Decisions of the Nebraska Court of Appeals

FLODMAN v. ROBINSON 943

Cite as 22 Neb. 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 derelict 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 passenger was in need of assistance and the community caretaking 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 passenger, 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 appearing 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 complex 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 submitted 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. 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 purchase agreement violated the statutes regulating home solicitation sales. Robinson also argues that the county court should 

not have accepted a copy of the purchase agreement into evidence 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 satisfaction 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 instructions 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. 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. App. 943

In addition to the above, Robinson’s standard purchase agreement also specifies that he does not accept any other form of 

communication in place of the requirement for written cancellation. 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 cancellation, 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’ telephone 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 agreement 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 determined 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. 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 cancel. 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 affirming 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 appearing 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 arbitrary, 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 nonetheless 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 outcome. Section 69-1603(1) 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. 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 solicitation 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 mailing 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. App. 943

page as that notice by writing “I hereby cancel” and adding 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 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 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 instructions 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 language 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 statutes 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 appropriate 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. 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 cancellation 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 consumers 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 specific 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 construing 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 solicitation 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 overlooked, this authority does not address the particular situation 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 earlier than the third business day following the date of the 

transaction, by which the buyer may give notice of cancellation. 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 concluded 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 noncompliance 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. 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 comply 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 purchase 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 introduction of this exhibit at trial or notify the court of a possible 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 hearing. 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 agreement 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 contents are an issue in a proceeding. See Equitable Life v. Starr, 

241 Neb. 609, 489 N.W.2d 857 (1992). 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. 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 determination 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 timeconsuming 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 arguments 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. 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 matter 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 conclusion 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 presented 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 vacuum 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 cleaners, 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 agreement sheds some light on this issue. The purchase agreement 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 handwritten 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 vacuum 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’ conclusion 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 sufficient. 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. 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 Interest of Nery V. et al., 

children under 18 years of age.

State of Nebraska, appellee, v. Mario V., Sr., 

and Ida 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 appellee State of Nebraska.

Susan M. Koenig, of Mayer, Burns, Koenig & Janulewicz, 

guardian ad litem.