In re Estate of Harley Newman, deceased.
Stewart Newman, appellant. Linda Martens, Personal Representative of the Estate of Harley Newman, deceased, appellee,
Decedents' Estates: Appeal and Error. An
appellate court reviews probate cases for error appearing on
the record made in the county court.
Decedents' Estates: Judgments: Appeal and
Error. When reviewing questions of law in a probate
matter, an appellate court reaches a conclusion independent
of the determination reached by the court below.
Decedents' Estates: Appeal and Error.
The probate court's factual findings have the effect of a
verdict, and an appellate court will not set those findings
aside unless they are clearly erroneous.
Trial: Judges: Words and Phrases. An ex
parte communication occurs when a judge communicates with any
person concerning a pending or impending proceeding without
notice to an adverse party.
Trial: Witnesses: Parties. Neb. Rev. Stat.
§ 24-734(4) (Reissue 2016) only pertains to allowing a
witness to be examined telephonically with the consent of the
parties. It does not address permitting a party to appear and
participate at trial telephonically.
Due Process: Trial: Witnesses: Evidence.
When a person has a right to be heard, procedural due process
includes a reasonable opportunity to refute or defend against
a charge or accusation and a reasonable opportunity to
confront and cross-examine adverse witnesses and present
evidence on the charge or accusation.
Constitutional Law: Prisoners. A prisoner
has no absolute constitutional right to be released from
prison so that the prisoner can be present at a hearing in a
Due Process: Prisoners: Right to Counsel.
Although due process does not require the appointment of
counsel to represent a prisoner in a private civil matter,
due process does require that the prisoner receive [25
Neb.App. 772] meaningful access to the courts to defend
against suits brought against him or her.
Prisoners: Courts: Claims: Damages: Proof.
To establish a violation of the right of meaningful access to
the courts, a prisoner must establish the State has not
provided an opportunity to litigate a claim challenging the
prisoner's sentence or conditions of confinement in a
court of law, which resulted in actual injury.
Constitutional Law: Prisoners: Courts. The
constitutional right to access the courts does not guarantee
inmates the wherewithal to transform themselves into
litigating engines capable of filing everything from
shareholder derivative actions to slip-and-fall claims. The
tools it requires to be provided are those that the inmates
need in order to attack their sentences directly or
collaterally and in order to challenge the conditions of
their confinement. Impairment of any other litigating
capacity is simply one of the incidental and perfectly
constitutional consequences of conviction and incarceration.
Pretrial Procedure: Appeal and Error.
Decisions regarding discovery are directed to the discretion
of the trial court, and will be upheld in the absence of an
abuse of discretion.
Pretrial Procedure: Proof: Appeal and Error.
The party asserting error in a discovery ruling bears the
burden of showing that the ruling was an abuse of discretion.
Appeal and Error. An appellate court is not
obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it.
from the County Court for Douglas County: Craig Q. McDermott,
Stewart Newman, pro se.
Halbur, of Elder Law of Omaha, PC, L.L.O., for appellee.
Pirtle, Bishop, and Arterburn, Judges.
Newman appeals from an "Order for Probate of Will"
entered in the county court for Douglas County wherein the
court found that the last will and testament of Harley [25
Neb.App. 773] Newman, executed February 15, 2016, was a valid
will and should be probated by the personal representative,
Linda Martens. Stewart challenges multiple pretrial matters,
as well as the court's determination that the will was
valid, and the court's failure to allow his ...