In re Estate of Hilda M. Graham, deceased.
Gregory g. Graham, appellee. Merle Gallagher and Linda Clarke. appellants,
Decedents' Estates: Appeal and Error.
Appeals of matters arising under the Nebraska Probate Code
are reviewed for error on the record.
Judgments: Appeal and Error. When reviewing
a judgment for errors appearing on the record, an appellate
court's inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
Decedents' Estates: Attorney Fees.
Ordinarily, the fixing of reasonable compensation, fees, and
expenses, pursuant to Neb. Rev. Stat. § 30-2480 (Reissue
2016), governing compensation of personal representatives;
Neb. Rev. Stat. § 30-2481 (Reissue 2016), governing
expenses in estate litigation; and Neb. Rev. Stat. §
30-2482 (Reissue 2016), governing compensation of personal
representatives and employees of the estate, is within the
sound discretion of the county court.
Attorney Fees: Appeal and Error. When an
attorney fee is authorized, the amount of the fee is
addressed to the trial court's discretion, and its ruling
will not be disturbed on appeal absent an abuse of
Pretrial Procedure: Appeal and Error.
Determination of an appropriate sanction for failure to
comply with a proper discovery order initially rests with the
discretion of the trial court, and its rulings on appropriate
sanctions will not be disturbed on appeal absent a showing of
an abuse of that discretion.
Rules of the Supreme Court: Appeal and
Error. The cross-appeal section of an appellate
brief must set forth a separate title page, a table of
contents, a statement of the case, assigned errors,
propositions of law, and a statement of the facts.
Neb. 595] 7. ___: ___. When a brief of an appellee fails to
present a proper cross-appeal pursuant to Neb. Ct. R. App. P.
§ 2-109 (rev. 2014), an appellate court declines to
consider its merits.
Appeal and Error. Absent plain error, an
appellate court considers only an appellant's claimed
errors that the appellant specifically assigns in a separate
"assignment of error" section of the brief and
correspondingly argues in the argument section.
Decedents' Estates: Executors and Administrators:
Courts: Jurisdiction. A probate court's
jurisdiction and authority continue until an executor or
administrator has fully complied with all its judgments,
orders, and decrees and the estate has been placed in the
possession of whom it devolves.
Decedents' Estates: Courts:
Jurisdiction. Pursuant to Neb. Rev. Stat. §
30-2473 (Reissue 2016), county courts in ongoing probate
proceedings have jurisdiction over surcharge motions brought
against former personal representatives to recover losses to
the decedent's estate arising from an alleged breach of
Decedents' Estates: Executors and Administrators:
Damages: Proof. A beneficiary or designee seeking a
surcharge against the personal representative for conversion,
damage, or loss of estate property has the burden of proving
that (1) a fiduciary duty was breached, (2) the breach of the
fiduciary duty caused the losses alleged, and (3) the extent
of those damages.
from the County Court for Douglas County: Thomas K. Harmon,
Kaiman and Edward W. Hasenjager for appellants.
Denenberg for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
designees of the decedent's estate appeal the county
court's determination that the evidence was insufficient
to prove damages for the conversion of estate property
purportedly caused by the personal representative who was
removed [301 Neb. 596] for breaches of fiduciary duties. They
also assert that the personal representative should have been
surcharged for the attorney fees and successor personal
representative fees because of his breaches of fiduciary
duties and alleged frivolous defense to his removal. We
of Personal Representative and Personal Property Damages
G. Graham (Graham) was the designated personal representative
of the estate of Hilda M. Graham, who died on September 5,
2013. In accordance with the decedent's last will and
testament, Graham's appointment as the personal
dispute developed between Graham and two interested parties
in the estate, Merle Gallagher and Linda Clarke. Both
Gallagher and Clarke were to inherit from the decedent's
will. Specifically, Clarke was to receive a "Peanuts
collection" of figurines and Gallagher was to inherit
full ownership of the decedent's home, as well as the
residual estate. After Graham distributed the personal
property pursuant to the decedent's will, Gallagher and
Clarke alleged that they did not receive the entirety of what
was bequeathed to them. As a result, they sought to have
Graham removed as personal representative.
hearing, Graham was removed as personal representative of the
estate and a successor personal representative, Edward Kasl,
was appointed by the county court. Graham subsequently
appealed that decision, and in case No. S-14-804, an
unpublished memorandum opinion dated May 21, 2015, we
reversed. We held that the county court erred in removing
Graham as personal representative without having heard his
evidence and testimony. We also held that the court erred in
awarding damages when such relief was not requested. We
remanded the matter, ordering a new hearing and directing
that the case be reassigned to a new judge.
Neb. 597] At the hearing on remand, exhibit 101 was offered,
but the county court sustained Graham's relevancy
objection to exhibit 101 and did not receive it into
evidence. Exhibit 101 consists of the entire bill of
exceptions for the proceedings leading up to the order that
we reversed in our memorandum opinion.
and Clarke again presented evidence in support of
Graham's removal. They also moved for the court to assess
damages against Graham for the alleged conversion, damage, or
loss of estate property. Gallagher and Clarke testified that
Graham maintained exclusive control over the real estate, as
well as its contents, for a period in excess of 90 days after
the decedent's death and failed to properly inventory the
contents of the residence or provide an accounting of how the
nonprobate estate assets were disposed of during that
support of their claims that certain items were stolen,
damaged, or lost, Gallagher and Clarke offered testimony from
various witnesses that the decedent, at some point before she
died, had at least three jewelry boxes full of
"expensive" jewelry. Gallagher and Clarke testified
that the decedent had several items of "nice"
clothing, various tools, and a number of documents in her
home before her death. All of these items were absent from
the decedent's home at the time the keys to her home were
finally transferred to Gallagher.
court also received into evidence pictures of the decedent
wearing certain pieces of jewelry from her collection.
Additional testimony was received that, while attending the
decedent's funeral, Gallagher observed Graham's wife
wearing a pendant and a locket allegedly owned by the
testified that she had seen the decedent's figurine
collection in the past. She stated that it filled an entire
hallway closet. When she arrived at Graham's
attorney's office to retrieve the figurines she was to
inherit, some were broken while others were completely
Neb. 598] Graham testified that he was out of town for work
during the months following the decedent's death. As a
result, Graham was unable to transfer the keys to the home to
Gallagher. But he claimed that he had told Gallagher to
contact Graham's attorney for further information about
obtaining the keys.
attested that he emptied the entire contents of the
decedent's home and transferred the property to his home
for safekeeping. He then transferred some of the property to
his attorney's office for distribution, but donated many
articles of the decedent's clothing. Graham testified
that he delivered all property that was to be distributed to
interested parties to his attorney's office.
inventory document was prepared by Graham's attorney
which set forth the items of personal property retrieved by
Gallagher and Clarke at his office. Both Gallagher and Clarke
signed this inventory document to indicate that they had
received the items that were bequeathed to them. However,
Gallagher and Clarke took exception to the contents of that
inventory document, claiming Graham failed to list several
items owned by the decedent that were in her home at the time
of her death.
maintained that the property he distributed was all that
remained in the decedent's home after her death. It was
undisputed that Graham and Gallagher were both at the home
near the time of the decedent's death, but neither made a
list of what was in the home. Both testified that hospice
workers were also in and out of the home during the
decedent's final days.
April 25, 2016, the court removed Graham as personal
representative with an additional order that his status was
terminated rather than discharged so he would remain
responsible for any misdeeds he may have committed while
acting as personal representative. The county court found
that Graham had acted negligently and improvidently in
denying access and then in failing to either protect or
inventory the contents of the residence which he maintained
under his exclusive control. [301 Neb. 599] Thus, the court
found that he had breached his fiduciary duty as a personal
representative as it related to the filing of an inventory
concerning personal property when he took control of
nonprobate assets. Graham did not appeal within 30 days of
the April 25 order.
subsequent order on September 26, 2017, the court denied
Gallagher and Clarke's motion to assess damages against
Graham for his conversion, damage, or loss of estate
property. The court reasoned that, based on the evidence
presented, it could not determine beyond mere speculation
whether or not Graham had converted, damaged, or lost assets
of the estate.
Fees and Personal Representative Fees
addition to damages, Gallagher and Clarke sought attorney
fees and personal representative fees for Kasl. Kasl had
obtained counsel and performed services for the benefit of
the estate, such as obtaining records from banks and
attending meetings with his counsel while the first appeal
September 26, 2017, order, the county court awarded personal
representative fees to Kasl to be paid from the estate. The
court also awarded attorney fees to the attorney representing
Gallagher, Clarke, and Kasl for services rendered on behalf
of Kasl as ...