In re Guardianship of Aimee S. ( 2018 )

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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
IN RE GUARDIANSHIP OF AIMEE S.
Cite as 26 Neb. Ct. App. 380
In re Guardianship of A imee S., an incapacitated
and protected person.
Deborah S. and June Berger, appellants,
v. Susanne Dempsey-Cook, Successor
Guardian, and K elly Henry Turner,
guardian ad litem, appellees.
___ N.W.2d ___
Filed October 2, 2018. No. A-17-749.
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 appear-
ing 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.
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IN RE GUARDIANSHIP OF AIMEE S.
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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 attor-
ney 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 pre-
sented in litigation cease to exist or the litigants lack a legally cogni-
zable 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 admit-
ted 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, specu-
lation, 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 deter-
mine 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 proba-
tive 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.
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IN RE GUARDIANSHIP OF AIMEE S.
Cite as 26 Neb. Ct. App. 380
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 evi-
dence 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, R iedmann, and Bishop, Judges.
Pirtle, Judge.
I. INTRODUCTION
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 fol-
low, we affirm.
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IN RE GUARDIANSHIP OF AIMEE S.
Cite as 26 Neb. Ct. App. 380
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 January
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 scream-
ing in her apartment. Upon her admission to a local hospi-
tal, 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 January 2011
was generally the same for the 2 years prior to her hospitaliza-
tion. 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 guard-
ian, 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 June 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
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IN RE GUARDIANSHIP OF AIMEE S.
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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 fidu-
ciary 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, regard-
ing appellants’ motion to remove restrictions and appellants’
motion to quash the psychological evaluation of Deborah,
specifically the affidavits of Robert Troyer, Aimee’s psycho-
therapist; 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
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IN RE GUARDIANSHIP OF AIMEE S.
Cite as 26 Neb. Ct. App. 380
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 carry-
ing 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 judg-
ment “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, appel-
lants 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.
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IN RE GUARDIANSHIP OF AIMEE S.
Cite as 26 Neb. Ct. App. 380
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 guard-
ian, caregivers, and physicians to understand the elements of
Aimee’s treatment plan and gain insight regarding her role in
Aimee’s treatment.
Turner offered the affidavit of Troyer, Aimee’s psychothera-
pist. He met with both Aimee and Deborah in family therapy
sessions. He stated that Deborah cleaned Aimee’s eyeglasses,
lenses and frames, for anywhere from 15 to 45 minutes every
session and that Deborah then spent the remainder of the time
combing Aimee’s hair, leaving little or no time for conversa-
tion. Troyer stated that he was in “full agreement” with the
recommendations Peterson set forth in Deborah’s psychologi-
cal evaluation.
Appellants offered the affidavit of Deborah’s therapist, Kevin
Cahill. Cahill provided counseling to Deborah to “help her
deal with the issues concerning care for [Aimee].” Appellees
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IN RE GUARDIANSHIP OF AIMEE S.
Cite as 26 Neb. Ct. App. 380
objected to the admission of paragraphs 11 through 13, which
contained Cahill’s opinion regarding Deborah’s qualifications
to serve as guardian. Appellees objected on the basis that para-
graphs 11 through 13 of Cahill’s affidavit were hearsay, lacked
proper foundation, and were not relevant.
On July 24, 2015, the court sustained appellees’ joint motion
for summary judgment. In the order, the court addressed the
evidentiary objections, finding, in relevant part, that para-
graphs 11 through 13 of Cahill’s affidavit lacked founda-
tion as Cahill was only “‘generally familiar’” with Aimee’s
circumstances and his opinion was based upon information
Deborah had relayed to him. Deborah was granted the right
to visit Aimee where Aimee resided, subject to specific condi-
tions set forth in the order. Deborah filed a notice of appeal on
August 24. On February 3, 2016, this court granted Turner’s
motion for summary dismissal in part, concluding that the
summary judgment order was not a final, appealable order
because a request for attorney fees was still pending. See In
re Guardianship of Aimee S., 24 Neb. Ct. App. 230, 885 N.W.2d
330 (2016).
A hearing was held in the county court to determine whether
appellants’ petition for guardianship was frivolous and
whether attorney fees owed the GAL’s attorney should be paid
by appellants. The GAL’s attorney, Turner, Dempsey-Cook,
Deborah, and June testified, as did a friend of Deborah’s.
The relevant portions of this proceeding will be discussed in
detail, below.
On December 1, 2016, the county court entered an order
finding that appellants’ application was frivolous and approving
attorney fees for the GAL’s attorney. The court awarded attor-
ney fees of $75,906.20 to be paid by Deborah. The December 1
order also appointed Dempsey-Cook as the permanent guardian
of Aimee.
On December 6, 2016, Dempsey-Cook filed an application
for fees. On December 8, appellants filed a motion to alter
or amend the order of the county court. On December 16, a
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motion for attorney fees was made for services rendered to
Turner by her attorney. On January 13, 2017, Turner filed an
application and affidavit to recover fees in her own capacity as
the GAL. On May 23, the court entered a journal entry noting,
“Pending before the Court are a Motion to Alter or Amend,
Motions for Fees, Objections to the Fees, and Objection to the
Appointment of . . . Dempsey[-]Cook. . . . [M]atter . . . set [for]
an evidentiary hearing on . . . June 22, 2017.”
On June 22, 2017, the court denied the motion to alter or
amend and set a hearing on August 9 to address the motions for
fees. On July 14, appellants filed a notice of appeal, appealing
the summary judgment and visitation orders of July 24, 2015,
and the order for attorney fees for the GAL’s attorney.
Turner filed an amended application for allowance and pay-
ment of interim attorney fees on July 26, 2017. The next day,
the county court canceled the hearing on all fee applications,
finding that the appeal to this court filed by appellants meant
the county court was without jurisdiction to consider any of the
applications for fees.
On August 4, 2017, Turner filed a motion to reconsider,
arguing the court did not lose jurisdiction because appellants
filed an appeal from an order that did not comply with Neb.
Rev. Stat. § 25-1902 (Reissue 2016). Turner argued that this
court would find that it lacked jurisdiction to hear the appeal
filed by the appellants because there were pending motions for
attorney fees. On August 7, Dempsey-Cook also filed a motion
to reconsider, for the same reasons stated by Turner.
III. ASSIGNMENTS OF ERROR
Appellants assert the court erred in finding Deborah was
not suited to be appointed as coguardian and coconservator
for Aimee and entering summary judgment against Deborah.
Appellants assert the court abused its discretion in finding
appellants’ petition was frivolous and in awarding attorney
fees and costs for the attorneys representing the GAL. They
also assert the court erred in denying Deborah’s motion to
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alter or amend without giving her the opportunity to argue
the motion.
IV. STANDARD OF REVIEW
[1] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it
has jurisdiction. Murray v. Stine, 291 Neb. 125, 864 N.W.2d
386 (2015).
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. Thompson v. Johnson, 299 Neb. 819, 910 N.W.2d
800 (2018).
[2,3] An appellate court reviews guardianship and conser-
vatorship proceedings for error appearing on the record made
in the county court. In re Guardianship & Conservatorship
of Barnhart, 290 Neb. 314, 859 N.W.2d 856 (2015). When
reviewing questions of law, an appellate court resolves the
questions independently of the conclusion reached by the lower
court. Id.
[4] A trial court’s ruling in receiving or excluding an expert’s
opinion which is otherwise relevant will be reversed only when
there has been an abuse of discretion. Hike v. State, 288 Neb.
60, 846 N.W.2d 205 (2014). 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 sys-
tem. Liberty Dev. Corp. v. Metropolitan Util. Dist., 276 Neb.
23, 751 N.W.2d 608 (2008).
[5,6] On appeal, a trial court’s decision allowing or disal-
lowing attorney fees for frivolous or bad faith litigation will
be upheld in the absence of an abuse of discretion. SBC v.
Cutler, 23 Neb. Ct. App. 939, 879 N.W.2d 45 (2016). When
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attorney fees are authorized, the trial court exercises its dis-
cretion in setting the amount of the fee, which ruling we will
not disturb on appeal unless the court abused its discretion.
In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d
262 (2013).
V. ANALYSIS
1. Preliminary Issues
(a) Jurisdiction
Before reaching the legal issues presented for review, it is
the duty of an appellate court to determine whether it has juris-
diction. Murray v. Stine, supra. We must determine whether
the absence of a ruling on certain motions for attorney fees
prevents us from acquiring jurisdiction over this appeal.
The county court ruled on appellees’ motion for summary
judgment on July 24, 2015, and the order was appealed. This
court determined that the order was not final because the issue
of the fees and costs requested by the attorneys for the GAL
had not been resolved. See In re Guardianship of Aimee S., 24
Neb. Ct. App. 230, 885 N.W.2d 330 (2016).
Following the dismissal of the previous appeal, the county
court heard the request for attorney fees by the GAL’s attorney
on August 26 and 29, 2016. On December 1, the county court
found appellants’ application was frivolous and approved fees
for the GAL’s attorney. On December 6, Dempsey-Cook filed
an application for fees. On December 8, appellants filed a
motion to alter or amend the judgment. On December 16, the
GAL’s attorney’s law firm filed a motion for attorney fees for
services rendered to Turner. On January 13, 2017, Turner filed
an application and affidavit to recover fees in her own capacity
as the GAL.
On June 22, 2017, the county court denied appellants’
motion to alter or amend and set a hearing on the motions for
fees. Before the hearing took place, appellants filed a notice of
appeal, and the county court determined it was without juris-
diction to rule on the pending motions for fees.
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Appellees argue that this court is without jurisdiction to con-
sider this appeal because the three applications for fees filed
by Dempsey-Cook, the GAL’s attorney’s law firm, and Turner
were not ruled on prior to appellants’ notice of appeal.
[7-9] Attorney fees, where recoverable, are generally treated
as an element of court costs. Murray v. Stine, 291 Neb. 125,
864 N.W.2d 386 (2015). And an award of costs in a judg-
ment is considered a part of the judgment. Id. The Nebraska
Supreme Court has stated that a party seeking statutorily autho-
rized attorney fees, for services rendered in a trial court, must
make a request for such fees prior to a judgment in the cause.
Id. When a motion for attorney fees for a frivolous action
under Neb. Rev. Stat. § 25-824 (Reissue 2016) is made prior to
the judgment, the judgment will not become final and appeal-
able until the court has ruled upon that motion. See Salkin v.
Jacobsen, 263 Neb. 521, 641 N.W.2d 356 (2002).
In Murray v. Stine, 291 Neb. at 127, 864 N.W.2d at 388,
the Nebraska Supreme Court found it lacked jurisdiction
“[b]ecause of unresolved motions for attorney fees.” In that
case, the motions for fees were filed after the motion for sum-
mary judgment, but before the ruling was made. Id.
Due to the nature of this case, there are a number of indi-
viduals who incur ongoing costs. If this court was not able
to acquire jurisdiction until each of the pending applications
for fees was resolved, no party would be able to success-
fully appeal the county court’s order granting summary judg-
ment. Upon our review, we find the summary judgment order
became final and appealable after the issue of attorney fees
for the GAL’s attorney was resolved in the December 1, 2016,
order. We note that the timeline of this case is complicated by
appellants’ motion to alter or amend the judgment; however,
the relevant date for jurisdiction is the date of the judgment
itself. Each of the pending fee applications was filed after the
December 1 order, which distinguishes this case from Murray
v. Stine, supra. Therefore, we find the applications for fees do
not prevent this court from acquiring appellate jurisdiction.
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(b) Mootness
The petition filed by appellants sought removal of Hytrek,
who resigned in 2014. Dempsey-Cook asserts that because no
amended petition was filed, this appeal is moot.
[10] A case becomes moot when the issues initially pre-
sented in litigation cease to exist or the litigants lack a legally
cognizable interest in the outcome of the litigation. Simms v.
Friel, 25 Neb. Ct. App. 640, 911 N.W.2d 636 (2018).
Dempsey-Cook notes that the county court found the peti-
tion to be frivolous, in part, because it was never amended
to include the name of or specific allegations regarding the
guardian who succeeded Hytrek. The petition could have, and
perhaps should have, been amended following Hytrek’s resig-
nation and the appointment of Dempsey-Cook as the tempo-
rary successor guardian. However, at the heart of this case is
Deborah’s request for the removal of Aimee’s court-appointed
guardian and her desire to be appointed, along with June, as
Aimee’s coguardians and coconservators. These issues were
presented in the petition and remained at issue during the sum-
mary judgment proceedings. Therefore, we find this issue is
not moot.
Dempsey-Cook also argues the standard for removal of a
guardian pursuant to Neb. Rev. Stat. § 30-2616 (Reissue 2016).
She specifically asserts that appellants did not allege or offer
any evidence that it was in Aimee’s best interests for Dempsey-
Cook to be removed as guardian and that therefore, the sum-
mary judgment issue must be moot.
Section 30-2616 provides that a person may petition for
removal of a guardian on the ground that removal would be in
the best interests of the ward. We note that § 30-2616 relates
to the removal of a guardian when the protected person is a
juvenile. The relevant statutory section for removal of a guard-
ian of an incapacitated person is Neb. Rev. Stat. § 30-2623
(Reissue 2016), which provides that “the court may remove a
guardian and appoint a successor if in the best interests of the
ward.” There is no specific requirement in § 30-2623 that the
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issue of best interests related to a specific guardian must be
pled. We find the issue is not moot simply because appellants
did not plead Aimee’s best interests in relation to Dempsey-
Cook’s service as successor guardian.
(c) Standing
Appellants argue that neither the GAL nor the attorneys
for the GAL had standing to bring the summary judgment
proceeding or object to the affidavit of Cahill at the time of
the hearing, “pursuant to the precedent in In re Guardianship
of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (2013).” Brief
for appellants at 24. The cited case does not relate to the
argument that appellants make and is distinguishable from
this case, as it involved guardianship of a minor as defined
in chapter 30, article 26, part 2, of the Nebraska Revised
Statutes, rather than an incapacitated adult as defined in
chapter 30, article 26, part 3, of the Nebraska Revised
Statutes.
In their reply brief, appellants again argue that the GAL
and her attorneys did not have standing to bring the sum-
mary judgment motion or object to the evidence at the hear-
ing, this time referring to In re Guardianship of Robert D.,
269 Neb. 820, 696 N.W.2d 461 (2005). In that case, a GAL
was appointed for a minor child when the child objected to
the termination of a guardianship. The GAL sought clari-
fication of his role, as he could have been appointed as an
attorney for the child instead. The court stated that the GAL
should also perform the duties of counsel for the child, which
could include questioning witnesses. On appeal, the Nebraska
Supreme Court stated that a GAL’s duties are to investigate
the facts and learn where the welfare of his or her ward lies
and to report these facts to the appointing court. Id., citing
Betz v. Betz, 254 Neb. 341, 575 N.W.2d 406 (1998). The
Supreme Court in In re Guardianship of Robert D. also stated,
“A [GAL] may be an attorney, but an attorney who performs
the functions of a [GAL] does not act as an attorney and is
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not to participate in the trial in an adversarial fashion such
as calling or examining witnesses or filing pleadings and
briefs.” 269 Neb. at 833, 696 N.W.2d at 472, citing Betz v.
Betz, supra.
In re Guardianship of Robert D., supra, addresses the role
of a GAL appointed for a juvenile at trial in a guardianship
proceeding. Betz v. Betz, supra, addresses the role of a GAL
appointed for a juvenile in juvenile cases versus an appointed
GAL’s role at trial in a dissolution proceeding. Neither of these
cases is directly applicable to the facts of this case.
Further, the Legislature has provided that a GAL has
the ability to perform certain enumerated duties in certain
cases. For example, Neb. Rev. Stat. § 43-272.01 (Reissue
2016) has long provided that a GAL in certain juvenile cases
have certain duties, which may include filing petitions on
behalf of juveniles, presenting evidence and witnesses, and
cross-examining witnesses at all evidentiary hearings. See
§ 43-272.01(2)(a) through (h) (Reissue 2008). See, also,
§ 43-272.01(2)(a) through (h) (Reissue 1998). Recently, the
Legislature created a statute enumerating a similar set of
duties for a GAL in probate cases. See Neb. Rev. Stat.
§ 30-4203 (Reissue 2016). Section 30-4203 provides that a
GAL appointed pursuant to the Nebraska Probate Code may
“[c]onduct discovery, present witnesses, cross-examine wit-
nesses, present other evidence, file motions, and appeal any
decisions regarding the person for whom he or she has been
appointed.” Although § 30-4203 became effective in 2016
and is not controlling in this case, there was nothing in the
statutes which explicitly prevented a GAL from performing
these duties prior to § 30-4203. Further, § 30-4203 is inform­
ative of the role that guardians ad litem now play in the
Nebraska courts.
We find the statutes and case law applicable to probate
proceedings did not prevent the GAL or her attorneys from
bringing the summary judgment proceeding or from objecting
to evidence at the hearing.
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2. Summary Judgment
(a) Court Did Not Err in Granting
Summary Judgment
Appellants assert the county court erred in granting the
GAL and successor guardian’s joint motion for summary
judgment.
[11,12] 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. Thompson v. Johnson, 299 Neb. 819, 910
N.W.2d 800 (2018). 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. Id.
[13] 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.
Sulu v. Magana, 293 Neb. 148, 879 N.W.2d 674 (2016).
At the hearing on the motion for summary judgment, appel-
lees offered several affidavits detailing Deborah’s interactions
with Aimee, as well as health care professionals’ observations
that Deborah has been unwilling or unable to act in Aimee’s
best interests. The administrator for Sunrise, where Aimee is
admitted, stated her observation that Aimee and Deborah have
a “co-dependency” that “stifle[s] Aimee’s ability and desire”
to make progress. She observed that Deborah ignored requests
from the Sunrise administration regarding sanitation standards
and the provision of certain restricted items to individuals in
Sunrise’s care.
The affidavits and reports included recommendations that
Deborah not have visits with Aimee until Deborah has made
her own progress in individual therapy. Appellees presented
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the results of Deborah’s psychological evaluation, in which
Peterson explicitly states her opinion that Deborah is “not
competent to serve as [Aimee’s] legal guardian.” (Emphasis in
original.) This evidence met the burden of proof for summary
judgment, establishing that appellees were entitled to judgment
if the evidence was uncontroverted at trial. Thus, the burden
shifted to Deborah.
The only evidence appellants produced to rebut appellees’
evidence was the affidavit of Deborah’s therapist, Cahill,
which the county court determined could not be considered in
its entirety. Appellants assert the county court’s ruling, exclud-
ing portions of Cahill’s affidavit, was “erroneous.” Brief for
appellants at 28.
Objections were made by the attorneys for appellees on
the basis that paragraphs 11 through 13 of Cahill’s affidavit
were hearsay, lacked proper foundation, and were not relevant.
Specifically, appellees argued that Cahill’s affidavit did not
state the criteria upon which he based his opinion and that
Cahill relied upon hearsay from Deborah to form his opinion.
The court found that an expert can rely on hearsay to render
an opinion, but for a court to receive an expert opinion, “the
expert witness must possess competent facts and underlying
data for their [sic] opinion.”
Cahill stated in his affidavit that he was “generally famil-
iar” with the situation involving Aimee and the circum-
stances of appellants’ application. However, the court found
the affidavit was lacking information that Cahill had reviewed
Aimee’s medical records or that he possessed or reviewed
any other information, other than what was provided to him
by Deborah.
Appellants assert that it was prejudicial error for the court
to sustain the objections to paragraphs 11 through 13. They
assert that the statements contained in paragraphs 5 through
10 were sufficient to establish foundation for Cahill’s opinion
that Deborah was qualified to serve as coguardian and cocon-
servator for Aimee. They assert that if his affidavit had been
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received in its entirety, it would have “establishe[d] a genuine
issue of material fact.” Brief for appellants at 22.
Turner, the GAL for Aimee, submitted a supplemental
brief requesting this court to consider a Nebraska Supreme
Court opinion published after oral argument, Freeman v.
Hoffman-La Roche, Inc., 300 Neb. 47, 911 N.W.2d 591 (2018).
Turner argues that Cahill’s opinions were not supported by
a generally accepted methodology and that Cahill’s opinion
about best interests was based upon “self-serving statements”
of a third party, namely Deborah. Supplemental brief for
appellee Turner at 3.
Appellants responded to Turner’s supplemental brief, assert-
ing that paragraphs 1 through 13 of Cahill’s affidavit set forth
his methodology for evaluating Deborah, whereas Peterson’s
affidavit and report do not contain adequate information
regarding her methodology.
[14,15] The record shows that Peterson’s affidavit was
received without objection for purposes of the summary judg-
ment hearing. Although appellants argue that “[their] counsel
objected to . . . Peterson’s Affidavit based upon relevancy at
the time of the Summary Judgment hearing,” the record does
not support this assertion. Supplemental brief for appellants
at 6. A litigant’s failure to make a timely objection waives
the right to assert prejudicial error on appeal. In re Estate
of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015). Any chal-
lenge to the receipt of Peterson’s affidavit is waived. Further,
even if appellants had objected, they did not assign error to
the receipt of Peterson’s affidavit or argue the designation of
Peterson as an expert witness in their initial brief. Errors not
assigned in an appellant’s initial brief are waived and may
not be asserted for the first time in a reply brief. Linscott v.
Shasteen, 288 Neb. 276, 847 N.W.2d 283 (2014). Making
an argument for the first time in a supplemental brief, as
in a reply brief, is improper. See City of Lincoln v. County
of Lancaster, 297 Neb. 256, 898 N.W.2d 374 (2017), cit-
ing Linscott v. Shasteen, supra. Thus, we will not consider
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appellants’ argument that Peterson’s affidavit failed to set
forth an adequate methodology.
[16] Paragraphs 5 and 6 of Cahill’s affidavit state that he
has provided counseling and therapy for Deborah “at inter-
vals since 2001” and that he is “generally familiar with the
situation involving Aimee.” There is nothing in the affidavit to
indicate that Cahill had any independent, personal knowledge
of Aimee’s condition, and thus, Cahill had no foundation upon
which to assess Aimee’s needs and Deborah’s ability to meet
her needs. Cahill had no basis from which to conclude what
might be in Aimee’s best interests. 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 infer-
ence in the nonmovant’s favor without the fact finder engag-
ing in guesswork. Sulu v. Magana, 293 Neb. 148, 879 N.W.2d
674 (2016).
[17-19] 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. See Liberty
Dev. Corp. v. Metropolitan Util. Dist., 276 Neb. 23, 751
N.W.2d 608 (2008). 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 conclu-
sion, and where the opinion is based on facts shown not to be
true, the opinion lacks probative value. Hike v. State, 288 Neb.
60, 846 N.W.2d 205 (2014). 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 discre-
tion. Id.
The county court did not err in finding that paragraphs
11 through 13 of Cahill’s affidavit lacked proper foundation.
Because the only evidence Deborah presented regarding her
ability to serve as Aimee’s coguardian or coconservator is
inadmissible, appellants failed to meet their burden to produce
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admissible contradictory evidence creating a genuine issue of
material fact to rebut appellees’ prima facie case.
Appellants’ “Petition for Removal of Guardian and
Appointment of Successor Co-Guardians and Co-Conservators”
set forth specific allegations that Hytrek’s continued appoint-
ment as guardian was “no longer in the best interests of
[Aimee].” Appellants sought removal of Hytrek pursuant to
§ 30-2616.
Section 30-2616 governs resignation or removal proceedings
in cases involving guardians of minors. Appellants should have
sought Hytrek’s removal under § 30-2623, which provides,
“On petition of the ward or any person interested in his wel-
fare, the court may remove a guardian and appoint a successor
if in the best interests of the ward.” Even if appellants had
sought removal of Aimee’s guardian under § 30-2623, appel-
lants did not amend their petition following the resignation
of Hytrek, so the allegations in the petition did not pertain to
the acting successor guardian, Dempsey-Cook. Although this
does not make this issue moot, appellants failed to establish
a basis for removal of the acting successor guardian. Further,
as previously discussed, appellants were unable to provide
evidence that Deborah was competent to serve as guardian
and appellants offered no evidence that Dempsey-Cook was
unfit or unable to perform the duties incumbent upon her. The
record shows appellants failed to show that it was in Aimee’s
best interests to remove Dempsey-Cook as the temporary suc-
cessor guardian.
We have considered the briefs and supplemental briefs and
find, for the foregoing reasons, the county court did not err in
granting the joint motion for summary judgment.
(b) “[P]referred [I]ndividual” to Be
Appointed as Guardian
Appellants argue that Deborah is a “preferred individual” to
be appointed as guardian and/or conservator for Aimee under
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Neb. Rev. Stat. § 30-2627 (Reissue 2016). Brief for appellants
at 26. Section 30-2627(a) provides that “[a]ny competent per-
son” may be appointed guardian of a person alleged to be inca-
pacitated and that nothing in this subsection prevents spouses,
adult children, parents, or relatives of the person alleged to
be incapacitated from serving in that capacity. Subsection (b)
of § 30-2627 provides that persons who are not disqualified
by subsection (a) of § 30-2627 and who exhibit the ability to
exercise the powers to be assigned by the court have priority in
the order listed. Section 30-2627(b)(4) allows a parent to serve
as a guardian.
However, as previously stated, Deborah’s psychological eval-
uation explicitly states Peterson’s opinion that Deborah is “not
competent to serve as [Aimee’s] legal guardian.” (Emphasis in
original.) In the absence of evidence to contradict Peterson’s
opinion, Deborah could not meet the listed qualifications for an
appropriate guardian under § 30-2627(a). Therefore, she does
not have priority to be appointed under § 30-2627(b).
(c) “Limited Evidence” to Support
Summary Judgment
Appellants assert the court erred in finding Deborah was
not suited to be appointed as coguardian and coconservator for
Aimee, “based upon the limited evidence before the county
court.” Brief for appellants at 24-25. Appellants state that the
summary judgment was based upon the affidavits of Troyer
and Peterson, whose opinions are “filled with information
provided to them by third parties for the purpose of express-
ing their opinions, without the benefit of cross-examination.”
Id. at 25.
Appellants liken the affidavits of Troyer and Peterson
to the affidavit of Cahill. However, the distinction is that
Cahill’s affidavit seemed to be supported only by his inter-
action with Deborah and the information she provided him
about Aimee. Conversely, Peterson’s affidavit was based upon
her personal observations of and information received during
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Deborah’s psychological evaluation. Troyer’s affidavit was
based upon observations and information received through
his personal interactions with Aimee and Deborah in family
therapy, as well as his review of the psychological evalua-
tion completed by Peterson, a fellow medical professional.
Because portions of Cahill’s affidavit were excluded, the affi-
davits of Troyer and Peterson were the only admissible, rel-
evant evidence regarding Deborah’s capability to be Aimee’s
guardian. Appellants did not meet their burden of proof to
show a genuine issue of material fact, and therefore, the court
did not err in granting summary judgment based upon the
evidence before it.
(d) Opportunity to
Cross-Examine Witnesses
Appellants argue that Deborah was not given the opportu-
nity to cross-examine Troyer or Peterson regarding the state-
ments in their affidavits and whether the conclusions were
supported by the facts.
[20] Appellants never requested a continuance for the pur-
pose of deposing Troyer or Peterson, nor did they ask the court
for an in-court evidentiary hearing. Appellants did not object
to Peterson’s affidavit for purposes of the summary judg-
ment motion. Appellants did not object to Troyer’s affidavit
on grounds that there was no opportunity to depose or cross-
examine him. An issue not presented to or decided by the trial
court is not appropriate for consideration on appeal. Wayne L.
Ryan Revocable Trust v. Ryan, 297 Neb. 761, 901 N.W.2d 671
(2017). A litigant’s failure to make a timely objection waives
the right to assert prejudicial error on appeal. In re Estate of
Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).
(e) Best Interests
Appellants assert that the county court erred in making
a determination of the best interests of Aimee on a sum-
mary judgment basis and in dismissing Deborah’s petition and
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appointing Dempsey-Cook as guardian. Appellants acknowl-
edge that the motion for summary judgment sought a finding
that it was not in Aimee’s best interests for Deborah to be
appointed. Appellants then state that the county court “never
got to the issue of the best interests of Aimee,” because the
only evidence offered pertained to Deborah’s qualification to
serve as guardian. Brief for appellants at 29. It is puzzling for
appellants to assert that the court made a determination regard-
ing best interests, and then state that the court never reached
this issue. Nonetheless, it appears appellants’ argument is that
requiring appellants to present the evidence of their entire case
on summary judgment gives appellees an unfair advantage at
trial. Specifically, appellants argue that the motions for sum-
mary judgment were intended to force:
Deborah . . . to give up all her evidence in support of her
Petition prior to trial to the opposing side through affida-
vit and give the moving parties the unfair opportunity to
attempt to contradict all such evidence at trial. Deborah
. . . should not be required to give such an advantage to
the opposing side.
Id. at 29.
Appellants argue that Deborah provided sufficient evidence
on the issue of her competence and qualifications to establish a
genuine issue of material fact, “which was all that was required
of her at the time of the hearing on the Summary Judgment.”
Id. at 30. Although it is true that appellants were required to
establish only a genuine issue of material fact, the record shows
that they failed to present sufficient evidence to meet their bur-
den of proof. If Deborah was unable to present any evidence at
the summary judgment hearing to support her assertion that she
is a competent and qualified person to be Aimee’s guardian,
then it stands to reason that it is not in Aimee’s best interests
for Deborah to be appointed as her guardian.
As part of appellants’ argument that the court relied upon
limited information in determining Deborah was not suitable
to be appointed, appellants argue that Deborah “never got
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the opportunity to present her evidence to the County Court
concerning her qualifications to serve as Co-Guardian and
Co-Conservator for [Aimee].” Id. at 25. However, this is not
an accurate statement. When given the opportunity to present
evidence, appellants offered exhibit 16, which was objected
to by the GAL and the guardian on hearsay, relevance, and
foundation grounds. After a discussion, the court took exhibit
16 under advisement, stating that it would be reviewed and
the ruling on the exhibit would be in the court’s order. When
given the opportunity to do so, appellants offered no fur-
ther evidence.
It appears that appellants made a strategic decision to be
selective in the testimony they offered in opposition to appel-
lees’ summary judgment motion. As a result, when the portions
of Cahill’s affidavit which were crucial to appellants’ theory
of the case were excluded, appellants were left with no other
competent, admissible evidence to rebut the evidence pre-
sented by appellees. Nothing prevented appellants from offer-
ing additional evidence at the hearing to show why Deborah
should be reappointed as Aimee’s guardian, but they chose not
to do so.
[21] Generally, a party cannot complain of error which the
party has invited the court to commit. Becher v. Becher, 299
Neb. 206, 908 N.W.2d 12 (2018). Appellants were on notice
that Aimee’s best interests were at issue in appellees’ summary
judgment motion. Appellants had the opportunity to present
any evidence regarding Deborah’s qualifications and Aimee’s
best interests, but, after presenting only Cahill’s affidavit,
appellants either had no further evidence or chose to reserve
any additional evidence for trial. We find this assignment of
error fails.
3. Frivolous Petition
Appellants argue the court abused its discretion in finding
appellants’ petition was frivolous and in awarding attorney
fees to the GAL’s attorney.
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(a) Petition Was Frivolous
[22] Section 25-824(2) provides generally that a court can
award reasonable attorney fees and court costs against any
attorney or party who has brought or defended a civil action
that alleges a claim or defense that a court determines is frivo-
lous or made in bad faith. In the context of § 25-824, a frivo-
lous 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. TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d
427 (2010). The term “frivolous” connotes an improper motive
or legal position so wholly without merit as to be ridicu-
lous. Id.
Appellants argue that the fact that Deborah filed for reap-
pointment as coguardian and coconservator does not make
the proceeding frivolous. The record shows that the county
court’s reasoning for finding the petition was frivolous was not
solely based upon the fact that Deborah had been previously
appointed as guardian and had relinquished her role.
Section 30-2623 states that a court may remove a guard-
ian and appoint a successor if it is in the best interests of
the ward. In its order, the county court listed the nine allega-
tions appellants asserted in their petition in support of their
claim that Hytrek’s continued appointment as guardian was
not in Aimee’s best interests. The court found the petition to
be frivolous because, based on her testimony, Deborah had
no information to substantiate the claims in the petition that
Hytrek was not acting in Aimee’s best interests. Deborah
did not have frequent contact with Hytrek, she did not know
whether there was a care plan in place for Aimee, and she did
not express any concerns about Hytrek to Hytrek or the staff at
Sunrise, Aimee’s place of residence. There is ample evidence
that the allegations against Hytrek were not brought in good
faith, but, rather, they were brought because any appointed
guardian would need to be removed before Deborah her-
self could be reappointed. After Hytrek resigned as guardian,
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Dempsey-Cook was appointed to replace her, but the petition
was never amended to include specific allegations regarding
Aimee’s best interests as they related to Dempsey-Cook.
Upon the joint motion for summary judgment filed by appel-
lees, appellants provided no credible evidence that it was in
the best interests of Aimee to have Hytrek or Dempsey-Cook
removed. In addition, as previously discussed, appellants did
not present any credible evidence that Deborah was competent
to serve as coguardian.
Further, appellants provided no evidence at all that June
was competent to serve as coguardian. June became involved
in this case at the request of Deborah, when “[s]he realized
that she couldn’t do it alone any more, and she wanted to have
someone to do it with her.” The evidence shows the informa-
tion June had about Aimee’s condition was received second-
hand, from Deborah. The evidence shows that the information
that Deborah provided to June was not accurate, especially
with regard to the condition Aimee was in when Deborah relin-
quished her role as guardian in 2011.
The record indicates that Deborah made little or no prog-
ress toward becoming an effective guardian between relin-
quishing her role in 2011 and filing the petition in 2013. The
county court’s order indicates that Deborah knew, or should
have known, that her lack of progress would disqualify her
from being appointed again at that time, and thus, the petition
was frivolous.
Deborah testified that the role of guardian is to do what
the ward desires. During the time Deborah acted as Aimee’s
guardian, Deborah acquiesced to Aimee’s desires and Aimee’s
condition deteriorated to the point that Aimee had not bathed
in 2 years, she refused to leave her apartment, and she did not
engage in the activities of daily living. The court noted that
Deborah’s philosophy is what “got Aimee into the condition
she was in when she was taken by police to [the hospital]
on January 22, 2011.” Aimee was found screaming in her
apartment, and when she was admitted to the hospital, she
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was psychotic, disoriented, and malnourished and her personal
hygiene was “badly neglected.” These events led to a report
to Adult Protective Services, and ultimately, Deborah relin-
quished her role as guardian of Aimee. Deborah was placed on
the “Central Registry,” a list for those who have been proved
or are suspected to be neglectful or abusive of vulnerable
adults. After a review of the case, the record was amended,
Deborah’s name was removed from the registry, and the record
was expunged. The court noted that Deborah struggled with
the dual role of being Aimee’s mother and her guardian, and it
found that for Deborah to be “re-appointed Aimee’s Guardian
or Co-Guardian, she would have to have overcome the issues
that prevented her from meeting Aimee’s needs” when she was
the guardian.
The psychological evaluation conducted by Peterson shows
that Deborah does not currently have the skills to be Aimee’s
guardian or coguardian, and Peterson stated that Deborah is
not competent to serve. It is true that in previous proceedings
the court stated that Deborah could apply to be reappointed,
but the county court found that it “should be apparent”
that if Deborah was the subject of a petition to remove her
as Aimee’s guardian, then she should address and resolve
the issues that led to the petition’s being filed before she
could be considered for reappointment. The court found that
Deborah had not corrected these issues, and this contributed
to the court’s finding that the petition to remove Hytrek
was frivolous.
Appellants had no evidence to support the allegations con-
tained in their petition seeking removal of Hytrek, nor did they
have a basis in either fact or law for the removal of Dempsey-
Cook. Furthermore, Deborah had not taken any steps to rem-
edy the shortcomings that led to the filing of the petition for
her removal as Aimee’s guardian. Because appellants’ position
was without rational argument based on law and evidence,
the petition was frivolous and the county court did not err in
so finding.
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(b) Award of Attorney Fees
[23] On appeal, a trial court’s decision allowing or disal-
lowing attorney fees for frivolous or bad faith litigation will
be upheld in the absence of an abuse of discretion. Central
Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788
N.W.2d 252 (2010).
In determining the amount of “a cost or an attorney’s fee
award” pursuant to § 25-824, the court shall exercise its sound
discretion. Neb. Rev. Stat. § 25-824.01 (Reissue 2016). When
granting an award of attorney fees and costs, the court shall
specifically set forth the reasons for such award. In determin-
ing whether to assess attorney fees and costs and the amount
to be assessed against offending attorneys and parties, the
court considers a number of factors, including, but not limited
to, the 10 factors listed in § 25-824.01. This court found that
the petition was frivolous, pursuant to § 25-824.01(1) through
(3), (5) through (7), and (10), and that the GAL’s attorney fees
should be paid by appellants. Specifically, the court found that
Deborah should be responsible for the fees, because June joined
the petition as a friend of Deborah and June was unaware of
many of the crucial details of this case.
The evidence shows that appellants failed to make an effort
to determine the validity of their claims; failed to amend the
petition to reflect the resignation of Hytrek; and failed to dis-
miss the claims, which were found to be invalid. The court
ruled against Deborah in many material motions in this case.
Each of these factors support the court’s imposition of reason-
able attorney fees and costs of Turner’s counsel.
Appellants argue Deborah should not be held responsible for
attorney fees for the attorney representing the GAL, because,
they assert, Turner exceeded the scope of her role in these pro-
ceedings. Appellants cite case law regarding the role of a GAL
in juvenile court, acknowledging that Nebraska law has been
modified by statute, specifically allowing a GAL to conduct
discovery, present and cross-examine witnesses, present other
evidence, file motions, and appeal any decisions regarding the
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person for whom he or she has been appointed. As previously
discussed, the cases cited by appellants involve juveniles,
rather than an incapacitated adult. Neb. Rev. Stat. § 30-2620.01
(Reissue 2016) provides for the “reasonable fees and costs” of
an attorney, a GAL, a physician, and a visitor appointed by the
court for the person alleged to be incapacitated, which may be
assessed against a petitioner upon a showing that the action
was frivolous.
At the hearing on August 22 and 29, 2016, Turner testified
that this is “by far one of the more time-consuming and com-
plex cases” she has been involved in due, in part, to the number
of motions to respond to and the “litigious nature of the parties
in trying to just ensure the best interest of the ward is being
met.” We found, above, that the county court did not abuse its
discretion in determining that the petition was frivolous. Due to
the ongoing nature of this case, and the numerous overlapping
proceedings, we find the court could reasonably conclude that
a GAL’s attorney fees are included in the definition of “reason-
able fees and costs” incurred by an appointed GAL. We affirm
the county court’s award of attorney fees.
Appellants also argue that the county court made an error
of law concerning the source of fees and costs for the GAL
and that “the only way for the attorneys for the [GAL] to
be paid for their services was for the County Court to assess
attorney’s fees and costs against Deborah . . . on the basis of a
frivolous proceeding.” Brief for appellants at 35. As previously
discussed, the GAL’s fees were within the scope of reasonable
fees and costs incurred as a result of this proceeding, which was
determined to be frivolous. To the extent that appellants argue
that they should not have to reimburse the county for the fees
already paid, this alleged error was not specifically assigned
and specifically argued, and therefore, we will not address it.
See Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275
(2018) (to be considered by appellate court, alleged error must
be both specifically assigned and specifically argued in brief of
party asserting error).
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(c) Denial of Motion to
Alter or Amend
Appellants assert that Deborah was denied substantive and
procedural due process, because their motion to alter or
amend was overruled without a hearing, and that appellants
were denied substantive and procedural due process, because
the motion was not heard by the same judge who heard the
matter and issued the orders of July 24, 2015, and December
1, 2016.
In support of their argument, appellants cite Newman v.
Rehr, 10 Neb. Ct. App. 356, 630 N.W.2d 19 (2001), in which
the issue was whether a replacement or substitute judge may
enter the judgment that the former judge indicated he or she
would have entered. This case is distinguishable. The record
shows that Judge Susan M. Bazis presided over the hearings
on appellees’ summary judgment and fee motions. She decided
each of these motions and entered orders and judgments
accordingly.
Judge Marcena M. Hendrix presided over the hearing on
March 27, 2017. At a hearing on May 23, Judge Derek R.
Vaughn informed the parties that Judge Stephanie S. Shearer
would be the permanent judge in this case. At the hearing on
June 22, Judge Shearer stated she would be assuming Judge
Bazis’ caseload, including this case, going forward. During
that hearing, Judge Shearer stated that she had reviewed the
record and the findings of Judge Bazis and determined that she
did not need to hear argument on appellants’ motion to alter or
amend. At that point, the motion was overruled. Appellants cite
no case law to support their position that a motion to alter or
amend cannot be ruled on by a judge other than the judge who
entered the judgment.
Appellants assert that they were “unfairly surprised” by
Judge Shearer’s ruling on the motion, because they had been
“advised that no substantive matters would be addressed at that
hearing.” Brief for appellants at 39. Appellants cite no case
law for the proposition that it is a violation of procedural or
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substantive due process to overrule a motion without receiv-
ing oral argument, and we know of no authority requiring a
judge to hold a hearing on a motion to alter or amend. Thus,
we find the court’s decision to rule on the motion to alter or
amend at the June 22, 2017, hearing without allowing further
argument on the motion does not violate appellants’ substan-
tive and procedural due process rights.
VI. CONCLUSION
We find the county court did not err in granting appellees’
joint motion for summary judgment or in overruling appellants’
motion to alter or amend. We find the court did not abuse its
discretion in finding appellants’ petition was frivolous or in
awarding attorney fees. We therefore affirm the judgment of
the county court.
A ffirmed.