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In re Franke

Supreme Court of Nebraska

March 4, 2016


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Appeal from the County Court for Hall County: ARTHUR S. WETZEL, Judge.

Jordan W. Adam, of Fraser Stryker, P.C., L.L.O., for appellant.

Susan M. Koenig, of Mayer, Burns, Koenig & Janulewicz, for appellee Laurie Berggren.

Robert A. Mooney, of Gross & Welch, P.C., L.L.O., for appellee John Franke.



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[292 Neb. 914] Connolly, J.


This appeal involves a dispute between Genevieve Franke's children regarding the county court's appointment of a conservator for her. Genevieve has since died. Genevieve's daughter, Laurie Berggren, sought the conservatorship after Genevieve agreed to sell her farmland to her son John Franke at a price below its fair market value.

Genevieve appealed from the court's appointment of Cornerstone Bank as her permanent conservator. John also appealed. But before the parties filed briefs, Genevieve's attorney filed a suggestion of death with the Nebraska Court of Appeals stating that Genevieve had died on December 31, 2014.

This appeal presents four issues. First, does Genevieve's attorney have standing to continue representing a deceased client in an appeal without authorization from Genevieve's legal representative? Second, does John have standing to appeal from the county court's appointment of a permanent conservator? [292 Neb. 915] Third, if John does have standing, does Genevieve's death abate his appeal? And fourth, does Genevieve's death abate the cause of action and require this court to vacate the county court's orders appointing a conservator?

We reach the following conclusions:o Genevieve's attorney has no standing to represent her in this court after her death.o Under the Nebraska Probate Code, John had standing to appeal from the county court's appointment of a conservator because he objected to the proceeding and asked for an evidentiary hearing. But his standing on appeal is limited to whether Genevieve was in need of a conservator.o Genevieve's death has abated John's appeal because her competency and need for a conservator are moot issues.o Genevieve's death does not require us to remand the case with directions to the county court to vacate its order. We conclude that an abatement of an appeal in a conservatorship proceeding does not affect the validity of the final judgment or order from which a party or statutorily authorized person has appealed.


Before Genevieve's death in 2014 at the age of 90, she had been a resident of a nursing home since November 2011. The catalyst for this dispute involved Genevieve's agreement to sell her farmland to John in 2013. According to John, in April 2013, he learned that some other farmland near his own property, which he had wanted to buy, would soon be auctioned. He

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asked Laurie if Genevieve had $400,000 to $500,000 to purchase it, and Laurie said Genevieve did not have enough liquid assets to do so. But Laurie, who took care of Genevieve's finances, authorized the bank to release Genevieve's financial information to John. He learned that Genevieve had $580,000 in investments and $780,000 in certificates of deposit. John drove Genevieve out to the property for viewing; he said that she authorized him to purchase it.

[292 Neb. 916] John said that he then met with Genevieve's accountant and attorney. The accountant told him that Genevieve wanted to purchase the land for him. They arranged for the purchase to be an asset of Genevieve's trust and limited the purchase price to $10,000 per acre of cropland. The plan called for John and his wife to make payments to the trust for the property. But for unexplained reasons, John did not purchase the property. He said that the irrigated cropland sold for about $7,500 to $7,800 per acre.

Before the auction, John had learned that under Genevieve's estate plan, at her death, he would have the first option to buy her property at its appraised value. But he said that he could not profitably farm the property if he had to buy it at its fair market value. He said that he was upset he could not buy the auctioned property near his own farm. So after the auction, but before Genevieve's death, he had multiple conversations with her about his purchasing her farmland, an asset of her trust. He said that Genevieve agreed to sell him her farmland and that her neighbor, who was John's close friend and Genevieve's tenant farmer, recommended the purchase price. John proposed to purchase Genevieve's property for about $3,600 to $3,700 per acre. In November 2013, Genevieve's " good quality irrigated" farmland, about 153 acres, was appraised at $1,653,000. The appraiser believed that the property's value in April 2013 would have been about the same.

Genevieve's longtime attorney and accountant were concerned Genevieve did not understand that there were tax consequences to this sale, that the proposed purchase price was well below the property's fair market value, and that the proposed sale was inconsistent with her continually expressed desire to treat her children equally. In June 2013, Laurie petitioned for the appointment of a conservator. John objected and requested an evidentiary hearing. The court appointed Laurie as Genevieve's temporary conservator with the limited duty to prevent the sale of the farm and preserve ...

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