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Bayliss v. Clason

Court of Appeals of Nebraska

August 14, 2018

Susan J. Bayliss, Personal Representative of the Estate of Ruth E. Clason, deceased, appellee,
v.
Steven E. Clason, Personal Representative of the Estate of F.W. Eugene Clason, deceased, appellant, and David W. Pederson, Special Fiduciary of the Clason Living Trust Dated March 31, 2008, and Any Amendments Thereto, et al., appellees.

         1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court 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. Judgments: Pleadings: Appeal and Error. A motion to alter or amend a judgment is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.

         4. Judgments: Words and Phrases. A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result.

         5. Jurisdiction: Parties: Waiver. The absence of an indispensable party to a controversy deprives the court of subject matter jurisdiction to determine the controversy and cannot be waived.

         6. Jurisdiction: Appeal and Error. When a lower court lacks the power, that is, the subject matter jurisdiction, to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to [26 Neb.App. 196] determine the merits of the claim, issue, or question presented to the lower court.

         7. Parties: Equity: Appeal and Error. When it appears that all indispensable parties to a proper and complete determination of an equity cause were not before the district court, an appellate court will remand the cause for the purpose of having such parties brought in.

         8. Declaratory Judgments. An action for declaratory judgment is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute.

         9. Parties: Words and Phrases. Necessary parties are parties who have an interest in the controversy, and should ordinarily be joined unless their interests are separable so that the court can, without injustice, proceed in their absence.

         10. Declaratory Judgments: Courts: Jurisdiction: Parties: Waiver. The presence of necessary parties in declaratory judgment actions is jurisdictional and cannot be waived, and if such persons are not made parties, then the district court has no jurisdiction to determine the controversy.

         11. Parties: Words and Phrases. An indispensable party to a suit is one whose interest in the subject matter of the controversy is such that the controversy cannot be finally adjudicated without affecting the indispensable party's interest, or which is such that not to address the interest of the indispensable party would leave the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.

         12. Jurisdiction: Service of Process: Waiver. Participation in the proceedings on any issue other than the defenses of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process, waives all such issues except as to the objection that the party is not amenable to process issued by a court of this state.

         13. Service of Process: Waiver. A general appearance waives any defects in the process or notice, the steps preliminary to its issuance, or in the service or return thereof.

         14. Jurisdiction: Pleadings: Parties. A party will be deemed to have appeared generally if, by motion or other form of application to the court, he or she seeks to bring its powers into action on any matter other than the question of jurisdiction over that party.

         15. 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.

         [26 Neb.App. 197] 16. Summary Judgment: Proof. A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that it is entitled to judgment as a matter of law. If the movant meets this burden, then the nonmovant must show the existence of a material issue of fact that prevents judgment as a matter of law.

         17. Summary Judgment: Evidence. When the parties' evidence would support reasonable, contrary inferences on the issue for which a movant seeks summary judgment, it is an inappropriate remedy.

         18. Trial: Evidence. Where reasonable minds could draw different conclusions from the facts presented, such presents a triable issue of material fact.

         19. Deeds: Proof. It is essential to the validity of a deed that there be a delivery, and the burden of proof rests upon the party asserting delivery to establish it by a preponderance of the evidence.

         20. Deeds: Intent. To constitute a valid delivery of a deed, there must be an intent on the part of the grantor that the deed shall operate as a muniment of title to take effect presently.

         21. Deeds. The essential fact to render delivery effective is always that the deed itself has left the control of the grantor, who has reserved no right to recall it, and it has passed to the grantee.

         22. Deeds: Intent. Whether a deed or other instrument conveying an interest in property has been delivered is largely a question of intent to be determined by the facts and circumstances of the particular case.

         23. Deeds. Recordation of a deed generally presumes delivery.

         24. Deeds: Intent. Whether or not a deed has been delivered is a mixed question of law and fact. The element which controls the resolution of that question is the intention of the parties, especially the intention of the grantor. The vital inquiry is whether the grantor intended a complete transfer-whether the grantor parted with dominion over the instrument with the intention of relinquishing all dominion over it and of making it presently operative as a conveyance of the title to the land.

         25. ___:___. It is not necessary, to effectuate delivery, that a deed actually be handed over to the grantee or to another person for the grantee. There may be a delivery notwithstanding that the deed remains in the custody of the grantor. If a valid delivery takes place, it is not rendered ineffectual by the act of the grantee in giving the deed into the custody of the grantor for safekeeping. It is all a question of the intention of the parties, which may be manifested by words or acts or both.

         26. ___:___. If a deed, although acknowledged, is not recorded and is in the grantor's possession at the time of his death, those circumstances, [26 Neb.App. 198] unless explained, are deemed conclusive that the parties did not intend a complete transfer.

         27. Deeds: Presumptions. There is a presumption of nondelivery if the evidence shows that a deed was in the grantor's possession at the time of his death and was not then recorded. Such a showing places upon the grantees the burden of going forward with the evidence, more accurately, the burden of persuasion, to rebut the presumption of nondelivery.

         28. Deeds: Intent: Proof. The burden of proof rests upon the party asserting delivery to establish it by a preponderance of the evidence, and to constitute a valid delivery of a deed there must be an intent on the part of the grantor that the deed shall operate as evidence of title to take effect presently.

         29. Deeds: Presumptions: Proof. When a deed is found in the grantee's possession during the lifetime of the grantor, this is prima facie evidence of delivery, and the burden of proof is upon the one who disputes this presumption.

         30. Deeds. Where the same individual is both a deed's grantor and its sole grantee, no justifiable inference regarding the effectiveness of delivery may be drawn merely from that individual's continuous possession and control of the deed.

         31. Trusts: Intent. When there are two or more instruments relating to a trust, they should be construed together to carry out the settlor's intent.

         32. 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.

         33. Summary Judgment. At the summary judgment stage, the trial court determines whether the parties are disputing a material issue of fact. It does not resolve the factual issues.

         34. Summary Judgment: Motions for New Trial. A motion for new trial following the entry of summary judgment is not a proper motion.

         35. Pleadings: Judgments: Appeal and Error. An appellate court reviews a postjudgment motion based on the relief it seeks, rather than its title.

         36. Pleadings: Judgments. Under Neb. Rev. Stat. § 25-1329 (Reissue 2016), if a postjudgment motion seeks a substantive alteration of the judgment-as opposed to the correction of clerical errors or relief wholly collateral to the judgment-a court may treat the motion as one to alter or amend the judgment.

         37. Pleadings: Judgments: Time. In order to qualify for treatment as a motion to alter or amend a judgment, the motion must be filed no later than 10 days after the entry of judgment, as required under Neb. Rev. Stat. ยง 25-1329 ...


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