In re Warner Family Trust ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE WARNER FAMILY TRUST
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE WARNER FAMILY TRUST.
JOSEPH R. WARNER, APPELLANT, ANDPHILIP E. WARNER,
APPELLEE AND CROSS-APPELLANT,
V.
BARBARA J. WARNER, APPELLEE AND CROSS-APPELLEE.
Filed October 15, 2019. No. A-18-033.
Appeal from the County Court for Sarpy County: ROBERT C. WESTER, Judge. Affirmed.
Joseph R. Warner, pro se.
Philip E. Warner, pro se.
Charles E. Dorwart and Thomas C. Dorwart, of Govier, Katskee, Suing & Maxell, P.C.,
L.L.O., for appellee Barbara J. Warner.
BISHOP, ARTERBURN, and WELCH, Judges.
BISHOP, Judge.
INTRODUCTION
This dispute among Joseph R. Warner and Philip E. Warner (collectively, the brothers) and
their sister, Barbara J. Warner, relates to “The Warner Family Trust” (Family Trust). The brothers
appeal from the order of the county court for Sarpy County denying their motions for attorney fees
and costs. We affirm.
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BACKGROUND
In 2002, Edmund G. Warner and Josephine P. Warner executed the Family Trust to benefit
themselves, their children (Joseph, Philip, and Barbara), and their grandchildren. A “Revocation
of Trust” (Revocation) dated February 15, 2011, was signed by Edmund on his own behalf and on
Josephine’s behalf (by power of attorney). In January 2012, Edmund executed a will that
established a testamentary trust for Josephine’s benefit. Edmund died in February, and according
to exhibit 20, the county court took jurisdiction of Edmund’s estate and appointed a special
administrator on May 23. In June, Pinnacle Bank of Papillion (Pinnacle Bank) initiated an
interpleader action in the Sarpy County District Court, alleging that Edmund and Josephine, as
trustees of the Family Trust, had opened two accounts with Pinnacle Bank and deposited certain
amounts into those accounts. The bank noted that Edmund had died and that the county court for
Sarpy County had found Josephine to be incapacitated. The bank stated it had received the
purported Revocation of the Family Trust and it sought to deposit $307,570.97 plus accrued
interest into the district court, to be discharged of all claims, and to be dismissed from the case.
Josephine died in October.
In February 2013, Barbara filed to register the Family Trust in the county court along with
a petition requesting a determination of (1) whether the trust was valid; (2) whether the Revocation
was valid; and (3) the proper distribution of funds held by Bank of America on behalf of the trust,
funds held by “USAA” Bank on behalf of the “Warner Family Administrative Trust dated October
16, 2012,” and funds held in the name of the trust at the time of Edmund’s death that were in
custody of the district court in the interpleader action. Later in February 2013, Joseph, pro se,
submitted several filings in which he alleged that the Revocation unambiguously revoked the trust
and that the county court lacked jurisdiction of the matter. Despite that position, on March 7,
Joseph, pro se, filed a motion asking for removal of Barbara as successor cotrustee of the Family
Trust.
After a hearing before the county court in March 2013, at which the brothers were
represented by the same counsel, the county court entered an order on April 29. It concluded the
issue of whether the trust was valid was being litigated in the district court and the county court
declined to take jurisdiction of the matter “w/o prejudice” to a future request “should the [d]istrict
[c]ourt matter be resolved as dismissed.” On October 22, the district court handling the interpleader
action issued a summary judgment order upon advisement that all interested parties had reached
an agreement. The district court found the trust had been revoked and it ordered that all funds held
by the clerk of the district court were to be deposited with the county court for the estate of
Josephine.
On November 1, 2013, the brothers, via the same attorney, filed a motion to dismiss the
county court case regarding the Family Trust as Joseph and Barbara had agreed in “open court on
October 8” that the trust had been revoked and funds in the trust were to be paid into Josephine’s
estate, the district court had decided the matter, and the pending county court case was thus moot.
They asked for attorney fees as Barbara “served an answer” in the district court action admitting
that the Revocation was valid and the trust was revoked. On December 6, a hearing took place on
that motion. The entirety of the hearing as it relates to the request for attorney fees follows:
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[BROTHERS’ COUNSEL]: The other issue that I think we need to get to is, with
regard to the trust, I filed a motion to dismiss that proceeding on the basis that it’s now
moot since the [d]istrict [c]ourt has entered its order.
THE COURT: I can’t remember. What did -- did the [d]istrict [c]ourt --
[BROTHERS’ COUNSEL]: The [d]istrict [c]ourt found that the trust had been
revoked and I believe ordered the funds paid into this [c]ourt.
THE COURT: Okay. Was that by stipulation?
[BROTHERS’ COUNSEL]: Yes.
THE COURT: Okay. Do you have any problem with that? I don’t know that
I’ll -- do you want me to dismiss that action or can we just let it hang?
[BROTHERS’ COUNSEL]: Well, I see no reason to keep it on the [c]ourt’s
records.
THE COURT: [Barbara’s counsel]?
[BARBARA’S COUNSEL]: Well, for the [d]istrict [c]ourt, I just have to counter
the fact that the wording that was used. It was a stipulation that the order should be entered
and that the matter be dismissed, that the trust is revoked, and that the money be paid over
here. That was what was done. It’s not that the [district] [c]ourt made a specific finding of
that. It was what we stipulated to. I don’t really have any great problem with the trust
being -- trust administration or registration file being opened or closed.
THE COURT: I’ll take that under advisement then.
Based on the record before us, the county court never announced a decision or issued an order
upon the motion to dismiss.
In March 2014, Joseph, pro se, filed a motion to compel the court to resolve his motion to
remove Barbara as successor cotrustee of the Family Trust that he filed the prior year and he filed
a “[c]ertificate” in support of that motion. On April 2, the county court entered an order granting
Joseph’s counsel leave to withdraw as Joseph’s counsel. Proceedings thereafter consist of
numerous filings by Joseph, pro se, and to a lesser extent, Philip, through counsel.
We note the following miscellaneous motions of Joseph, pro se: motion to recuse judge
and supporting “[c]ertificate,” motion to compel court to resolve prior motions to remove Barbara
as successor cotrustee of the trust and to remove Barbara as trustee with supporting “[c]ertificate”
(filed 2014); objection to applications (filed 2015); and an objection to closure of case and motion
to alter and/or amend order and/or for alternative relief (filed 2017). The record has various
motions filed by Philip, through counsel: two motions to remove and replace trustee (filed 2015)
and a motion to alter or amend and motion to continue hearing (filed 2017). Some of the
above-noted motions were also filed in one or both of the pending estate cases for Josephine and
Edmund; hearings often included discussion involving more than one of the pending cases.
On February 2, 2017, the county court scheduled a hearing for February 10, on which day
the court ordered the Family Trust case closed. Upon requests of each brother, the case was
reopened in April. That month, Philip filed a motion for attorney fees and costs alleging (1) the
trust was revoked in 2011, (2) the county court could not have obtained jurisdiction at the time the
action was filed because the trust was subject to the jurisdiction of the district court, and (3) he had
incurred substantial attorney fees and traveling costs to get to “hearing(s) which should not have
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occurred.” Joseph, pro se, also filed a motion for attorney fees and costs, alleging that (1) the trust
was revoked in 2011, (2) Barbara served an answer in the interpleader action in which she stated
that the Revocation validly revoked the trust, and (3) he had incurred attorney fees and costs in
“this matter which should not have been filed.” (Barbara raised a similar motion but it is not in our
record.) A hearing on the parties’ motions for attorney fees took place on June 12, 2017. During
the hearing, Joseph informed the court of an outstanding motion for the judge’s recusal; the judge
stated that he was not going to recuse himself. The June 12 journal entry and order of the county
court states that the motion to recuse was denied and other matters were taken under advisement.
On October 6, 2017, the county court issued an order. It said that the brothers’ claim was
based on Neb. Rev. Stat. § 30-3893 (Reissue 2016) and Neb. Rev. Stat. § 25-824 (Reissue 2016)
and noted their argument that Barbara caused them to expend unnecessary costs, travel expenses,
and attorney fees in response and defense to her claim in the county court when the issue of the
validity of the trust was already pending in the district court’s interpleader action. The county court
also noted the brothers’ assertion that it should have been obvious that the district court had
primary jurisdiction prior to Barbara filing the subsequent county court petition, and thus that
Barbara’s filing would appear frivolous; however, the county court pointed out that it was “not
quite so simple.” The county court said the complaint by interpleader showed that the county court
took jurisdiction of the “Edmund G. Warner estate [PR 12-67] and appointed a Special
Administrator on May 23, 2012 [PR 12-129], roughly three weeks prior to the interpleader being
filed.” It would therefore have had jurisdiction over the validity of the trust as “Edmund was one
of the Trustors and his estate would have an interest in the corpus of the trust if it was revoked,”
something the brothers themselves had argued in 2013. The county court stated that another reason
the present action was not frivolous was that it was not identical to the interpleader action. The
prayer for relief in the complaint by interpleader did not ask for a determination of the validity of
the trust but simply sought a decision of what should happen with the Pinnacle Bank funds. The
trust litigation in county court included “more parties and issues.” The county court determined
that this action was legitimate and that the brothers failed to prove that Barbara’s initiation of the
action was frivolous or brought to cause delay or harassment, nor did equity require awarding the
brothers the requested costs and expenses. It denied the brothers’ motions, and it also denied
Barbara’s motion for attorney fees, costs, and expenses for lack of showing damages related solely
to the trust litigation.
On October 13, 2017, Joseph, pro se, filed a motion to alter and/or amend the October 6
order. He alleged that the county court “affirmatively relinquished jurisdiction” to the district
court, which had to determine the validity of the Revocation to resolve the interpleader action. In
reference to the brothers’ motion to dismiss in this case, Joseph said the court not dismissing the
action “in effect, established the idea that the action had issues outstanding from the petition and
was meritorious. It was neither.” He argued that the county court “ignored” many reasons for
determining whether a matter is frivolous and that it did not apply § 30-3893. On October 16,
Philip, through counsel, also filed a motion to alter or amend, asserting that the county court could
not have jurisdiction over the trust unless a trust proceeding was filed in this court, which happened
“eight months after the interpleader action was filed.” After a December 11 hearing on the motions,
the county court entered an order the same day in which it denied the motions. It further stated, “If
there is a motion to recuse pending it is denied.” (Our record does not show such a motion was
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pending at that time; the county court had previously denied a request for recusal in its order
entered on June 12, as well as in an earlier order dated July 18, 2014).
The brothers appeal.
ASSIGNMENTS OF ERROR
The brothers claim, consolidated and restated, that (1) the county court did not have
jurisdiction to take up matters while a motion to recuse was pending, (2) they did not receive proper
statutory notice of the February 10, 2017, hearing, and (3) the county court erred in denying their
request that Barbara pay their attorney fees.
STANDARD OF REVIEW
A jurisdictional issue that does not involve a factual dispute presents a question of law.
Brinkman v. Brinkman, 302 Neb. 315, 923 N.W.2d 380 (2019). On a question of law, an appellate
court is obligated to reach a conclusion independent of the determination reached by the court
below. In re Estate of Forgey, 298 Neb. 865, 906 N.W.2d 618 (2018).
A trial court’s decision awarding or denying attorney fees will be upheld on appeal absent
an abuse of discretion. Id.
ANALYSIS
PARTIES ON APPEAL AND ERRORS ARGUED BUT NOT ASSIGNED
As a preliminary matter, we must address the actions taken by the brothers to appeal the
December 11, 2017, order denying their motions to alter or amend the October 6 order. Joseph,
pro se, filed a timely notice of appeal on January 3, 2018. Philip, pro se, filed a notice of appeal
on January 16, more than 30 days after the order being appealed was entered. Philip’s untimely
notice of appeal is of no consequence since once Joseph’s initial notice of appeal was timely filed,
all other parties are designated as appellees and have the right to cross-appeal, which need only be
asserted in the appellee’s brief as provided by Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014). See
Neb. Ct. R. App. P. § 2-101(C) and (E) (rev. 2015). Therefore, Philip is an appellee/cross-appellant
even though his interests align with Joseph’s interests on appeal. In fact, the two brothers attempted
to submit a jointly filed, pro se, appellate brief. Unfortunately, while there are typed signature
blocks for each brother on their jointly filed brief, only Philip signed his name to his respective
signature block. Joseph did not sign the brief, and Philip had no authority as a pro se litigant to
represent Joseph on appeal. See Waite v. Carpenter, 1 Neb. Ct. App. 321, 496 N.W.2d 1 (1992) (while
individual may represent himself or herself and participate in trials and legal proceedings on his
or her own behalf, nonlawyer may not represent others in legal proceedings, nor may such person
practice law for others).
We must view Joseph’s failure to sign the brief as Joseph defaulting in filing an appellate
brief as required by Neb. Ct. R. App. P. § 2-109(D) (rev. 2014). Joseph’s signing of the brothers’
joint appellate reply brief does not remedy his default. Ordinarily, if an appellant fails to file a brief
within the time allowed by our appellate court rules, the Supreme Court Clerk “shall mail notice
to all pro se parties and all attorneys of record that appellant is in default for failure to file a brief.”
Neb. Ct. R. App. P. § 2-110(A) (rev. 2008). The appellant is thereafter required to file a brief
within 10 days after receipt of such notice. And an “[a]ppellant’s failure to file a brief in response
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to the notice of default subjects the appeal to dismissal.” Id. However, in this case, no notice of
default was issued upon Joseph, which may have provided him an opportunity to correct the
signature oversight. Accordingly, we decline to dismiss the appeal, and instead proceed by
considering the appellate brief filed by Philip, as an appellee/cross-appellant.
As an appellee/cross-appellant, Philip was required to comply with our rules on
cross-appeals, including the requirement that he designate on the cover of his brief that it is a
cross-appeal, and set forth his cross-appeal in a separate division of the brief titled “Brief on
Cross-Appeal.” See § 2-109(D)(4). Philip’s appellate brief is titled “Brief of Appellants” and it is
prepared as though he is an appellant. Although in violation of our rule regarding presentation of
a cross-appeal, we will consider Philip’s arguments to the extent they are properly raised in his
brief. See, Knaub v. Knaub, 245 Neb. 172, 512 N.W.2d 124 (1994); In re Interest of Becka P. et
al., 27 Neb. Ct. App. 489, ___ N.W.2d ___ (2019). We do so because no appellant’s brief was filed
by Joseph to which Philip could respond as an appellee, no notice of default was issued upon
Joseph in accordance with our appellate court rules, Philip designated himself as an appellant on
the cover of his brief (thereby giving notice he was seeking affirmative relief), and the form and
presentation of his brief conforms with the rules applicable to an appellant’s brief. See In re
Interest of Becka P. et al., supra (appellee’s appeal considered despite brief rule violation because
form and presentation of assignments of error conform with rules applicable to an appellant’s
brief).
We note that in Philip’s brief, he discusses at length why he believes the county court judge
should have recused himself, but Philip did not specifically assign error to the county court’s denial
of any motion to recuse. He also argues, but does not specifically assign, that Barbara did not have
standing to initiate this action and that the county court should have dismissed Barbara’s petition.
To be considered by an appellate court, an error must be both specifically assigned and specifically
argued in the brief of the party asserting the error. Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d
569 (2017). A pro se litigant will receive the same consideration as if he or she had been
represented by an attorney, and, concurrently, that litigant is held to the same standards as one who
is represented by counsel. Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015). Thus,
we will not address the merits of those arguments.
JURISDICTION OF COUNTY COURT
Philip argues that the county court did not have jurisdiction after August 15, 2014, which
is when Joseph’s motion to recuse the judge was filed. He suggests that the county court regained
jurisdiction when it denied that motion in June 2017, and argues that the county court would have
to enter an order compelling a rehearing on all matters submitted to and/or considered by the court
from August 2014 to June 2017. Barbara argues in her brief, but does not cross-appeal, that the
county court did not have jurisdiction of the trust after it signed its April 29, 2013, order, in which
it declined to register the Family Trust and subject it to the jurisdiction of the county court.
Although Barbara did not cross-appeal as to this issue, we nevertheless address Barbara’s
argument since the lack of subject matter jurisdiction may be raised at any time by any party or by
the court sua sponte. See Christine W. v. Trevor W., 303 Neb. 245, 928 N.W.2d 398 (2019).
Generally, county courts have exclusive jurisdiction over all matters related to decedents’
estates under Neb. Rev. Stat. § 24-517(1) (Cum. Supp. 2018). The Nebraska Supreme Court has
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held that county courts have jurisdiction over all subject matter relating to estates of decedents,
including construction of wills and determination of heirs and successors of decedents, estates of
protected persons, protection of minors and incapacitated persons, and trusts. See In re Estate of
Forgey, supra. Such courts have full power to make orders, judgments, and decrees and to take all
other actions necessary and proper to administer justice in the matters which come before them.
Id.
The Nebraska Supreme Court has held, however, that the Legislature’s purported grant of
exclusive original jurisdiction to the county court in matters relating to decedents’ estates is of
suspect constitutionality insofar as it relates to matters that would involve either the chancery or
common law jurisdiction of the district courts. See Brinkman v. Brinkman, 302 Neb. 315, 923
N.W.2d 380 (2019). This is because the district court’s jurisdiction over such matters emanates
from the Nebraska Constitution. Brinkman v. Brinkman, supra. Neb. Const. art. V, § 9 provides
that district courts have both chancery and common law jurisdiction, and such other jurisdiction
as the Legislature may provide. See Brinkman v. Brinkman, supra. The Nebraska Supreme Court
has held that because a district court’s general jurisdiction emanates from the Nebraska
Constitution, it cannot be legislatively limited or controlled. Brinkman v. Brinkman, supra.
Further, county courts have concurrent original jurisdiction with the district court in matters arising
under the Nebraska Uniform Trust Code. See Neb. Rev. Stat. § 24-517(8) (Reissue 2016). Thus,
in cases such as this one concerning issues related to a trust, the county court had concurrent
original jurisdiction with the district court. See, id.; Neb. Const. art. V, § 9.
When the jurisdiction of the county court and district court is concurrent, the basic
principles of judicial administration require that the court which first acquires jurisdiction should
retain it to the exclusion of the other court. Washington v. Conley, 273 Neb. 908, 734 N.W.2d 306
(2007). Jurisdictional priority is not a matter of extinguishing existing jurisdiction of a court. See
Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014) (jurisdictional priority rule is
question of judicial administration, not subject matter jurisdiction or personal jurisdiction). This
rule of jurisdictional priority does not apply unless there are two cases pending at the same time.
Brinkman v. Brinkman, supra. The doctrine further does not apply if the first action terminates, is
resolved, or is disposed of before the second action commences. Id. Additionally, two pending
cases fall under this doctrine only when they involve the same whole issue. Id. In other words, the
two actions must be materially the same, involving the substantially same subject matter and the
same parties. Id. While jurisdictional priority is not a matter of subject matter or personal
jurisdiction, courts should enforce the jurisdictional priority doctrine to promote judicial comity
and avoid the confusion and delay of justice that would result if courts issued conflicting decisions
in the same controversy. Id.
In April 2013, the county court declined to take jurisdiction of this case “w/o prejudice to
a future request should the [d]istrict [c]ourt matter be resolved as dismissed.” Although the county
court maintained concurrent original jurisdiction over the matter, it declined to exercise
jurisdiction over the trust while the interpleader action was pending in the district court. Regardless
of whether the county court could have demanded jurisdictional priority, a matter we need not
decide, the district court then properly exercised jurisdiction over the interpleader action. See Barth
v. Barth, 22 Neb. Ct. App. 241, 851 N.W.2d 104 (2014) (record indicated judges from Lancaster
County and Lincoln County conferred and decided Lancaster County action would be dismissed;
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collaboratively, courts apparently decided not to enforce jurisdictional priority doctrine yet still
satisfied judicial administration principles). See, also, Charleen J. v. Blake O., supra (approving
Barth v. Barth, supra). The county court’s initial decision to not register the trust and subject it to
its jurisdiction at that time promoted judicial comity, efficiency, and economy. The district court
effectively dismissed the interpleader action in October 2013, when it entered an order of summary
judgment upon the parties’ agreement that the trust was revoked and directed that all funds at issue
in that matter were to be deposited with the county court clerk for Josephine’s estate. No issues
were left for the district court to determine.
Because the district court matter had already been resolved by the time the brothers began
to file motions in the county court case starting in November 2013, there was no remaining
jurisdictional priority issue. See Brinkman v. Brinkman, supra (jurisdictional priority inapplicable
if two cases are not pending at same time). The county court could properly exercise its concurrent
original jurisdiction under § 24-517(8) (trust administration proceedings) or, considering the trust
was declared revoked in the interpleader action, its exclusive jurisdiction under § 24-517(1) (all
matters related to decedents’ estates). Therefore, we disagree with Barbara’s argument that the
county court did not have jurisdiction after it signed its April 2013 order. In sum, the county court’s
initial decision declining to exercise jurisdiction at that time did not destroy its ability to take
jurisdiction later, which it could properly exercise when no issues of jurisdictional priority
remained.
We now address Philip’s assigned error that the county court did not have jurisdiction from
August 15, 2014, when Joseph filed a motion to recuse, until June 12, 2017, when the court entered
an order denying recusal. We begin our consideration of this issue by noting an order filed shortly
before Joseph filed his August 2014 motion to recuse. On July 18, the county court entered an
order referring to a hearing that took place on April 28 with regard to 10 different motions pending
before the court. The order listed the specific pending motions, which included a motion for recusal
filed by Joseph. In the July 18 order, the county court denied all motions and requested relief
except for a matter not relevant here. In Joseph’s subsequently filed motion on August 15, again
requesting recusal of the county court judge, he asserts that at the April 28 hearing (not in our
record), the county court judge failed to entertain his motion “demanding” his recusal. Joseph
claimed he was not given “an opportunity to be heard in open Court” and was not allowed to offer
argument on this motion. This apparently second request for the judge to recuse himself was denied
in an order entered June 12, 2017. Philip contends that any matters submitted and considered by
the county court from the time Joseph filed the August 2014 motion to recuse until the order was
entered in June 2017, must be reheard because the county court had “no jurisdiction” during that
time period.
Philip does not cite to any supporting authority for his argument that a court has “no
jurisdiction” once a motion to recuse is filed. He relies on the following proposition from In re
Estate of Odineal, 220 Neb. 168, 174, 368 N.W.2d 800, 804 (1985): “When the cause for
disqualification in the first instance has been removed, a judge may assume supervision and
jurisdiction in the case.” The proposition pertains to the facts of In re Estate of Odineal, supra, in
which a judge who previously disqualified himself at a prior hearing in the estate denied
appellants’ later oral motion for the judge’s recusal on the basis that there no longer existed any
reason for his disqualification on any grounds. The record before this court does not show that the
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county court judge ever recused himself on any grounds in the first instance, rather, the record
only shows that Joseph’s motion for recusal was denied in several instances.
Further, a denial of a motion to recuse is generally not a final, appealable order in its own
right, and upon appellate review, a determination that the denial of a motion to recuse was incorrect
may result in the judge being disqualified from deciding subsequent orders. See In re Interest of
Michael N., 302 Neb. 652, 925 N.W.2d 51 (2019) (if juvenile court incorrectly denied motions to
recuse, it would be disqualified from deciding subsequent detention order). In other words, there
is no automatic loss of jurisdiction by the court; instead, any order entered by the court once a
motion to recuse has been filed and decided, may be impacted if the judge is found on appeal to
have improperly denied the motion for recusal.
As noted previously, Philip did not assign as error the county court’s denials of the motions
to recuse. Therefore, we do not reach the merits of any arguments made in that regard, which
necessarily precludes consideration of whether the county court judge was disqualified from
entering orders from August 2014 until entry of its order denying recusal in June 2017, or
thereafter.
ALLEGED INSUFFICIENT NOTICE OF FEBRUARY 2017 HEARING
Philip assigns as error and argues that he did not receive proper notice of the February 10,
2017, hearing. The order notifying the parties of the February 10 hearing was filed February 2.
Joseph appeared personally at that hearing; Phillip did not appear personally but was represented
by his attorney. On February 10, the county court entered an order stating, “Case is closed.” After
a hearing on March 31, the county court entered an order on April 10 granting the motions of Philip
and Joseph “to alter or amend” and proceeded to vacate the February 10 order in which it had
closed the case. Philip concedes in his brief that the issue of notice became moot because the
county court subsequently vacated the February 10 order. We agree, and we therefore decline to
address this alleged error further.
ATTORNEY FEES AND COSTS
Philip contends the county court erred in denying the brothers’ requests for attorney fees
and costs under § 25-824 or § 30-3893.
Section 25-824(2) allows a court to award reasonable attorney fees and court costs against
an attorney or party who has brought or defended a civil action that alleges a claim or defense
which the court determines is frivolous or made in bad faith. See Neb. Rev. Stat. § 24-824.01
(Reissue 2016) (discretionary factors for court’s consideration of whether to assess award pursuant
to § 25-824(2)). The term frivolous, as used in § 25-824, connotes an improper motive or legal
position so wholly without merit as to be ridiculous. See Harrington v. Farmers Union Co-Op.
Ins. Co., 13 Neb. Ct. App. 484, 696 N.W.2d 485 (2005). The definition of frivolous has also been held
to mean without rational argument based on law and evidence to support a litigant’s position in
the lawsuit. Id. Any doubt whether a legal position is frivolous or taken in bad faith should be
resolved in favor of the one whose legal position is in question. Id. The determination of whether
a particular claim or defense is frivolous must depend upon the facts of a particular case. Id.
Section 30-3893 provides that in judicial proceedings involving the administration of a
trust, the court, as justice and equity may require, may award costs and expenses, including
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reasonable attorney fees, to any party, to be paid by another party or from the trust that is the
subject of the controversy.
Philip asserts that Barbara’s filing of this action could not have been in good faith because
she prepared an answer (apparently intended to be filed in the interpleader action, but was not
filed) stating the Revocation was a “valid revocation” of the trust. He contends that the Revocation
was not an ambiguous document. However, Pinnacle Bank alleged in its interpleader complaint
that, as to the “purported” Revocation, “[a]t least one of the party [d]efendants claims that it is
invalid” (named defendants: Josephine, Barbara, and Joseph as cotrustees of trust; and Barbara as
guardian and conservator of Josephine’s estate, and special administrator of Edmund’s estate).
Further, Barbara’s trial brief to the county court, date-stamped April 15, 2013, reflects her belief
at that time that the interpretation of the validity of the Revocation was necessary based on what
she considered were conflicting provisions in the trust and Josephine’s durable power of attorney.
She also stated that she “filed the request to register the trust in an effort to move the procurement
of the funds held by the five financial institutions along in order to secure the funds for the family.”
Notably, the Pinnacle Bank interpleader action involved only one of those financial institutions.
The evidence does not reflect that Barbara’s filing of the county court action in February
2013 was done frivolously or in bad faith. The record supports that Barbara had an acceptable
motive to do so as there were uncertainties about the validity of the Revocation; additionally, other
financial institutions besides Pinnacle Bank were involved. The parties’ subsequent agreement and
the October 2013 district court’s order in the interpleader action did not exist at the time Barbara
filed her action in the county court. Even if Barbara believed the Revocation was valid, that issue
was yet to be decided by a court, and Pinnacle Bank’s interpleader action did not specifically
request a determination of the Revocation’s validity; Barbara’s initiation of the county court action
to confirm the Revocation’s validity and to secure funds for the family from multiple financial
institutions was not frivolous as provided under § 25-824(2). See Shanks v. Johnson Abstract &
Title, 225 Neb. 649, 407 N.W.2d 743 (1987) (appeal that is simply without merit is not by
definition frivolous).
Moreover, the county court did not find that justice and equity required an award for either
brother under § 30-3893. During the June 2017 hearing on the parties’ motions for attorney fees
and costs, Joseph testified about the December 2013 county court hearing on the brothers’ motion
to dismiss, admitting that there “just weren’t any issues that were pending, because the matter
basically was dealt with through the [d]istrict [c]ourt by [an] agreement of the parties.” Barbara
testified that she understood the trust matter of this case was resolved and that it was closed.
Nevertheless, she had to make repeated responses to pleadings within this case to filings by her
brothers. Our transcript does not indicate that Barbara initiated any filings other than those to
commence the case until she moved for attorney fees sometime in 2017.
This case appears to have continued as long as it has to some degree because of Joseph’s
numerous pro se filings, some of which are premised on the Family Trust still being in existence.
For example, it is inexplicable why, instead of filing a motion to compel resolution of the motion
to dismiss heard in December 2013 (grounded on argument of trust’s revocation), the next motion
filed (by Joseph) on March 24, 2014, was to compel the county court to resolve a previously filed
motion to remove Barbara as successor cotrustee of the Family Trust, which he himself had already
acknowledged had been revoked. Joseph filed another motion in August again requesting the
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removal of Barbara as successor cotrustee of the Family Trust, but added a request to also remove
her as trustee of any testamentary trust. The record reflects that there was certainly a lot of
confusion on the part of the parties and the court, which is understandable given that several filings
show that they were jointly filed in this case and either or both of the pending estate cases. The bill
of exceptions of all hearings indicate that the county court also considered matters from the other
estate cases during the same hearings that issues pertinent to this case were also being heard.
Regardless, there is nothing in the record to indicate that Barbara was the initiator of unnecessary
actions intended to delay closure of the trust case.
When an attorney fee is authorized, the amount of the fee is addressed to the discretion of
the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion.
In re Estate of Forgey, 298 Neb. 865, 906 N.W.2d 618 (2018). A judicial abuse of discretion
requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly
deprive a litigant of a substantial right and a just result. Id. We cannot conclude that the county
court abused its discretion by denying the brothers’ motions for attorney fees and costs under these
circumstances.
As a final matter, in Barbara’s appellate brief, she asks for “attorney’s fees for the cost of
responding to this frivolous and unfounded appeal,” brief for appellee at 7, and an order from this
court for attorney fees based upon “the affidavit in support of fees attached” (not actually attached),
which relates to her attorney’s service on appeal. Id. at 9. Barbara’s requests do not comply with
Neb. Ct. R. App. P. § 2-109(F), and therefore we do not consider the request for attorney fees on
appeal here.
CONCLUSION
For the foregoing reasons, we affirm the county court’s October 6, 2017, order.
AFFIRMED.
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