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HOUSER v. AMERICAN PAVING ASPHALT

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Tom Houser, appellant and cross-appellee, 

v. American Paving Asphalt, Inc., 

appellee and cross-appellant.

___ N.W.2d ___

Filed February 16, 2018. No. S-16-778.

1. Courts: Appeal and Error. The district court and higher appellate 

courts generally review appeals from the county 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. Appeal and Error: Words and Phrases. Plain error exists where there 

is an error, plainly evident from the record but not complained of at 

trial, which prejudicially affects a substantial right of a litigant and is of 

such a nature that to leave it uncorrected would cause a miscarriage of 

justice or result in damage to the integrity, reputation, and fairness of the 

judicial process.

4. Courts. The district court has certain inherent powers by virtue of being 

a court.

5. ____. Nebraska courts, through their inherent judicial power, have the 

authority to do all things reasonably necessary for the proper administration of justice.

6. Courts: Judgments: Jurisdiction: Appeal and Error. An intermediate appellate court may timely modify its opinion, which is consistent 

with the generally recognized common-law rule that an appellate court 

has the inherent power to reconsider an order or a ruling until divested 

of jurisdiction.

7. Courts: Appeal and Error. In cases where no statement of errors was 

filed, but the record showed that the district court considered an issue 

that was also assigned to a higher appellate court, the Supreme Court or 

the Court of Appeals may consider that issue.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/06/2018 09:16 AM CDT
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8. Courts: Time: Appeal and Error. The district court has discretion to 

extend the time for filing a statement of errors.

9. ____: ____: ____. On appeal from the county court, a district court’s 

ruling on a motion to extend the time for filing a statement of errors will 

be reviewed for an abuse of discretion.

Appeal from the District Court for Douglas County, Leigh

Ann Retelsdorf, Judge, on appeal thereto from the County 

Court for Douglas County, Marcena M. Hendrix, Judge. 

Judgment of District Court affirmed in part, and in part reversed 

and remanded with directions.

David J. Koukol, Sharon A. Hansen, and Michael W. Milone, 

of Koukol & Johnson, L.L.C., for appellant.

James B. McVay, of Tiedeman, Lynch, Kampfe, McVay & 

Respeliers, for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Per Curiam.

I. NATURE OF CASE

A homeowner brought a breach of contract action against 

the company that laid his asphalt driveway, after the driveway 

prematurely began to deteriorate. The county court entered 

judgment in favor of the homeowner, but on appeal, the district court significantly reduced the award. The parties dispute whether review of the county court’s verdict is limited 

to plain error, because the asphalt company failed to timely 

file its statement of errors to the district court. The parties 

also dispute whether there was sufficient evidence that it was 

reasonable and necessary for the homeowner to contract for a 

stopgap repair of patchwork replacement of broken sections 

and, subsequently, for a 2-inch overlay of the entire driveway. 

Finally, the asphalt company contests attorney fees awarded to 

the homeowner in relation to the company’s late production 

of documents that were the subject of an order to compel in 

county court.
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II. BACKGROUND

In 2008, Tom Houser entered into a written contract with 

American Paving Asphalt, Inc. (American Paving), to convert his 1,440-foot limestone driveway into an asphalt driveway. Houser had negotiated the contract with Mark Hall, the 

co-owner of American Paving. Hall had proposed a 3-inch 

asphalt overlay on top of the existing limestone, at a cost 

of $16,000.

According to Houser, after signing the contract with 

American Paving for a 3-inch overlay, he discussed with Hall 

concerns about the lack of traction during the winter on the 

steepest part of the driveway. According to Houser, Hall proposed traction indentations in about 300 feet of the driveway 

that would be made by raking through the asphalt. According 

to Houser, Hall proposed that they lay an extra 2 inches of 

asphalt depth where the traction strips would be placed.

There was no written contract regarding the traction strips, 

but it is undisputed that American Paving charged $1,500 for 

the added work. In addition, there was evidence that Hall had 

recommended to Houser that he seal-coat the driveway.

Several months after the installation of the asphalt overlay, 

Houser paid Hall an additional $1,500 to seal-coat the driveway and repair some cracks that had already occurred. The 

invoice for the repair and seal coat stated that American Paving 

“[w]ill fill any cracks that surface from sealcoating job at no 

cost to homeowner.” In total, Houser paid American Paving 

$19,000 for the asphalt driveway.

More cracks continued to occur in the asphalt driveway. 

By 2010, larger chunks of the driveway began to break apart 

and cracks of various sizes were visible on the majority of the 

driveway. American Paving stopped responding to Houser’s 

requests for repairs, and Houser sued American Paving in 

county court for breach of contract.

1. Evidence of Breach

Houser presented the expert testimony of Douglas Dreessen, 

a registered professional civil engineer, who opined that the 
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driveway was defective and did not substantially conform to 

the contract. Dreessen explained that there are two important 

elements to asphaltic cement paving. First, the subgrade must 

be compacted. Second, the thickness of the pavement must be 

adequate to support the type of traffic anticipated. With regard 

to thickness, Dreessen also testified that it is important for the 

pavement to be uniform so that there are not weak areas that 

will tend to give out.

Dreessen testified that absent instruction to the contrary, his 

goal as a professional engineer is to design asphalt driveways 

with a 20-year design life. Over American Paving’s parol 

evidence objection, Houser also testified at trial that Hall 

told him the driveway would last at least 20 years. At trial, 

Hall denied making such a guarantee or that it was an industry standard.

Dreessen visually inspected the driveway in 2013. He 

observed numerous “alligatored” areas where failure was 

occurring. Given that the driveway was only 5 years old at 

the time of the inspection, this was considered a “premature 

failure” of the driveway. A report prepared by Dreessen’s civil 

engineering firm noted significant weathering, oxidization, raveling, and wearing away of the surface.

Dreessen had his staff conduct tests to determine the pavement thickness and compaction. They bored into six different 

areas throughout the length of the driveway where it appeared 

to be thickest and not yet cracked or broken. The samples demonstrated a thickness ranging from 13

⁄4 to 21⁄2 inches, with an 

average measurement of 2 inches. Based on the results of the 

tests conducted, Dreessen opined that the cracking and distress 

of the asphalt driveway occurred because the asphalt was too 

thin and was placed on an inadequate base due to nonuniform 

and subgrade compaction.

Dreessen opined that Houser’s driveway was not constructed 

in substantial compliance with the specifications of the contract. In his work, Dreessen regularly supervised contractors to 

ensure that their work was in substantial compliance with the 
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specifications and plans. In his experience, contract specifications for asphalt depth referred to the depth after it was rolled 

and compacted. He stated that the depth of the asphalt would 

never be measured before it was compacted, because “[w]hen 

we specify for an asphalt project, we need to be able to go 

back and verify what is on the plans . . . .” Further, Dreessen 

stated that the work did not comply with the specifications 

in the contract that it be graded and compacted to maximum strength.

2. Evidence of Damages

Houser testified that for a couple of years after American 

Paving stopped making repairs, Houser sealed the cracks himself as they continuously appeared. Then, in 2012, Houser hired 

Asphalt Maintenance, Inc., to replace several large sections 

that had begun to break apart into larger chunks. Houser paid 

Asphalt Maintenance $5,110 for replacing the severely damaged sections of the driveway, plus $550 for sealing various 

cracks in the remaining lengths of the driveway. Houser had 

obtained more than one bid and chose Asphalt Maintenance 

because it had presented the lowest bid.

But Houser considered Asphalt Maintenance’s work only 

a “stopgap measure before the winter of 2012.” Houser was 

attempting only to address the areas of the driveway that were 

the most damaged and might come up in more large pieces 

when he used a snowplow. Over American Paving’s objection, 

Houser testified that he thought that the repairs by Asphalt 

Maintenance were necessary.

After the 2012 repairs, the driveway continued to deteriorate. The 2013 report by Dreessen’s firm noted that the oxidation and raveling observed at the time of the report would 

combine to allow for additional pathways for water and air to 

continue the weathering process and extend the cracking during freeze-thaw cycles. Houser also testified that with various 

repaired patches, the driveway “looked terrible” overall, with 

a variegated light-and-dark pattern.
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As a solution to this continuing deterioration and the patchwork appearance due to previous repairs, Houser chose to 

have a 2-inch asphalt overlay placed on the entire length of the 

driveway. Houser generally indicated, over objection, that he 

had reached the 2-inch overlay solution after consultation with 

others. And Houser testified, over objection, that without adding a 2-inch overlay, he would have continued to have to pay 

to replace additional sections.

The asphalt company Houser contracted with charged 

$26,189.09 for the 2-inch overlay. Again, Houser had obtained 

more than one bid and chose the contractor who presented 

the lowest bid. Even with the 2-inch overlay, Houser anticipated additional cracking and costs associated with repairs in 

the future.

On cross-examination, Houser admitted that certain areas 

of the driveway, approximately 150 to 200 feet, were still in 

relatively good condition and not “defective.” However, he 

believed that most of the driveway was unacceptable and he 

did not “feel like taking a roller coaster ride going up my 

driveway where its two inches higher and not.”

At the time of trial, it had been about 11⁄2 years since the 

overlay had been installed. Houser testified that there had been 

a noticeable change in the amount of deterioration. He said: 

“[It l]ooks like a nice, smooth asphalt driveway. It has a small 

handful of cracks in it in a couple of areas where apparently 

the deterioration underneath is continuing, but otherwise the 

driveway has held up very well.”

Houser testified that he anticipated having to seal-coat the 

driveway. Houser explained that he had paid to seal-coat the 

original asphalt driveway per American Paving’s instructions. 

Over American Paving’s hearsay, relevance, and discovery 

objections, Houser testified that he had recently entered into a 

contract to seal the driveway at a cost of $3,250.

Houser submitted evidence of the cost of Dreessen’s inspection, testing, and analysis, which was $1,705. He also submitted 

evidence of the cost of Dreessen’s time testifying as an expert 
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witness, $2,886.10. Houser entered into evidence the costs of 

deposing an American Paving employee and Hall, $371.50 and 

$421.25, respectively, in preparation for trial. Houser sought 

court costs in the amount of $69. Houser asked for a total of 

$40,551.94 in damages. The court ordered the parties to submit 

briefs after trial. American Paving did not submit a brief.

3. Verdict, Attorney Fees, 

and Sanctions

American Paving moved to disqualify the trial judge and for 

a mistrial on the ground that the judge had allegedly engaged 

in activities on her cell phone during trial. The court overruled 

American Paving’s motion.

American Paving later filed a second motion to disqualify 

and for a mistrial, asserting the same conduct of the trial 

judge engaging with her cell phone during trial. But the second motion further alleged that Hall had filed a complaint 

with the Nebraska Commission on Judicial Qualifications, 

which complaint was under investigation. The court overruled 

the motion.

On June 17, 2015, the county court entered judgment in 

favor of Houser in the amount of $40,551.94. In its order, 

the court set a hearing for Houser’s oral motion for attorney 

fees. After the judgment, Houser submitted an affidavit supporting costs and fees incurred with respect to the discovery 

delays, motion for sanctions, and the motions to disqualify. 

On September 22, the court ordered $1,514 in sanctions and 

attorney fees to be paid to Houser. On October 22, the court 

overruled American Paving’s motion for new trial.

4. Appeal to District Court

American Paving filed a notice of appeal to the district court 

on November 10, 2015.1 On that same date, it filed its praecipe 

for the bill of exceptions and transcript.

1 See Neb. Rev. Stat. § 25-2729 (Reissue 2016).
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(a) Filing Statement of Errors 

Out of Time

American Paving did not timely file its statement of errors. 

Neb. Ct. R. § 6-1518 provides in relevant part:

Within 10 days of filing the bill of exceptions in 

an appeal to the district court, the appellant shall file 

with the district court a statement of errors which shall 

consist of a separate, concise statement of each error a 

party contends was made by the trial court. Each assignment of error shall be separately numbered and paragraphed. Consideration of the cause will be limited to 

errors assigned and discussed, provided that the district 

court may, at its option, notice plain error not assigned.

Neb. Ct. R. § 6-1452(A)(7) (rev. 2011) is virtually identical.

The bill of exceptions in American Paving’s appeal was 

filed with the district court on January 7, 2016. Court rules 

do not require that any notice be given to the parties when the 

bill of exceptions has been filed in the district court, and thus, 

the parties did not receive notice when the bill of exceptions 

was filed.

On February 1, 2016, the district court sent the parties a 

notice of intent to dismiss the appeal in the event that they 

failed to submit a proposed scheduling order within 30 days. 

On March 21, American Paving filed its brief with the district 

court and served it on Houser.

Thereafter, on April 15, 2016, American Paving filed a 

motion for leave to file a statement of errors out of time. A 

hearing was held on the motion on April 21. American Paving 

relied on Neb. Ct. R. § 6-1519, which allows courts to suspend 

applicable local rules upon good cause in order to prevent 

manifest injustice: “Upon the showing of good cause, a rule 

may be suspended in a particular instance in order to avoid a 

manifest injustice.”

American Paving’s attorney asserted that he did not learn 

until March 2, 2016, that the bill of exceptions had been filed. 

On that date, he “happened to check with the Clerk of the 
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District Court.” The attorney explained that he was under the 

mistaken impression that the district court would notify him 

when the bill of exceptions had been filed. In an affidavit, the 

attorney averred that “in prior years,” notice was sent to the 

parties when the bill of exceptions had been filed. Furthermore, 

American Paving’s attorney explained that he did not realize 

the legal impact that failing to timely file a statement of errors 

could have.

American Paving’s attorney argued that the rule regarding 

filing a statement of errors within 10 days of the filing of the 

bill of exceptions should be kept “in perspective”:

The rule is simply a procedural tool designed to frame 

the issues to be addressed in the appeal to the district 

court. It’s not designed for anything other than to allow 

you, as the judge, as the sitting judge, and the Appellee, 

as a responder, to know what the heck I’m going to talk 

about at this hearing and what the issues are in terms of 

the appeal.

The court stated that it had sent out a notice of intent to dismiss on February 1, 2016. In light of that fact, the court found 

it “frustrating” that American Paving did not bother to inquire 

whether the bill of exceptions had been filed until March 2.

American Paving’s attorney acknowledged that he could 

have checked every week to see whether the bill of exceptions 

had been filed and that he failed to do so. But as to the delay 

between the letter of February 1, 2016, and the filing of the 

statement of errors, the attorney argued that, either way, the 

April 15 filing of the statement of errors was late. On May 4, 

the court sustained American Paving’s motion to file the statement of errors out of time.

(b) Statement of Errors

In its statement of errors, American Paving asserted that the 

county court had erred by (1) finding that Houser offered sufficient evidence to show that American Paving breached the 

contract for installation of the asphalt driveway, (2) finding 
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that Houser offered sufficient evidence as to the reasonableness and necessity of the cost of repairs, (3) awarding certain 

costs to Houser that are not permitted by law, (4) failing to 

recuse herself as requested given her improper actions during 

trial and her bias in favor of Houser, (5) finding that sanctions 

against American Paving were appropriate, and (6) awarding 

attorney fees to Houser.

(c) Order

The district court concluded that the county court did not 

abuse its discretion in denying American Paving’s motion to 

disqualify and for a mistrial.

Citing to Neb. Ct. R. Disc. § 6-337, the district court found 

no error in the county court’s order of attorney fees as a sanction for failing to produce the requested records in a timely 

fashion. Section 6-337(b) allows the court to order “reasonable 

expenses, including attorney fees, caused by the failure [to 

comply with a discovery order], unless the court finds that the 

failure was substantially justified or that other circumstances 

make an award of expenses unjust.”

The district court found there was competent evidence to 

support the county court’s determination that American Paving 

had breached its contract with Houser and that such breach was 

the proximate cause of damage to Houser.

The court affirmed damages in the amount of only $5,660. 

The court found that the photographs and testimony established the necessity of the patchwork repair by Asphalt 

Maintenance of sections of the driveway that had broken into 

chunks. But it found the evidence insufficient to support the 

reasonableness and necessity of the 2-inch overlay.

The court concluded that the county court abused its discretion in awarding as costs2

 expenditures for expert reports and 

testimony. The court found that only $861.75 for depositions 

and court costs was properly awarded as costs. It remanded the 

2 See Neb. Rev. Stat. § 25-1708 (Reissue 2016).
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case to the county court with directions to enter a judgment 

reflecting damages in the amount of $6,521.75.

Subsequently, a hearing was held on Houser’s motion for 

attorney fees incurred in responding to American Paving’s 

motion to file its statement of errors out of time and for a 

continuance. Houser submitted into evidence an affidavit supporting a total of $2,756.75 in costs and fees. The district court 

overruled the motion.

Houser appeals, and American Paving cross-appeals.

III. ASSIGNMENTS OF ERROR

Houser assigns that the district court erred in (1) granting 

American Paving’s motion for additional time to file its statement of errors and allowing anything other than plain error 

review, (2) failing to find that a 2-inch asphalt overlay was 

a reasonable procedure to make the driveway conform to the 

contract, and (3) ruling that the $26,189.09 cost of the overlay 

was unreasonable and unsupported by competent evidence.

On cross-appeal, American Paving assigns that the district 

court erred in finding (1) that there was sufficient evidence 

to sustain damages in the amount of $5,660 and (2) that the 

county court did not abuse its discretion in awarding to Houser 

$1,514 in attorney fees.

IV. STANDARD OF REVIEW

[1,2] The district court and higher appellate courts generally 

review appeals from the county court for error appearing on 

the record.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.4

3 See, Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins. Co., 295 

Neb. 419, 889 N.W.2d 596 (2016). See, also, Neb. Rev. Stat. § 25-2733 

(Reissue 2016).

4 Id.
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[3] Plain error exists where there is an error, plainly evident 

from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a 

nature that to leave it uncorrected would cause a miscarriage 

of justice or result in damage to the integrity, reputation, and 

fairness of the judicial process.5

V. ANALYSIS

1. Plain Error Review

American Paving filed a statement of errors in the district 

court, but only after the district court granted its motion to 

extend the 10-day window established by the statement of 

errors rule.6 In arguing that the district court erred in granting the extension, Houser relies upon the suspension rule7

empowering a district court to “suspend[]” another uniform 

district court rule. In the district court, American Paving cited 

the suspension rule in support of its motion. Houser contends 

that the district court’s review should have been limited to 

plain error.

But both parties’ arguments are based on a flawed premise—that a district court, sitting as an intermediate appellate 

court, has no power to grant a motion to extend the time to file 

a statement of errors, except pursuant to the suspension rule. In 

the sections that follow, we will expose the flaws in that premise, review our case law, and apply the correct rule to settle the 

standard of review.

(a) Flaws of Premise

The first flaw is the lack of any textual support in the statement of errors rule. It contains no language suggesting the 

5 State ex rel. Unger v. State, 293 Neb. 549, 878 N.W.2d 540 (2016); 

Zwygart v. State, 270 Neb. 41, 669 N.W.2d 362 (2005).

6 § 6-1518.

7 § 6-1519.
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district court lacks the power to extend the 10-day window. It 

simply states:

Within 10 days of filing the bill of exceptions in 

an appeal to the district court, the appellant shall file

with the district court a statement of errors which shall 

consist of a separate, concise statement of each error a 

party contends was made by the trial court. Each assignment of error shall be separately numbered and paragraphed. Consideration of the cause will be limited to 

errors assigned and discussed, provided that the district 

court may, at its option, notice plain error not assigned. 

This rule shall not apply to small claims appeals.8

The 10-day provision in the first sentence is addressed 

to the appellant, not the district court. There is no language 

expressly or impliedly prohibiting a district court from extending the time.

Reading a prohibition into the rule would require us to add 

words to the third sentence, as if it read, “Consideration of 

the cause will be limited to errors assigned and discussed in 

a timely filed statement of errors, provided that the district 

court may . . . .” Just as it is not within the province of the 

courts to read a meaning into a statute or regulation that is not 

warranted by the language,9 rules should be read likewise. We 

must limit the rule’s meaning to its plain language.

The second flaw is the absence of any statutory basis for the 

premise. The right of appeal in Nebraska is purely statutory.10

Statutes in chapter 25, article 27, establish the power of a district court to hear appeals from county court. And these statutes 

teach three lessons.

One dictates that the district court’s standard of review 

shall be for “error appearing on the record made in the county 

8 § 6-1518 (emphasis supplied).

9 See, McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300 

(2006); Utelcom, Inc. v. Egr, 264 Neb. 1004, 653 N.W.2d 846 (2002).

10 Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
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court.”11 The statement of errors rule must be interpreted to 

operate within the context of these statutes. And our discussion 

of case law will demonstrate that we have done so.

Another permits this court to establish rules but does not 

support the premise. It authorizes the Nebraska Supreme Court 

to prescribe rules governing the “ordering, preparing, signing, 

filing, correcting, and amending of the bill of exceptions.”12

But this language does not permit us to artificially limit the 

district court’s discretion to extend the time for filing of a 

statement of errors.

Another statute makes it clear that timely filing of a statement of errors cannot be deemed jurisdictional. It specifies 

that filing of the notice of appeal and deposit of the docket 

fee are the only steps required to vest the district court with 

jurisdiction of the appeal.13 Our discussion of the case law will 

show that we have characterized the statement of errors rule in 

full accord with this statutory command.

Another flaw is the premise’s inconsistency with other 

uniform district court rules. There are other sections of the 

Uniform District Court Rules of Practice and Procedure which 

specify procedures but where the district court undoubtedly 

has power to grant relief without relying on the suspension 

rule. For example, even though a rule requires that “citation of 

Nebraska cases shall include the . . . North Western Reporter 

citation,”14 a court can surely exercise its discretion to accept 

a brief containing only citations to the Nebraska Reports or 

the Nebraska Appellate Reports. This illustrates the absurdity 

of applying the suspension rule to matters generally within the 

district court’s discretion.

[4,5] The final flaw, and perhaps the most important one, 

is its implicit characterization of district courts. The district 

11 § 25-2733(1).

12 § 25-2733(2).

13 § 25-2729(2).

14 Neb. Ct. R. § 6-1505(C).
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court has certain inherent powers by virtue of being a court.15

“The term ‘inherent power of the judiciary’ means that which 

is essential to the existence, dignity and functions of the court 

from the very fact that it is a court.”16 Nebraska courts, through 

their inherent judicial power, have the authority to do all things 

reasonably necessary for the proper administration of justice.17

[6] And when sitting as an intermediate appellate court, the 

district court has inherent power common to appellate courts. 

For example, in State v. Hausmann,

18 we reiterated that an intermediate appellate court may timely modify its opinion, which is 

“consistent with the generally recognized common-law rule that 

an appellate court has the inherent power to reconsider an order 

or [a] ruling until divested of jurisdiction.” And the Nebraska 

Court of Appeals found no error in a case where the district 

court, sitting as an appellate court, accepted a supplemental 

bill of exceptions on rehearing.19 Surely, an appellate court has 

inherent authority to regulate such things as timing of record 

preparation, extension of brief dates, and argument dates.

(b) Lessons From Case Law

Finally, several lessons can be drawn from this state’s 

reported decisions. First, and foremost, this court has never 

held that a district court lacks the power to extend the time for 

filing a statement of errors or that its power to do so is limited 

15 See, e.g., Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017); In 

re Interest of Luz P. et al., 295 Neb. 814, 891 N.W.2d 651 (2017); Jacob v. 

Nebraska Dept. of Corr. Servs., 294 Neb. 735, 884 N.W.2d 687 (2016); In 

re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016); Carrel v. 

Serco Inc., 291 Neb. 61, 864 N.W.2d 236 (2015); Marcuzzo v. Bank of the 

West, 290 Neb. 809, 862 N.W.2d 281 (2015).

16 In re Integration of Nebraska State Bar Ass’n, 133 Neb. 283, 288, 275 

N.W. 265, 267 (1937).

17 Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 

(2010), disapproved on other grounds, Hossaini v. Vaelizadeh, 283 Neb. 

369, 808 N.W.2d 867 (2012).

18 State v. Hausmann, 277 Neb. 819, 826, 765 N.W.2d 219, 225 (2009).

19 State v. Osborne, 20 Neb. App. 553, 826 N.W.2d 892 (2013).
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by the suspension rule. This is not surprising given that early 

on, we characterized the rule as “simply a procedural tool 

designed to frame the issues to be addressed in the appeal to 

the district court.”20

Second, in cases where no statement of errors was filed and 

the district court reviewed for plain error, the higher appellate 

court likewise reviewed for plain error only.21

[7] Third, in cases where no statement of errors was filed, 

but the record showed that the district court considered an 

issue that was also assigned to a higher appellate court, the 

Supreme Court or the Court of Appeals may consider that 

issue.22 Thus, in a case where the defendant did not file a statement of errors, the Court of Appeals looked to the “proceedings and argument before the district court”23 to see whether a 

claimed error was mentioned. In another case, the defendant’s 

notice of appeal from county court stated that she was appealing due to an excessive sentence.24 Based on an assignment 

of error in the defendant’s brief, the district court considered 

whether the county court abused its discretion in sentencing the 

20 Lindsay Ins. Agency v. Mead, 244 Neb. 645, 648, 508 N.W.2d 820, 823 

(1993) (referring to predecessor version of current county court rule).

21 See, Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301, 854 N.W.2d 

774 (2014); State v. Hays, 253 Neb. 467, 570 N.W.2d 823 (1997); In re 

Estate of Morse, 248 Neb. 896, 540 N.W.2d 131 (1995); State v. Harper, 

19 Neb. App. 93, 800 N.W.2d 683 (2011); State v. Burns, 16 Neb. App. 

630, 747 N.W.2d 635 (2008); State v. Fiedler, 5 Neb. App. 629, 562 

N.W.2d 380 (1997).

22 See, State v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005); Lindsay Ins. 

Agency v. Mead, supra note 20; State v. Zimmerman, 19 Neb. App. 451, 

810 N.W.2d 167 (2012); First Nat. Bank of Omaha v. Eldridge, 17 Neb. 

App. 12, 756 N.W.2d 167 (2008); State v. Boye, 1 Neb. App. 548, 499 

N.W.2d 860 (1993). See, also, State v. Cardona, 10 Neb. App. 815, 639 

N.W.2d 653 (2002) (considering issue not raised in timely filed statement 

of errors, because district court’s order showed it considered and ruled 

upon issue).

23 State v. Engleman, 5 Neb. App. 485, 489, 560 N.W.2d 851, 856 (1997).

24 State v. Griffin, supra note 22.
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defendant. On appeal to this court, the State argued that appellate review was limited to plain error due to the defendant’s 

failure to file a statement of errors. We disagreed with the district court that an assignment of error in a brief to the district 

court could constitute compliance with the rule, but we treated 

the issue of excessive sentence as assigned error because the 

defendant “specifically raised the issue of excessive sentence 

in her notice of appeal which was filed in the county court . . . 

and included in the transcript filed in the district court.”25

Fourth, the review conducted when a statement of errors is 

filed, but not within the 10-day window, has varied. In a case 

where the district court reviewed the record for plain error 

only, the Court of Appeals similarly conducted a plain error 

review.26 But in a case where the district court considered 

the errors raised in the untimely filed statement of errors, the 

Court of Appeals likewise considered those errors.27 In that 

case, the district court granted a motion to file the statement 

of errors out of time, and the Court of Appeals stated that “it 

was within the district court’s discretion to allow [the appellant] to file its statement of errors and to consider the issues 

raised therein.”28

In an appeal in a criminal case, this court determined that “an 

exception to the rule . . . was necessarily in order.”29 There, the 

defendant’s new counsel filed an untimely statement of errors 

which did not contain a claim of ineffectiveness of trial counsel. The Court of Appeals reversed the district court’s judgment 

based on ineffectiveness of counsel. The State sought further 

review by this court, claiming that the Court of Appeals erred 

in considering ineffectiveness of counsel, because it was not 

contained in the statement of errors and because the statement 

25 Id. at 584, 705 N.W.2d at 57.

26 State v. Harlan, 1 Neb. App. 184, 488 N.W.2d 374 (1992).

27 General Serv. Bureau v. Moller, 12 Neb. App. 288, 672 N.W.2d 41 (2003).

28 Id. at 295, 672 N.W.2d at 47.

29 State v. Gerstner, 244 Neb. 508, 513, 507 N.W.2d 490, 493 (1993).
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of errors was untimely filed. We reasoned that “[n]ew defense 

counsel’s failure to assign the claim of ineffectiveness of counsel and the resultant delay in submitting the statement of errors 

were excusable.”30

On the other hand, in Miller v. Brunswick,

31 this court 

refused to consider the errors assigned on appeal, stating that 

no errors were properly assigned to the district court due to the 

untimely filing of the statement of errors. There is no indication in Miller that the district court gave permission to file the 

untimely statement of errors.

[8] On the whole, our case law teaches that there is flexibility in applying the statement of errors rule. The district 

court has discretion to extend the time for filing a statement 

of errors.32 It has discretion to consider errors brought to its 

attention in ways other than a timely filed statement of errors. 

And in light of the purpose of this “procedural tool,” we see 

no reason to unduly constrict the district court’s discretion. Of 

course, this discretion is not unlimited. And we provide some 

guidance for the exercise of this discretion.

The situation here is analogous to one where an appellant’s 

brief in the Supreme Court or the Court of Appeals does not 

contain an assignments of error section. One of our court 

rules requires a section of the appellant’s brief to contain, 

under an appropriate heading, “[a] separate, concise statement 

of each error a party contends was made by the trial court 

. . . .”33 Like the district court’s statement of errors rule, our 

rule cautions that “consideration of the case will be limited to 

errors assigned and discussed,” but that “[t]he court may, at 

its option, notice a plain error not assigned.”34 In contrast to 

the district court’s rule, our rule is grounded in statute, which 

30 Id.

31 Miller v. Brunswick, 253 Neb. 141, 571 N.W.2d 245 (1997).

32 See General Serv. Bureau v. Moller, supra note 27.

33 Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2014).

34 Id.
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requires that “[t]he brief of appellant shall set out particularly 

each error asserted . . . .”35

We have never interpreted § 2-109(D)(1)(e) to leave us 

powerless to consider errors that were not properly presented. 

But we have repeatedly stated that we may proceed as though 

the party failed to file a brief entirely or, alternatively, may 

examine the proceedings for plain error.36 We believe that the 

district court should have the same flexibility.

[9] Thus, we hold that on appeal from the county court, a 

district court’s ruling on a motion to extend the time for filing a 

statement of errors will be reviewed for an abuse of discretion. 

Numerous situations are possible. For example, an appellant 

may recognize the omission before an opponent or the court 

has responded. An opponent may have responded, but only in a 

summary fashion. An opponent may have submitted a full brief 

relying on the omission. Or the omission may not have been 

noted until after the appeal was submitted to the district court. 

The specific circumstances should drive the court’s exercise of 

discretion. And it is important whether the circumstances are 

rooted in the moving party’s own neglect.

(c) Resolution

Here, American Paving submitted a brief to the district 

court, which brief set out the errors it alleged were made by the 

county court. Houser then filed its responsive brief, evidently 

noting American Paving’s failure to file a statement of errors. 

Only then did American Paving seek permission to file the 

statement of errors out of time.

The circumstances were ordinary and rooted in American 

Paving’s own neglect. The bill of exceptions was filed on 

January 7, 2016. And on February 1, the district court’s letter 

35 Neb. Rev. Stat. § 25-1919 (Reissue 2016).

36 See, Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014); In re Interest 

of Samantha L. & Jasmine L., 286 Neb. 778, 839 N.W.2d 265 (2013); 

In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011); City 

of Gordon v. Montana Feeders, Corp., 273 Neb. 402, 730 N.W.2d 387 

(2007).
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notified the parties of the hearing date and briefing deadlines. 

While the letter did not expressly state that the bill of exceptions had been filed, at a minimum, it should have alerted the 

parties to inquire. American Paving admitted that it did not do 

so until March 2, and it provided no explanation not rooted in 

its own neglect. Although American Paving submitted a brief 

to the district court on March 21, even then it did not file the 

statement of errors. It was not until after Houser’s brief was 

submitted that it dawned on American Paving to seek extension of the time. And by then, Houser had briefed the merits 

of the appeal.

We conclude that under these circumstances, the district 

court abused its discretion in granting the motion to extend 

the time for filing of a statement of errors. Because the district 

court abused its discretion, its review in this case should have 

been limited to plain error. In turn, our review of the county 

court’s judgment will be limited to plain error.

2. Houser’s Appeal

Houser appeals the district court’s reversal of the county 

court’s determination that $26,189.09, the cost of the 2-inch 

overlay, was recoverable as part of Houser’s damages for the 

breach of contract. Houser asserts that under the proper, plain 

error standard of review, there was no plain error in this aspect 

of the county court’s award. We agree and find that there was 

no plain error in the county court’s assessment of $26,189.09 in 

damages for the 2-inch overlay. Thus, the district court erred in 

reversing that portion of the county court’s verdict.

We note that Houser did not assign as error in this appeal 

the district court’s reversal of the county court’s inclusion 

in its determination of damages the amount of the cost for 

seal-coating the driveway. Nor did Houser assign as error the 

district court’s reversal of the county court’s award as costs 

Houser’s expenditures for his expert reports and testimony. 

Finally, Houser did not assign as error the district court’s 

denial of his motion for attorney fees incurred responding to 

American Paving’s motion to file its statement of errors out of 
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time. He does not argue that we should revisit these aspects of 

the district court’s opinion. Therefore, we do not.

3. American Paving’s Cross-Appeal

In its cross-appeal, American Paving asserts that the district 

court erred in affirming the county court’s assessment as damages the cost of patchwork repairs prior to the 2-inch overlay 

and in affirming the award of $1,514 in sanctions in relation 

to American Paving’s late production of discovery materials. 

As discussed, these errors were not properly assigned to the 

district court and we therefore limit our review to plain error.

We find no plain error in the county court’s determination 

that the evidence supported as damages reimbursement for 

Houser’s expenditures in patchwork repairs prior to the 2-inch 

overlay. Neither do we find plain error in its award of $1,514 

in sanctions for American Paving’s failure to timely turn over 

certain discovery materials. We accordingly affirm the district 

court’s judgment inasmuch as it affirmed the award of $1,514 

in discovery sanctions and $5,660 in repairs.

American Paving did not raise in its cross-appeal any issue 

pertaining to the district court’s determination to affirm the 

county court’s award of $861.75 in costs. We therefore also 

affirm this aspect of the district court’s judgment.

VI. CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court with respect to the county court’s determination that damages included $5,660 in patchwork repairs, that 

Houser should be awarded $1,514 as discovery sanctions, and 

that Houser should be awarded $861.75 in costs. We reverse 

the district court’s judgment with respect to its reversal of the 

county court’s determination that Houser’s damages included 

$26,189.09 for the 2-inch overlay. We remand the cause to the 

district court with directions to remand to the county court with 

directions to enter a judgment in accordance with this opinion.

 Affirmed in part, and in part reversed

and remanded with directions.