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In re Guardianship of Aimee S.

Court of Appeals of Nebraska

October 2, 2018

In re Guardianship of Aimee S., an incapacitated AND PROTECTED PERSON.
SUSANNE DeMPSEY-COOK, SUCCESSOR Guardian, and Kelly Henry Turner, guardian ad litem, appellees. Deborah S. and June Berger, appellants.

         1. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction.

         2. Guardians and Conservators: Appeal and Error. An appellate court reviews guardianship and conservatorship proceedings for error appearing on the record made in the county court.

         3. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the conclusion reached by the lower court.

         4. Judges: Words and Phrases: Appeal and Error. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through the judicial system.

         5. Attorney Fees: Appeal and Error. On appeal, a trial court's decision allowing or disallowing attorney fees for frivolous or bad faith litigation will be upheld in the absence of an abuse of discretion.

         6. __:__. When attorney fees are authorized, the trial court exercises its discretion in setting the amount of the fee, which ruling an appellate court will not disturb on appeal unless the court abused its discretion.

         7. Attorney Fees: Costs. Attorney fees, where recoverable, are generally treated as an element of court costs.

         [26 Neb.App. 381] 8. Judgments: Costs. An award of costs in a judgment is considered a part of the judgment.

         9. Judgments: Attorney Fees. A party seeking statutorily authorized attorney fees, for services rendered in a trial court, must make a request for such fees prior to a judgment in the cause.

         10. Moot Question. A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the outcome of the litigation.

         11. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts 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.

         12. __:__. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.

         13. Summary Judgment: Proof. Once the moving party makes a prima facie case, the burden shifts to the party opposing the motion to produce admissible contradictory evidence showing the existence of a material issue of fact that prevents judgment as a matter of law.

         14. Trial: Waiver: Appeal and Error. A litigant's failure to make a timely objection waives the right to assert prejudicial error on appeal.

         15. Waiver: Appeal and Error. Errors not assigned in an appellant's initial brief are waived and may not be asserted for the first time in a reply brief.

         16. Summary Judgment: Evidence. Conclusions based upon guess, speculation, conjecture, or choice of possibilities do not create material issues of fact for the purposes of summary judgment; the evidence must be sufficient to support an inference in the nonmovant's favor without the fact finder engaging in guesswork.

         17. Trial: Expert Witnesses. It is within the trial court's discretion to determine whether there is sufficient foundation for an expert witness to give his or her opinion about an issue in question.

         18. Expert Witnesses. Expert testimony should not be received if it appears that the witness is not in possession of such facts as will enable the expert to express a reasonably accurate conclusion, and where the opinion is based on facts shown not to be true, the opinion lacks probative value.

         19. Trial: Expert Witnesses: Appeal and Error. A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion.

         [26 Neb.App. 382] 20. Appeal and Error. An issue not presented to or decided by the trial court is not appropriate for consideration on appeal.

         21. __ . Generally, a party cannot complain of error which the party has invited the court to commit.

         22. Actions: Attorney Fees: Words and Phrases. A frivolous action is one in which a litigant asserts a legal position wholly without merit; that is, the position is without rational argument based on law and evidence to support the litigant's position. The term "frivolous" connotes an improper motive or legal position so wholly without merit as to be ridiculous.

         23. Attorney Fees: Appeal and Error. On appeal, a trial court's decision allowing or disallowing attorney fees for frivolous or bad faith litigation will be upheld in the absence of an abuse of discretion.

          Appeal from the County Court for Douglas County: Susan M. Bazis and Stephanie S. Shearer, Judges. Affirmed.

          Brent M. Kuhn, of Brent Kuhn Law, for appellants. Barbara J. Prince for appellee Susanne Dempsey-Cook.

          John M. Walker and Cathy S. Trent-Vilim, of Lamson, Dugan & Murray, L.L.P., for appellee Kelly Henry Turner.

          Pirtle, Riedmann, and Bishop, Judges.

          Pirtle, Judge.


         Deborah S. is the mother of Aimee S., an incapacitated adult. In December 2013, Deborah and June Berger (June), her friend, (collectively appellants) filed a petition for removal of a court-appointed guardian and appointment of themselves as successor coguardians and coconservators. Summary judgment was granted against appellants in June 2015. In December 2016, it was determined that the application to remove the court-appointed guardian and conservator was frivolous and that Deborah should be ordered to pay attorney fees and expenses in the amount of $75, 906.20. For the reasons that follow, we affirm.

         [26 Neb.App. 383] II. BACKGROUND

         Aimee was declared incapacitated at the age of 23. Deborah was appointed as the temporary legal guardian of Aimee on November 14, 2001, and permanent legal guardian on lanuary 23, 2002.

         In 2011, the Department of Health and Human Services became involved after being contacted by the police. The police had been called when Aimee was overheard screaming in her apartment. Upon her admission to a local hospital, Aimee was psychotic, disoriented, and malnourished and her personal hygiene was "badly neglected." The hospital staff contacted Adult Protective Services, expressing concern regarding Aimee's condition.

         According to Deborah, Aimee's condition in lanuary 2011 was generally the same for the 2 years prior to her hospitalization. Deborah did not recall Aimee's showering in the 2 years prior to her hospitalization in 2011. Deborah acted as Aimee's guardian at that time and visited with Aimee frequently, but took no responsibility for Aimee's condition. Deborah recalled that Aimee had seen her mental health provider approximately twice during the same 2-year period and that Aimee had skipped therapy appointments because she refused to leave her apartment.

         A petition was filed by Adult Protective Services in 2011, alleging that Deborah failed to perform her duties as guardian, that she was not able to make appropriate decisions for Aimee's medical needs and treatment, and that it was in Aimee's best interests that a successor guardian be appointed. Deborah filed an answer denying the allegations against her, but she agreed to step down, requesting that lune be appointed as successor guardian. Deborah was removed as guardian, and Sally Hytrek was appointed as the successor guardian.

         On December 27, 2013, appellants filed a motion to be appointed coguardians and coconservators for Aimee and to have Hytrek removed as the court-appointed guardian and [26 Neb.App. 384] conservator for Aimee. The petition set forth nine reasons why Hytrek should no longer be the guardian.

         On May 30, 2014, Hytrek resigned as successor guardian, because the "constant demands, allegations and interference" by appellants made it impossible for her to carry out her fiduciary duties to Aimee and to the other individuals she served as guardian and/or conservator. On June 10, the county court overruled appellants' motion to appoint a substitute guardian. On or about June 12, the court accepted Hytrek's resignation and appointed Susanne Dempsey-Cook as temporary successor guardian. Appellants did not amend their petition, and Deborah continued to seek removal of the court-appointed guardian. At a later hearing, Deborah stated that the goal of her "petition to remove the state guardians was to have myself and June ... be appointed as co-guardians." She stated that "in order for June and I to be co-guardians, yes, whoever was in there would have to be removed." Deborah conceded that when Dempsey-Cook was Aimee's guardian, Aimee's needs were being met-Aimee had a place to live, food to eat, clothing, shoes, and access to medical and mental health care providers.

         On January 2, 2015, Aimee's guardian ad litem (GAL), Kelly Henry Turner, filed a motion for summary judgment, arguing there was no genuine issue as to any material fact with regard to whether it was in Aimee's best interests for Deborah to be reappointed as Aimee's guardian. In support of her motion, Turner asserted she would offer the evidence previously offered at the hearing on November 7, 2014, regarding appellants' motion to remove restrictions and appellants' motion to quash the psychological evaluation of Deborah, specifically the affidavits of Robert Troyer, Aimee's psychotherapist; the social services director for Sunrise Country Manor (Sunrise), where Aimee resides; and the administrator for Sunrise. Turner asserted she would also offer the evidence previously offered in support of her motion for a "Rule 6-335" psychological evaluation and other relief, dated October 31, 2014, specifically: the GAL report filed August 18; the GAL [26 Neb.App. 385] report dated May 2, 2011; the clinical notes report filed on February 22; the affidavit of Deborah filed on May 5; and the petition of the Department of Health and Human Services to remove Deborah as guardian filed on October 6. A hearing was held on the matter on February 3, 2015, and the matter was taken under advisement.

         On February 27, 2015, the motion for summary judgment was denied because Deborah had been ordered to complete a psychological evaluation to determine her fitness to serve as guardian, and the evaluation had not yet been completed. The court wrote that once Deborah "obtains her psychological evaluation it should address whether [she] is capable of carrying out the duties of being Aimee's Guardian and Conservator. Until the evaluation is completed and the results known there are genuine issues of material facts in this case."

         On May 4, 2015, Turner and Dempsey-Cook (collectively appellees) filed a joint motion for summary judgment and requested attorney fees. Appellees moved for summary judgment "for the reason that the pleadings, evidence and affidavits disclose that there is no genuine issue as to any material fact as to whether it is in [Aimee's] best interest for Deborah ... to be reappointed as Aimee's guardian." Appellees asserted they would support their motion with the same evidence identified in Turner's first motion for summary judgment. The motion sought an order finding it was not in Aimee's best interests for Deborah to be the guardian and conservator, and also sought a finding that the legal proceedings brought by Deborah were frivolous.

         A hearing on the motion was held on May 28, 2015. In support of her motion, Turner offered into evidence exhibits 2 through 4, 6, 9, 14, and 15. In opposition to the motion, appellants offered exhibit 16.

         Turner offered the affidavit of the administrator for Sunrise, who characterized the relationship between Aimee and Deborah as "co-dependen[t]" and commented that this codependent relationship "stifle[d] Aimee's ability and desire" to improve. [26 Neb.App. 386] The administrator stated that Deborah often brought prohibited items into the facility, discouraged Aimee from using items provided by Sunrise, and performed activities for Aimee that Aimee should do for herself. Deborah ignored requests from the staff and conducted herself in ways that fed into Aimee's obsessive behaviors.

         Turner offered the affidavit of the social services director for Sunrise, who described how differently and independently Aimee acted approximately 11 days after Aimee's contact with Deborah had terminated. The social services director stated her opinion that it was in Aimee's best interests to discontinue contact with Deborah.

         Turner offered the affidavit and psychological evaluation of Deborah conducted by Stephanie Peterson on February 13, 2015. Peterson noted that Deborah's ability to serve again as Aimee's guardian "will depend upon her ability to trust and work cooperatively with others capable of clear-eyed assessment of Aimee's needs, abilities and behaviors.'' Peterson opined that Deborah was not competent to serve as Aimee's legal guardian. Peterson suggested that Deborah "may gain competency" by working with Aimee's current guardian, caregivers, ...

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