Nothnagel v. Neth

as a matter of law by the failure to give notice. There is no gen-
uine issue of material fact with regard to prejudice to Le mars
in this matter.
CONCLUSION
We conclude that the pleadings and evidence in this case
establish that the Steffensmeiers failed to give reasonable notice
of the suit against Graham as required by the policy and that
Le mars was prejudiced by such failure. There was no genuine
issue of material fact with respect to either matter. Le mars was
entitled to judgment as a matter of law. We therefore affirm the
district court’s order granting summary judgment in favor of
Le mars and dismissing the complaint.
affiRmed .
mccoRmack , J., participating on briefs.
elizabeth a. nothnaGel , appellee , v . beveRly neth , diRectoR,
state of nebRaska , depaRtment of motoR vehicles , and
depaRtment of motoR vehicles , appellants .
752 N.W.2d 149
Filed July 11, 2008. 	No. S-07-551.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record. When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable.
2. Judgments: Appeal and Error. Whether a decision conforms to law is by defini-
tion a question of law, in connection with which an appellate court reaches a con-
clusion independent of that reached by the lower court.
3. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation: Police
Officers and Sheriffs. The arresting officer’s sworn report triggers the administra-
tive license revocation process by establishing a prima facie basis for revocation.
4. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation: Police
Officers and Sheriffs: Blood, Breath, and Urine Tests. In an administrative
license revocation proceeding, the sworn report of the arresting officer must indi-
cate (1) that the person was arrested as described in Neb. Rev. Stat. § 60-6,197(2)
(Reissue 2004) and the reasons for the arrest, (2) that the person was requested
NOThNAGEL v. NETh 	95
Cite as 276 Neb. 95
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

to submit to the required test, and (3) that the person refused to submit to the
required test.
5. Administrative Law: Appeal and Error. When a petition for review of an admin-
istrative decision is presented to the district court, review shall be conducted by the
court without a jury de novo on the record of the agency.
6. ____: ____. In a review for sufficiency of the evidence, an appellate court does not
make its own factual findings, but in a true de novo review, the court uses assign-
ments of error as a guide to the factual issues in dispute, but makes independent
factual determinations based on the record.
Appeal from the District Court for Red Willow County: david
uRbom, Judge. Reversed and remanded with directions.
Jon Bruning, Attorney General, and Andee G. Penn for
appellants.
G. Peter Burger, of Burger & Bennett, P.C., for appellee.
heavican, 	C.J., 	wRiGht, 	connolly, 	G eRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
wRiGht, J.
NATURE OF CASE
The director of the Department of motor Vehicles (Director)
appeals from a decision of the Red Willow County District
Court. The court reversed the decision of the Director to revoke
the driver’s license of Elizabeth A. Nothnagel for 1 year pursu-
ant to Neb. Rev. Stat. § 60-498.02 (Reissue 2004).
SCOPE OF REVIEW
[1] A judgment or final order rendered by a district court in
a judicial review pursuant to the Administrative Procedure Act
may be reversed, vacated, or modified by an appellate court
for errors appearing on the record. When reviewing an order
of a district court under the Administrative Procedure Act for
errors appearing on the record, the inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable. Snyder
v. Department of Motor Vehicles, 274 Neb. 168, 736 N.W.2d
731 (2007).
[2] Whether a decision conforms to law is by definition a
question of law, in connection with which an appellate court
96 	276 NEBRASkA REPORTS

reaches a conclusion independent of that reached by the lower
court. Robbins v. Neth, 273 Neb. 115, 728 N.W.2d 109 (2007).
FACTS
Nothnagel was stopped by Trooper Theodore Gans, an officer
of the Nebraska State Patrol, in Red Willow County after Gans
received several reports of a car being driven erratically. Gans
observed the vehicle as it struck a curb. When the vehicle was
stopped, the right front tire was off the rim and the right rear
tire was flat.
Upon making contact with Nothnagel, Gans noted an odor of
alcoholic beverage coming from the vehicle and from Nothnagel’s
breath. In addition, her speech was slurred and her eyes were red
and bloodshot. Gans asked Nothnagel to exit her vehicle to per-
form a field sobriety test. When Gans asked Nothnagel to follow
him to the rear of her vehicle, she fell to the pavement, striking
her face.
Gans then asked Nothnagel to submit to a preliminary breath
test, but she verbally refused. Gans placed Nothnagel under
arrest and transported her to a local hospital for examination as
to her well-being and to perform a chemical test. At the hospital,
Nothnagel refused to submit to a chemical test.
Gans read a verbal notice of revocation to Nothnagel, com-
pleted a “Notice/Sworn Report/Temporary License,” and signed
it in the presence of a notary. At a hearing held pursuant to the
administrative license revocation (ALR) procedures, the sworn
report was received into evidence over Nothnagel’s objection.
She moved to dismiss the proceeding on the ground that there
was no evidence that she was requested by an officer to submit
to a chemical test. She argued that the officer merely testified
that he transported her to the hospital for the purpose of giv-
ing a test. She also argued there was no competent evidence
that she was advised of the consequences of refusing a chemi-
cal test.
The hearing officer noted that admission of the arresting offi-
cer’s sworn report is prima facie evidence for the Director’s order
of revocation. The hearing officer concluded that Nothnagel had
not met her burden of proof to show there was (1) no evidence
that the arresting officer requested a formal chemical test and
NOThNAGEL v. NETh 	97
Cite as 276 Neb. 95

(2) no evidence that the officer advised her of the consequences
of refusing to submit to the test. The hearing officer stated that
absent proof to the contrary, the statements in the sworn report
were considered definitive.
The hearing officer recommended the Director find that the
arresting officer had probable cause to believe Nothnagel was
operating a motor vehicle while under the influence and while
having a blood alcohol content in violation of Neb. Rev. Stat.
§ 60-6,196 (Reissue 2004). The hearing officer proposed that
Nothnagel’s license be revoked for the statutory period. The
Director adopted the hearing officer’s recommendations and
ordered revocation of Nothnagel’s driver’s license for 1 year.
Upon a petition for review filed by Nothnagel, the Red
Willow County District Court entered an order finding that the
evidence did not support the hearing officer’s determination that
Nothnagel “refused to allow the blood draw” and that there was
no evidence to establish that Nothnagel refused to submit to a
chemical test of her blood, breath, or urine upon the direction
of a peace officer. The court noted that at the ALR hearing, the
arresting officer testified that he transported Nothnagel to the
hospital for examination and to perform a chemical test. When
asked if Nothnagel had submitted to a chemical test, the officer
responded, “No, she did not.”
The district court also found the record devoid of evidence that
any chemical test was performed. The court implied the hearing
officer was incorrect in determining that Nothnagel had a blood
alcohol content in violation of the statute, when no chemical
test was performed. Before the court, the Director acknowledged
that the hearing officer “misstated her order.” The court noted
that the Director assigned the misstatement to a “‘cut-and-paste
error’” and asked the court to find that the hearing officer’s
findings and recommendations were a “‘scrivener[’s] error.’”
The court concluded that the order of revocation was based
upon findings and conclusions not supported by the evidence
or the law and that the revocation order should be reversed. It
dismissed the revocation proceedings.
The Director reinstated Nothnagel’s operating privileges and
filed a notice of appeal.
98 	276 NEBRASkA REPORTS

ASSIGNmENTS OF ERROR
On appeal, the Director assigns two errors: The district court
erred (1) in finding that the record of the ALR hearing contained
no evidence that Nothnagel refused to submit to a chemical test
as requested and (2) in failing to make independent findings of
fact following a de novo review of the record of the ALR hear-
ing and to determine whether revocation of Nothnagel’s driver’s
license pursuant to Neb. Rev. Stat. § 60-498.01(2) (Reissue
2004) was supported by the court’s independent findings.
ANALYSIS
The Director first argues that the district court erred in failing
to find evidence that Nothnagel refused to submit to a chemi-
cal test when requested to do so by the arresting officer. The
issue, therefore, is whether there was sufficient evidence that
Nothnagel refused to submit to a chemical test.
[3,4] The arresting officer’s sworn report triggers the ALR
process by establishing a prima facie basis for revocation.
Snyder v. Department of Motor Vehicles, 274 Neb. 168, 736
N.W.2d 731 (2007). In an ALR proceeding, the sworn report
of the arresting officer must indicate (1) that the person was
arrested as described in Neb. Rev. Stat. § 60-6,197(2) (Reissue
2004) and the reasons for the arrest, (2) that the person was
requested to submit to the required test, and (3) that the person
refused to submit to the required test. § 60-498.01(2). See, also,
Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728
N.W.2d 570 (2007).
The sworn report here indicates that Nothnagel was arrested
pursuant to § 60-6,197 after a report of reckless driving. The
officer found the vehicle “driving on rims” and observed it strike
a curb. Nothnagel could not perform field sobriety tests and
“fell on her face.” The officer detected alcohol on Nothnagel’s
breath and found an open container. The officer also noted that
Nothnagel refused a preliminary breath test. he checked the
box on the sworn report indicating that Nothnagel refused to
submit to a chemical test, and she was read the verbal notice
of revocation.
The sworn report was received into evidence at the ALR hear-
ing. It satisfies the requirements of § 60-498.01 and provides a
NOThNAGEL v. NETh 	99
Cite as 276 Neb. 95

prima facie basis for revocation. The district court erred when it
concluded there was no evidence that Nothnagel refused to sub-
mit to a chemical test. The sworn report is prima facie evidence
that Nothnagel refused to submit to a chemical test.
The Director claims that the district court also erred in
failing to make independent findings of fact following a de
novo review of the record of the ALR hearing and failing to
determine whether revocation of Nothnagel’s driver’s license
pursuant to § 60-498.01(2) was supported by the court’s inde-
pendent findings.
For some reason, the hearing officer’s recommendations did
not address the issue whether Nothnagel refused to submit to
a chemical test. The Director adopted the erroneous finding by
the hearing officer that Nothnagel was operating a vehicle while
having an alcohol concentration in violation of § 60-6,196(1).
The record supports a finding that Nothnagel refused a chemi-
cal test, but obviously, it does not support a finding that
Nothnagel was driving while over the legal limit, in violation
of § 60-6,196(1). In the district court, the Director claimed the
error by the hearing officer was a result of cutting and pasting
the document.
[5,6] When a petition for review of an administrative decision
is presented to the district court, review shall be conducted by
the court without a jury de novo on the record of the agency.
See Neb. Rev. Stat. § 84-917(5)(a) (Cum. Supp. 2006). See, also,
Betterman v. Department of Motor Vehicles, supra. “In a review
for sufficiency of the evidence, an appellate court does not make
its own factual findings, but in a true ‘de novo’ review, the court
uses assignments of error as a guide to the factual issues in dis-
pute, but makes independent factual determinations based on the
record.” Nebraska Liq. Distrib. v. Nebraska Liq. Cont. Comm.,
269 Neb. 401, 408, 693 N.W.2d 539, 546 (2005).
The district court reviewed the bill of exceptions from the
administrative hearing and the transcript of the ALR proceed-
ings. It concluded the evidence did not support a finding that
Nothnagel refused to submit to a test. The court recognized the
Director’s claim that the hearing officer misstated the recom-
mendation and that the error was caused by cutting and pasting.
It found that the order of revocation was based on findings and
100 	276 NEBRASkA REPORTS

conclusions not supported by evidence, and it reversed the order
of revocation.
In appellate review of the district court’s order, we do not
focus on the findings of the hearing officer. Instead, we review
the order of the district court for errors appearing on the record.
We consider whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable. See Snyder v. Department of Motor
Vehicles, 274 Neb. 168, 736 N.W.2d 731 (2007). Whether a
decision conforms to law is by definition a question of law, in
connection with which an appellate court reaches a conclusion
independent of that reached by the lower court. Robbins v. Neth,
273 Neb. 115, 728 N.W.2d 109 (2007).
We infer from the district court’s order that it refused to
accept the Director’s assertion that the hearing officer’s recom-
mendation was a typographical error made by cutting and past-
ing from other documents. In conducting its de novo review,
the district court should have made independent findings of fact
without relying on the recommendations of the hearing officer.
The court’s review of the evidence should have included the
sworn report, which was received into evidence and which satis-
fied the requirements of § 60-498.01.
On a question of law, we must reach a conclusion indepen-
dent of the lower court’s decision. The sworn report of the offi-
cer established a prima facie case for license revocation because
it contained the statutorily required recitations. See Betterman v.
Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570
(2007). The sworn report indicated that Nothnagel was arrested
and the reasons for the arrest. It indicated that Nothnagel refused
to submit to a chemical test. The report was signed and sworn
in front of a notary.
Upon the showing of a prima facie case for license revoca-
tion, the Director is not required to prove the recitations in the
sworn report are true. Hahn v. Neth, 270 Neb. 164, 699 N.W.2d
32 (2005). Instead, the burden is passed to the motorist to prove
that one or more of the recitations in the sworn report are false.
Id. Nothnagel did not present evidence to rebut the sworn report,
nor did she prove that the recitations in the sworn report were
false. Thus, the only conclusion that can be reached after a
NOThNAGEL v. NETh 	101
Cite as 276 Neb. 95

de novo review of the record before the agency is that Nothnagel
refused to submit to a chemical test and that her license should
be revoked pursuant to § 60-498.01. It was error for the district
court to find that the evidence did not support the order of revo-
cation. The court’s dismissal of the revocation proceeding must
be reversed.
CONCLUSION
The judgment of the district court dismissing the revocation
proceeding is reversed, and the cause is remanded to the district
court with directions to reinstate the decision of the Director
to revoke Nothnagel’s driver’s license for the period of time
remaining on the revocation.
R eveRsed and Remanded with diRections .
todd thRoweR, appellant , v . J eRemy anson and the
pRoGRessive coRpoRation , an ohio coRpoRation
doinG business as pRoGRessive noRtheRn
insuRance company , appellees .
752 N.W.2d 555
Filed July 11, 2008. 	No. S-07-566.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Contracts. The construction of a contract is a question of law.
4. Statutes. Statutory interpretation presents a question of law.
5. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
6. Contracts: Compromise and Settlement. A settlement agreement is subject to the
general principles of contract law.
7. Contracts: Words and Phrases. A contract is ambiguous when a word, phrase,
or provision in the contract has, or is susceptible of, at least two reasonable but
conflicting interpretations or meanings.
102 	276 NEBRASkA REPORTS