*1 [282] for Kocsis. a mammogram follow-up had ordered
Jurgensen a reflect Also, Dr. by Mattley records kept medical Kocsis’ to be mammogram this stating December 13 notation conducted on that she and affidavit in both her petition
Kocsis claims Dr. on with Mattley Jurgenson that Dr. consulted believes the mammogram concerning after December of their Dr. to inform Kocsis Mattley Jurgensen Dr. requested Dr. Mattley presented the test was negative. conclusion that she what Kocsis’ statements regarding evidence refuting on or after December 15. took believed place most favorable the evidence Viewing light Kocsises, a fact regarding find that exists question read the of December Mattley whether Dr. mammogram of Kocsis’ whether he made diagnosis regarding from the of that breast condition results mammogram. whether acts of alleged negligence determination of is a task the trier of occurred within the limitations period motion for fact and not a determination the court on a by proper summary judgment.
Reversed and remanded FURTHER PROCEEDINGS. not participating. Biddlecome, appellee, K. Marshall v. Jack C. director, Nebraska, State of Vehicles, *2 General, C. Jay Hinsley and Attorney Stenberg, Don Watson, Hervert, & of Nye, Jorgensen David W. Jorgensen, P.C., for appellee.
White, C.J., Wright, Fahrnbruch, Lanphier, Caporale, JJ. White, C.J. Jack C. hearing, an administrative
Following Vehicles, revoked director of the Nebraska Department Biddlecome license of Marshall K. vehicle operator’s the motor under the to Conrad’s for 90 days pursuant statutes, Neb. Rev. Stat. administrative 60-6,208 60-6,205 1993). (As of (Reissue January §§ Road, the 39 of chapter Rules of the the Nebraska Statutes, are now They were renumbered. Revised Nebraska & (Reissue 1993 et seq. Rev. Stat. at Neb. codified convenience, the new we use 1994). For Cum. Supp. the revocation scheme.) appealed Biddlecome numbering Buffalo On County. court for to the district decision 20, 1993, Conrad’s order and court reversed district the from that license. Conrad appeals Biddlecome’s reinstated affirm, issues unrelated to the decision; albeit on grounds for appeal. presented Kearney John Schmitt of the Officer March
On Biddlecome for arrested Police Department influence of alcohol. Biddlecome received notice subsequently of revocation of his license from Conrad through mail, 60-6,205(5)(b). certified in accordance with The crux Biddlecome’s administrative complaint his hearing, court, the Kearney later to district failure of Police serve Biddlecome under personally; officer shall serve notice of arresting revocation on the motorist unless he is unable to do so.
At Biddlecome’s administrative Officer Schmitt hearing, (such testified under cross-examination that no reason physical address) as an actually incorrect rendered him unable to perfect service of Biddlecome’s notice personal of revocation. Biddlecome to the district court argued successfully that Officer Schmitt’s deviation from the administrative license revocation statutes the director’s authority to revoke Biddlecome’s license.
We need not address the district court in findings order dispose The form appeal. by which Officer Schmitt advised Biddlecome of the statutory consequences a chemical test fails to protect Biddlecome’s rights *3 State, 360, under our decision in adequately Smith v. 248 Neb. (1995). That Biddlecome did not raise this error below is of no matter. While Neb. Rev. Stat. § (Cum. 1994) 9D(1)d (rev. and Neb. Ct. R. Supp. 1992) of Prac. that provide consideration of the cause on is limited appeal to errors and discussed assigned by the that parties, same statute and rule this court to note permit any error not plain assigned. Cockle, 88, Cockle v. 204 Neb. (1979). error, Plain error exists where there an is plainly trial, evident from the record but not of at complained which affects a prejudicially substantial of a right litigant and is of such a nature that to leave it uncorrected would cause a or miscarriage justice result to the damage integrity, reputation, fairness of the judicial process. Morse, In re Estate 540 N.W.2d case, In the present inadequacy revocation form advisory constitutes such an error under our holding supra. Smith, an order upheld administrative license vacating pursuant which mandates that § test, a motorist to submit
upon requesting
chemical
an
officer must advise that motorist of the
both of
consequences
to submit to the test and of
refusing
to and
submitting
The
test.
officer in Smith had
police
advised the motorist of
some but not all of these
The officer failed to
consequences.
advise Smith that he would owe a
fee to earn
special
license,
reinstatement of his
the results of the
chemical test
as
evidence in
qualified
competent
a criminal
under the
driving
influence of alcohol
prosecution,
other felony
could result from a test
charges
result
an
disclosing
concentration
illegal
of alcohol. These omissions
revoke an operator’s license insofar as the
motorist was unable to make a rational and informed decision:
“It
is impossible to understand information that
is never
conveyed.” Id. at
In this Officer Schmitt used an advisory form in his arrest of Biddlecome that suffers from the same infirmities. form does advisory not mention the evidentiary consequences 60-6,210. the chemical test enumerated in It further fails to mention the reinstatement fees by 60-6,206(3). It did required not advise Biddlecome whether criminal clearly attach penalties first, second, third, to the and fourth commissions of refusal to test, first, second, third, submit to the chemical rather and fourth commissions of influence of alcohol. The form makes no mention of other charges, including felony which can result from a charges, test an disclosing illegal concentration of alcohol. It does not mention restrictions on a motorist’s to obtain ability employment driving privileges contained in 60-6,206(2). Much like the form we Smith, found defective in the form read to Biddlecome includes such a limited recitation of as consequences to be “not only Smith, but See inadequate 248 Neb. at misleading.” *4 the administrative' enacting amending statutes, made the Legislature advisement of Since the form in consequences mandatory. this case mandate, the director had to conform to that fails to revoke Biddlecome’s license.
Affirmed. dissenting. in my I dissent for the reasons stated dissent Wright JJ., this dissent. join Ford, Inc., corporation,
John Markel a Nebraska appellee. appellant, Company, v. Auto-Owners Insurance