IN RE THE STUEVEN CHARITABLE FOUNDATION, A NEBRASKA NONPROFIT CORPORATION.
DELBERT STUEVEN, BY AND THROUGH SHELLEY STUEVEN MALLORY, HIS GUARDIAN AND CONSERVATOR, APPELLANT. THE STUEVEN CHARITABLE FOUNDATION AND KRISTY CAVANAUGH, APPELLEES,
Statutes: Appeal and Error. Statutory interpretation
presents a question of law, which an appellate court reviews
independently of the lower court's determination.
from the District Court for Hall County: Teresa K. Luther,
A. Wagoner for appellant.
Matson, James Tews, and Matthew Maser, of Koley Jessen, PC,
L.L.O., for appellees.
Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
district court for Hall County granted the petition of The
Stueven Charitable Foundation (Foundation) seeking the
appointment of four members to its board of directors.
Delbert Stueven (Delbert)-by and through his guardian and
conservator, Shelley Stueven Mallory (Shelley)-appeals. We
vacate the district court's appointment of directors and
remand the matter to the district court for further
Neb. 141] BACKGROUND
and his wife incorporated the Foundation in 1990 as a
charitable nonprofit corporation. Delbert's wife has
since passed away. The current directors of the Foundation
are Delbert, president; Kristy Cavanaugh, secretary; and
Robert Burkhardt, treasurer (incorrectly referred to as
"Bernhardt" in some pleadings). Delbert has since
been found incompetent. His daughter, Shelley, was appointed
as his guardian and conservator.
Foundation and Cavanaugh filed a petition on September 18,
2018, seeking the appointment of additional directors. The
Foundation's amended petition alleged that the Foundation
failed to make the required 2016 calendar year donation to a
qualified charity and that another distribution was due
before the end of 2018. The Foundation further alleged that
Cavanaugh had attempted to contact Burkhardt for the purpose
of holding a meeting of the board of directors, but was
unable to reach him. The Foundation alleged that because of
Delbert's incapacity and Burkhardt's failure to
respond, the board lacked a quorum to take any actions. As
such, the Foundation sought an order from the district court
appointing two new directors.
acting through Shelley, filed a motion on October 11, 2018,
seeking the dismissal of "the action of. . .
Cav[a]naugh." In that motion, Shelley objected to the
appointment of further directors, arguing that there was no
vacancy on the board.
October 29, 2018, Cavanaugh, acting in her capacity as a
director of the Foundation, retained separate counsel and
filed an answer and a cross-complaint that contained
allegations similar to those made by the Foundation and
sought essentially the same relief as the Foundation, except
that Cavanaugh asked for the appointment of four, not two,
hearing on this motion was held on October 30, 2018. There
was no testimony at the hearing, and no evidence was offered.
The articles of incorporation and certain amendments had been
attached to the initial petition filed by the Foundation. And
those same articles with some amendments, minutes from [304
Neb. 142] various board meetings, and the Foundation's
bylaws were attached to Cavanaugh's answer and
November 2, 2018, the district court granted the
Foundation's petition in part and Cavanaugh's
petition in its entirety, appointing four new directors to
the board. Shelley, ...