In re Guardianship & Conservatorship of Herrick ( 2014 )

Decisions of the Nebraska Court of Appeals
IN RE GUARDIANSHIP & CONSERVATORSHIP OF HERRICK 971
Cite as 21 Neb. App. 971In re Guardianship & Conservatorship of
Thomas L. Herrick, a protected person.
Todd A. Herrick, appellant, v.
Tina M. Paulsen, appellee.
___ N.W.2d ___
Filed April 29, 2014. No. A-12-962.
1. 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.
2. 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.
3. ____: ____. An appellate court, in reviewing a judgment of the trial court for
errors appearing on the record, will not substitute its factual findings for those of
the trial court where competent evidence supports those findings.
4. 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
over the matter before it.
5. Judgments: Jurisdiction. Determination of a jurisdictional issue which does not
involve a factual dispute is a matter of law.
6. Standing: Jurisdiction. Standing relates to a court’s power, that is, jurisdiction,
to address issues presented and serves to identify those disputes which are appro-
priately resolved through the judicial process.
7. Standing. Under the doctrine of standing, a court may decline to determine
merits of a legal claim because the party advancing it is not properly situated
to be entitled to its judicial determination. The focus is on the party, not the
claim itself.
8. Standing: Jurisdiction. Standing requires that a litigant have such a personal
stake in the outcome of a controversy as to warrant invocation of a court’s
jurisdiction and justify exercise of the court’s remedial powers on the liti-
gant’s behalf.
9. ____: ____. The defect of standing is a defect of subject matter jurisdiction.
10. Parties: Standing: Jurisdiction. The issue of standing is jurisdictional; a party
must have standing before a court can exercise jurisdiction, and either a party or
the court can raise a question of standing at any time during the proceeding.
11. Courts: Parties: Justiciable Issues: Words and Phrases. The capacity to
sue is the right to come into court. A party has capacity when it has the
legal authority to act, regardless of whether it has a justiciable interest in
the controversy.
12. Rules of the Supreme Court: Pleadings. Under Nebraska’s pleading rules, a
party wishing to raise the issue of whether another party has the necessary capac-
ity must specifically deny that the opposing party has capacity.
Decisions of the Nebraska Court of Appeals
972 21 NEBRASKA APPELLATE REPORTS
13. Courts: Parties: Jurisdiction. Unlike standing, a party’s capacity to sue or be
sued is not jurisdictional; however, lack of capacity deprives a party of the right
to come into court.
14. Standing: Moot Question. A plaintiff’s personal interest is to be assessed under
the rubric of standing at the commencement of the case, and under the rubric of
mootness thereafter.
15. Moot Question: Appeal and Error. A case becomes moot when the issues ini-
tially presented in the litigation cease to exist, when the litigants lack a legally
cognizable interest in the outcome of litigation, or when the litigants seek to
determine a question which does not rest upon existing facts or rights, in which
the issues presented are no longer alive.
16. ____: ____. A case is not moot unless a court cannot fashion some meaningful
form of relief, even if that relief only partially redresses the prevailing party’s
grievances.
17. Parties: Jurisdiction: Waiver. Because a party’s capacity to sue or be sued is
not jurisdictional, a challenge to a party’s capacity must be brought at the earliest
opportunity or it is waived.
18. Parties: Proof. The party seeking to raise the issue that a party has lost capac-
ity during the course of litigation bears the burden of establishing that the party
raised such issue at the first opportunity, thereby properly preserving it.
19. Appeal and Error. Errors argued but not assigned will not be considered
on appeal.
Appeal from the County Court for Dawson County: Carlton
E. Clark, Judge. Affirmed.
Kent A. Schroeder, of Ross, Schroeder & George, L.L.C.,
for appellant.
Nathan T. Bruner, of Greenwall, Bruner & Frank, L.L.C., for
appellee.
Inbody, Chief Judge, and Moore and Riedmann, Judges.
Inbody, Chief Judge.
I. INTRODUCTION
This appeal was filed by Todd A. Herrick (Todd), the pro-
posed successor conservator of Thomas L. Herrick (Herrick),
alleging that the Dawson County Court erred in certain deter-
minations regarding the challenge of the inventory of Herrick’s
estate filed by the original conservator, Tina M. Paulsen.
II. STATEMENT OF FACTS
Herrick is the protected person in this case. Todd is Herrick’s
son, and Paulsen is Herrick’s daughter. In September 2010,
Decisions of the Nebraska Court of Appeals
IN RE GUARDIANSHIP & CONSERVATORSHIP OF HERRICK 973
Cite as 21 Neb. App. 971Herrick suffered a stroke resulting in his incapacity. Paulsen
was appointed as the original conservator, and Todd was
appointed as the original guardian.
On June 6, 2011, Paulsen filed an “Accounting of the
Protected Party’s Assets and Liabilities” in which she listed
a 2007 Hummer H3 owned by Herrick as an asset valued
at $16,700. On June 7, the county court sustained Paulsen’s
motion to sell Herrick’s assets, personal property, and real
estate. Paulsen and her husband, William Paulsen, traveled to
Herrick’s home in Lexington, Nebraska, to pick up Herrick’s
Hummer and return it to their home in Aberdeen, South
Dakota. When Paulsen retrieved the Hummer, it was locked
in Herrick’s garage and had a “shorted out” battery. Paulsen
and William replaced the battery in the Hummer before
returning to South Dakota. The Hummer was smoking when
they picked it up and continued smoking, and the engine
ran sluggishly during the trip back to South Dakota. After
arriving in South Dakota, William drained the oil from the
Hummer’s engine and found that the oil was sludge and had
clumps in it.
Shortly thereafter, Paulsen took the Hummer, which had
not been driven since being brought to South Dakota, to a
local Aberdeen automobile repair shop owned by Brad Brake.
Brake inspected the Hummer and provided Paulsen with an
estimate for the cost of repairing the Hummer. Brake indi-
cated that the “[e]ngine light was on” and that the Hummer
was “[using] oil and smoking” and needed “lots of [e]ngine
work.” Brake estimated the cost for repair at “about” $4,900.
Paulsen testified that she checked the “cars.com” and Kelley
Blue Book Web sites between May 1 and July 1, 2011, and
determined that the value of the Hummer was between $9,000
and $12,000. On July 1, Paulsen sold the Hummer to Brake
for $4,200, which price reflected a $4,900 discount for the
cost of necessary repairs. At the time of the sale to Brake,
the Hummer had 58,307 miles and had been driven less than
2,000 miles from the time it was originally purchased by
Herrick in March 2010.
In February 2012, Paulsen filed an accounting of Herrick’s
assets and liabilities. On February 15, Todd, in his capacity
Decisions of the Nebraska Court of Appeals
974 21 NEBRASKA APPELLATE REPORTS
as the original guardian, filed an application for complete
accounting, surcharge, and indemnification, alleging that the
accounting filed by Paulsen was insufficient and that Paulsen
sold the Hummer for substantially less than its fair market
value. Todd requested in the application that Paulsen be sur-
charged or required to indemnify Herrick’s estate. Paulsen
filed an updated inventory/annual accounting on April 4,
which did not list the Hummer as an asset and to which Todd
objected. A hearing was held on April 9, which was contin-
ued on June 25. The issues raised by Todd on appeal center
around the sale of the Hummer. Consequently, we focus our
factual synopsis around that testimony and evidence concern-
ing the Hummer.
The evidence established that on March 2, 2010, Herrick
purchased a used Hummer with 56,870 miles for $18,400 from
Plum Creek Motors in Lexington. The office manager at Plum
Creek Motors testified that although used vehicles are sold “‘as
is,’” if the vehicle has a manufacturer’s warranty, the warranty
transfers to the subsequent owner of the vehicle.
The Hummer that Herrick purchased had a “five-year or
100,000 mile factory power train warranty” that transferred
to Herrick upon his purchase of the Hummer. The warranty
“would cover the engine, transmission, drive train, [and] the
four-wheel drive system.” The beginning of warranty cover-
age is determined by the “in-service date” of the vehicle.
The “in-service” date, and start of the warranty coverage,
applicable to Herrick’s Hummer was January 12, 2007. Thus,
according to the office manager, if something had been wrong
with the Hummer’s engine in July 2011, the issue would have
been covered by warranty, provided that the Hummer was still
within the applicable mileage limits and no other exceptions
applied. For example, she testified that the warranty does not
apply to vandalism to vehicles and that the warranty might
not apply if an engine has been tampered with; however, the
decision of whether a warranty would apply would be made by
someone else at the dealership.
Paulsen admitted that she did not take the Hummer to the
General Motors dealership in Aberdeen to determine why the
vehicle was smoking or whether any necessary repairs would
Decisions of the Nebraska Court of Appeals
IN RE GUARDIANSHIP & CONSERVATORSHIP OF HERRICK 975
Cite as 21 Neb. App. 971have been covered by warranty. Paulsen testified that she did
not consult with a General Motors dealership to determine if
the Hummer was under warranty and that she assumed because
the Hummer was a used vehicle, the factory warranty would
not have been transferred to Herrick because he was a suc-
cessive owner. Instead, she initially relied upon her husband,
William, to determine what was wrong with the Hummer, then
she took the Hummer to Brake’s shop for a repair estimate.
Paulsen testified that she has taken her personal vehicles to
Brake’s shop for repairs on three occasions and that he is not a
friend or a relative of hers.
William testified that he had attended mechanic’s college
for 1 year and that although he did not graduate from that
program, he has experience rebuilding and repairing engines
and has worked with engines for over 30 years. William per-
formed a compression check on the engine, which is a test to
verify the physical condition of the engine’s rings, pistons,
valve seats, and valves. William testified that the readings for
the Hummer from the compression check were “very bad,”
that the condition of the oil “would be typical of a vehicle
if it had never had its oil changed in 48,000 miles,” and that
“clean oil, without being tampered with, does not get clumps
in it and turn to road tar.” William testified that Herrick had
a history of properly maintaining his vehicles, so the condi-
tion of the oil as he found it would not have been that way
prior to Herrick’s stroke. William testified that relying on
the tests he performed on the Hummer, he had reached the
conclusion that the cause of the Hummer’s condition was one
of two things: that the engine oil had never been changed
for the life of the vehicle and was sold to Herrick in that
condition or that the vehicle was tampered with after it came
into Herrick’s possession. William testified that if a vehicle
either is not maintained or is tampered with, there is no war-
ranty coverage. Both Paulsen and William testified that after
William researched whether the Hummer was covered by the
manufacturer’s warranty, they concluded that the manufac-
turer’s warranty did not cover the Hummer’s engine damage.
However, in an answer to a request for admissions, Paulsen
provided that “it is unknown if the warranty [on the Hummer]
Decisions of the Nebraska Court of Appeals
976 21 NEBRASKA APPELLATE REPORTS
was still in effect under the conditions that the vehicle was in
on or before July 1, 2011.”
Thomas Feltes, the owner and general manager of Plum
Creek Motors since 1997, testified that Manheim was the
largest wholesale automobile auction company in the country
at that time and that it sells used vehicles to registered deal-
ers nationwide. Feltes testified that Plum Creek Motors pur-
chased vehicles from Manheim “from time to time,” so Feltes
was familiar with, and frequently used, a service Manheim
provides called the Manheim Market Report (MMR). The
MMR lists a vehicle and then gives the prices that the same
model of vehicle has sold for during the timeframe indicated
based upon the vehicle’s mileage and condition—below aver-
age, average, or above average. Feltes testified that the MMR
shows what a given model of vehicle would be worth in the
market and that the MMR value is an average of similar
vehicles which have actually sold at Manheim’s auctions.
The MMR printout states that for the week ending on April
4, 2012, in the Midwest region, which includes Nebraska and
South Dakota, there were 14 2007 Hummers in average con-
dition which were sold for an average sale price of $17,188
with an average odometer reading of 63,705 miles. The
MMR printout projected that between April 9 and 16, a 2007
Hummer H3 of average condition would sell for $18,500,
with the same projected sale price listed for 1 year later in
April 2013. For the week ending April 4, 2012, nationwide,
there were 99 2007 Hummer H3’s in average condition
which were sold through Manheim’s auctions for an average
sale price of $16,388 with an average odometer reading of
72,973 miles. This same MMR projected that between April
9 and 16, the sale price for a 2007 Hummer in above-average
condition would be $19,800, in average condition would be
$17,600, and in below-average condition would be $15,400.
This MMR also projected that 1 year later, in April 2013, a
2007 Hummer of average condition would sell for $17,600
at auction.
Another MMR report was admitted into evidence for the
time period ending in early February 2012. For the week end-
ing February 4, there were 12 2007 Hummer H3’s sold in the
Decisions of the Nebraska Court of Appeals
IN RE GUARDIANSHIP & CONSERVATORSHIP OF HERRICK 977
Cite as 21 Neb. App. 971Midwest region, with those in average condition selling for
an average sale price of $15,839 with an average odometer
reading of 74,687 miles. The report projected that between
February 9 and 16, a 2007 Hummer H3 in average condition
would sell at auction for $17,850, with a projected sale price
1 year later, in February 2013, of $16,900. For the week end-
ing February 1, 2012, nationally, there were 67 2007 Hummer
H3’s sold, with those in average condition selling at an aver-
age sale price of $15,352 with an average odometer reading
of 77,254 miles. This same report projected that between
February 6 and 13, a 2007 Hummer H3 in average condition
would sell at auction for $17,200 and that 1 year later, in
February 2013, it would sell for $16,250.
Feltes testified that the impact that the vehicle’s smok-
ing would have on the fair and reasonable market value of
Herrick’s Hummer in July 2011 would depend on what was
causing Herrick’s Hummer to smoke. According to Feltes, if an
internal engine failure of some sort was causing the Hummer
to smoke, that would be covered under the vehicle’s warranty
and would be repaired at no cost. If the owner of the vehicle
were to bear the cost of a total engine replacement, it could run
$5,000 to $6,000. Feltes further testified that a vehicle as new
as Herrick’s Hummer would still have “considerable value”
even if it had a bad engine.
On August 23, 2012, the Dawson County Court entered an
order finding that Paulsen’s accounting showed an inventory
value of $16,700 for the Hummer on June 6, 2011, and that on
July 1, she sold the same vehicle for $4,200. The court found
that the fair market value of the vehicle was $13,300 and that
there were necessary repairs on the vehicle in the amount of
$4,900. The court found that Paulsen should be surcharged
$4,200 for the unrecovered value of the vehicle. Although the
court’s order noted that Paulsen’s accounting was insufficient
and incomplete, the court determined that it was in the best
interests of both Herrick and his estate for the accounting to be
approved as submitted with the surcharge.
The court’s order also accepted Todd’s resignation as the
original guardian and appointed Herrick’s brother as succes-
sor guardian. The order accepted Paulsen’s resignation as
Decisions of the Nebraska Court of Appeals
978 21 NEBRASKA APPELLATE REPORTS
original conservator and provided that “Todd . . . is hereby
appointed as successor conservator for . . . Herrick to serve
without bond. That letters of conservatorship are hereby
issued and approved upon his filing the acceptance and other
documents for his appointment.” However, an affidavit filed
by the Dawson County Court clerk magistrate set forth that
Todd never filed an acceptance of his appointment as suc-
cessor conservator and that no letters of appointment were
ever issued.
Despite his failure to accept his appointment as successor
conservator, Todd, on August 29, 2012, purportedly acting in
his capacity as successor conservator, filed a motion to alter or
amend the court’s journal entry on the basis that the surcharge
imposed upon Paulsen was inconsistent with the evidence pre-
sented. A hearing was held on the motion to alter or amend on
September 18, but neither party requested that a bill of excep-
tions be prepared for this hearing. Thus, our only information
regarding the hearing on Todd’s motion to alter or amend
comes from the transcript. The transcript reveals that despite
the fact the hearing was being held on his motion, Todd’s
counsel did not appear at the hearing, and that the hearing was
attended by Paulsen’s counsel. No evidence was presented in
support of the motion, and the matter was submitted without
argument. The motion was overruled by the court on October
9. Thereafter, Todd, again purportedly acting in his capacity
as successor conservator, appealed to this court, contending
that the county court erred in finding that Herrick’s Hummer
required $4,900 worth of repairs and reducing its fair mar-
ket value by that amount, in finding that the Hummer’s fair
market value was $13,300 when Paulsen sold it, and in the
amount surcharged to Paulsen.
Upon this appeal being filed with this court, Paulsen filed
a motion to dismiss for lack of jurisdiction for the reason
that Todd was not authorized to file the appeal as successor
conservator because he had never filed an acceptance of the
appointment and, thus, he lacked standing to seek any legal
remedies on behalf of the protected person, Herrick. We
denied Paulsen’s motion for summary dismissal, but reserved
Decisions of the Nebraska Court of Appeals
IN RE GUARDIANSHIP & CONSERVATORSHIP OF HERRICK 979
Cite as 21 Neb. App. 971ruling on the issue of standing and ordered the parties to
address the issue of standing in their briefs to this court.
III. ASSIGNMENTS OF ERROR
On appeal, Todd contends that the county court erred in the
amount surcharged to Paulsen. Specifically, he contends that
the county court erred (a) in finding that the Hummer had a fair
market value of $13,300 when Paulsen sold it and (b) in find-
ing that the Hummer required $4,900 in repairs and reducing
its fair market value by that amount.
IV. STANDARD OF REVIEW
[1-3] An appellate court reviews guardianship and con-
servatorship proceedings for error appearing on the record
made in the county court. In re Conservatorship of Gibilisco,
277 Neb. 465, 763 N.W.2d 71 (2009); In re Guardianship &
Conservatorship of Cordel, 274 Neb. 545, 741 N.W.2d 675(2007). 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. Id. An appel-
late court, in reviewing a judgment of the trial court for errors
appearing on the record, will not substitute its factual findings
for those of the trial court where competent evidence supports
those findings. In re Guardianship of Gaube, 14 Neb. App.
259, 707 N.W.2d 16 (2005).
V. ANALYSIS
1. Jurisdiction
[4,5] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. Carlos H. v. Lindsay M.,
283 Neb. 1004, 815 N.W.2d 168 (2012). Determination of a
jurisdictional issue which does not involve a factual dispute is
a matter of law. Id. In this case, there is a question of whether
Todd had the capacity to bring the instant appeal.
[6-10] Initially, it is important to set forth the difference
between standing and capacity to sue. Although the concepts
Decisions of the Nebraska Court of Appeals
980 21 NEBRASKA APPELLATE REPORTS
of standing and capacity to sue are related, they are distinct:
Capacity to sue is the right to come into court, whereas
standing to sue is the right to relief in court. See Smith v.
Cimmet, 199 Cal. App. 4th 1381, 132 Cal. Rptr. 3d 276(2011). Standing relates to a court’s power, that is, jurisdic-
tion, to address issues presented and serves to identify those
disputes which are appropriately resolved through the judicial
process. Frenchman-Cambridge Irr. Dist. v. Dept. of Nat. Res.,
281 Neb. 992, 801 N.W.2d 253 (2011). Under the doctrine of
standing, a court may decline to determine merits of a legal
claim because the party advancing it is not properly situated
to be entitled to its judicial determination. In re Application
A-18503, 286 Neb. 611, 838 N.W.2d 242 (2013); Frenchman-
Cambridge Irr. Dist. v. Dept. of Nat. Res., supra. The focus is
on the party, not the claim itself. Id. Standing requires that a
litigant have such a personal stake in the outcome of a con-
troversy as to warrant invocation of a court’s jurisdiction and
justify exercise of the court’s remedial powers on the litigant’s
behalf. Id. The defect of standing is a defect of subject matter
jurisdiction. In re Invol. Dissolution of Wiles Bros., 285 Neb.
920, 830 N.W.2d 474 (2013); State ex rel. Reed v. State, 278
Neb. 564, 773 N.W.2d 349 (2009). Thus, the issue of standing
is jurisdictional; a party must have standing before a court can
exercise jurisdiction, and either a party or the court can raise
a question of standing at any time during the proceeding. In re
Application A-18503, supra; Frenchman-Cambridge Irr. Dist.
v. Dept. of Nat. Res., supra.
[11] In contrast, the capacity to sue is the right to come
into court. A party has capacity when it has the legal author-
ity to act, regardless of whether it has a justiciable interest in
the controversy. Carlos H. v. Lindsay M., supra. The “‘legal
capacity to sue or be sued’” generally refers to the status of
the party. A Plus Janitorial Co. v. Group Fox, Inc., ___ Ill.
App. 3d ___, ___, 988 N.E.2d 178, 182, 370 Ill. Dec. 402, 406
(2013). Examples of lack of capacity include infancy and men-
tal incompetency. See Carlos H. v. Lindsay M., supra (minor
lacks capacity to bring action); Dafoe v. Dafoe, 160 Neb. 145,
69 N.W.2d 700 (1955) (denying son right to bring lawsuit as
“next friend” of his father where evidence presented did not
Decisions of the Nebraska Court of Appeals
IN RE GUARDIANSHIP & CONSERVATORSHIP OF HERRICK 981
Cite as 21 Neb. App. 971sustain conclusion that father was mentally incompetent to
bring lawsuit in his own behalf).
[12,13] Under Nebraska’s pleading rules, a party wishing
to raise the issue of whether another party has the necessary
capacity must specifically deny that the opposing party has
capacity. Carlos H. v. Lindsay M., 283 Neb. 1004, 815 N.W.2d
168 (2012); Neb. Ct. R. Pldg. § 6-1109(a) (rev. 2008). Thus,
unlike standing, a party’s capacity to sue or be sued is not
jurisdictional. See Carlos H. v. Lindsay M., supra. Because
a lack of legal capacity is a legal disability that can be cured
during the pendency of the litigation, Washington Mut. Bank v.
Blechman, 157 Cal. App. 4th 662, 69 Cal. Rptr. 3d 87 (2007),
it follows that a plaintiff’s capacity to sue may also be lost sub-
sequent to the filing of a complaint. See Troester v. Sisters of
Mercy Health Corp., 328 N.W.2d 308 (Iowa 1982) (it is proper
to challenge plaintiff’s capacity to sue by motion to dismiss
based on facts that occurred subsequent to filing of petition);
Dumbaugh v. Cascade Mfg. Co., 264 N.W.2d 763 (Iowa 1978)
(plaintiff, trustee in bankruptcy, had capacity to sue when suit
was commenced; however, he lost capacity during pendency of
case when he was discharged as trustee and bankruptcy estate
was closed).
Having set forth the distinctions between standing and
capacity to sue, we now consider their application to the
instant case.
(a) Standing
[14] It is clear that Todd had standing at the inception
of the instant case in February 2012, when the application
for an accounting was filed, because he brought the action
as the original guardian. See Neb. Rev. Stat. § 30-2628(2)
(Cum. Supp. 2012) (“[w]ithout regard to custodial rights of
the ward’s person, a guardian shall take reasonable care of
his or her ward’s clothing, furniture, vehicles, and other per-
sonal effects and commence protective proceedings if other
property of his or her ward is in need of protection”). The
issue of whether a plaintiff lost standing during a proceed-
ing, even though he initially had standing, was considered,
and rejected, by the Nebraska Supreme Court in Myers v.
Decisions of the Nebraska Court of Appeals
982 21 NEBRASKA APPELLATE REPORTS
Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776(2006). In rejecting the notion that standing had been lost,
the court set forth that a plaintiff’s personal interest “‘is to be
assessed under the rubric of standing at the commencement of
the case, and under the rubric of mootness thereafter.’” Id. at
682-83, 724 N.W.2d at 792.
Pursuant to Myers v. Nebraska Invest. Council, supra,because standing is determined at the commencement of the
litigation, Todd, as the original guardian, clearly had standing
at the time that he filed the application for complete account-
ing, surcharge, and indemnification in the county court, which
was the commencement of litigation in this case.
[15,16] Furthermore, the issues presented in the applica-
tion for accounting and raised in this appeal have not become
moot. A case becomes moot when the issues initially pre-
sented in the litigation cease to exist, when the litigants lack
a legally cognizable interest in the outcome of litigation, or
when the litigants seek to determine a question which does
not rest upon existing facts or rights, in which the issues
presented are no longer alive. Glantz v. Daniel, 21 Neb. App.
89, 837 N.W.2d 563 (2013); Muzzey v. Ragone, 20 Neb.
App. 669, 831 N.W.2d 38 (2013). A case is not moot unless
a court cannot fashion some meaningful form of relief, even
if that relief only partially redresses the prevailing party’s
grievances. In re 2007 Appropriations of Niobrara River
Waters, 278 Neb. 137, 768 N.W.2d 420 (2009). Clearly, the
issues presented regarding the county court’s determination
surcharging Paulsen are still alive, some meaningful relief
could be fashioned, and this case is not subject to dismissal
for mootness.
(b) Capacity
[17,18] Having determined that Todd had standing at the
inception of this action and that he did not lose standing, we
proceed to consider whether he had the capacity to sue and to
bring this appeal. Todd’s failure to file an acceptance of his
appointment as conservator was brought to this court’s atten-
tion by Paulsen in a motion for summary dismissal, although
Decisions of the Nebraska Court of Appeals
IN RE GUARDIANSHIP & CONSERVATORSHIP OF HERRICK 983
Cite as 21 Neb. App. 971the issue was couched under the rubric of “standing” rather
than “capacity to sue.” However, because a party’s capac-
ity to sue or be sued is not jurisdictional, a challenge to a
party’s capacity must be brought at the earliest opportunity
or it is waived. See Smith v. Cimmet, 199 Cal. App. 4th 1381,
1390, 132 Cal. Rptr. 3d 276, 282 (2011) (“[a] challenge to a
party’s capacity must be brought at the earliest opportunity
or the challenge is forfeited”). After resigning as Herrick’s
guardian, Todd, purportedly acting in his capacity as succes-
sor conservator, filed a motion in the county court to alter
or amend. Although Todd had not filed an acceptance of his
appointment of successor conservator at the time this motion
was filed, we are unable to discern, due to the lack of a bill
of exceptions from the hearing on Todd’s motion to alter or
amend, whether Paulsen challenged Todd’s authority to act in
that capacity at that time. Because under Nebraska’s pleading
rules a party who wishes to raise the issue of whether another
party has the necessary capacity must specifically deny that
the opposing party has capacity, Carlos H. v. Lindsay M., 283
Neb. 1004, 815 N.W.2d 168 (2012), it follows that the party
seeking to raise the issue that a party has lost capacity during
the course of litigation bears the burden of establishing that the
party raised such issue at the first opportunity, thereby properly
preserving it. Because Paulsen cannot establish that she chal-
lenged Todd’s authority at the earliest opportunity, i.e., before
the county court at the hearing on Todd’s motion to alter or
amend, and because standing to sue is not jurisdictional, she
has waived any objection to his lack of capacity. Therefore, we
proceed to address the merits of this appeal as raised in Todd’s
assignments of error.
2. Merits of Appeal
Having determined that Todd has standing to pursue this
appeal and that Paulsen waived any objections to Todd’s
capacity to sue, we proceed to consider the errors assigned
by Todd. Todd contends that the county court erred in the
amount surcharged to Paulsen. Specifically, he contends that
the county court erred (a) in finding that the Hummer had a
Decisions of the Nebraska Court of Appeals
984 21 NEBRASKA APPELLATE REPORTS
fair market value of $13,300 when Paulsen sold it and (b) in
finding that the Hummer required $4,900 in repairs and reduc-
ing its fair market value by that amount.
(a) Hummer’s Fair Market Value
Todd contends that the value assigned to the Hummer by
the county court was not supported by competent evidence,
because although credible evidence was offered at trial that the
fair market value of the Hummer was between $16,000 and
$17,000 at the time Paulsen sold it, the court determined that
the fair market value of the Hummer was $13,300 at the time
of its July 1, 2011, sale to Brake.
The evidence established that on the June 6, 2011, inventory/
­
accounting, Paulsen valued the Hummer at $16,700, but her
trial testimony placed the Hummer’s value between $9,000 and
$10,000, based upon Internet research she conducted on the
“cars.com” and Kelley Blue Book Web sites. Todd presented
evidence that in April 2012, a 2007 Hummer in average con-
dition with around 63,705 miles would sell at auction for an
average sale price of $17,188.
An appellate court, in reviewing a judgment of the trial
court for errors appearing on the record, will not substitute its
factual findings for those of the trial court where competent
evidence supports those findings. In re Guardianship of Gaube,
14 Neb. App. 259, 707 N.W.2d 16 (2005).
The county court heard the evidence and determined that
the fair market value of Herrick’s Hummer was $13,300.
This amount is between the fair market value of the Hummer
which was listed by Paulsen in her inventory at $16,700 and
her trial testimony which placed the Hummer’s value between
$9,000 and $10,000. The county court’s determination is sup-
ported by competent evidence and is neither arbitrary, capri-
cious, nor unreasonable. As such, we accept the factual find-
ing of the county court on this issue.
[19] We further note that Todd argues in his brief that the
county court abused its discretion in failing to receive into
evidence a printout from the Kelley Blue Book Web site show-
ing the private party value of a 2007 Hummer H3 with 56,870
miles. However, Todd did not assign this as error. Errors
Decisions of the Nebraska Court of Appeals
IN RE GUARDIANSHIP & CONSERVATORSHIP OF HERRICK 985
Cite as 21 Neb. App. 971argued but not assigned will not be considered on appeal.
Butler County Dairy v. Butler County, 285 Neb. 408, 827
N.W.2d 267 (2013).
(b) Repairs
Todd contends that the county court erred in finding that
the Hummer required $4,900 in repairs and reducing its fair
market value by that amount. He argues that Paulsen should
have been surcharged this amount, because she breached her
duty as conservator to comply with the “prudent investor rule”
by failing to verify facts relevant to the repair of the Hummer,
and that this breach resulted in the $4,900 diminishment of
Herrick’s estate.
Pursuant to Neb. Rev. Stat. § 30-2646 (Reissue 2008), a
conservator is to act as a fiduciary and comply with the pru-
dent investor rule set forth in Neb. Rev. Stat. §§ 30-3883 to
30-3889 (Reissue 2008). The prudent investor rule mandates
that a conservator who is a fiduciary shall exercise reasonable
care, skill, and caution in managing estate assets. § 30-3884(a).
The prudent investor rule also requires a conservator to “make
a reasonable effort to verify facts relevant to the investment
and management of trust assets.” § 30-3884(d). Compliance
with the prudent investor rule is determined in light of the facts
and circumstances at the time of the conservator’s decision or
action and not by hindsight. See § 30-3887.
Todd contends that Paulsen failed to make a reasonable
effort to determine whether the Hummer’s engine problems
were covered by the warranty. Although the record is undis-
puted that Paulsen did not take the Hummer to a General
Motors dealership to determine if the Hummer’s engine prob-
lems were covered by the warranty, the evidence did establish
that William researched the warranty issue and that he and
Paulsen determined the Hummer’s engine issues would not
have been covered by the warranty. Paulsen then took the
vehicle to an independent mechanic and obtained an estimate
of the cost to repair the vehicle, which estimate was $4,900.
She then chose to sell the Hummer and discount the price by
the $4,900 in necessary repairs. The county court determined
that the value of the necessary repairs should be subtracted
Decisions of the Nebraska Court of Appeals
986 21 NEBRASKA APPELLATE REPORTS
from the fair market value of the vehicle. The county court’s
determination is supported by competent evidence and is nei-
ther arbitrary, capricious, nor unreasonable. As such, we accept
the factual finding of the county court on this issue.
VI. CONCLUSION
Having determined that we have jurisdiction over this
appeal, we find that the decision of the county court conforms
to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. As a result, the deci-
sion of the county court is affirmed.
Affirmed.
Donald L. Brittain, appellant, v. H & H
Chevrolet LLC and Mid-Century
Insurance Company, appellees.
___ N.W.2d ___
Filed April 29, 2014. No. A-13-384.
1. Workers’ Compensation: Appeal and Error. In determining whether to affirm,
modify, reverse, or set aside a judgment of the Workers’ Compensation Court, a
higher appellate court reviews the trial judge’s findings of fact, which will not be
disturbed unless clearly wrong.
2. Workers’ Compensation: Judgments: Appeal and Error. Where there is no
factual dispute, the question of whether the injury arose out of and in the course
of employment is clearly one of law, in connection with which a reviewing court
has an obligation to reach its own conclusions independent of those reached by
the inferior courts.
3. Employer and Employee. An activity is related to the employment if it carries
out the employer’s purposes or advances its interests directly or indirectly.
4. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the controversy before it.
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Affirmed.
Joseph W. Grant and Michael R. Peterson, of Hotz, Weaver,
Flood, Breitkreutz & Grant, for appellant.
Stacy L. Morris, of Lamson, Dugan & Murray, L.L.P., for
appellees.