   Decisions of the Nebraska Court of Appeals
478	22 NEBRASKA APPELLATE REPORTS



            In re Guardianship and Conservatorship of
            James D. Forster, an alleged incapacitated
                       and protected person.
           Mark D. Forster, former temporary guardian,
                appellant, v. M ark J. M ilone, third
                       successor temporary guardian
                          and conservator, appellee.
                                     ___ N.W.2d ___

                        Filed October 28, 2014.      No. A-13-893.

 1.	 Guardians and Conservators: Appeal and Error. An appellate court reviews
      guardianship and conservatorship proceedings for error appearing on the record
      made in the county court.
 2.	 Judgments: Appeal and Error. When reviewing a judgment for errors appearing
      on the record, an appellate court’s inquiry is whether the decision conforms to
      the law, is supported by competent evidence, and is neither arbitrary, capricious,
      nor unreasonable.
 3.	 ____: ____. An appellate court, in reviewing a judgment of the trial court for
      errors appearing on the record, will not substitute its factual findings for those of
      the trial court where competent evidence supports those findings.
 4.	 Moot Question: Words and Phrases. A case becomes moot when the issues
      initially presented in the litigation cease to exist, when the litigants lack a legally
      cognizable interest in the outcome of litigation, or when the litigants seek to
      determine a question which does not rest upon existing facts or rights, in which
      the issues presented are no longer alive.
  5.	 ____: ____. Mootness refers to events occurring after the filing of a suit which
      eradicate the requisite personal interest in the resolution of the dispute that
      existed at the beginning of the litigation.
 6.	 Moot Question: Dismissal and Nonsuit. Unless an exception applies, a court or
      tribunal must dismiss a moot case when changed circumstances have precluded
      it from providing any meaningful relief because the litigants no longer have a
      legally cognizable interest in the dispute’s resolution.
 7.	 Moot Question: Appeal and Error. Although an issue has become moot, an
      appellate court may review the issue under the public interest exception to the
      mootness doctrine if it involves a matter affecting the public interest or when
      other rights or liabilities may be affected by its determination.
  8.	 ____: ____. When determining whether a case involves a matter of public inter-
      est, an appellate court considers (1) the public or private nature of the question
      presented, (2) the desirability of an authoritative adjudication for future guidance
      of public officials, and (3) the likelihood of future recurrence of the same or a
      similar problem.
 9.	 Guardians and Conservators: Pleadings. An evidentiary hearing should be
      held expediently on a guardianship or conservatorship petition, and temporary
             Decisions of the Nebraska Court of Appeals
	          IN RE GUARDIANSHIP & CONSERVATORSHIP OF FORSTER	479
	                         Cite as 22 Neb. App. 478

       guardians and conservators are intended to exercise their powers in a limited
       manner and for a limited period of time.
10.	   Statutes: Time. A statute will be held to operate prospectively and not retrospec-
       tively unless the legislative intent or purpose that it should operate retrospectively
       is clearly disclosed.
11.	   Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
       review, it is the duty of an appellate court to determine whether it has jurisdiction
       over the matter before it.
12.	   Jurisdiction: Final Orders: Time: Appeal and Error. An appellate court has
       jurisdiction over final orders that are appealed within 30 days from their entry.
13.	   Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue
       2008), the three types of final orders that an appellate court may review are (1) an
       order that affects a substantial right and that determines the action and prevents
       a judgment, (2) an order that affects a substantial right made during a special
       proceeding, and (3) an order that affects a substantial right made on summary
       application in an action after a judgment is rendered.
14.	   Decedents’ Estates: Final Orders. Proceedings under the Nebraska Probate
       Code are special proceedings within the meaning of Neb. Rev. Stat. § 25-1902
       (Reissue 2008).
15.	   Words and Phrases. A substantial right is an essential legal right, not a mere
       technical right.
16.	   Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 (Reissue 2008)
       include those legal rights that a party is entitled to enforce or defend.
17.	   Final Orders: Appeal and Error. If a substantial right is affected, an order is
       directly appealable as a final order even though it does not terminate the action
       or constitute a final disposition of the case.
18.	   Guardians and Conservators: Fees: Final Orders: Appeal and Error. Awards
       of fees for services pursuant to Neb. Rev. Stat. § 30-2620.01 (Reissue 2008) that
       do not finally determine a guardian and conservator’s claim for compensation are
       not final and appealable until the guardian and conservator is discharged from his
       or her duties.
19.	   Trial: Waiver: Appeal and Error. The failure to make a timely objection waives
       the right to assert prejudicial error on appeal.
20.	   Affidavits: Records: Appeal and Error. The existence or contents of affidavits
       filed with the clerk of the trial court and found in the transcript, but not preserved
       in the bill of exceptions, cannot be noted by an appellate court.
21.	   Appeal and Error. In order to be considered by an appellate court, an alleged
       error must be both specifically assigned and specifically argued in the brief of the
       party asserting the error.
22.	   Pretrial Procedure: Proof: Appeal and Error. The party asserting error in
       a discovery ruling bears the burden of showing that the ruling was an abuse
       of discretion.
23.	   Evidence: Records: Appeal and Error. A bill of exceptions is the only vehicle
       for bringing evidence before an appellate court; evidence which is not made a
       part of the bill of exceptions may not be considered.
   Decisions of the Nebraska Court of Appeals
480	22 NEBRASKA APPELLATE REPORTS


24.	 Records: Appeal and Error. Appellate courts cannot rely upon information in
     the transcript to establish facts, even a stipulation of facts.
25.	 Judicial Notice: Evidence: Records: Appeal and Error. Items judicially noticed
     are to be separately marked, offered, and received as evidence to enable efficient
     review by an appellate court.

  Appeal from the County Court for Douglas County: Sheryl
L. Lohaus, Judge. Affirmed in part, and in part vacated and
remanded with directions.
   Stephanie S. Shearer, of Reagan, Melton & Delaney, L.L.P.,
for appellant.
   Mark J. Milone, of Govier & Milone, L.L.P., pro se.
   Moore, Pirtle, and Riedmann, Judges.
   Riedmann, Judge.
                     I. INTRODUCTION
   Mark D. Forster (Mark), a son of an alleged incapacitated
person, appeals from the order of the county court for Douglas
County approving the final accounting and inventory filed
by the third successor temporary guardian and conservator,
Mark J. Milone. For the reasons set forth below, we affirm the
county court’s judgment in all respects, with the exception of
the court’s awards of attorney fees to Milone on March 6 and
April 23, 2012, because such awards were not supported by
competent evidence.
                     II. BACKGROUND
   On August 10, 2011, Mark filed a petition to establish a
guardianship and conservatorship for his father, James D.
Forster (James). He alleged that James was incapacitated due
to vascular dementia and was no longer capable of meeting
his own physical needs, nor of making or communicating
responsible decisions concerning his person and his property.
Mark simultaneously filed an application for the appointment
of himself as temporary guardian and conservator, alleging that
an emergency existed because James was currently hospitalized
and lacked the ability and understanding to make decisions
for himself. The county court issued an order that same day
         Decisions of the Nebraska Court of Appeals
	      IN RE GUARDIANSHIP & CONSERVATORSHIP OF FORSTER	481
	                     Cite as 22 Neb. App. 478

appointing Mark as James’ temporary guardian for a period not
to exceed 90 days.
   On September 2, 2011, Jeffrey Stoehr, counsel for James,
filed an objection to Mark’s petition for appointment of a
guardian and conservator, as well as a motion to remove
Mark as temporary guardian and to appoint a new temporary
guardian and conservator. A hearing was held on September
6 during which the court removed Mark as temporary guard-
ian and appointed an attorney, Sally Hytrek, as successor
temporary guardian and conservator. As to Mark’s petition
for appointment of a permanent guardian and conservator, the
court found that the matter was contested and “should be set
for a pre-trial hearing at which time a date will be set for an
evidentiary hearing.” The pretrial hearing was scheduled for
November 25; however, it does not appear that the hearing
was ever held.
   On September 30, 2011, Hytrek moved to resign as tempo-
rary guardian and conservator and suggested a suitable person
to replace her. The court entered an order the same day allow-
ing Hytrek’s resignation and appointing her successor, James’
second successor temporary guardian and conservator, whom
the court ordered to issue a written report within 30 days as to
the issues that may require an evidentiary hearing. The record
does not disclose that such a report was ever issued.
   On November 29, 2011, Hytrek’s successor moved to with-
draw as temporary guardian and conservator. A hearing was
held on December 6 during which the court permitted him to
withdraw and indicated to the parties that it would appoint
another temporary guardian within a week. The court issued
an order the following day appointing Milone, an attorney, as
third successor temporary guardian and conservator. It ordered
Milone to issue a written report within 30 days as to the issues
that may require an evidentiary hearing. Milone never issued
such a report.
   Various hearings were held to address attorney fees and
other motions filed by the parties from December 2011 through
August 2012. However, an evidentiary hearing on the issues
raised in the petition for guardianship was never scheduled
   Decisions of the Nebraska Court of Appeals
482	22 NEBRASKA APPELLATE REPORTS



or held. James died on August 26, 2012, at which point the
temporary guardianship was still in place.
   Upon James’ death, Milone filed a final inventory and
accounting as well as a petition for approval of the same, termi-
nation of the guardianship and conservatorship, and discharge
of the guardian and conservator and a request for fees. Mark
filed objections to the final inventory and accounting, alleging
numerous failures by Milone. After several continuances, a
hearing was held on the final inventory and accounting on May
21 and July 2, 2013. The county court subsequently issued a
written order approving the final inventory and accounting.
This appeal followed.
   Additional facts as needed to address each assignment of
error are contained in the appropriate section of our analy-
sis below.

                 I. ASSIGNMENTS OF ERROR
   Mark assigns that the county court erred by (1) failing to
hold an evidentiary hearing on the guardianship and conserva-
torship petition; (2) failing to require the temporary guardian
to post bond and failing to hold a hearing regarding bond after
statutory changes went into effect on January 1, 2012; (3) issu-
ing an ex parte order without supporting evidence and without
following proper procedures; (4) granting certain requests for
attorney fees; (5) overruling Mark’s motion to compel and
motion to continue; and (6) failing to rule on Mark’s objections
to the final inventory and accounting.

                  II. STANDARD OF REVIEW
   [1-3] An appellate court reviews guardianship and conser-
vatorship proceedings for error appearing on the record made
in the county court. In re Guardianship & Conservatorship of
Herrick, 21 Neb. App. 971, 846 N.W.2d 301 (2014). When
reviewing a judgment for errors appearing on the record, an
appellate court’s inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. Id. An appellate court,
in reviewing a judgment of the trial court for errors appearing
on the record, will not substitute its factual findings for those
         Decisions of the Nebraska Court of Appeals
	      IN RE GUARDIANSHIP & CONSERVATORSHIP OF FORSTER	483
	                     Cite as 22 Neb. App. 478

of the trial court where competent evidence supports those
findings. Id.
                         III. ANALYSIS
                       1. Failure to Hold
                      Evidentiary Hearing
   Mark first asserts that the county court erred by failing to
hold an evidentiary hearing on the guardianship and conserva-
torship petition. We agree, but we find that this issue became
moot upon James’ death.
   [4-6] A case becomes moot when the issues initially pre-
sented in the litigation cease to exist, when the litigants lack
a legally cognizable interest in the outcome of litigation, or
when the litigants seek to determine a question which does not
rest upon existing facts or rights, in which the issues presented
are no longer alive. In re Guardianship & Conservatorship
of Larson, 270 Neb. 837, 708 N.W.2d 262 (2006). Mootness
refers to events occurring after the filing of a suit which
eradicate the requisite personal interest in the resolution of the
dispute that existed at the beginning of the litigation. Wetovick
v. County of Nance, 279 Neb. 773, 782 N.W.2d 298 (2010).
Unless an exception applies, a court or tribunal must dismiss
a moot case when changed circumstances have precluded it
from providing any meaningful relief because the litigants no
longer have a legally cognizable interest in the dispute’s reso-
lution. Id.
   We find that the county court’s failure to hold an evidentiary
hearing on Mark’s petition to establish a guardianship and
conservatorship for James is moot because the issues raised in
such petition were relevant only while James was still living.
Upon his death, the issues raised in the petition ceased to exist
and Mark no longer had a legally cognizable interest in the
outcome of the petition.
   [7,8] Although an issue has become moot, an appellate
court may review the issue under the public interest excep-
tion to the mootness doctrine if it involves a matter affecting
the public interest or when other rights or liabilities may be
affected by its determination. See In re Interest of Thomas
M., 282 Neb. 316, 803 N.W.2d 46 (2011). When determining
   Decisions of the Nebraska Court of Appeals
484	22 NEBRASKA APPELLATE REPORTS



whether a case involves a matter of public interest, an appel-
late court considers (1) the public or private nature of the
question presented, (2) the desirability of an authoritative
adjudication for future guidance of public officials, and (3)
the likelihood of future recurrence of the same or a similar
problem. Id.
   Considering these factors, we believe the public interest
exception applies to this issue. The question presented is pub-
lic in nature because it deals with the obligation of trial courts
to follow statutory procedures designed to protect the rights
of persons who are alleged to be incapacitated. Due to the
importance of the rights involved and the likelihood of recur-
rence, we think it is appropriate to provide authoritative guid-
ance regarding a trial court’s responsibility in the protection of
rights of allegedly vulnerable persons.
   Neb. Rev. Stat. § 30-2619(b) (Reissue 2008) provides that
upon the filing of a petition for guardianship, “the court shall
set a date for hearing on the issues of incapacity.” If an emer-
gency exists, the court may enter an ex parte order appointing
a temporary guardian with powers limited to those necessary to
address the emergency. Neb. Rev. Stat. § 30-2626(a) (Reissue
2008). Under § 30-2626(e), the temporary guardianship shall
terminate after 90 days or earlier if the court deems the cir-
cumstances leading to the order for temporary guardianship
no longer exist or if a proper order for a permanent guardian-
ship is entered. For good cause shown, the court may extend
the temporary guardianship for successive 90-day periods.
§ 30-2626(d). Similar procedures apply to the appointment of
a conservator. See Neb. Rev. Stat. §§ 30-2630.01 (Cum. Supp.
2012) and 30-2636 (Reissue 2008).
   [9] As expressed by the Nebraska Supreme Court, temporary
guardianships are statutorily limited in both their extent and
their duration and the probate court has an obligation to adhere
to these limitations:
         Read together, [§§ 30-2619 and 30-2626] provide that
      an evidentiary hearing should be held expediently on a
      guardianship or conservatorship petition and that tempo-
      rary guardians and conservators are intended to exercise
      their powers in a limited manner and for a limited period
         Decisions of the Nebraska Court of Appeals
	      IN RE GUARDIANSHIP & CONSERVATORSHIP OF FORSTER	485
	                     Cite as 22 Neb. App. 478

      of time. We have recognized in guardianship proceedings
      that a true evidentiary hearing is required to support a
      finding of incompetency. . . . This rule cannot be circum-
      vented by continuous extensions of a temporary guardian-
      ship, nor are numerous reports by a [guardian ad litem] a
      substitute for an evidentiary hearing.
         While § 30-2626(d) does provide that the 90-day tem-
      porary guardianship period may be extended for good
      cause shown, it is hard to imagine what “good cause”
      could justify a delay of 8 months. . . .
         ....
         It is clear that the failure of the court to follow the
      statutory mandates with regard to the limited nature of
      the powers and duties of the temporary guardian and con-
      servator, as well as its failure to follow the mandate of
      a timely evidentiary hearing on competency, constitutes
      plain error.
In re Guardianship & Conservatorship of Larson, 270 Neb.
837, 853-55, 708 N.W.2d 262, 275-77 (2006).
   In the present action, Mark’s petition for the appointment
of a guardian and conservator was filed on August 10, 2011.
James died over a year later on August 26, 2012, at which
point a hearing on the petition still had not been held and a
temporary guardian and conservator was still in place. No court
orders were issued finding good cause for extending the tem-
porary guardianship. Thus, we find that the trial court clearly
erred in failing to hold an evidentiary hearing on the petition
and in allowing the temporary guardianship and conservator-
ship to continue beyond the statutory 90-day period without a
determination of incapacity. However, because James has died,
we find this assignment of error is moot.
   Mark argues that this issue is not moot, because the failure
to hold an evidentiary hearing resulted in substantial expense
to James’ estate. He seems to assert that if an evidentiary
hearing had been held, he could have been appointed perma-
nent guardian, which would have reduced the fees charged to
the estate. We reject that argument as speculative, especially
given the fact that the court removed him as temporary guard-
ian. Therefore, we hold that the issue is moot, but under the
   Decisions of the Nebraska Court of Appeals
486	22 NEBRASKA APPELLATE REPORTS



public interest exception to the mootness doctrine, we deter-
mine that the trial court erred in failing to hold an eviden-
tiary hearing.

                  2. Failure to R equire Bond
   Mark argues that the county court erred in failing to require
the temporary guardians and conservators to post bond and
in failing to hold a hearing after Neb. Rev. Stat. § 30-2641
(Reissue 2008) was amended to require such bond.
   At the time each of the temporary guardians and conser-
vators was appointed in this case, the posting of a bond was
not statutorily required, but was left to the court’s discretion.
The relevant statute in effect at that time stated in part: “The
court may require a conservator to furnish a bond conditioned
upon faithful discharge of all duties of the trust according to
law, with sureties as it shall specify and may eliminate the
requirement or decrease or increase the required amount of any
such bond previously furnished.” Neb. Rev. Stat. § 30-2640
(Reissue 2008) (emphasis supplied). See, also, Neb. Rev. Stat.
§ 30-2627(e) (Reissue 2008) (“[t]he court may require a guard-
ian to furnish a bond in an amount and conditioned in accord­
ance with the provisions of sections 30-2640 and 30-2641”
(emphasis supplied)).
   The court’s orders appointing Hytrek, Hytrek’s successor,
and then Milone as temporary guardians and conservators
specifically stated that no bond was required. There were no
objections filed in response to those orders, nor any motions
asking the court to require a bond. Pursuant to Neb. Rev.
Stat. § 30-2645(a) (Reissue 2008), “[a]ny person interested
in the welfare of a person for whom a conservator has been
appointed may file a petition in the appointing court for an
order . . . requiring bond or security or additional bond or
security.” Because a bond was not required by statute and no
request for bond was made, we find no error in the court’s
failing to require the temporary guardians and conservators to
post bond.
   Mark also asserts that the court should have held a hearing
to address the bond requirement after the relevant statutes were
         Decisions of the Nebraska Court of Appeals
	      IN RE GUARDIANSHIP & CONSERVATORSHIP OF FORSTER	487
	                     Cite as 22 Neb. App. 478

amended. Section 30-2640 was amended, operative January 1,
2012. The amended version reads in part:
         For estates with a net value of more than ten thousand
      dollars, the bond for a conservator shall be in the amount
      of the aggregate capital value of the personal property of
      the estate in the conservator’s control plus one year’s esti-
      mated income from all sources minus the value of securi-
      ties and other assets deposited under arrangements requir-
      ing an order of the court for their removal. The bond of
      the conservator shall be conditioned upon the faithful
      discharge of all duties of the trust according to law, with
      sureties as the court shall specify. The court, in lieu of
      sureties on a bond, may accept other security for the per-
      formance of the bond, including a pledge of securities or
      a mortgage of land owned by the conservator. For good
      cause shown, the court may eliminate the requirement of
      a bond or decrease or increase the required amount of any
      such bond previously furnished.
§ 30-2640 (Cum. Supp. 2012).
   [10] Nothing in the statute, as amended, indicates that
the Legislature intended for it to be retroactive. A well-
recognized rule of statutory construction, and one firmly
established in this jurisdiction, is that a statute will be held to
operate prospectively and not retrospectively unless the legis-
lative intent or purpose that it should operate retrospectively
is clearly disclosed. War Finance Corporation v. Thornton,
118 Neb. 797, 226 N.W. 454 (1929). See, also, Smith v.
Mark Chrisman Trucking, 285 Neb. 826, 832, 829 N.W.2d
717, 722 (2013) (“[s]tatutes covering substantive matters in
effect at the time of the transaction or event govern, not later
enacted statutes”).
   Because the statute was not retroactive, the county court did
not err by failing to require Milone, who had been appointed
as temporary guardian and conservator prior to the amend-
ment, to post bond. If Mark desired to revisit the issue, he
could have filed a motion for an order requiring bond pursuant
to § 30-2645. He failed to do so. This assignment of error has
no merit.
   Decisions of the Nebraska Court of Appeals
488	22 NEBRASKA APPELLATE REPORTS



                       3. Ex Parte Order
    Mark’s next assignment of error challenges the county
court’s ex parte order allowing one of James’ daughters access
to James and restricting the access of other relatives. Mark
argues that the ex parte order was issued with no evidentiary
basis and without the opportunity for an expedited hearing. We
decline to address this assignment of error because we find it
is moot.
    A case becomes moot when the issues initially presented in
the litigation cease to exist, when the litigants lack a legally
cognizable interest in the outcome of litigation, or when the
litigants seek to determine a question which does not rest
upon existing facts or rights, in which the issues presented
are no longer alive. In re Guardianship & Conservatorship of
Larson, 270 Neb. 837, 708 N.W.2d 262 (2006). The ex parte
order granting and restricting access to James was relevant
only while he was still living. Because he is now deceased, any
errors in issuing the ex parte order are now moot. Accordingly,
we decline to address this assignment of error.

                       4. Attorney Fees
   Mark asserts that the county court erred by granting the
following requests for attorney fees: (1) $4,643 awarded to
Hytrek following a December 22, 2011, hearing; (2) $7,000
awarded to James Reisinger, counsel for Mark who with-
drew in 2012, on February 28, 2012; (3) $17,074 awarded to
Milone on March 6, 2012; (4) $27,723.05 awarded to Milone
on April 23, 2012; and (5) $5,000 awarded to Stoehr on
February 28, 2012. We note that Mark does not challenge the
final fees awarded in the county court’s order from which he
has appealed.
   [11,12] Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it. In re
Estate of Gsantner, 288 Neb. 222, 846 N.W.2d 646 (2014).
This court has jurisdiction over final orders that are appealed
within 30 days from their entry. See Neb. Rev. Stat. § 25-1912
(Reissue 2008). The notice of appeal in this case was filed on
October 8, 2013. Because the fee orders challenged in this
         Decisions of the Nebraska Court of Appeals
	      IN RE GUARDIANSHIP & CONSERVATORSHIP OF FORSTER	489
	                     Cite as 22 Neb. App. 478

appeal were issued more than 30 days prior to that, we must
determine whether they were final orders at the time they
were entered. If so, we do not have jurisdiction to consider
them now.
   [13] Under Neb. Rev. Stat. § 25-1902 (Reissue 2008), the
three types of final orders that an appellate court may review
are (1) an order that affects a substantial right and that deter-
mines the action and prevents a judgment, (2) an order that
affects a substantial right made during a special proceeding,
and (3) an order that affects a substantial right made on sum-
mary application in an action after a judgment is rendered. In
re Estate of Gsantner, supra.
   [14] The requests for fees and the orders granting such
fees in this case were made pursuant to Neb. Rev. Stat.
§§ 30-2620.01 and 30-2643 (Reissue 2008), which are con-
tained within the Nebraska Probate Code. Our law is clear
that proceedings under the Nebraska Probate Code are special
proceedings within the meaning of § 25-1902. In re Estate of
Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010). See, also, In
re Guardianship & Conservatorship of Larson, supra (pro-
ceedings initiated to appoint guardian and conservator are
special proceedings).
   [15-17] Having determined that the fee orders were made in
a special proceeding, we next consider whether they affected
a substantial right. A substantial right is an essential legal
right, not a mere technical right. See In re Estate of Muncillo,
supra. Substantial rights under § 25-1902 include those legal
rights that a party is entitled to enforce or defend. In re Estate
of Gsantner, supra. If a substantial right is affected, an order
is directly appealable as a final order even though it does not
terminate the action or constitute a final disposition of the
case. See In re Estate of Snover, 233 Neb. 198, 443 N.W.2d
894 (1989).
   The Nebraska Supreme Court recently held that an order
awarding a personal representative fee affected a substantial
right because it finally determined the personal representa-
tive’s claim for reasonable compensation under Neb. Rev. Stat.
§ 30-2480 (Reissue 2008). See In re Estate of Gsantner, supra.
The court noted that although the personal representative’s
   Decisions of the Nebraska Court of Appeals
490	22 NEBRASKA APPELLATE REPORTS



service was not yet complete at the time the fee was awarded,
the order in question was nonetheless final because it did not
include any language indicating that the award was subject to
later revision or augmentation, whereas a previous award to
the personal representative noted that the award was a partial
fee. Id.
   Similarly, here, the orders awarding fees to Hytrek, Reisinger,
and Stoehr finally determined each of their respective claims
for fees and the amount of compensation payable to each from
the estate. Hytrek was entitled to reasonable compensation for
her services as temporary guardian and conservator pursuant to
§ 30-2620.01. Reisinger’s request for attorney fees was based
on his representation of Mark in initiating the guardianship
and conservatorship proceedings. See In re Guardianship &
Conservatorship of Donley, 262 Neb. 282, 631 N.W.2d 839
(2001) (petitioner entitled to payment from protected person’s
estate for attorney fees incurred in guardianship and conserva-
torship proceedings initiated in good faith). Stoehr had a claim
for attorney fees under § 30-2620.01 for his representation of
James. The orders awarding fees to each of these individuals
were final determinations and not subject to later revision, as
the awardees’ services in the case were complete at the time
the orders were entered.
   [18] Milone’s services as temporary guardian and conserva-
tor, on the other hand, were still ongoing at the time the fees
in question were awarded to him. Each of the requests for
fees set forth the specific time period of services for which
he was seeking compensation under § 30-2620.01. Unlike the
award of fees to the personal representative in In re Estate of
Gsantner, 288 Neb. 222, 846 N.W.2d 646 (2014), the awards
of March 6 and April 23, 2012, did not finally determine
Milone’s claim for reasonable compensation for his service as
temporary guardian and conservator. Therefore, we find that
these awards were not final and appealable at the time they
were entered and did not become final and appealable until the
court entered its final order terminating the guardianship and
conservatorship and discharging Milone from his duties. As a
result, we have jurisdiction to review these orders.
         Decisions of the Nebraska Court of Appeals
	      IN RE GUARDIANSHIP & CONSERVATORSHIP OF FORSTER	491
	                     Cite as 22 Neb. App. 478

   In early 2012, Milone filed a motion for attorney fees
seeking approximately $17,000 in attorney fees for services
from December 8, 2011, to January 26, 2012. Mark and his
counsel were both present at the hearing on March 5, and his
counsel specifically stated he had no objection to the attor-
ney fee request. Milone filed another motion for attorney
fees on March 21, seeking approximately $28,000 in fees for
services performed from January 26 to March 16. A hearing
was held on April 23, and Mark’s counsel was present. Once
again, he advised the court that he had no objection to the fees
being requested.
   [19] The failure to make a timely objection waives the
right to assert prejudicial error on appeal. State v. Nadeem,
284 Neb. 513, 822 N.W.2d 372 (2012). Since Mark did not
object to the attorney fees awarded on March 6 and April 23,
2012, to Milone, these issues have been waived. However, an
appellate court’s standard of review in guardianship and con-
servatorship cases is for error appearing on the record. See In
re Guardianship & Conservatorship of Herrick, 21 Neb. App.
971, 846 N.W.2d 301 (2014). When reviewing a judgment for
errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id.
   In In re Trust of Rosenberg, 269 Neb. 310, 693 N.W.2d 500
(2005), the Nebraska Supreme Court vacated an award of fees
to a trustee based on its finding that there had been no witness
testimony or other evidence adduced to support the request for
fees. It remanded the matter to the county court with directions
to hold an evidentiary hearing. Id. Similarly, in In re Trust
Created by Crawford, 20 Neb. App. 502, 826 N.W.2d 284
(2013), this court vacated an award of accounting fees, finding
the award was not supported by competent evidence where no
witnesses testified and no evidence was received to support
payment of the fees.
   [20] Upon our review of the record in this case, we note that
there was no testimony or evidence received at the hearings
held on March 5 and April 23, 2012, in support of Milone’s
   Decisions of the Nebraska Court of Appeals
492	22 NEBRASKA APPELLATE REPORTS



requests for attorney fees. Although Milone offered a motion
and affidavit in support of his request for attorney fees at the
March 5 hearing, the exhibit was not received into evidence and
is not contained in our record on appeal. During the hearing on
April 23, Milone stated that his affidavit was “on file,” but he
did not offer that affidavit, nor any other evidence in support
of his fee request, into evidence. The existence or contents of
affidavits filed with the clerk of the trial court and found in the
transcript, but not preserved in the bill of exceptions, cannot
be noted by an appellate court. Murphy v. Murphy, 237 Neb.
406, 466 N.W.2d 87 (1991). Because no evidence was received
in support of these two requests for attorney fees, we find that
the court’s award of such fees was not supported by competent
evidence. Therefore, we vacate the court’s orders awarding fees
on March 6 and April 23 and remand the matter to the county
court with directions to hold an evidentiary hearing.

                   5. Motion to Compel and
                      Motion to Continue
   [21] Mark asserts that the county court erred in overruling
his motion to compel discovery and his motion to continue the
hearing on the final inventory. However, we note that the argu-
ment section of his brief addresses only the motion to compel.
In order to be considered by an appellate court, an alleged error
must be both specifically assigned and specifically argued in
the brief of the party asserting the error. Irwin v. West Gate
Bank, 288 Neb. 353, 848 N.W.2d 605 (2014). Because Mark
makes no argument with respect to the motion to continue,
we will not address that portion of his assignment of error
on appeal.

                           (a) Facts
   On May 21, 2013, the day on which the petition for approval
of the final inventory and accounting was set to be heard,
Mark filed a motion to compel Milone to provide all “‘memo
to file’” documents referenced in the billing statements pre-
sented in Milone’s fee applications. Mark’s motion alleged
that he submitted a discovery request for such documents and
that Milone objected to the request on May 9, on the bases of
         Decisions of the Nebraska Court of Appeals
	      IN RE GUARDIANSHIP & CONSERVATORSHIP OF FORSTER	493
	                     Cite as 22 Neb. App. 478

attorney-client privilege and attorney work product. The county
court overruled the motion as untimely filed.
                          (b) Resolution
   Mark argues that the requested documents were not subject
to the attorney-client privilege and that his access to such
documents was necessary in order to adequately prepare for
the hearing on the final inventory and accounting. We decline
to address the merits of Mark’s motion to compel, because we
agree with the county court’s conclusion that the motion was
untimely filed.
   Mark was afforded ample time to conduct discovery in
preparation for the final hearing. Milone’s petition for approval
of the final inventory and accounting was filed on October 18,
2012, and his final affidavit in support of his fee application
was filed on January 24, 2013. Therefore, Mark had several
months in which to serve discovery requests and, if necessary,
seek a court order compelling Milone to comply with such
discovery requests.
   Although the record does not reflect the precise date on
which Mark’s discovery requests were served, it does reflect
that Milone responded to the requests on May 9, 2013. Milone
asserted at the hearing that this was approximately 1 week
prior to the expiration of the 30-day period in which he was
entitled to respond, and Mark did not dispute that assertion.
Thus, it appears that Mark served such discovery requests on
or about April 18, which was approximately 1 month prior to
the scheduled hearing.
   Despite receiving Milone’s objection to the discovery
request on May 9, 2013, Mark did not file his motion to com-
pel until May 21, the day the final hearing was scheduled to be
held. Mark provides no justification for waiting until approxi-
mately 1 month before the final hearing to request what he
characterizes as “necessary” documents, and we conclude that
he did so at his own peril.
   [22] The party asserting error in a discovery ruling bears
the burden of showing that the ruling was an abuse of discre-
tion. U.S. Bank Nat. Assn. v. Peterson, 284 Neb. 820, 823
N.W.2d 460 (2012). We find no abuse of discretion in the
   Decisions of the Nebraska Court of Appeals
494	22 NEBRASKA APPELLATE REPORTS



county court’s decision to overrule Mark’s motion to compel
as untimely filed.

                       6. Failure to Rule
                          on Objections
   Mark argues that the county court erred by failing to rule on
his objections to the final inventory and accounting. We find
that the county court’s order implicitly overruled Mark’s objec-
tions, and we find no error in such ruling.

                            (a) Facts
   Mark filed an objection to the final inventory and account-
ing alleging the following: Milone failed to work with
“the Department of Adult Protective Services” to investi-
gate James’ companion, who Mark alleged had financially
exploited James; Milone failed to comply with the court’s
order to submit a written report within 30 days as to any
issues that may require an evidentiary hearing; Milone failed
to provide appropriate notice of sale of James’ real and per-
sonal property; Milone failed to account for James’ insurance
business; Milone failed to provide proper notice of hearing on
his motion for fees; Milone failed to identify with sufficient
specificity how James’ assets were valued, marketed, and sold
so that James’ family could assess the fairness of the sale
and exclude the possibility of self-dealing; Milone failed to
properly investigate the estate planning documents presented
to him; Milone’s request for fees failed to provide sufficient
information as to the work he did and whether adequate serv­
ices were rendered to James.
   At the hearing, Milone presented evidence in support of
his final inventory and accounting and testified regarding the
actions he took as temporary guardian and conservator. On
cross-examination, Mark’s counsel questioned Milone exten-
sively regarding many of the allegations raised in Mark’s
objections to the final inventory and accounting. After Milone
rested his case, Mark’s counsel indicated to the court that she
would need at least half of a day to present Mark’s case. The
matter was continued to accommodate this request.
         Decisions of the Nebraska Court of Appeals
	      IN RE GUARDIANSHIP & CONSERVATORSHIP OF FORSTER	495
	                     Cite as 22 Neb. App. 478

  The hearing resumed on July 2, 2013. Counsel for Mark
asked the court to take judicial notice of “the court file in this
case, PR11-1103, and any exhibits that are part of that file.”
Milone had no objection, and the court agreed to “take judicial
notice of the court file and exhibits.” At that point, Mark’s
counsel informed the court that Mark would not be presenting
any further evidence. The county court subsequently issued an
order approving the final inventory and accounting, but did not
expressly rule on Mark’s objections.

                          (b) Resolution
   Mark argues that the county court erred by failing to rule on
his objections to the final inventory and accounting. Although
the county court’s order does not specifically address Mark’s
objections, we find that it implicitly overruled them by approv-
ing the final inventory and accounting. It is clear that the
county court considered Mark’s objections, as its order states
that the matter came on for hearing “upon [Milone’s] Petition
for Approval of Final Inventory and Accounting, Termination
of Guardianship and Conservatorship, and Discharge and
Approval of Final Fees, and Objections to the same filed
by Mark [and four of his siblings].” Mark has not cited any
authority which requires the court to specifically address the
merits of each objection to a petition for approval of a final
inventory and accounting; nor are we aware of any such
authority. We find that by granting Milone’s request to approve
the final inventory and accounting, the court implicitly over-
ruled Mark’s objections.
   Because Mark’s assignment of error is limited to the court’s
alleged failure to rule on his objections, we are not required to
address the merits of each of Mark’s objections. However, we
have reviewed the record on appeal and find no error in the
county court’s order implicitly overruling such objections.
   [23-25] We note that Mark asked the court to take judicial
notice of the court file and exhibits contained within the court
file and that the court agreed to do so. However, because
those records were not offered or received into evidence, we
cannot consider them on appeal. A bill of exceptions is the
   Decisions of the Nebraska Court of Appeals
496	22 NEBRASKA APPELLATE REPORTS



only vehicle for bringing evidence before an appellate court;
evidence which is not made a part of the bill of exceptions
may not be considered. State v. Patton, 287 Neb. 899, 845
N.W.2d 572 (2014). Appellate courts cannot rely upon infor-
mation in the transcript to establish facts, even a stipulation
of facts. City of Lincoln v. Nebraska Pub. Power Dist., 9 Neb.
App. 465, 614 N.W.2d 359 (2000). Items judicially noticed
are to be separately marked, offered, and received as evidence
to enable efficient review by this court. Saunders Cty. v.
Metropolitan Utilities Dist.-A, 11 Neb. App. 138, 645 N.W.2d
805 (2002).
   The record before us reflects that Mark was given an
opportunity to present evidence in support of his objections,
but he declined to do so. Mark’s counsel questioned Milone at
length regarding many of the allegations raised in the objec-
tions, but fell short in proving those allegations. The county
court heard the testimony and observed the witnesses, and
ultimately ruled in favor of Milone. Based on the evidence
properly before us, we find no error in the county court’s hav-
ing done so.
                     VI. CONCLUSION
   For the foregoing reasons, we affirm the judgment of the
county court, with the exception of the court’s orders award-
ing attorney fees to Milone on March 6 and April 23, 2012.
Because those awards were not supported by competent evi-
dence, we vacate those orders and remand the matter to the
county court with directions to hold an evidentiary hearing.
	Affirmed in part, and in part vacated
	                      and remanded with directions.
