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04/17/2020 09:08 AM CDT




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                               Nebraska Supreme Court Advance Sheets
                                        304 Nebraska Reports
                                                BOHLING v. BOHLING
                                                 Cite as 304 Neb. 968




                                        Robert Bohling, appellant, v.
                                         Kimberly Bohling, appellee.
                                                    ___ N.W.2d ___

                                         Filed January 31, 2020.   No. S-19-225.

                 1. Summary Judgment: Appeal and Error. In reviewing a summary
                    judgment, an appellate court views the evidence in the light most favor-
                    able to the party against whom the judgment was granted, and gives
                    that party the benefit of all reasonable inferences deducible from the
                    evidence.
                 2. ____: ____. An appellate court affirms a lower court’s grant of summary
                    judgment if the pleadings and admitted evidence show that there is no
                    genuine issue as to any material facts or as to the ultimate inferences
                    that may be drawn from the facts and that the moving party is entitled to
                    judgment as a matter of law.
                 3. Appeal and Error. Appellate review of a district court’s use of inherent
                    power is for an abuse of discretion.
                 4. 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.
                 5. Records: Affidavits: Appeal and Error. The fact that an affidavit used
                    as evidence in the district court was filed in the office of the clerk of
                    the district court and made a part of the transcript is not important to
                    a consideration and decision of an appeal in the cause to an appellate
                    court. If such an affidavit is not preserved in a bill of exceptions, its
                    existence or contents cannot be known by the appellate court.
                 6. Judicial Notice: Records: Appeal and Error. Papers requested to be
                    judicially noticed must be marked, identified, and made a part of the
                    bill of exceptions.
                 7. Judicial Notice: Evidence. Judicial notice of an adjudicative fact is a
                    species of evidence.
                 8. Summary Judgment: Proof. A party moving for summary judgment
                    makes a prima facie case for summary judgment by producing enough
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           Nebraska Supreme Court Advance Sheets
                    304 Nebraska Reports
                          BOHLING v. BOHLING
                           Cite as 304 Neb. 968

    evidence to demonstrate that the movant is entitled to judgment if the
    evidence were uncontroverted at trial.
 9. Appeal and Error. An appellate court may, at its discretion, discuss
    issues unnecessary to the disposition of an appeal where those issues are
    likely to recur during further proceedings.

  Appeal from the District Court for Johnson County: Ricky
A. Schreiner, Judge. Reversed and remanded for further
proceedings.

  Angelo M. Ligouri, of Ligouri Law Office, for appellant.

  Richard R. Smith for appellee.

  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.

  Cassel, J.
                         INTRODUCTION
   After a will contest was transferred from the county court
to the district court, the proponent sought and obtained a sum-
mary judgment determining that the decedent’s will was valid.
The contestant appeals. Because the bill of exceptions does
not contain the proponent’s evidence, only the contestant’s
evidence is properly before us. Obviously, with literally no evi-
dence to support it, the summary judgment for the proponent
must be reversed. And because the matter is likely to recur
upon remand, we briefly address Neb. Ct. R. § 6-1526 (rev.
2018), “Summary Judgment Procedure.”

                       BACKGROUND
                        Will Contest
  Willis Bohling died in March 2018. Kimberly Bohling,
Willis’ daughter, filed an application for informal probate in
county court. In response, Willis’ son, Robert Bohling, filed an
objection to the application for informal probate and a formal
petition for adjudication of intestacy, determination of heirs,
and appointment of a special administrator. Two days after the
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            Nebraska Supreme Court Advance Sheets
                     304 Nebraska Reports
                          BOHLING v. BOHLING
                           Cite as 304 Neb. 968

county court entered an order noting Robert’s objection, Robert
filed a notice of transfer to district court.1 Kimberly filed addi-
tional pleadings in the county court, and shortly thereafter, the
county court clerk certified the will contest proceeding to the
district court. Kimberly then moved for summary judgment.

                  Motion for Summary Judgment
   Under § 6-1526(A), at the time Kimberly filed her motion
for summary judgment, she was required to simultaneously file
an evidence index and an annotated statement of undisputed
facts. She did not do so. Instead, she attached to her motion
her own affidavit and an affidavit of the attorney who prepared
the will.
   Nineteen days later, in an apparent attempt to comply with
§ 6-1526(B), Robert filed an “Annotated Statement of Disputed
Facts” and an “Evidence Index in Opposition.” He also filed
five affidavits, which were itemized in his evidence index.
Later that day, Kimberly filed a brief addressing the merits of
her motion for summary judgment. A few days later, Robert
filed an opposing brief.
   At the hearing on Kimberly’s summary judgment motion,
Kimberly requested the district court to take judicial notice
of Willis’ will. Specifically, Kimberly’s counsel stated: “[T]he
will itself, . . . I would like to offer that for the purpose of this
hearing or have the Court take judicial notice of it. It should
have been filed with the Petition for Informal Probate.” After
the court inquired whether Kimberly was requesting the court
to take judicial notice and her counsel responded affirmatively,
the court stated: “So noted.” But the will was not marked
or received as an exhibit, and its content does not otherwise
appear in the bill of exceptions.
   Kimberly’s counsel then stated that Kimberly would also
“offer the affidavits that we have previously submitted with
our Motion for Summary Judgment. I don’t believe those have

1
    See Neb. Rev. Stat. § 30-2429.01 (Cum. Supp. 2018).
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          Nebraska Supreme Court Advance Sheets
                   304 Nebraska Reports
                       BOHLING v. BOHLING
                        Cite as 304 Neb. 968

been separately marked, but they are required to be submit-
ted to the Court and I’m asking the Court to consider those.”
He added: “They would have been attached to the Motion for
Summary Judgment.” In response, the court stated: “There
is an affidavit attached to the original Motion for Summary
Judgment. It looks like it was filed January 4th of 2019. I will
review those and consider those as well.” But the affidavits
were not marked as exhibits and do not appear in the bill of
exceptions. Kimberly’s counsel then stated: “I think that’s the
extent of my evidence, Your Honor.”
   Robert offered and the court received exhibits 1 through 7
into evidence, which consisted of an affidavit from Robert, an
affidavit from Willis’ girlfriend, three affidavits from friends of
Willis, the objection to the petition for informal probate, and,
in a single document, the objection to the motion for summary
judgment and the annotated statement of disputed facts. These
exhibits appear in the bill of exceptions.
   Robert then objected to any evidence presented by Kimberly,
based upon her failure to submit an evidence index or an anno-
tated statement of undisputed facts “pursuant to [§] 6-1526.”
He argued that the failure to comply with § 6-1526 must con-
stitute grounds to deny the motion. Kimberly acknowledged
that she did not comply with the rule. She argued that denial of
the motion was inappropriate, because Robert was not preju-
diced by her failure when her motion contained the evidence
to be presented and her brief contained a statement of facts
with annotations to the evidence.
   The district court overruled Robert’s objection. The court
stated:
      You are prepared for a Motion for Summary Judgment
      this morning. I’m going to overrule that [objection]. I’m
      going to take [Kimberly’s counsel’s] affidavits, receive
      those and those attachments to his motion. . . .
         [Robert’s counsel], I do appreciate the statement of —
      of what exactly is in dispute here on your end of it and it
      makes it so much easier for the Court.
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            Nebraska Supreme Court Advance Sheets
                     304 Nebraska Reports
                           BOHLING v. BOHLING
                            Cite as 304 Neb. 968

         [Kimberly’s counsel], I would appreciate next time — I
      try to run — I try to give counsel some leeway on these
      and let everybody try their case. I’m interested in trying
      things and getting things settled on the facts instead of
      strict compliance with the rules.
Despite the court’s statements regarding receiving Kimberly’s
affidavits, they were not marked as exhibits and do not appear
in the bill of exceptions. After hearing arguments, the court
took the matter under advisement. On February 10, 2019, the
court’s summary judgment, styled as an order granting sum-
mary judgment, was entered. The summary judgment deter-
mined that Willis left a valid will.
   Robert filed a timely appeal, which we moved to our docket.2
                  ASSIGNMENTS OF ERROR
    Robert assigns, condensed and restated, that the district court
erred in granting the motion for summary judgment when (1)
it failed to require Kimberly to present prima facie evidence in
support of her motion; (2) Kimberly failed to file an evidence
index and an annotated statement of undisputed facts with her
motion, pursuant to § 6-1526; and (3) it found no dispute of
material fact as to the ambiguity in Willis’ will, testamentary
capacity, and undue influence.
                  STANDARD OF REVIEW
   [1,2] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted, and gives that party
the benefit of all reasonable inferences deducible from the
evidence.3 An appellate court affirms a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts

2
    See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
3
    Williamson v. Bellevue Med. Ctr., ante p. 312, 934 N.W.2d 186 (2019).
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            Nebraska Supreme Court Advance Sheets
                     304 Nebraska Reports
                           BOHLING v. BOHLING
                            Cite as 304 Neb. 968

and that the moving party is entitled to judgment as a matter
of law.4
   [3] Appellate review of a district court’s use of inherent
power is for an abuse of discretion.5

                            ANALYSIS
                        Summary Judgment
   A motion for summary judgment is to be granted “if the
pleadings and the evidence admitted at the hearing show that
there is no genuine dispute as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”6
“The evidence that may be received on a motion for sum-
mary judgment includes depositions, answers to interrogato-
ries, admissions, stipulations, and affidavits.”7
   But, here, our bill of exceptions contains only Robert’s evi-
dence. Kimberly’s evidence does not appear in the bill.
   [4,5] This court has stated on numerous occasions that 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.8 In 1959, we explained
at length:
      “An affidavit used as evidence in the district court cannot
      be considered on an appeal of a cause to this court unless
      it is offered in evidence in the trial court and preserved in
      and made a part of the bill of exceptions. . . . The fact that
      an affidavit used as evidence in the district court was filed
      in the office of the clerk of the district court and made a
      part of the transcript is not important to a consideration
      and decision of an appeal in the cause to this court. If

4
    Id.
5
    Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).
6
    Neb. Rev. Stat. § 25-1332(1) (Cum. Supp. 2018) (emphasis supplied).
7
    Id.
8
    See Gomez v. Gomez, 303 Neb. 539, 930 N.W.2d 515 (2019).
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             Nebraska Supreme Court Advance Sheets
                      304 Nebraska Reports
                           BOHLING v. BOHLING
                            Cite as 304 Neb. 968

      such an affidavit is not preserved in a bill of exceptions,
      its existence or contents cannot be known by this court. .
      . . A judgment of the district court brought to this court
      for review is supported by a presumption of correctness
      and the burden is upon the party complaining of the
      action of the former to show by the record that it is erro-
      neous. It is presumed that an issue decided by the district
      court was correctly decided. The appellant, to prevail in
      such a situation, must present a record of the cause which
      establishes the contrary. . . .9
   This requirement is not new. In 1934, we set forth as “the
settled law of this state” the principle that “error must affirm­
atively appear of record and that affidavits and other written
documents used as evidence on a hearing in the district court
cannot be considered by the [S]upreme [C]ourt unless they
are made a part of the record by being embodied in a bill of
exceptions.”10 There, we cited numerous cases, dating back to
a case from 1886.11 The 1886 opinion, in turn, cited to many
more cases, the earliest being from 1877.12
   We have often recited the rule or variations thereof, but we
have not explained its underlying rationale; at least, we have
not done so recently. In 1963, we set forth one straightfor-
ward variation: “The bill of exceptions is the only vehicle for
bringing evidence before the court on appeal.”13 To support
that particular articulation, we cited an Alabama case.14 In that
case, the Alabama Supreme Court stated that “[t]he bill of

 9
     Peterson v. George, 168 Neb. 571, 576-77, 96 N.W.2d 627, 631 (1959)
     (citations omitted).
10
     Berg v. Griffiths, 127 Neb. 501, 502, 256 N.W. 44, 45 (1934).
11
     See McMurtry v. State, 19 Neb. 147, 26 N.W. 915 (1886).
12
     See Ray v. Mason, 6 Neb. 101 (1877).
13
     Everts v. School Dist. No. 16, 175 Neb. 310, 315, 121 N.W.2d 487, 490
     (1963).
14
     See Sovereign Camp, W. O. W. v. Wiggins, 238 Ala. 424, 191 So. 470
     (1939).
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             Nebraska Supreme Court Advance Sheets
                      304 Nebraska Reports
                            BOHLING v. BOHLING
                             Cite as 304 Neb. 968

exceptions, as it appears, in the record is all that the court can
or will consider.”15 For that proposition, the Alabama Supreme
Court relied upon Pearce v. Clements.16 In Pearce, the Alabama
Supreme Court began by stating that “[b]ills of exceptions are
the mere creatures of statute, being entirely unknown to the
common law . . . .”17 It described its precedent of interpreting
the strict procedures of a bill of exceptions and discussed the
necessary production of evidence, stating:
      A record is something which is proved by its mere pro-
      duction and inspection, whether of the original or of a
      copy, and nothing can be construed to be a part of it,
      which does not appear, on the face of it, to be such, with-
      out the aid of oral evidence, explanatory of clerical errors
      which may have crept into such judicial proceedings,
      whether errors of omission or errors of commission.18
The Pearce court concluded that these principles applied with
equal force to bills of exceptions, where the law has placed
several exacting safeguards around the execution of a bill of
exceptions. Likewise, a bill of exceptions in Nebraska is a
creature of statute.19 And it is one with ancient origins.20 We
have engaged in this extended discussion to explain why we
adhere to the “settled law” and the statutory basis compelling
our fidelity.
   [6,7] Kimberly’s request for judicial notice did not cir-
cumvent the necessity of presenting evidence in a bill of
exceptions. Papers requested to be judicially noticed must be
marked, identified, and made a part of the bill of exceptions.21

15
     Id. at 427, 191 So. at 472.
16
     Pearce v. Clements, 73 Ala. 256 (1882).
17
     Id. at 257 (emphasis in original).
18
     Id. at 258 (emphasis in original).
19
     See Neb. Rev. Stat. § 25-1140 (Reissue 2016).
20
     See 1877 Neb. Laws, § 2, p. 11.
21
     See In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017).
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             Nebraska Supreme Court Advance Sheets
                      304 Nebraska Reports
                           BOHLING v. BOHLING
                            Cite as 304 Neb. 968

The will and Kimberly’s affidavits were not included in the
bill of exceptions; thus, they are not properly before us. But
this should not be read to suggest that offering an exhibit is
a proper occasion for the exercise of judicial notice. Judicial
notice of an adjudicative fact is a species of evidence.22 We
do not read the colloquy between Kimberly’s counsel and the
court as a true request for judicial notice of an adjudicative
fact, but, rather, as an unauthorized substitute for the proper
method of making an evidentiary record.
   Similarly, the presence of the proffered will and Kimberly’s
proposed affidavits in the transcript does not bring them before
us as evidence. As we recited above, the fact that an affidavit
used as evidence in the district court was filed in the office of
the clerk of the district court and made a part of the transcript
is not important to a consideration and decision of an appeal in
the cause to this court. If such an affidavit is not preserved in
a bill of exceptions, its existence or contents cannot be known
by this court.23
   [8] So, on appeal, we confront a bill of exceptions that con-
tains only Robert’s evidence. But the absence of Kimberly’s
evidence is not attributable to any fault on Robert’s part.
Kimberly failed to have her exhibits properly marked and
received. And the district court acquiesced in the improper pro-
cedure. A party moving for summary judgment makes a prima
facie case for summary judgment by producing enough evi-
dence to demonstrate that the movant is entitled to judgment if
the evidence were uncontroverted at trial.24 Because Kimberly
was the moving party, she bore the burden to prove a prima
facie case. And because Kimberly did not produce her evidence
in a manner so as to be included in a bill of exceptions, she
effectively failed to make a prima facie case. Accordingly, the

22
     Id.
23
     Peterson v. George, supra note 9.
24
     Kaiser v. Union Pacific RR. Co., 303 Neb. 193, 927 N.W.2d 808 (2019).
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             Nebraska Supreme Court Advance Sheets
                      304 Nebraska Reports
                           BOHLING v. BOHLING
                            Cite as 304 Neb. 968

summary judgment must be reversed and the cause must be
remanded for further proceedings.

                             § 6-1526
   [9] Robert argues that because Kimberly failed to file an
evidence index and an annotated statement of undisputed facts,
her motion for summary judgment should have been denied for
failure to comply with § 6-1526. An appellate court may, at
its discretion, discuss issues unnecessary to the disposition of
an appeal where those issues are likely to recur during further
proceedings.25 Although it is not necessary to the disposition of
this appeal, we discuss § 6-1526 because it is likely to recur
upon remand.
   The rule was prompted by legislative action. In 2017,
the Legislature amended the summary judgment statutes to
“require[] a party to provide citations to the record to support
its assertion that a fact cannot be or is genuinely disputed.”26
It did so by amending § 25-1332. In response, we adopted
§ 6-1526 in 2018. This rule provides specific procedures to
carry out the purpose of the statutory amendment.
   In order to accomplish the legislative goal of judicial econ-
omy, § 6-1526 was crafted for three reasons. First, it benefits
parties by making the parties’ respective claims as to undis-
puted or disputed facts clear and precise. Second, it serves both
trial and appellate courts by exposing the precise claims of the
parties. The parties’ briefs are not an effective substitute for
an evidence index and an annotated statement of undisputed
or disputed facts. A judge should not have to scour through a
party’s brief to identify factual claims that are intermixed with
legal arguments. Third, it was adopted to focus the parties and
the court on the specific factual contentions.

25
     In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017).
26
     Ecker v. E & A Consulting Group, 302 Neb. 578, 583, 924 N.W.2d 671,
     676 (2019). See, also, 2017 Neb. Laws, L.B. 204.
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         Nebraska Supreme Court Advance Sheets
                  304 Nebraska Reports
                       BOHLING v. BOHLING
                        Cite as 304 Neb. 968

   Trial courts should have some discretion to adapt procedures
to the needs of a particular case, and an appellate court will not
intervene except where the discretion is abused. But trial courts
should not condone a party’s failure to follow § 6-1526 merely
because the party finds it inconvenient or unfamiliar. There
is a systemic value to the prompt and inexpensive resolution
of disputes. Section 6-1526 should not be lightly ignored. We
encourage district courts to set deadlines in compliance with
the rule and require parties to submit necessary materials.
                         CONCLUSION
   For the reasons set forth above, we reverse the judgment of
the district court and remand the cause for further proceedings.
                               Reversed and remanded for
                               further proceedings.
