In re Application of Olmer

852 	275 Nebraska reports
Whether agency or Fulkerson committed a fraudulent trans-
fer was a question of fact for the jury. the district court erred
in granting Florida’s motion for directed verdict and in enter-
ing judgment in favor of Florida. accordingly, we reverse and
vacate the judgment of the district court.
CoNCLUsIoN
the district court erred in granting a directed verdict in
favor of Florida. Giving all reasonable inferences to agency
and Fulkerson, there is a question of fact whether a fraudulent
transfer occurred between truck and agency. there is evidence
that the transfer of $2,235,401 represented the amount held in
the customer deposit account on behalf of truck’s insureds and
that agency used this money to purchase insurance for truck’s
insureds. there is no evidence of any other transfer.
For the reasons set forth herein, the judgment of the dis-
trict court is reversed and vacated, and the cause is remanded
for further proceedings. We decline to consider the remaining
assignments of error.
reverSed and vacated , and cauSe remanded
for further proceedingS.
in re application of mark olmer .
mark olmer , appellant , v . madiSon county
board of commiSSionerS, appellee .
752 N.W.2d 124
Filed June 6, 2008. 	No. s-07-247.
1. Political Subdivisions: Appeal and Error. a party may seek review of a decision
regarding a conditional use or special exception permit either by appealing to the
district court under Neb. rev. stat. § 23-114.01(5) (Cum. supp. 2006) or by filing
a petition in error under Neb. rev. stat. § 25-1901 (supp. 2007).
2. Political Subdivisions: Judgments: Appeal and Error. When a decision regard-
ing a conditional use or special exception permit is appealed under Neb. rev.
stat. § 23-114.01(5) (Cum. supp. 2006) and a trial is held de novo under Neb.
rev. stat. § 25-1937 (reissue 1995), the findings of the district court shall have
the effect of a jury verdict and the court’s judgment will not be set aside by an
appellate court unless the court’s factual findings are clearly erroneous or the
court erred in its application of the law.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

appeal from the District Court for Madison County: patrick
g. rogerS, Judge. reversed and remanded with directions.
stephen D. Mossman, of Mattson, ricketts, Davies, stewart
& Calkins, and James G. egley, of Moyer, Moyer, egley, Fullner
& Montag, for appellant.
Joseph M. smith, Madison County attorney, for appellee.
wright, connolly, gerrard, S tephan, mccormack, and
miller -lerman, JJ.
gerrard, J.
this is an appeal from the judgment of the district court,
which affirmed the decision of the Madison County board of
Commissioners (the board) denying Mark olmer’s application
for a conditional use permit. olmer contends that the district
court erred by reviewing his appeal from the board’s deci-
sion under the standard of review for error proceedings. olmer
argues that the district court should have conducted a trial de
novo pursuant to Neb. rev. stat. § 25-1937 (reissue 1995).
as discussed below, we conclude that olmer had the option of
proceeding either by way of a petition in error or by filing an
appeal under § 25-1937. because olmer chose to proceed under
§ 25-1937, the district court erred in treating his appeal as an
error proceeding, and we reverse the judgment of the court and
remand this cause with directions.
FaCts
olmer filed an application for a conditional use permit to
allow a “swine finishing operation” on his property in Madison
County, Nebraska. olmer’s proposed swine finishing operation
would involve approximately 2,460 head of feeder pigs. after
hearings before the Madison County planning Commission, the
planning commission recommended to the board that olmer’s
application be approved with certain conditions. on september
27 and october 7, 2005, the board held hearings on olmer’s
application. at the hearing on september 27, the board received
into evidence various exhibits and heard the testimony of several
individuals, some testifying in favor of olmer’s application and
IN re appLICatIoN oF oLMer 	853
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854 	275 Nebraska reports
others testifying against it. Minutes from this hearing indicate
that there was discussion about, among other things, the threat
of increased nitrate levels in the ground water near olmer’s pro-
posed operation, the procedures olmer would adopt to control
odor and dust, and the effect olmer’s operation would have on
the health of neighboring landowners.
after all of the evidence was presented, the board, on
october 7, 2005, issued “resolution #2005-77,” setting forth in
detail the board’s findings of fact and denying olmer’s applica-
tion for a conditional use permit. on November 4, olmer filed a
“Notice of appeal” with the county commissioners of Madison
County, informing the county commissioners of his intent to
appeal the board’s decision to the Madison County District
Court. on November 21, olmer filed a “petition on appeal”
in the district court, setting forth his grounds for appeal. In his
“petition on appeal,” olmer stated that he “has properly per-
fected his appeal under section 25-1937.”
on November 30, 2006, the district court held what appeared
to be a trial on a joint stipulated record. the stipulated record
received by the court included, among other things, the minutes
of the hearings held before the board and all of the exhibits
offered and received by the board. the stipulated record also
included evidence that was not presented to the board, includ-
ing deposition testimony from olmer’s neighbor and attached
exhibits. one of the issues presented to the district court was
whether olmer’s appeal from the board’s decision is governed
by Neb. rev. stat. § 25-1901 (supp. 2007) and is therefore
treated as a review on a petition in error or whether his appeal
is governed by § 25-1937, which requires a trial de novo in the
district court.
the district court found that the board, in denying olmer’s
conditional use permit, acted as a tribunal exercising judicial
functions and that therefore, olmer’s appeal should be treated as
a petition in error. because olmer’s appeal was treated as a peti-
tion in error, the court explained that olmer was not entitled to a
trial de novo, nor could the court receive additional evidence that
was not offered at the hearing before the board. accordingly, the
court stated that, in making its decision, it did not consider any
exhibits that were not offered and received by the board.

the court determined that olmer had met all of the jurisdic-
tional requirements for filing a petition in error and that there-
fore, the court had jurisdiction to review the board’s decision
denying olmer’s application. the court, relying on the standard
of review for error proceedings, found that the board acted
within its jurisdiction and that the board’s findings were sup-
ported by some competent evidence in the record. accordingly,
the court affirmed the board’s decision denying olmer’s applica-
tion. olmer appealed.
assIGNMeNts oF error
olmer assigns, consolidated, restated, and renumbered, that
the district court erred in (1) reviewing the board’s decision
under the standard of review applicable to a petition in error,
as opposed to conducting a trial de novo as required under
§ 25-1937, and (2) affirming the decision of the board denying
his application for a conditional use permit.
aNaLysIs
proper method of appeal and S tandard
of review for diStrict court
the primary issue presented in this appeal is the proper
procedure and standard of review for an appeal of a denial of
a conditional use permit by a county board of commissioners.
olmer claims that the proper method of appeal and standard
of review is set forth in § 25-1937, which requires the district
court to conduct a trial “de novo upon the issues made up by the
pleadings in the district court.” the board contends, however,
that because it acted in a judicial manner in denying olmer’s
application, olmer’s exclusive mode of appeal was through the
filing of a petition in error under § 25-1901.
In Mogensen v. Board of Supervisors,1 we were asked to
determine the proper procedure for appealing a denial of a
conditional use permit by a board of supervisors. In that case,
the county board of supervisors denied an application for a
conditional use permit. the applicant filed a petition in error
1 Mogensen v. Board of Supervisors, 268 Neb. 26, 679 N.W.2d 413 (2004).
IN re appLICatIoN oF oLMer 	855
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856 	275 Nebraska reports
in the district court. the district court affirmed the board of
supervisors’ decision.
on appeal to this court, we concluded that the district court
lacked jurisdiction because the applicant’s filing of a petition
in error did not properly perfect the appeal. In reaching this
conclusion, we noted that the Nebraska Court of appeals, in
Niewohner v. Antelope Cty. Bd. of Adjustment,2 had addressed
a similar issue and had concluded that under Neb. rev. stat.
§ 23-168.03 (reissue 1997), an appeal of a denial of a condi-
tional use permit by the county board of supervisors must be
made to the board of adjustment.
We agreed with the Court of appeals and concluded that the
appeal procedure in Neb. rev. stat. §§ 23-168.01 to 23-168.04
(reissue 1997) foreclosed the ability to appeal a decision of the
board of supervisors to the district court through a petition in
error under § 25-1901.3 We explained that “by adopting a spe-
cific method for appeal, the Legislature provided for an appeal
specifically outside of the petition in error” and that therefore,
“an appeal from a board of supervisors denying a conditional
use permit is to be taken in accordance with §§ 23-168.01 to
23-168.04 and not by a petition in error.”4 and because the
applicant did not file an appeal with the board of adjustment,
the district court did not have jurisdiction to hear his appeal on
a petition in error.
In response to the circumstances presented in Mogensen
and Niewohner, the Legislature, in 2004, amended Neb. rev.
stat. § 23-114.01(5) (reissue 1997) by adding the following
language: “an appeal of a decision by the county planning
commission or county board of commissioners or supervi-
sors regarding a conditional use or special exception shall be
made to the district court.”5 With the addition of this language,
the statute is now clear that contrary to the Court of appeals’
2 Niewohner v. Antelope Cty. Bd. of Adjustment, 12 Neb. app. 132, 668
N.W.2d 258 (2003).
3 Mogensen v. Board of Supervisors, supra note 1.
4 Id. at 32, 679 N.W.2d at 418. see, also, Gabel v. Polk Cty. Bd. of Comrs.,
269 Neb. 714, 695 N.W.2d 433 (2005).
5 § 23-114.01(5) (Cum. supp. 2006).

opinion in Niewohner and our decision in Mogensen, appeals
from a planning commission, county board, or board of super-
visors are not to be made to the board of adjustment. Instead,
these appeals are now taken directly to the district court.
at issue in this case is the effect that this language now has
on olmer’s mode of appeal and the district court’s standard
of review. olmer argues that by amending § 23-114.01(5),
the Legislature has conferred a right to appeal, but has failed
to prescribe the proper procedure for doing so. as a result,
olmer claims that the method of appeal and standard of review
is determined by § 25-1937. this section provides in relevant
part that
[w]hen the Legislature enacts a law providing for an
appeal without providing the procedure therefor, the pro-
cedure for appeal to the district court shall be the same
as for appeals from the county court to the district court
in civil actions. trial in the district court shall be de
novo upon the issues made up by the pleadings in the
district court.
the board, however, argues that § 25-1937 does not apply
when a board or tribunal appealed from is exercising judicial
functions. the board claims that when a board or tribunal
exercises judicial functions, a petition in error is the exclusive
remedy for those seeking review of the board’s decision. and
because the board in the instant case acted judicially, olmer’s
only method of review was by way of a petition in error.
the procedures governing reviews on petitions in error are
found in Neb. rev. stat. §§ 25-1901 to 25-1908 (reissue 1995
& supp. 2007). section 25-1901 provides, in relevant part,
that a “judgment rendered or final order made by any tribu-
nal, board, or officer exercising judicial functions and inferior
in jurisdiction to the district court may be reversed, vacated,
or modified by the district court.” and § 25-1903 states that
“[t]he proceedings to obtain such reversal, vacation or modi-
fication shall be by petition entitled petition in error, filed
in a court having power to make such reversal, vacation or
modification, setting forth the errors complained of . . . .” In
reviewing a decision based on a petition in error, an appellate
court determines whether the inferior tribunal acted within its
IN re appLICatIoN oF oLMer 	857
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858 	275 Nebraska reports
jurisdiction and whether the decision rendered is supported by
sufficient relevant evidence.6 When making this determination,
an appellate court is restricted to the record created before the
lower tribunal.7
We agree with the board that by receiving exhibits, hearing
testimony, and reaching a decision based on that testimony, it
exercised judicial functions.8 We are not, however, persuaded
by the board’s argument that because it exercised judicial
functions, olmer’s sole method of appeal was through a peti-
tion in error. In a similar case, Moser v. Turner,9 we addressed
the question whether an appeal from a decision of the county
superintendent must be made by a petition in error under
§ 25-1901, or whether an appeal could be had under § 25-1937.
In that case, two petitions in error were filed in the district court
seeking review of the decisions of two county superintendents
regarding the dissolution and annexation of certain school dis-
tricts. separate trials were held in the district court, and the
cases were combined for appeal.
on appeal to this court, the appellants argued that the district
court did not have jurisdiction because proceedings in error
could not be taken from the decision of the county superin-
tendent. the appellants claimed that the exclusive method
of appeal was under § 25-1937. We explained that the right
to appeal was set forth in Neb. rev. stat. § 79-402 (reissue
1966), which provided that “‘any person adversely affected by
the changes made by the county superintendent may appeal to
the district court of any county in which the real estate, or any
part thereof, involved in the dispute is located.’”10 We noted,
however, that § 79-402 did not provide a method of appeal.
We explained that under § 25-1937, “where a statute provides
6 Crown Products Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d 294
(1997).
7 Id.
8 see, McNally v. City of Omaha, 273 Neb. 558, 731 N.W.2d 573 (2007);
Douglas Cty. Bd. of Comrs. v. Civil Serv. Comm., 263 Neb. 544, 641 N.W.2d
55 (2002).
9 Moser v. Turner, 180 Neb. 635, 144 N.W.2d 192 (1966).
10 Id. at 639, 144 N.W.2d at 195 (emphasis in original).

for an appeal without setting forth the procedure therefor, the
appeal shall be the same as appeals from county court to district
court in civil actions.”11
We also acknowledged that “[t]his court has repeatedly held
that where the county superintendents of schools act in a quasi-
judicial capacity, their decisions may be reviewed under section
25-1901 . . . by petition in error . . . .”12 We reconciled these
two procedures for acquiring review by explaining:
there is nothing in section 79-402 . . . or in section
25-1937 . . . which purports to take away the right to
proceed in error under section 25-1901 . . . . any person
adversely affected by the changes made by a county super-
intendent pursuant to section 79-402 . . . may proceed by
appeal or by error pursuant to section 25-1901 . . . .13
thus, we concluded that although the county superintendents
performed quasi-judicial acts, review of their decisions could
be had by petition in error under § 25-1901 or by appeal
under § 25-1937.14
[1] Like the county superintendents in Moser, the board in
the present case, in denying olmer’s application, was exercis-
ing judicial functions which decisions are generally reviewed
through the filing of a petition in error.15 but § 23-114.01(5)
clearly provides for a right of appeal to the district court
from the board’s decision, without setting forth any procedure
for prosecuting the appeal. therefore, the appeal procedure
in § 25-1937 is also implicated.16 and there is nothing in
§ 23-114.01(5), or in § 25-1937, that purports to remove the
right to proceed in error under § 25-1901. thus, we conclude
11 Id.
12 Id.
13 Id. at 639-40, 144 N.W.2d at 195.
14 see, also, Nicholson v. Red Willow Cty. Sch. Dist. No. 0170, 270 Neb. 140,
699 N.W.2d 25 (2005); Richardson v. Board of Education, 206 Neb. 18,
290 N.W.2d 803 (1980); Languis v. De Boer, 181 Neb. 32, 146 N.W.2d 750
(1966).
15 see South Maple Street Assn. v. Board of Adjustment, 194 Neb. 118, 230
N.W.2d 471 (1975).
16 see Prucha v. Kahlandt, 260 Neb. 366, 618 N.W.2d 399 (2000).
IN re appLICatIoN oF oLMer 	859
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that under the circumstances presented here, olmer had the
option of filing either a petition in error under § 25-1901 or an
appeal under § 25-1937.
olmer, in his “petition on appeal” filed in the district court,
specifically references § 25-1937 as his chosen method of
appeal. accordingly, the district court erred in treating olmer’s
appeal as if it were a petition in error.
diStrict court haS J uriSdiction
Having determined that an appeal under § 25-1937 is avail-
able to olmer and that he has selected this mode of appeal, the
next issue that we must address is whether olmer has properly
perfected his appeal to the district court. section 25-1937 pro-
vides, in relevant part, that “the procedure for appeal to the
district court shall be the same as for appeals from the county
court to the district court in civil actions.” the statute govern-
ing the procedure for appeals from county court to district
court is Neb. rev. stat. § 25-2729 (Cum. supp. 2006). section
25-2729(1)(a) requires, among other things, that in order to per-
fect an appeal from the county court, the appealing party must
file a notice of appeal with the clerk of the county court within
30 days after the entry of the judgment or final order.
olmer argues that he has complied with this statute by filing,
on November 4, 2005, a “Notice of appeal” with the county
commissioners of Madison County. Clearly, § 25-2729(1)(a)
was intended to apply to appeals from county court and, as a
result, cannot be applied literally to the present case.17 thus,
an application of this statutory provision to the circumstances
presented in this case will be drawn by analogy. as applicable
here, § 25-2729(1)(a), in essence, requires that the appealing
party file a notice of appeal with the lower tribunal or decision-
maker within 30 days after entry of the judgment.
the record establishes that olmer has complied with this
requirement. the board issued its decision denying olmer’s
application for a conditional use permit on october 7, 2005.
olmer filed a “Notice of appeal” to the county commission-
ers that was file stamped by the Madison County clerk on
17 see Stigge v. Graves, 213 Neb. 847, 332 N.W.2d 49 (1983).

November 4, thus satisfying the 30-day time requirement.
the record further establishes that the other requirements for
appeal to the district court were met. therefore, we conclude
that olmer has met the jurisdictional requirements for filing an
appeal to the district court.
appellate S tandard of review
Next, we must determine what standard of review we apply
for our review of the district court’s decision. as already
noted, olmer has chosen to appeal the board’s decision under
§ 25-1937, which requires that the district court conduct a trial
“de novo upon the issues made up by the pleadings in the dis-
trict court.” section 25-1937 further provides that “[a]ppeals
from the district court to the Court of appeals shall be taken in
the same manner provided by law for appeals from the district
court in civil cases.” this language speaks to the “manner” of
appeal, but does not provide any guidance as to the appropriate
standard of review to be used by an appellate court.
an appeal under § 25-1937 is comparable to the manner in
which appeals have previously been taken to a district court
from a decision of a small claims court. and in those cases, we
have held that when reviewing the decision of a district court
that has conducted a trial de novo upon appeal from a small
claims court, the judgment of the district court has the effect of
a jury verdict and should not be set aside unless clearly wrong.18
the evidence must be considered in the light most favorable to
the successful party, with evidentiary conflicts being resolved
in favor of the successful party, who is entitled to every reason-
able inference that may be drawn from the evidence.19
because of the similarities between that procedure and
an appeal under § 25-1937—in particular, that both cases
involve the district court’s conducting a trial de novo—we con-
clude that a comparable standard of review should be applied.
We know that the procedure for appeals from small claims
18 see, Fuchser v. Jacobson, 205 Neb. 786, 290 N.W.2d 449 (1980); Reese v.
Mayer, 198 Neb. 499, 253 N.W.2d 317 (1977).
19 see Reese v. Mayer, supra note 18.
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862 	275 Nebraska reports
court has recently been changed, but that does not affect our
analysis here.20
[2] We disagree with olmer’s suggestion that our review
of the district court’s decision is de novo on the record, and
to the extent In re Dissolution of School Dist. No. 2221 holds
otherwise, it is disapproved. It is apparent under § 25-1937
that the Legislature intended a trial de novo in the district court
for these types of appeals. Given such circumstances, in deter-
mining our standard of review, we find no reason to deviate
from the same deferential standard of review that we apply to
appeals from the district court in other civil law actions. thus,
we conclude that when a decision regarding a conditional use or
special exception permit is appealed under § 23-114.01(5) and
a trial is held de novo under § 25-1937, the findings of the dis-
trict court shall have the effect of a jury verdict and the court’s
judgment will not be set aside by an appellate court unless the
court’s factual findings are clearly erroneous or the court erred
in its application of the law.
because olmer was entitled to a trial de novo under § 25-1937,
the district court erred in reviewing olmer’s appeal under the
standard of review applicable for error proceedings. the district
court also erred in refusing to consider the new facts and evi-
dence presented by olmer that were not originally in the record
before the board. Given our deferential standard of review and
the fact that we cannot, as a matter of law, determine whether
olmer is entitled to a conditional use permit, we remand this
cause to the district court with directions to hold a trial de novo
under § 25-1937 and to make the necessary findings of fact and
conclusions of law.
We acknowledge, and in fact encourage, that in most instances,
a trial de novo in the district court may be had by way of a
stipulated record, as sensibly occurred in the present case. We
also recognize the potential burden that may be placed on dis-
trict courts, and we do not comment on the wisdom or efficacy
of having a trial de novo on an appeal from a decision of the
20 see 2008 Neb. Laws, L.b. 1014.
21 In re Dissolution of School Dist. No. 22, 216 Neb. 89, 341 N.W.2d 918
(1983).

county board regarding a conditional use or special exception
permit. Nonetheless, we are not at liberty to ignore the clear
mandate of § 23-114.01(5). If more efficient and effective pro-
cedures for review are to be implemented, the Legislature is the
body that must make such a policy determination.
CoNCLUsIoN
For the reasons discussed, we reverse the judgment of the
district court and remand the cause with directions to conduct
a trial de novo under § 25-1937.
reverSed and remanded with directionS.
heavican, C.J., not participating.
IN re appLICatIoN oF oLMer 	863
Cite as 275 Neb. 852