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In re Guardianship & Conservatorship of Herrick

Court of Appeals of Nebraska

April 29, 2014


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Appeal fro the County Court for Dawson County: CARLTON E. CLARK, Judge.

Kent A. Schroeder, of Ross, Schroeder & George, L.L.C., for appellant.

Nathan T. Bruner, of Greenwall, Bruner & Frank, L.L.C., for appellee.



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[21 Neb.App. 972] Inbody, Chief Judge.   


This appeal was filed by Todd A. Herrick (Todd), the proposed successor conservator of Thomas L. Herrick (Herrick), alleging that the Dawson County Court erred in certain determinations regarding the challenge of the inventory of Herrick's estate filed by the original conservator, Tina M. Paulsen.


Herrick is the protected person in this case. Todd is Herrick's son, and Paulsen is Herrick's daughter. In September 2010, [21 Neb.App. 973] Herrick suffered a stroke resulting in his incapacity. Paulsen was appointed as the original conservator, and Todd was appointed as the original guardian.

On June 6, 2011, Paulsen filed an " Accounting of the Protected Party's Assets and Liabilities" in which she listed a 2007

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Hummer H3 owned by Herrick as an asset valued at $16,700. On June 7, the county court sustained Paulsen's motion to sell Herrick's assets, personal property, and real estate. Paulsen and her husband, William Paulsen, traveled to Herrick's home in Lexington, Nebraska, to pick up Herrick's Hummer and return it to their home in Aberdeen, South Dakota. When Paulsen retrieved the Hummer, it was locked in Herrick's garage and had a " shorted out" battery. Paulsen and William replaced the battery in the Hummer before returning to South Dakota. The Hummer was smoking when they picked it up and continued smoking, and the engine ran sluggishly during the trip back to South Dakota. After arriving in South Dakota, William drained the oil from the Hummer's engine and found that the oil was sludge and had clumps in it.

Shortly thereafter, Paulsen took the Hummer, which had not been driven since being brought to South Dakota, to a local Aberdeen automobile repair shop owned by Brad Brake. Brake inspected the Hummer and provided Paulsen with an estimate for the cost of repairing the Hummer. Brake indicated that the " [e]ngine light was on" and that the Hummer was " [using] oil and smoking" and needed " lots of [e]ngine work." Brake estimated the cost for repair at " about" $4,900. Paulsen testified that she checked the "" and Kelley Blue Book Web sites between May 1 and July 1, 2011, and determined that the value of the Hummer was between $9,000 and $12,000. On July 1, Paulsen sold the Hummer to Brake for $4,200, which price reflected a $4,900 discount for the cost of necessary repairs. At the time of the sale to Brake, the Hummer had 58,307 miles and had been driven less than 2,000 miles from the time it was originally purchased by Herrick in March 2010.

In February 2012, Paulsen filed an accounting of Herrick's assets and liabilities. On February 15, Todd, in his capacity [21 Neb.App. 974] as the original guardian, filed an application for complete accounting, surcharge, and indemnification, alleging that the accounting filed by Paulsen was insufficient and that Paulsen sold the Hummer for substantially less than its fair market value. Todd requested in the application that Paulsen be surcharged or required to indemnify Herrick's estate. Paulsen filed an updated inventory/annual accounting on April 4, which did not list the Hummer as an asset and to which Todd objected. A hearing was held on April 9, which was continued on June 25. The issues raised by Todd on appeal center around the sale of the Hummer. Consequently, we focus our factual synopsis around that testimony and evidence concerning the Hummer.

The evidence established that on March 2, 2010, Herrick purchased a used Hummer with 56,870 miles for $18,400 from Plum Creek Motors in Lexington. The office manager at Plum Creek Motors testified that although used vehicles are sold " 'as is,'" if the vehicle has a manufacturer's warranty, the warranty transfers to the subsequent owner of the vehicle.

The Hummer that Herrick purchased had a " five-year or 100,000 mile factory power train warranty" that transferred to Herrick upon his purchase of the Hummer. The warranty " would cover the engine, transmission, drive train, [and] the four-wheel drive system." The beginning of warranty coverage is determined by the " in-service date" of the vehicle. The " in-service" date, and start of the warranty coverage, applicable to Herrick's Hummer was January 12, 2007. Thus, according to the office manager, if something had been wrong with the ...

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