Bayliss v. Clason ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/14/2018 09:08 AM CDT
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
BAYLISS v. CLASON
Cite as 26 Neb. Ct. App. 195
Susan J. Bayliss, Personal R epresentative of the Estate
of Ruth E. Clason, deceased, appellee, v. Steven E.
Clason, Personal R epresentative of the Estate of
F.W. Eugene Clason, deceased, appellant, and
David W. Pederson, Special Fiduciary of the
Clason Living Trust Dated M arch 31,
2008, and A ny A mendments
Thereto, et al., appellees.
___ N.W.2d ___
Filed August 14, 2018. No. A-17-270.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in a light most favor-
able to the party against whom the judgment is granted and gives
such party the benefit of all reasonable inferences deducible from
the evidence.
3. Judgments: Pleadings: Appeal and Error. A motion to alter or amend
a judgment is addressed to the discretion of the trial court, whose deci-
sion will be upheld in the absence of an abuse of that discretion.
4. Judgments: Words and Phrases. A judicial abuse of discretion
requires that the reasons or rulings of the trial court be clearly unten-
able insofar as they unfairly deprive a litigant of a substantial right and
a just result.
5. Jurisdiction: Parties: Waiver. The absence of an indispensable party to
a controversy deprives the court of subject matter jurisdiction to deter-
mine the controversy and cannot be waived.
6. Jurisdiction: Appeal and Error. When a lower court lacks the power,
that is, the subject matter jurisdiction, to adjudicate the merits of a
claim, issue, or question, an appellate court also lacks the power to
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determine the merits of the claim, issue, or question presented to the
lower court.
7. Parties: Equity: Appeal and Error. When it appears that all indispen­
sable parties to a proper and complete determination of an equity cause
were not before the district court, an appellate court will remand the
cause for the purpose of having such parties brought in.
8. Declaratory Judgments. An action for declaratory judgment is sui
generis; whether such action is to be treated as one at law or one in
equity is to be determined by the nature of the dispute.
9. Parties: Words and Phrases. Necessary parties are parties who have an
interest in the controversy, and should ordinarily be joined unless their
interests are separable so that the court can, without injustice, proceed
in their absence.
10. Declaratory Judgments: Courts: Jurisdiction: Parties: Waiver. The
presence of necessary parties in declaratory judgment actions is juris-
dictional and cannot be waived, and if such persons are not made
parties, then the district court has no jurisdiction to determine the
controversy.
11. Parties: Words and Phrases. An indispensable party to a suit is one
whose interest in the subject matter of the controversy is such that the
controversy cannot be finally adjudicated without affecting the indis-
pensable party’s interest, or which is such that not to address the interest
of the indispensable party would leave the controversy in such a condi-
tion that its final determination may be wholly inconsistent with equity
and good conscience.
12. Jurisdiction: Service of Process: Waiver. Participation in the proceed-
ings on any issue other than the defenses of lack of jurisdiction over the
person, insufficiency of process, or insufficiency of service of process,
waives all such issues except as to the objection that the party is not
amenable to process issued by a court of this state.
13. Service of Process: Waiver. A general appearance waives any defects
in the process or notice, the steps preliminary to its issuance, or in the
service or return thereof.
14. Jurisdiction: Pleadings: Parties. A party will be deemed to have
appeared generally if, by motion or other form of application to the
court, he or she seeks to bring its powers into action on any matter other
than the question of jurisdiction over that party.
15. Summary Judgment. Summary judgment is proper when the pleadings
and evidence admitted at the hearing disclose that there is no genuine
issue as to any material fact 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.
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BAYLISS v. CLASON
Cite as 26 Neb. Ct. App. 195
16. Summary Judgment: Proof. A party moving for summary judgment
has the burden to show that no genuine issue of material fact exists
and must produce sufficient evidence to demonstrate that it is entitled
to judgment as a matter of law. If the movant meets this burden, then
the nonmovant must show the existence of a material issue of fact that
prevents judgment as a matter of law.
17. Summary Judgment: Evidence. When the parties’ evidence would
support reasonable, contrary inferences on the issue for which a movant
seeks summary judgment, it is an inappropriate remedy.
18. Trial: Evidence. Where reasonable minds could draw different conclu-
sions from the facts presented, such presents a triable issue of mate-
rial fact.
19. Deeds: Proof. It is essential to the validity of a deed that there be a
delivery, and the burden of proof rests upon the party asserting delivery
to establish it by a preponderance of the evidence.
20. Deeds: Intent. To constitute a valid delivery of a deed, there must be an
intent on the part of the grantor that the deed shall operate as a muni-
ment of title to take effect presently.
21. Deeds. The essential fact to render delivery effective is always that the
deed itself has left the control of the grantor, who has reserved no right
to recall it, and it has passed to the grantee.
22. Deeds: Intent. Whether a deed or other instrument conveying an inter-
est in property has been delivered is largely a question of intent to be
determined by the facts and circumstances of the particular case.
23. Deeds. Recordation of a deed generally presumes delivery.
24. Deeds: Intent. Whether or not a deed has been delivered is a mixed
question of law and fact. The element which controls the resolution
of that question is the intention of the parties, especially the inten-
tion of the grantor. The vital inquiry is whether the grantor intended
a complete transfer—whether the grantor parted with dominion over
the instrument with the intention of relinquishing all dominion over
it and of making it presently operative as a conveyance of the title to
the land.
25. ____: ____. It is not necessary, to effectuate delivery, that a deed actu-
ally be handed over to the grantee or to another person for the grantee.
There may be a delivery notwithstanding that the deed remains in the
custody of the grantor. If a valid delivery takes place, it is not rendered
ineffectual by the act of the grantee in giving the deed into the custody
of the grantor for safekeeping. It is all a question of the intention of the
parties, which may be manifested by words or acts or both.
26. ____: ____. If a deed, although acknowledged, is not recorded and is in
the grantor’s possession at the time of his death, those circumstances,
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unless explained, are deemed conclusive that the parties did not intend a
complete transfer.
27. Deeds: Presumptions. There is a presumption of nondelivery if the
evidence shows that a deed was in the grantor’s possession at the time
of his death and was not then recorded. Such a showing places upon the
grantees the burden of going forward with the evidence, more accurately,
the burden of persuasion, to rebut the presumption of nondelivery.
28. Deeds: Intent: Proof. The burden of proof rests upon the party assert-
ing delivery to establish it by a preponderance of the evidence, and to
constitute a valid delivery of a deed there must be an intent on the part
of the grantor that the deed shall operate as evidence of title to take
effect presently.
29. Deeds: Presumptions: Proof. When a deed is found in the grantee’s
possession during the lifetime of the grantor, this is prima facie evi-
dence of delivery, and the burden of proof is upon the one who disputes
this presumption.
30. Deeds. Where the same individual is both a deed’s grantor and its sole
grantee, no justifiable inference regarding the effectiveness of delivery
may be drawn merely from that individual’s continuous possession and
control of the deed.
31. Trusts: Intent. When there are two or more instruments relating to a
trust, they should be construed together to carry out the settlor’s intent.
32. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
33. Summary Judgment. At the summary judgment stage, the trial court
determines whether the parties are disputing a material issue of fact. It
does not resolve the factual issues.
34. Summary Judgment: Motions for New Trial. A motion for new trial
following the entry of summary judgment is not a proper motion.
35. Pleadings: Judgments: Appeal and Error. An appellate court reviews
a postjudgment motion based on the relief it seeks, rather than its title.
36. Pleadings: Judgments. Under Neb. Rev. Stat. § 25-1329 (Reissue
2016), if a postjudgment motion seeks a substantive alteration of the
judgment—as opposed to the correction of clerical errors or relief
wholly collateral to the judgment—a court may treat the motion as one
to alter or amend the judgment.
37. Pleadings: Judgments: Time. In order to qualify for treatment as a
motion to alter or amend a judgment, the motion must be filed no later
than 10 days after the entry of judgment, as required under Neb. Rev.
Stat. § 25-1329 (Reissue 2016), and must seek substantive alteration of
the judgment.
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BAYLISS v. CLASON
Cite as 26 Neb. Ct. App. 195
38. Pleadings: Judgments: Time: Appeal and Error. In cases involving a
motion to alter or amend the judgment, a critical factor is whether the
motion was filed within 10 days of the final order, because a timely
motion tolls the time for filing a notice of appeal.
39. Pleadings: Judgments. Under Neb. Rev. Stat. § 25-1329 (Reissue
2016), a motion for reconsideration is the functional equivalent of a
motion to alter or amend a judgment.
40. Judgments: Appeal and Error. A correct result will not be set aside
even when the lower court applied the wrong reasoning in reaching
that result.
Appeal from the District Court for Furnas County: David W.
Urbom, Judge. Affirmed.
Siegfried H. Brauer, of Brauer Law Office, for appellant.
David W. Rowe, of Kinsey, Rowe, Becker & Kistler, L.L.P.,
for appellee Susan J. Bayliss.
Roger L. Benjamin, P.C., for appellees Jim L. Clason and
Lee A. Clason.
Damien J. Wright, of Welch Law Firm, P.C., for appellees
Deshane Nelson et al.
Moore, Chief Judge, and R iedmann and A rterburn, Judges.
Moore, Chief Judge.
INTRODUCTION
Steven E. Clason, personal representative of the estate of
F.W. Eugene Clason (Eugene), deceased, appeals from the
order of the district court for Furnas County, which granted
summary judgment in favor of Susan J. Bayliss (Susan), per-
sonal representative of the estate of Ruth E. Clason, deceased.
For the reasons that follow, we affirm.
BACKGROUND
Eugene and Ruth are the parents of eight adult children,
including Susan, Steven, Jim L. Clason, Lee A. Clason, and
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Bonnie S. Wright. These five children are the beneficiaries
of the Clason Living Trust created by Eugene and Ruth in
2008 (the 2008 Trust); Eugene and Ruth’s other three chil-
dren were specifically disinherited under the terms of the
2008 Trust. A second trust was created by Ruth in 2011 after
Eugene’s death, which trust was entitled the “Ruth E. Clason
Living Trust” (the 2011 Trust). The beneficiaries of the 2011
Trust are the five children identified above, plus, per stirpes,
the children of the three disinherited children. The present
appeal involves a dispute over whether certain quitclaim
deeds signed by Eugene and Ruth in 2008, but not recorded
until 2013 after the death of both Eugene and Ruth, were
delivered and became part of the 2008 Trust or are void, thus
making the real estate part of Ruth’s estate and subject to the
terms of the 2011 Trust.
Before their deaths, Eugene and Ruth retained attorney
Allen Daubman to develop an estate plan for them. On March
31, 2008, Eugene and Ruth executed the trust agreement for
the 2008 Trust. Eugene and Ruth were named in the trust
agreement as the initial trustees, with Steven and Susan named
as successor cotrustees. As noted previously, the five children
identified above were named as trust beneficiaries, and among
other things, the 2008 Trust provided for specific distributions
of real estate to these five children. The 2008 Trust provided
that the three disinherited children “and the descendants of
each of them” were “specifically and intentionally exclude[d]”
from “receiving any part of the Trust Estate.” In terms of
“Initial Trust Property,” the 2008 Trust provided: “We will
assign, convey, transfer and deliver to the Trustee certain prop-
erty to be made part of the Trust Estate. The Trustee agrees to
hold, manage, and distribute the Trust Estate under the provi-
sions set forth in this Trust Agreement.” Also on March 31,
Eugene and Ruth signed 14 quitclaim deeds governing certain
real property owned by them (five from Ruth as grantor to
Eugene and Ruth, husband and wife, as grantees; one from
Eugene as grantor to Eugene and Ruth, husband and wife,
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as grantees; and eight from Eugene and Ruth, husband and
wife, as grantors to Eugene and Ruth, trustees of the 2008
Trust, as grantees). Daubman specifically informed Eugene
and Ruth that to fund the 2008 Trust, the deeds would need to
be recorded.
On July 28, 2008, Eugene and Ruth, as husband and wife,
individually executed a “Nebraska Deed of Trust” pledging the
real estate as collateral for a loan.
Eugene died on May 16, 2010. After Eugene’s death, Ruth
retained Daubman to represent her as the personal representa-
tive of Eugene’s estate. She later retained attorney Ward Urbom
to replace Daubman when he withdrew, and subsequently, she
retained attorney Jerrod Gregg to replace Urbom.
On September 24, 2010, Ruth executed an amendment to the
2008 Trust, appointing Lee to serve as her cotrustee and fur-
ther appointing Susan as cotrustee with Lee if he was unwill-
ing to serve as sole trustee. In a separate proceeding from the
present declaratory judgment, the district court determined that
the amendment was not the result of undue influence by Susan
and/or Lee.
On July 13, 2011, Ruth signed documents to execute a will
and the 2011 Trust. The 2011 Trust documents prepared by
Gregg were intended to, but did not, recreate the terms of the
2008 Trust. Although Gregg testified about various provisions
of the 2011 Trust in his deposition, a copy of the 2011 Trust is
not in the record on appeal.
Ruth entered into a written crop share lease with Lee as the
tenant on March 13, 2012. The lease was executed by Ruth,
as the personal representative of Eugene’s estate, and Ruth, an
individual, as lessor. The lease was for real property at issue in
this appeal.
Ruth died on January 12, 2013. On the date of her death, she
was the record owner of 17 tracts of land (corresponding to the
land represented in the 14 original quitclaim deeds). Eugene
and Ruth personally paid the 2008 through 2011 real estate
taxes on this property. Ruth reported all income and deducted
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all expenses generated by this property on her individual
income tax returns for 2010, 2011, and 2012.
Steven recorded the quitclaim deeds with the Furnas County
register of deeds on May 17, 2013.
On May 26, 2015, Susan, as the personal representative of
Ruth’s estate, filed a complaint for declaratory judgment in
the district court, naming various interested parties, including
Steven both individually and as the personal representative of
Eugene’s estate, as defendants. In the body of the complaint,
Susan described Steven in his capacity both as the “duly
appointed” personal representative of Eugene’s estate and as
an interested party by virtue of his “possible status as a ben-
eficiary of the 2008 Trust and the 2011 Trust.” Susan alleged
that on the date of Ruth’s death, Ruth was the record owner of
(or owned a one-half interest in) certain tracts of real property;
that the 2008 Trust claimed title to this real property, adverse to
Susan as the personal representative, based on the 14 quitclaim
deeds dated March 31, 2008, and recorded on May 17, 2013;
that the 2008 Trust had no interest in the land; that Eugene and
Ruth had never authorized the recording of the 14 quitclaim
deeds; and that such recording, if “left outstanding,” would
“totally deprive [Susan as the personal representative] of one-
half ownership of said property.” Susan sought a declaration
that the 14 quitclaim deeds recorded on May 17, 2013, were
not valid transfers of an interest in the real estate and asked the
court to void the deeds.
On May 26, 2015, Susan, as the personal representative of
Ruth’s estate, filed a praecipe requesting that the clerk of the
district court issue a summons for Steven both personally and
in his capacity as the personal representative of Eugene’s estate
for personal service of the complaint by the Furnas County
sheriff upon Steven at his residence. The clerk issued a sum-
mons on May 26 directed to “Steven Clason PR Est Eugene
Clason.” On June 1, the sheriff filed a return of service show-
ing that the complaint and summons were personally handed to
Steven at his residence.
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On June 26, 2015, Steven, as the personal representative
of Eugene’s estate, filed a motion to dismiss the complaint,
alleging that it failed to state a claim upon which relief could
be granted, that it failed to join one or more necessary parties,
and that Susan did not have standing to bring the claim. The
bill of exceptions in this case does not include a transcription
of the hearing held on Steven’s motion, and a notation from the
court reporter indicates that no record was made of the hearing
held on July 29. On August 12, the district court entered an
order, denying Steven’s motion, but finding that Susan in her
individual capacity was a necessary party. The court granted
Susan as the personal representative 10 days to amend the
complaint and granted an additional 10 days thereafter for all
of the defendants to answer or plead if they had not already
filed an answer.
On August 14, 2015, Susan, as the personal representative
of Ruth’s estate, filed an amended complaint, adding herself in
her individual capacity as a defendant. As before, she named
Steven as a defendant both in his capacity as the personal
representative of Eugene’s estate and in his individual capac-
ity and described him in the body of the complaint as the
appointed personal representative of Eugene’s estate and as
an interested party by virtue of being a possible beneficiary
of the two trusts. The certificate of service for the amended
complaint indicates that a copy was provided electronically to
Steven, both individually and as the personal representative, to
his attorney at the attorney’s email address.
On August 17, 2015, Susan, as the personal representative
of Ruth’s estate, filed a praecipe asking the clerk of the district
court to issue an “alias summons” for “Defendant, Steven E.
Clason, personally” for personal service by the sheriff upon
Steven at his residence. The clerk issued the second summons
on August 18, which was again directed to “Steven Clason PR
Est Eugene Clason.” The sheriff filed a return of service on
August 25, showing that the amended complaint and summons
were personally handed to Steven at his residence.
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On January 5, 2016, Susan, as the personal representa-
tive of Ruth’s estate, filed a motion for summary judgment.
She asserted that there was no genuine issue of material fact
and that she was entitled to judgment as a matter of law and
asked the court to “declare that the Qui[t] Claim Deeds filed
by and between F.W. Eugene Clason, Ruth E. Clason, F.W.
Eugene Clason and Ruth E. Clason as co-trustees of the 2008
[T]rust on May 17, 2013, are void.” The certificate of service
for the summary judgment motion indicates that a copy was
provided electronically to Steven, both individually and as
the personal representative, to his attorney at the attorney’s
email address.
On January 22, 2016, Steven, as the personal representa-
tive of Eugene’s estate, filed a pleading entitled “Objection
to Hearing on Plaintiff’s Motion for Summary Judgment,”
alleging that “not all Defendants have been served with sum-
mons and granted an opportunity to respond to the Amended
Complaint.”
Steven, in his individual capacity, filed a suggestion of
bankruptcy with the district court on January 27, 2016, and an
amended suggestion of bankruptcy on February 1.
On August 16, 2016, Steven, as the personal representative
of Eugene’s estate, filed a motion to continue the hearing on
the summary judgment motion. He alleged that Susan, as the
personal representative of Ruth’s estate, had failed to sum-
mon all necessary parties, specifically, Steven, individually,
and Lee and Susan as trustees of the 2008 Trust. Following a
hearing, the district court denied Steven’s motion to continue.
The bill of exceptions on appeal does not include a transcrip-
tion of the hearing on the motion to continue, and a notation
from the court reporter indicates that a record was not made of
that hearing. We note that Susan filed a voluntary appearance
in her capacity as a cotrustee of both trusts prior to the sum-
mary judgment hearing and that Lee filed an answer to both
the complaint and the amended complaint seeking affirmative
relief. Lee also filed an answer to the amended complaint in
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his capacity as cotrustee of the 2008 Trust and as a copersonal
representative of Ruth’s estate.
A hearing on the motion for summary judgment was held
on August 25, 2016. At the start of the hearing, the district
court noted that Steven’s bankruptcy stay was resolved effec-
tive August 1 and that Steven was present in both his fiduciary
capacity and his individual capacity. The following exchange
occurred between the court and the attorney for Steven as the
personal representative:
[ATTORNEY]: . . . I want to make sure the record is
clear on that that is not the case because we do not accept
the fact that . . . Steven . . . , as an individual, has had
summons issued against him or served. My representa-
tion here today is as appearing for [Steven] as Personal
Representative of [Eugene’s estate].
THE COURT: Okay. Steven . . . , Personal
Representative of [Eugene’s estate,] is represented by
[the attorney]. The Defendant, Steven . . . , is present in
person, pro se.
[ATTORNEY]: He is not present in person, he’s pres-
ent as [the personal representative].
THE COURT: I see him. He’s here in person. The rec­
ord will reflect that . . . Steven . . . is present in person.
The attorney for Steven, as the personal representative of
Eugene’s estate, made an oral motion for recusal, which the
district court denied. The court asked Steven if he had any-
thing he wanted to say in response to the motion, but Steven
declined, stating, “No. I mean since I’ve not had legal notice
I don’t want to say — thank you.” The court then received
various depositions, affidavits, and other documentary evi-
dence offered by the parties in connection with the summary
judgment motion. The attorney for Steven, as the personal
representative of Eugene’s estate, offered certain evidence in
opposition to the summary judgment motion, but Steven in
his individual capacity did not offer any evidence, nor did the
court ask him whether he wished to do so.
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In addition to the information we have already set forth
above about the deeds and the formation of the two trusts,
there was evidence received at the summary judgment hear-
ing about the location of the deeds and 2008 Trust documents
between March 31, 2008, when they were signed by Eugene
and Ruth and May 17, 2013, when they were recorded by
Steven, although the record is not particularly revealing on
this point.
In his deposition, Daubman testified that he may have kept
the original quitclaim deeds after they were signed by Eugene
and Ruth, but he was not certain. If he kept them, he was
not certain for how long, and he had no recollection “either
way” of conveying them or transferring them to anyone at
any time. Daubman had no memory of being asked by Eugene
and Ruth to hold the deeds so that Daubman could record
them. Nor did he recall any specific request from them to
hold the deeds because they were not ready to fund the trust.
He did not have any recollection of either of them making
an expression that they were not ready to fund the trust, and
he had only a vague recollection that they were giving some
consideration to “maybe making some changes to who got
what land.”
Gregg testified that at some point after he was retained by
Ruth, he received from Urbom a binder containing the 2008
Trust agreement, Eugene’s will, and the original quitclaim
deeds. Elsewhere in his deposition, he testified that the “2008
tax plan documents” were delivered to his office by Susan or
“some family member,” but he did not recall when they were
delivered or by whom, although he clearly stated they were
not delivered prior to July 13, 2011. Gregg testified that he
did not see the quitclaim deeds until after Ruth’s death. He
also indicated that Ruth did not “express the existence of those
deeds” to him prior to her death.
In his deposition, Steven stated that after Ruth’s death,
he personally retrieved the original 14 quitclaim deeds from
Gregg’s office.
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On December 8, 2016, the district court entered an order,
granting Susan’s motion for summary judgment. The court
found it undisputed that Eugene and Ruth signed the quitclaim
deeds on March 31, 2008, and that Steven recorded them
on May 17, 2013. The court stated that the burden of proof
of delivery shifts to Steven to prove by a preponderance of
the evidence that Eugene and Ruth intended to convey title
to the real property to the 2008 Trust. The court found that
Steven presented no evidence to prove delivery of the quit-
claim deeds by Eugene and Ruth. Accordingly, the court found
that there was no delivery of the deeds by Eugene and Ruth.
The court granted Susan’s motion for summary judgment and
ordered that the 14 quitclaim deeds dated March 31, 2008, and
recorded on May 17, 2013, are void.
On December 15, 2016, Steven, as the personal representa-
tive of Eugene’s estate, filed a “Motion for New Trial or for
Order Vacating Judgment.” The district court denied Steven’s
motion on February 17, 2017.
ASSIGNMENTS OF ERROR
Steven asserts, consolidated and restated, that the district
court erred in (1) failing to dismiss for lack of an indispen­
sable party, (2) granting summary judgment, and (3) denying
his motion to vacate.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law. McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d
515 (2018).
[2] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party
against whom the judgment is granted and gives such party
the benefit of all reasonable inferences deducible from the
evidence. Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d
630 (2018).
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[3,4] A motion to alter or amend a judgment is addressed to
the discretion of the trial court, whose decision will be upheld
in the absence of an abuse of that discretion. Id. 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. McCullough v.
McCullough, supra.
ANALYSIS
Indispensable Party.
Steven asserts that the district court erred in failing to dis-
miss for lack of an indispensable party. He argues that he was
never summoned into the case in his individual capacity and
that he was an indispensable party given the differing sets of
beneficiaries defined in the 2008 Trust and the 2011 Trust and
the effect on the beneficiaries of the 2008 Trust of voiding the
quitclaim deeds.
[5-8] Neb. Rev. Stat. § 25-323 (Reissue 2016) provides
in part:
The court may determine any controversy between
parties before it when it can be done without prejudice to
the rights of others or by saving their rights; but when a
determination of the controversy cannot be had without
the presence of other parties, the court must order them
to be brought in.
The absence of an indispensable party to a controversy
deprives the court of subject matter jurisdiction to determine
the controversy and cannot be waived. Midwest Renewable
Energy v. American Engr. Testing, 296 Neb. 73, 894 N.W.2d
221 (2017). When a lower court lacks the power, that is,
the subject matter jurisdiction, to adjudicate the merits of a
claim, issue, or question, an appellate court also lacks the
power to determine the merits of the claim, issue, or ques-
tion presented to the lower court. Id. When it appears that
all indispensable parties to a proper and complete determi-
nation of an equity cause were not before the district court,
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an appellate court will remand the cause for the purpose of
having such parties brought in. Id. An action for declaratory
judgment is sui generis; whether such action is to be treated
as one at law or one in equity is to be determined by the
nature of the dispute. Carlson v. Carlson, 299 Neb. 526, 909
N.W.2d 351 (2018).
[9-11] Necessary parties are parties who have an interest in
the controversy, and should ordinarily be joined unless their
interests are separable so that the court can, without injus-
tice, proceed in their absence. Midwest Renewable Energy
v. American Engr. Testing, supra. The presence of necessary
parties in declaratory judgment actions is jurisdictional and
cannot be waived, and if such persons are not made parties,
then the district court has no jurisdiction to determine the con-
troversy. Carlson v. Allianz Versicherungs-AG, 287 Neb. 628,
844 N.W.2d 264 (2014). An indispensable party to a suit is
one whose interest in the subject matter of the controversy is
such that the controversy cannot be finally adjudicated without
affecting the indispensable party’s interest, or which is such
that not to address the interest of the indispensable party would
leave the controversy in such a condition that its final deter-
mination may be wholly inconsistent with equity and good
conscience. Midwest Renewable Energy v. American Engr.
Testing, supra.
Clearly, Steven has an interest in this case both in his capac-
ity as the personal representative of Eugene’s estate and in
his individual capacity by virtue of being a potential benefi-
ciary of both trusts, and he was named as a defendant in both
capacities and identified as such in both the complaint and the
amended complaint. The question becomes whether Steven
was properly served in both capacities. The record shows that
both summonses issued by the clerk of the court were directed
to “Steven Clason PR Est Eugene Clason.” Steven does not
dispute that he was served in his capacity as the personal
representative, only arguing that he was not served in his indi-
vidual capacity.
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Neb. Rev. Stat. § 25-508.01(1) (Reissue 2016) provides that
an individual party “may be served by personal, residence,
certified mail, or designated delivery service.” “Personal serv­
ice . . . shall be made by leaving the summons with the
individual to be served,” and “[r]esidence service . . . shall
be made by leaving the summons at the usual place of resi-
dence of the individual to be served, with some person of
suitable age and discretion residing therein.” Neb. Rev. Stat.
§ 25-505.01(1) (Reissue 2016). Neb. Rev. Stat. § 25-506.01(1)
(Reissue 2016) provides that “[u]nless the plaintiff has elected
certified mail service or designated delivery service, the sum-
mons shall be served by the sheriff of the county where serv­
ice is made . . . .”
Here, the returns of service filed by the sheriff show that
the summonses, complaint, and amended complaint were per-
sonally handed to Steven at his home address in compliance
with the above statutory requirements. Regardless of whether
the reference to Steven in the summons is only in his capacity
as the personal representative of Eugene’s estate and not in his
individual capacity, he has made a general appearance, thereby
waiving any such defect.
[12-14] Participation in the proceedings on any issue other
than the defenses of lack of jurisdiction over the person, insuf-
ficiency of process, or insufficiency of service of process,
waives all such issues except as to the objection that the party
is not amenable to process issued by a court of this state. Burns
v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016). A general
appearance waives any defects in the process or notice, the
steps preliminary to its issuance, or in the service or return
thereof. Id. A party will be deemed to have appeared generally
if, by motion or other form of application to the court, he or
she seeks to bring its powers into action on any matter other
than the question of jurisdiction over that party. Id. See Neb.
Rev. Stat. § 25-516.01(2) (Reissue 2016).
Susan argues that by filing the suggestion in bankruptcy
and the amended suggestion in bankruptcy, Steven made a
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general appearance. We agree. Neb. Ct. R. § 6-1506 (rev.
2008) states:
Upon the filing of the Suggestion of Bankruptcy . . . , no
further action will be taken in the case by the court or by
the parties until it can be shown to the satisfaction of the
court that the automatic stay imposed by 11 U.S.C. § 362
does not apply or that the automatic stay has been termi-
nated, annulled, modified, or conditioned so as to allow
the case to proceed.
By filing the stay, Steven asked the court to bring its powers
into action on a matter other than the question of jurisdiction,
thus making a general appearance and waiving any defects in
the service of process. See, also, Ohio Nat. Life Ins. Co. v.
Baxter, 139 Neb. 648, 298 N.W. 530 (1941) (filing by mort-
gagor of request for stay of order of sale under foreclosure
decree was general appearance by mortgagor in action and con-
stituted waiver of all errors prior to filing of request); Franse
v. Armbuster, 28 Neb. 467, 44 N.W. 481 (1890) (mortgagor,
by availing himself of stay taken in his name by his brother,
thereby appeared in action).
Steven’s assignment of error is without merit.
Summary Judgment.
[15-18] Steven asserts that the district court erred in grant-
ing summary judgment. Summary judgment is proper when
the pleadings and evidence admitted at the hearing disclose
that there is no genuine issue as to any material fact or as to
the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a mat-
ter of law. Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d
96 (2018). A party moving for summary judgment has the
burden to show that no genuine issue of material fact exists
and must produce sufficient evidence to demonstrate that it
is entitled to judgment as a matter of law. Id. If the movant
meets this burden, then the nonmovant must show the exis-
tence of a material issue of fact that prevents judgment as a
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matter of law. Id. When the parties’ evidence would support
reasonable, contrary inferences on the issue for which a mov-
ant seeks summary judgment, it is an inappropriate remedy.
Id. Where reasonable minds could draw different conclusions
from the facts presented, such presents a triable issue of mate-
rial fact. Id.
[19-22] In granting summary judgment, the district court
considered Susan’s argument that the quitclaim deeds at issue
were not delivered and therefore not valid. It is essential to the
validity of a deed that there be a delivery, and the burden of
proof rests upon the party asserting delivery to establish it by
a preponderance of the evidence. Caruso v. Parkos, 262 Neb.
961, 637 N.W.2d 351 (2002). To constitute a valid delivery of
a deed, there must be an intent on the part of the grantor that
the deed shall operate as a muniment of title to take effect
presently. Id. The essential fact to render delivery effective is
always that the deed itself has left the control of the grantor,
who has reserved no right to recall it, and it has passed to the
grantee. Id. Whether a deed or other instrument conveying an
interest in property has been delivered is largely a question of
intent to be determined by the facts and circumstances of the
particular case. Id.
[23,24] Recordation of a deed generally presumes delivery.
Brtek v. Cihal, 245 Neb. 756, 515 N.W.2d 628 (1994). Whether
or not a deed has been delivered is a mixed question of law
and fact. Id. The element which controls the resolution of that
question is the intention of the parties, especially the inten-
tion of the grantor. Id. The vital inquiry is whether the grantor
intended a complete transfer—whether the grantor parted with
dominion over the instrument with the intention of relinquish-
ing all dominion over it and of making it presently operative as
a conveyance of the title to the land. Id.
[25] It is not necessary, to effectuate delivery, that a deed
actually be handed over to the grantee or to another person
for the grantee. Id. There may be a delivery notwithstanding
that the deed remains in the custody of the grantor. Id. If a
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valid delivery takes place, it is not rendered ineffectual by the
act of the grantee in giving the deed into the custody of the
grantor for safekeeping. Id. It is all a question of the intention
of the parties, which may be manifested by words or acts or
both. Id.
[26-29] If a deed, although acknowledged, is not recorded
and is in the grantor’s possession at the time of his death,
those circumstances, unless explained, are deemed conclusive
that the parties did not intend a complete transfer. Id. There
is a presumption of nondelivery if the evidence shows that a
deed was in the grantor’s possession at the time of his death
and was not then recorded. Id. Such a showing places upon
the grantees the burden of going forward with the evidence,
more accurately, the burden of persuasion, to rebut the pre-
sumption of nondelivery. Id. The burden of proof rests upon
the party asserting delivery to establish it by a preponderance
of the evidence, and to constitute a valid delivery of a deed
there must be an intent on the part of the grantor that the deed
shall operate as evidence of title to take effect presently. Id.
When a deed is found in the grantee’s possession during the
lifetime of the grantor, this is prima facie evidence of deliv-
ery, and the burden of proof is upon the one who disputes this
presumption. Id.
[30] The district court in this case found it undisputed that
Eugene and Ruth signed the quitclaim deeds on March 31,
2008, and that Steven recorded those deeds on May 17, 2013.
The court stated that the burden of proof of delivery shifts to
Steven to prove by a preponderance of evidence. The court
concluded that Steven presented no evidence to prove delivery
of the quitclaim deeds by Eugene and Ruth and concluded
that there was no delivery of the quitclaim deeds by Eugene
and Ruth. Contrary to Steven’s assertions, the court made no
findings about who was in possession of the deeds, construc-
tively or otherwise, as of the date of Ruth’s death. Further, the
record is not particularly enlightening on this issue, and given
that Eugene and Ruth, in different capacities, were both the
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grantors and grantees, any inferences about the effectiveness
of delivery based on who possessed the deeds at any given
time is less useful than an examination of Eugene’s and Ruth’s
words and actions as evidence of their intent. See In re Estate
of Plance, 175 A.3d 249 (Pa. 2017) (where same individual is
both deed’s grantor and its sole grantee, no justifiable inference
regarding effectiveness of delivery may be drawn merely from
that individual’s continuous possession and control of deed).
A determination of whether summary judgment was properly
granted then rests on whether there are genuine issues of mate-
rial fact with respect to Eugene’s and Ruth’s intent as to the
effectiveness of the deeds as evidence of title.
[31] On appeal, Steven essentially argues that summary
judgment was improper because there was at least some
evidence that Eugene and Ruth intended to convey the real
property at issue to the 2008 Trust. He cites several out-of-
state cases addressing methods of creating a trust, which cases
cite to the Restatement (Second) of Trusts § 17 (1959) and
the Restatement (Third) of Trusts § 10(c) at 145 (2003) (trust
may be created by “a declaration by an owner of property
that he or she holds that property as trustee for one or more
persons”). In this declaratory judgment action, of course,
the district court was not asked to rule on whether the 2008
Trust agreement created a valid trust; rather, it was asked to
declare that the quitclaim deeds were not valid transfers of
an interest in real estate. We do, however, consider the lan-
guage of the 2008 Trust agreement in considering whether
there was a genuine issue of material fact with respect to
Eugene’s and Ruth’s intent as to the deeds. The trust agree-
ment specified only, “We will . . . transfer . . . to the Trustee
certain property to be made part of the Trust Estate.” The
agreement does not contain any reference to the particular
property represented by the deeds or any indication of when
Eugene and Ruth planned to make such a transfer, but the
fact that the 2008 Trust agreement and the quitclaim deeds
were executed on the same date has some relevance. See In
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re Wendland-Reiner Trust, 267 Neb. 696, 677 N.W.2d 117
(2004) (when there are two or more instruments relating
to trust, they should be construed together to carry out set-
tlor’s intent). The 2008 Trust agreement did identify specific
property, including property at issue in this case, in the sec-
tion concerning “Specific Distributions of Trust Estate.” The
evidence is undisputed, however, that Daubman told Eugene
and Ruth that they would need to record the deeds in order
to fund the trust. And, Daubman’s undisputed testimony indi-
cates at least some uncertainty by Eugene and Ruth as to how
they wanted to distribute their property. The deeds were not
recorded during either Eugene’s or Ruth’s lifetime, and Ruth
was the record owner of the property at issue on the date of
her death.
The undisputed facts also show that Eugene and/or Ruth
took numerous acts inconsistent with an intent of making the
deeds effective transfers of title. These acts included executing
a deed of trust in their individual capacities, paying real estate
taxes on the property as individuals, entering a crop share
lease for the property as an individual, receiving various agri-
cultural program payments with respect to the property, and
reporting the payments on their individual tax returns.
Viewing and construing the evidence in the light most
favorable to Steven and giving him the benefit of all reason-
able inferences deducible from the evidence, we conclude that
there is no genuine issue of material fact concerning the lack
of delivery of the quitclaim deeds at issue by Eugene and Ruth
to the 2008 Trust. The court did not err in granting Susan’s
motion for summary judgment and finding that the quitclaim
deeds are void.
Motion to Vacate.
Steven asserts that the district court erred in denying his
motion to vacate. In denying Steven’s motion, the district court
observed that a motion for new trial is not a proper motion
after the entry of summary judgment, and it stated:
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The sole result sought by [Steven’s] motion is a new trial
or to vacate the summary judgment. No other remedy is
sought. The motion cannot reasonably be construed as a
motion to alter or amend. The Court finds that [Steven’s]
Motion For New Trial Or For Order Vacating Judgment
cannot be interpreted as anything other than a motion for
new trial under Neb. Rev. Stat. §25-1142.
The court then denied Steven’s motion.
[32] We agree that the court incorrectly determined Steven’s
motion could not be construed as being a motion to alter or
amend, and we address that issue below. However, because we
have already determined that the court did not err in granting
Susan’s motion for summary judgment, we need not further
address the substantive issues raised in Steven’s motion to
vacate. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and con-
troversy before it. Nesbitt v. Frakes, 300 Neb. 1, 911 N.W.2d
598 (2018).
[33,34] “A new trial is a reexamination in the same court of
an issue of fact after a verdict by a jury, report of a referee, or
a trial and decision by the court.” Neb. Rev. Stat. § 25-1142
(Reissue 2016). At the summary judgment stage, the trial court
determines whether the parties are disputing a material issue
of fact. Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96
(2018). It does not resolve the factual issues. Id. A motion for
new trial following the entry of summary judgment is not a
proper motion. Clarke v. First Nat. Bank of Omaha, 296 Neb.
632, 895 N.W.2d 284 (2017).
[35-39] However, an appellate court reviews a postjudg-
ment motion based on the relief it seeks, rather than its title.
Id. Under Neb. Rev. Stat. § 25-1329 (Reissue 2016), if a
postjudgment motion seeks a substantive alteration of the
judgment—as opposed to the correction of clerical errors or
relief wholly collateral to the judgment—a court may treat the
motion as one to alter or amend the judgment. Clarke v. First
Nat. Bank of Omaha, supra. In order to qualify for treatment
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as a motion to alter or amend a judgment, the motion must
be filed no later than 10 days after the entry of judgment, as
required under § 25-1329, and must seek substantive alteration
of the judgment. Weeder v. Central Comm. College, 269 Neb.
114, 691 N.W.2d 508 (2005). In cases involving a motion to
alter or amend the judgment, a critical factor is whether the
motion was filed within 10 days of the final order, because
a timely motion tolls the time for filing a notice of appeal.
Fitzgerald v. Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013).
Under § 25-1329, a motion for reconsideration is the functional
equivalent of a motion to alter or amend a judgment. Clarke v.
First Nat. Bank of Omaha, supra.
In Clarke v. First Nat. Bank of Omaha, the appellant filed
a motion entitled “‘Motion for New Trial to Amend Judgment
of Summary Judgment Order’” 4 days after the trial court
granted a motion for summary judgment. 296 Neb. at 636, 895
N.W.2d at 288. In his motion, the appellant asked the court to
vacate its summary judgment decision and hold trial to resolve
genuine issues of material fact. The request was based on
grounds including claims of irregularities in the proceedings
and that the summary judgment order was contrary to law.
On appeal, the Nebraska Supreme Court determined that the
motion was effectively a motion for reconsideration, which
the Supreme Court treated as a motion to alter or amend. See,
also, Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d
672 (2004) (treating timely filed motion for new trial following
summary judgment as motion for reconsideration where motion
asked court to grant new hearing based upon newly discovered
evidence); Central Neb. Pub. Power v. Jeffrey Lake Dev., 267
Neb. 997, 679 N.W.2d 235 (2004) (treating timely filed motion
as motion to alter or amend under § 25-1329 where motion
asked court to vacate order dismissing petition on basis that
decision was contrary to law).
[40] In this case, Steven, as the personal representative of
Eugene’s estate, filed his motion for new trial or for order
vacating judgment within 10 days of the entry of summary
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judgment. He asked the district court for a new trial or
to vacate the summary judgment, alleging grounds includ-
ing that the court’s decision was not sustained by sufficient
evidence and was contrary to law. Steven was effectively ask-
ing the court to reconsider its decision, which is equivalent
to a motion to alter or amend under § 25-1329. See Clarke v.
First Nat. Bank of Omaha, supra. The court erred in conclud-
ing otherwise. Nonetheless, because the court did not err in
granting summary judgment, Steven’s motion to vacate was
properly denied. While the court did not address the substance
of Steven’s motion, it reached the correct result. A correct
result will not be set aside even when the lower court applied
the wrong reasoning in reaching that result. Bel Fury Invest.
Group v. Palisades Collection, 19 Neb. Ct. App. 883, 814 N.W.2d
394 (2012).
CONCLUSION
The district court did not err in failing to dismiss for lack of
an indispensable party, granting summary judgment, or deny-
ing Steven’s motion to vacate.
A ffirmed.