasonably 

calculated to inform the person concerning the subject and 

issues involved in the proceeding; a reasonable opportunity to 

refute or defend against a charge or accusation; a reasonable 

opportunity to confront and cross-examine adverse witnesses 

and present evidence on the charge or accusation; representation by counsel, when such representation is required by 

constitution or statute; and a hearing before an impartial decisionmaker.43 The Sherman court approved a procedure allowing a change of legal theories. The change must be initiated 

before the trial court makes a final decision. The procedure 

preserves the adversarial system. It requires a petitioner to 

make an informed choice regarding the theory to be pursued. 

It protects the respondent’s due process rights by offering 

a continuance if the petitioner elects to change his or her 

theory. The Sherman court’s procedure affords due process to 

both parties.

But the Sherman court’s procedure simply does not apply 

where a petitioner, as informed by counsel, pursues a domestic abuse theory and the potential application of a harassment 

theory does not become “apparent” to either the petitioner or 

the trial court. Treating the harassment theory as “apparent” 

where it is first recognized at the appellate level would violate the fundamental principles of law we identified above. 

Ultimately, such a procedure would flout the respondent’s 

right to due process and society’s essential interest in the 

finality of judgments. Allowing Linda to have another chance 

at the harassment theory that she failed to pursue would 

be akin to allowing an injured person who successfully but 

erroneously pursued only an intentional tort theory to a 

final judgment to have another chance at recovery by shifting on appeal to a negligence theory. The case was tried on 

42 Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).

43 Id.
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the domestic abuse theory, and she cannot now change to a 

harassment theory. We conclude that Linda’s cross-appeal 

lacks merit.

CONCLUSION

The district court incorrectly granted a domestic abuse protection order, because William’s conduct did not fit within the 

statutory definition of “abuse” under § 42-903(1). Allowing 

Linda to shift to a harassment theory on appeal would violate 

fundamental principles of law. We reverse the judgment of the 

district court and remand the cause with directions to deny the 

requested domestic abuse protection order.

Reversed and remanded with direct

Patricia M. Damme, appellee, 

Pike Enterprises, Inc., appe

___ N.W.2d ___

Filed December 5, 2014. No. S-14-304.

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. Workers’ Compensation: Evidence: Appeal and Error. In testing the sufficiency of the evidence to support the Workers’ Compensation Court’s findings, an 

appellate court considers the evidence in the light most favorable to the successful party. The appellate court resolves every controverted fact in the successful 

party’s favor and gives that party the benefit of every inference that is reasonably 

deducible from the evidence.

3. Workers’ Compensation: Appeal and Error. The Workers’ Compensation 

Court’s factual findings have the effect of a jury verdict, and an appellate court 

will not disturb them unless they are clearly wrong.

4. ____: ____. An appellate court independently reviews questions of law decided 

by a lower court.

5. Workers’ Compensation. Whether to recognize a nonstatutory defense in a 

workers’ compensation case presents a question of law.