In re Estate of Filsinger ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE ESTATE OF FILSINGER
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 ESTATE OF ORVILLE W. FILSINGER, DECEASED.
ROBERT R. RAUNER, JR., APPELLEE AND CROSS-APPELLANT,
V.
MARVIN FILSINGER, APPELLANT AND CROSS-APPELLEE,
AND STEVEN F. MATTOON ET AL., APPELLEES.
Filed June 13, 2023. No. A-22-596.
Appeal from the County Court for Cheyenne County: RUSSELL W. HARFORD, Judge.
Affirmed in part as modified, and in part vacated and remanded with directions.
Robert M. Brenner and Jessica Laughlin, of Robert M. Brenner Law Office, for appellant.
R. Kevin O’Donnell, of O’Donnell & Holmstedt, P.C., L.L.O., for appellee, Robert R.
Rauner.
RIEDMANN, BISHOP, and ARTERBURN, Judges.
ARTERBURN, Judge.
I. INTRODUCTION
Marvin Filsinger (Filsinger) appeals, and Robert R. Rauner, Jr., personal representative of
the estate of Orville W. Filsinger, cross-appeals, from an order of the county court for Cheyenne
County. The court’s order, among other things, permitted Rauner to pay from the estate’s funds
attorney fees to two different attorneys who had represented him during the administration of the
estate and to pay himself an additional personal representative fee. The order also required
Filsinger to pay sanctions in the amount of $500 for raising a “frivolous” claim in his pleadings.
The court denied Filsinger’s request to award him interest on any sums due and owing to him from
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the estate. For the reasons set forth herein, we in part affirm the order of the county court as
modified. We vacate that part of the court’s order which awards attorney fees to attorney R. Kevin
O’Donnell and remand that issue to the county court for further evidentiary hearing.
II. BACKGROUND
Orville died in September 2009 in Cheyenne County. Pursuant to a provision found in the
will signed by Orville in December 2002, Rauner was nominated by Orville to be the personal
representative of the estate. Rauner accepted the appointment.
Rauner initiated the probate case for Orville’s estate in October 2009, more than 13 years
ago. Because there has been a great deal of litigation in both Orville’s estate and in the estate of
his wife, Berniece Filsinger, the probate case has not been formally completed. For a more
complete history of the litigation in the probate case for Orville’s estate, see this court’s previous
opinion, In re Estate of Filsinger, 29 Neb. App. 809, 962 N.W.2d 366 (2021) (Filsinger I). We
focus our recitation of the facts on that portion of the case’s history which pertains to the issues
currently on appeal.
On January 10, 2014, Rauner filed in the probate case a formal petition for complete
settlement, a schedule of distribution, and a final report and accounting. On February 13, 2014, the
county court signed an order approving the final report and accounting and the schedule of
distribution. The court’s order indicated that Rauner’s authority as personal representative would
end, and he would be discharged from his position upon his filing of a federal fiduciary tax return.
Almost three years after the final report and accounting was approved by the county court,
Rauner filed an application for attorney fees. In the application, he asked that the court award
O’Donnell attorney fees pursuant to Neb. Rev. Stat. § 30-2481 (Reissue 2016). Specifically,
Rauner alleged that O’Donnell represented him in his capacity as personal representative of
Orville’s estate in litigation which was initiated in the probate case for Berniece. Attached to
Rauner’s request for attorney fees, was an affidavit by O’Donnell which indicated he worked with
Rauner on Orville’s estate case for “68.75 hours in July, 2016; 20.70 hours in August, 2016, 9.80
hours in September, 2016; and, 30.65 hours in October 2016.” O’Donnell also indicated that he
had advanced Orville’s estate costs in the amount of $517.50. O’Donnell indicated that the total
fees and costs owed to him for his work on Orville’s estate through October 2016 was $20,996.
In an order entered on May 16, 2017, the county court denied Rauner’s request for attorney
fees. The court indicated that Orville’s estate was effectively closed in February 2014 after the
court had approved Rauner’s final report and accounting. The county court believed that
O’Donnell’s work for Rauner was in the context of the probate case for Berniece’s estate, rather
than in the context of the probate case for Orville’s estate and that the claim for fees should have
been made against Berniece’s estate.
On May 24, 2017, Filsinger and the other heirs of Orville’s estate filed a claim in Orville’s
estate alleging that Rauner erroneously distributed $200,000 in estate assets to Berniece, when
those assets should have been distributed to the other heirs in accordance with Orville’s will. The
claim indicated that Rauner intentionally misled the heirs about the distribution and fraudulently
concealed his actions from the heirs. Rauner filed a notice of disallowance of this claim on June
25, 2017.
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Partially in response to the claim filed by Filsinger and the other heirs on May 24, 2017,
Rauner filed a petition for limited re-opening of Orville’s estate on June 1, 2017. In this petition,
Rauner explained that he was never actually discharged as personal representative for Orville’s
estate because he continued to manage incoming assets received by the estate after the February
2014 order which had approved his final report and accounting. Rauner asked that the estate now
be formally re-opened “for the purpose of re-examining the issue of attorney fees and costs,
submitting additional evidence regarding attorney fees and the representation of [Rauner] in his
capacity of Personal Representative, and responding to the Claim Against Personal
Representative.” There is nothing in our record to indicate that Filsinger or the other heirs
specifically objected to Rauner’s request to re-open the estate. The heirs did, however, object to
Rauner continuing as the personal representative.
On June 5, 2017, the county court entered an order re-opening Orville’s estate and
indicating that Rauner should continue to operate as personal representative of the estate. The
county court stated: “[A]s of the execution of this Order, the Estate of Orville W. Filsinger [is]
re-opened; that the powers, duties, and authorities of [Rauner], Personal Representative, continue;
and that this Estate remain open until further Order of this Court.”
Once the estate was re-opened, Rauner filed a renewed application to pay fees and costs.
Essentially, this renewed application asked the county court to reconsider its prior denial of
attorney fees for O’Donnell. An affidavit attached to the renewed application indicated that
O’Donnell’s fees through June 2017 totaled $51,217.20. The court denied the motion on July 26,
2017, explaining that because Rauner was released from his duties of personal representative by
operation of law 1 year after the formal order of settlement was entered in February 2014 and no
further claims were made in the estate during that time, no further attorney fees were warranted.
In a journal entry authored by the county court on August 8, 2017, the court indicated that
it was staying the probate case in Orville’s estate while this court had before it an appeal in the
probate case involving Berniece’s estate. Litigation in the probate case involving Orville’s estate
did not resume until December 2019.
In December 2019, Rauner filed a motion for summary judgment on the heirs’ pending
petition for allowance of claim; their claim against Rauner; and their petition to remove Rauner as
personal representative. After a hearing, the county court granted Rauner’s motion for summary
judgment. Filsinger and the other heirs appealed the county court’s decision to this court. In
addition, Rauner appealed from the county court’s prior denials of his requests for attorney fees.
On appeal, this court affirmed the decision of the county court to grant Rauner’s motion
for summary judgment, finding that the claim against Orville’s estate filed by Filsinger and the
other heirs was time barred and that there was no fraud, misrepresentation, or inadequate disclosure
perpetrated by Rauner in his position as personal representative. As to Rauner’s cross-appeal, this
court concluded that we did not have jurisdiction to address the county court’s denial of attorney
fees because Rauner had failed to timely appeal from the county court’s orders.
Upon our remand to the county court, Rauner filed a petition for final payment of costs and
administration, distribution of assets, and discharge of personal representative on behalf of
Orville’s estate. In the petition, Rauner made the following requests for distribution from estate
funds: $5,000 for personal representative fees to be paid to him, $69,901.72 in attorney fees and
costs to be paid to O’Donnell, and $13,550 in attorney fees and costs to a second attorney, Steven
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F. Mattoon. The petition further requested that the court approve specific disbursements of $29,500
each to Filsinger and another heir and that all three heirs then be disbursed one-third of the
remaining estate balance.
Filsinger filed a response to Rauner’s petition. Essentially, Filsinger’s response argued that
no payment should be made to either of the attorneys or to Rauner, as personal representative,
because the estate was closed in February 2014. Rauner’s petition and Filsinger’s response are the
operative pleadings from which this appeal arose.
After a hearing, the county court entered a detailed order addressing each of Rauner’s
requests for distribution and Filsinger’s objections to those requests. As is relevant to this appeal,
the county court granted a portion of Rauner’s request for attorney fees for O’Donnell and
Mattoon.
The court awarded O’Donnell the attorney fees incurred after July 21, 2017, as the prior
incurred fees were disallowed by previous orders of the court. The court awarded Mattoon all of
the attorney fees incurred since the inception of the probate case, as his
application for fees and expenses was not subject to this Court[’]s prior orders of May 5,
2017 denying the fees and expenses because it was filed in the wrong estate or the order of
July 21, 2017 requesting leave to provide additional evidence on fees and expenses. Those
orders related directly to Mr. O’Donnell’s fees and expenses.
In addition to the amount of itemized fees awarded to Mattoon, the court awarded him fees in the
amount of $1,726. The court explained,
While Mr. Mattoon’s billing statement only reflects that Mr. Mattoon incurred fees and
expenses of $11,774 through June 6, 2022, that billing statement did not include any
additional legal fees in representing the Personal Representative in these contested
proceedings to finalize administration of this estate. It is reasonable to allow an additional
sum of $1,726 for legal fees and expenses of Mr. Mattoon as requested by the [personal
representative]. It is ordered that the Personal Representative pay, from assets of the estate,
the sum of $13,500.00 for Mr. Mattoon’s services.
The court also awarded Rauner additional personal representative fees in the amount of
$5,000, explaining,
While [Rauner] may not have had to appear in court, because of the amount of litigation in
this case, [he] has had to administer this estate for nearly 13 years. He has frequently been
accused of mismanaging the estate and has been sued in the District Court. It is not
unreasonable for the Personal Representative to seek additional compensation from the
estate.
The county court denied Filsinger’s request for interest payments on the amount due and owing to
him from the estate. The court reasoned that Rauner was previously unable to determine the final
payment owed to the heirs until all the other outstanding issues involving fees and expenses had
been resolved.
In addition to the requested fees, the court ordered Filsinger to pay $500 in attorney fees
as a sanction for asserting a frivolous claim in his response to Rauner’s petition. Specifically, the
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court found that Filsinger’s claim that Rauner committed fraud, misrepresentation, or inadequate
disclosure and distribution of information at the February 13, 2014 hearing, was frivolous as it was
previously asserted, litigated, and resolved in the county court and by this court on appeal.
Finally, the court addressed an issue regarding two checks, one issued to Filsinger and the
other to Gloria Haines in 2014. The amount of each check was $29,500 and were partial
distributions of their respective shares of the estate. Neither check had been cashed. The court gave
Haines and Filsinger 10 days to formally request reissuance of their checks. If either of them were
to fail to timely request reissuance of their checks, the personal representative was entitled to
consider that Filsinger and/or Haines had renounced their respective interest in their $29,500 check
and the amount of that check would be added back into the residuary estate.
Filsinger appeals, and Rauner cross-appeals, from the county court’s order.
III. ASSIGNMENTS OF ERROR
On appeal, Filsinger assigns and argues, restated and renumbered, that the county court
erred in the following decisions: permitting the estate to be re-opened in June 2017; awarding
attorney fees to both Mattoon and O’Donnell; awarding additional personal representative fees to
Rauner; failing to award Filsinger any interest on the amount he is still owed by the estate; and
ordering Filsinger to pay sanctions for filing a frivolous pleading.
Rauner has filed a cross-appeal. In the cross-appeal, Rauner assigns that the county court
erred: in failing to grant the entirety of his request for fees and costs; in not ordering a higher
amount of sanctions for Filsinger’s filing of a frivolous pleading; and in finding that Orville’s
estate was closed in February 2014. However, in the argument section of Rauner’s brief, he only
argues his assigned error regarding whether the estate was closed in February 2014. Rauner also
includes in his argument section, a discussion of whether the acceptance of benefits rule precludes
Filsinger’s appeal. Given Rauner’s failure to both assign and argue many of the issues raised in
his cross-appeal, the only issue raised by Rauner on cross-appeal that we will address in this appeal
is the question of whether the estate was closed in February 2014. Appellate courts will address
only assignments of error that are both assigned and argued. See Marcuzzo v. Bank of the West,
290 Neb. 809, 862 N.W.2d 281 (2015).
We will address Rauner’s argument that the acceptance of benefits rule should preclude
Filsinger’s appeal. That issue could not have been raised before the county court. We note that this
argument would be more appropriately located in the appellee portion of Rauner’s brief, but we
will nonetheless consider it.
IV. STANDARD OF REVIEW
Appeals of matters arising under the Nebraska Probate Code are reviewed for error on the
record. See In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018). 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. When reviewing a decision of the probate court, the appellate court does not
reweigh the evidence and must consider the evidence in the light most favorable to the successful
party, who is entitled to every reasonable inference available from the evidence. Id.-5-
Ordinarily, the fixing of reasonable compensation, fees, and expenses, pursuant to
§ 30-2481, which governs expenses in estate litigation, is within the sound discretion of the county
court. In re Estate of Graham, supra. Moreover, when an attorney fee is authorized, the amount of
the fee is addressed to the trial court’s discretion, and its ruling will not be disturbed on appeal
absent an abuse of discretion. Id.On appeal, an appellate court will uphold a lower court’s decision allowing or disallowing
attorney fees for frivolous or bad faith litigation in the absence of an abuse of discretion. Korth v.
Luther, 304 Neb. 450, 935 N.W.2d 220 (2019).
V. ANALYSIS
1. APPLICABILITY OF ACCEPTANCE OF BENEFITS RULE
Rauner contends that the present appeal should not be allowed to proceed because Filsinger
accepted a benefit conferred on him in the county court’s July 27, 2022 order. Specifically, Rauner
notes that the county court gave Filsinger 10 days to request that he, as personal representative,
reissue a check, originally issued in 2014 in the amount of $29,500 that Filsinger did not previously
cash. According to Rauner’s brief, it is unclear whether Filsinger requested and in fact cashed his
check. The same allegation was made with regard to Filsinger’s sister, Haines. However, Rauner
asserts that another sister, Javonne Kreuger, did in fact cash her original check. Since she cashed
her check, Rauner argues that an appellant’s acceptance of benefits of part of the judgment should
preclude an appeal.
Were this the sum total of Rauner’s position, it would be easily resolved as Filsinger is the
lone appellant in this case. Therefore, his sister’s acceptance of a benefit would have no bearing
on the present appeal. However, Rauner has also filed a motion for relief under Neb. Rev. Stat.
§ 30-1601(6) (Cum. Supp. 2022). In that motion, Rauner alleges that Filsinger and Haines both
timely requested reissuance of their distribution checks and that checks for $29,500 were provided
to each of them in response to their requests. The motion is supported by the affidavits of Rauner
and Mattoon with attachments thereto. Since Filsinger received this benefit which is rooted in the
court’s July 27, 2022 order, Rauner contends that Filsinger has accepted the benefits of that order.
In Rauner’s view, sanctions should be imposed since his appeal is precluded by the acceptance of
benefits rule and is therefore frivolous and vexatious.
Assuming without finding that Filsinger did accept his distribution of $29,500, we still
reject Rauner’s contention. Under the acceptance of benefits rule, an appellant may not voluntarily
accept the benefits of part of a judgment in the appellant’s favor and afterward prosecute an appeal
or error proceeding from the part that is against the appellant. Seldin v. Estate of Silverman, 305
Neb. 185, 939 N.W.2d 768 (2020). However, the acceptance of benefits rule has exceptions.
An exception to the acceptance of benefits rule exists where the right to the benefit accepted
is absolute and cannot possibly be affected by reversal of the judgment. It is the possibility
that appeal may lead to a result showing that the party was not entitled to what was received
under the judgment appealed from that defeats the right of appeal. Where there is no such
possibility, the right to appeal is unimpaired by the acceptance of benefits under the
judgment appealed from.
Thus, the acceptance of benefits rule has no application where one is shown to be
so absolutely entitled to the sum collected or accepted that reversal of the judgment or
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decree will not affect his or her right to it, as in the case of a collection of an admitted or
uncontroverted part of his or her demand. The rule does not apply when the appellant is
conceded to be entitled to the thing he or she has accepted and where the appeal relates
only to an additional claim on his or her part.
Liming v. Liming, 272 Neb. 534, 539, 723 N.W.2d 89, 94 (2006) (citations omitted).
Here, the original distribution was authorized and made in 2014. Filsinger, for reasons not
apparent from the record chose not to cash the original check. Our record is completely devoid of
any evidence that Rauner opposed this distribution either in 2014 or at any time thereafter,
including the June 7, 2022, hearing from which the court’s July 27 order was entered. Rauner does
not contend on appeal that Filsinger is not entitled to this distribution or that there is insufficient
funds to pay the court ordered fees based on the reissuance of the distribution check. Therefore,
since Filsinger’s entitlement to this distribution has been conceded, the acceptance of benefits rule
does not apply. Rauner’s argument, as well as his motion for relief are without merit.
2. STATUS OF ORVILLE’S ESTATE DURING PROCEEDINGS
The parties dispute the status of the proceedings governing Orville’s estate since February
2014. In Rauner’s cross-appeal, he questions whether the estate was ever closed, as was found by
the county court in an order filed in May 2017. In Filsinger’s appeal, he questions the propriety of
the county court’s decision to re-open the estate proceedings in June 2017. We address each of the
parties’ arguments in turn.
In an order filed in May 2017, the county court denied Rauner’s request to pay attorney
fees to O’Donnell. The court indicated its belief that Rauner’s request for such fees should have
been made in Berniece’s estate. As a part of its findings, the county court stated, “the estate now
before this court, the Estate of Orville W. Filsinger, was closed by order of this court in February
2014.” In Rauner’s cross-appeal, he purports to challenge the county court’s finding in the May
2017 order that Orville’s estate was closed in February 2014. However, Rauner cannot now
challenge the May 2017 order. In Filsinger I, we explicitly found that the order entered by the
county court in May 2017 was a final order which could, and should, have been appealed from
within 30 days after its entry. Neither party timely filed an appeal from that order and, as such, the
May 2017 order cannot now be challenged in this appeal.
For the sake of completeness, we note that Rauner’s attempt to challenge the county court’s
finding that the estate was closed in February 2014 appears to be for the purpose of arguing that
the county court should have ordered all of O’Donnell’s attorney fees to be paid by the estate, even
those incurred prior to the estate’s reopening in June 2017. However, Rauner cannot now challenge
the court’s denial of fees to O’Donnell for the time when the estate was, apparently, closed. First,
Rauner did not both assign and argue this issue in his brief on cross-appeal and, as such, we will
not address it. Second, the county court has issued two prior orders denying O’Donnell attorney
fees for this time period. Such orders were final and were not timely appealed. We will not revisit
the issue of O’Donnell’s fees prior to June 2017 in this appeal.
In his appeal, Filsinger challenges the county court’s decision to re-open Orville’s estate
in June 2017. However, our record does not reflect that Filsinger raised any objection to Rauner’s
request to re-open the estate. We recognize that Rauner’s request to reopen the estate was granted
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just four days after it was filed. However, no objection was ever made to the reopening either
before or after the entry of the court’s order. As such, Filsinger has waived appellate review of this
issue. An issue not properly presented to and passed upon by the trial court may not be raised on
appeal. Hensman v. Parsons, 235 Neb. 872, 458 N.W.2d 199 (1990). Filsinger’s assertion is not
properly before this court.
3. AWARD OF ATTORNEY FEES
In his brief on appeal, Filsinger challenges the county court’s decision to award any
attorney fees to O’Donnell or to Mattoon for their work with Rauner as personal representative of
Orville’s estate. As a general rule, attorney fees and expenses are recoverable only where provided
for by statute or when a recognized and accepted uniform course of procedure exists to allow
recovery of attorney fees. In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018). Here,
Rauner sought fees for the two attorneys pursuant to § 30-2481, which states: “If any personal
representative or person nominated as personal representative defends or prosecutes any
proceeding in good faith, whether successful or not he is entitled to receive from the estate his
necessary expenses and disbursements including reasonable attorneys’ fees incurred.” We address
the county court’s award of fees to each attorney in turn.
(a) O’Donnell
In his brief on appeal, Filsinger asserts that the county court’s award of attorney fees to
O’Donnell was in error because there was absolutely no evidence in the record to support any such
award. We disagree that the record is devoid of evidence supporting an award of fees to O’Donnell.
The transcript discloses that an affidavit which itemized attorney fees incurred by the personal
representative for O’Donnell’s services from July 2017 through February 2021 was attached to
Rauner’s petition. Our record does not demonstrate that the affidavit was offered and received into
evidence, however. It is clear from the county court’s July 27, 2022, order that the court utilized
the affidavit in computing the amount of fees ordered. The court explicitly found that $51,217.20
of the request was disallowed as that amount represented fees rejected by its prior orders. However
the court allowed the remaining fees of $18,684.52 which, according to the court’s order,
represented fees incurred after July 21, 2017. Our difficulty is that on appeal, this specific sum is
not supported by the evidence adduced at the hearing. In our review of the county court’s award
of attorney fees to O’Donnell, we do not consider the affidavit included as an attachment to the
petition. In re Guardianship & Conservatorship of Forster, 22 Neb. App. 478, 856 N.W.2d. 134(2014).
This finding does not end our inquiry, however. We have previously found that:
it is not strictly necessary for an applicant for attorney fees to introduce specific evidence
to support an award of attorney fees, but before an award of attorney fees will be affirmed
on appeal, the record must contain the information that shows that the award is within the
range of the trial court’s discretion . . . . If the contents of the record, i.e., pleadings,
introduced discovery documents, time spent in court as shown by the court record, and
doubtless many other items which will support the award, do show the allowed fee not to
be unreasonable, then that fee would not be untenable for an abuse of discretion.
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Boamah-Wiafe v. Rashleigh, 9 Neb. App. 503, 614 N.W.2d 778 (2000). See also Garza v. Garza,
288 Neb. 213, 846 N.W.2d 626 (2014) (holding that filing of attorney fee affidavit is not absolute
requirement for award of reasonable attorney fees).
Here, the available record demonstrates that O’Donnell has spent a considerable amount
of time providing legal representation to Rauner. There is little question that, at least as to the legal
services provided following the July 2017 denial of fees, payment of fees to O’Donnell from the
estate are justified. The amount of fees to be ordered however is uncertain, given our inability to
consider the fee affidavit. We faced a similar scenario in In re Guardianship & Conservatorship
of Forster, supra. There, as here, a motion and affidavit for attorney fees was “on file” but never
received into evidence during the course of a hearing. The trial court nonetheless awarded attorney
fees in conformity with the affidavit. We found that the award of such fees was not supported by
competent evidence. We then vacated the orders awarding fees and remanded the matter to the
county court with directions to hold an evidentiary hearing. We follow the same course here. We
vacate the county court’s order awarding attorney fees to O’Donnell and remand this issue to the
county court with directions to hold a further evidentiary hearing.
(b) Mattoon
Filsinger also challenges the award of attorney fees to Mattoon. Filsinger asserts that
Mattoon should not be awarded any fees because his legal work “occurred in [a] closed estate.”
Brief for appellant at 26. In the alternative, Filsinger asserts that Mattoon should have been
awarded less fees than what the county court ordered because some of the fees awarded had been
previously denied by the county court; because Mattoon had previously been partially paid for his
work by the estate; and because the county court “arbitrarily” added an additional $1,726 in fees
than what was asked for in Mattoon’s affidavit.
The county court awarded Mattoon $13,500 in attorney fees to be paid from the assets of
Orville’s estate. The court calculated the amount of fees awarded to Mattoon by relying on
Mattoon’s itemized affidavit which was received in evidence. That affidavit indicated that from
October 15, 2014 through June 6, 2022, Mattoon’s legal fees for Rauner, as personal
representative, totaled $11,774. The court determined that Mattoon should be awarded an
additional $1,726 to account for “any additional legal fees in representing [Rauner] in these
contested proceedings to finalize administration of the estate.”
In his brief on appeal, Filsinger asserts that the county court erred in awarding Mattoon
any legal fees because such fees were incurred for an estate that had already been closed. Upon
our review, we find no abuse of discretion in the county court’s decision to award Mattoon attorney
fees for his work representing Rauner as personal representative of the estate. While the county
court did determine that the estate was closed in February 2014 after Rauner filed a final report,
Rauner’s work on the estate did not cease at that point as a result of ongoing litigation initiated by
Filsinger and the other heirs. Mattoon provided counsel to Rauner regarding this litigation.
Mattoon’s itemized billing affidavit references multiple hearings attended, depositions prepared
for, and court documents reviewed during the time when the estate was believed to be closed.
Moreover, we note that it is clear from our record that the estate was re-opened in June 2017, and
that there was significant attorney fees incurred after that point in time. The county court was well
aware of the ongoing litigation and continuing proceedings which occurred in this case. We defer
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to the county court’s intimate knowledge on this subject and decline to find any abuse of discretion
in its decision to award Mattoon attorney fees.
We next address Filsinger’s assertion that the county court erred in the amount of attorney
fees awarded to Mattoon. Filsinger argues that the court erred in awarding fees that it had
previously denied. Mattoon’s affidavit reflects that his attorney fees for October 15, 2014 through
May 24, 2017, totaled $7,650. In his brief to this court, Filsinger asserts that “[t]hese were fees
denied by the Trial Court earlier in the process” when Rauner sought those fees in an application
dated December 21, 2016. Brief for appellant at 25. Our record does not support Filsinger’s
assertion. Rauner’s application to pay fees and costs filed in December 2016 only requested
payment of O’Donnell’s attorney fees. It did not request payment for Mattoon’s fees. As such, we
do not find any support for Filsinger’s assertion that Mattoon should not have received payment
for fees incurred from October 15, 2014 through May 24, 2017, because such fees were previously
denied. We agree with the finding of the county court that the previous denials of attorney fees
related only to O’Donnell’s fees.
Filsinger also asserts that the amount of fees awarded to Mattoon should be reduced by
prior payments made to Mattoon by the estate. In the supplemental final report for the estate filed
by Rauner on May 2, 2022, he details all amounts received and all amounts paid by the estate from
January 2014 through December 2020. Such report indicates that two payments were made to
Mattoon or to Mattoon’s law firm for “attorney fees” during that time period. Mattoon was paid
$1,646.31 in fees on June 20, 2014, and was paid an additional $972.25 in fees on September 26,
2016. We do not consider the fees paid to Mattoon in June 2014, because Mattoon’s affidavit
indicates that he is asking for fees incurred on or after October 15, 2014. As such, the June 2014
payment predates the current attorney fees request. However, the fees paid to Mattoon in
September 2016 are encompassed within the time frame of Mattoon’s current request for fees. We
cannot find anything in our record or in the county court’s order which reflects that such prior
payment was considered or deducted from the amount of fees awarded to Mattoon. As such, we
reduce Mattoon’s attorney fee award by $972.25, the amount paid to him by the estate in
September 2016 for legal services rendered.
Finally, Filsinger asserts that the county court should not have awarded Mattoon more
attorney fees than what were reflected in his affidavit. Filsinger asserts, “As noted by the Trial
Court, it simply added an additional arbitrary sum of $1,726 of fees” to Mattoon’s request. Brief
for appellant at 25. According to the county court’s order, such additional fees were added in order
to compensate Mattoon for “representing [Rauner] in these contested proceedings to finalize
administration of this estate.” The county court indicated that Mattoon’s itemized affidavit did not
account for any fees incurred after June 6, 2022, which was the day before the hearing on Rauner’s
final petition.
We agree with Filsinger that the record presented to the county court does not support the
addition of $1,726 in attorney fees. Mattoon’s affidavit did not specify what, if any, additional
attorney fees could be anticipated after June 6, 2022. While it could be anticipated that some fees
would be incurred for Mattoon’s appearance at the hearing, no record was made of how much
additional attorney time could be attributed to that hearing or to any further services that Mattoon
would be rendering. As such, the additional award appears speculative and we find that the award
of $1,726 for additional attorney fees to be paid to Mattoon for unspecified services constituted an
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abuse of discretion. Therefore, we reduce the award of attorney fees to Mattoon by $972.25 based
on the prior payment of fees and $1,726 for the fees awarded that are not supported by the record.
We reduce the order for fees to be paid to Mattoon to $10,801.75.
4. AWARD OF ADDITIONAL PERSONAL REPRESENTATIVE FEES
The county court awarded Rauner $5,000 in “additional” fees for serving as personal
representative for the estate. The court noted that by January 2014, Rauner had been paid a total
of $14,980 in personal representative fees for his services from the time of the estate case’s
inception in 2009 through the time of his filing the January 2014 final report. The county court
found that Rauner’s request for an additional $5,000 in fees to account for his work from February
2014 through June 2022 was warranted. The court stated:
While he may not have had to appear in court, because of the amount of litigation in this
case, [Rauner] has had to administer this estate for nearly 13 years. He has frequently been
accused of mismanaging the estate and has been sued in District Court. It is not
unreasonable for [Rauner] to seek additional compensation from the estate. It is ordered
that [Rauner] pay himself, from assets of the estate, an additional [personal representative]
fee of $5,000.
On appeal, Filsinger asserts that the county court erred in awarding Rauner $5,000 in
personal representative fees. Filsinger argues that Rauner did not provide any evidence to support
such an award of personal representative fees and that an award of fees is not warranted when
Rauner did not act in the best interests of the estate or the heirs in administering the estate.
Neb. Rev. Stat. § 30-2480 (Reissue 2016) provides, in part, “A personal representative is
entitled to reasonable compensation for his services.” The term “reasonable compensation” is not
defined in § 30-2480. However, Neb. Rev. Stat. § 30-2482(2) (Reissue 2016) provides a list of
factors “to be considered as guides in determining the reasonableness of a fee” awarded to a
personal representative or a person employed by the personal representative. The factors to be
considered are as follows:
(a) The time and labor required, the novelty and difficulty of the questions involved,
and the skill requisite to perform the service properly;
(b) The likelihood, if apparent to the personal representative, that the acceptance of
the particular employment will preclude the person employed from other employment;
(c) The fee customarily charged in the locality for similar services;
(d) The amount involved and the results obtained;
(e) The time limitations imposed by the personal representative or by the
circumstances;
(f) The nature and length of the relationship between the personal representative
and the person performing the services; and
(g) The experience, reputation, and ability of the person performing the services.
§ 30-2482(2).
Additionally, as we noted above, an award of fees to the personal representative can also
be supported by § 30-2481, which provides, “If any personal representative or person nominated
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as personal representative defends or prosecutes any proceeding in good faith, whether successful
or not he is entitled to receive from the estate his necessary expenses and disbursements including
reasonable attorneys’ fees incurred.” The Nebraska Supreme Court has held that a person seeking
to recover fees under § 30-2481 must first establish good faith, and then prove (1) that the claimed
expenses and disbursements were necessary and (2) that the attorney fees were necessary and
reasonable. In re Estate of Giventer, 310 Neb. 39, 964 N.W.2d 234 (2021).
We note that no itemized affidavit or other evidence outlining Rauner’s time spent
attending to his duties as personal representative appear in our record. The absence of this
information makes our task more difficult. However, we cannot discount the rationale given by
the county court in approving Rauner’s request for fees. The county court clearly found that
Rauner’s work for the estate since January 2014 was performed in good faith and was necessary.
The record establishes that after January 2014 Rauner continued to represent the interests of the
estate for more than eight years. During this time, he successfully defended a series of lawsuits
and claims initiated by Filsinger and the other heirs, including a suit filed against him personally
in the district court. The record also indicates that during this period, Rauner continued to receive
assets for the estate and preserved those assets for the heirs upon the end of the litigation.
Essentially, we find, as did the county court, that the totality of the circumstances surrounding this
estate case supports an award of personal representative fees to Rauner in the amount of $5,000.
Filsinger’s arguments to the contrary lack merit.
5. NO INTEREST AWARDED TO FILSINGER
The May 2022 supplemental final report filed by Rauner reveals that since the filing of his
prior final report in January 2014, the estate has regularly and continuously received additional
assets. In January 2014, the estate had a total of $65,100 in its account. By May 2022, that total
had grown to $189,596.98. Included in this amount were two outstanding checks written by the
estate in June 2014. One was a disbursement made to Filsinger in the amount of $29,500. The
other was an identical disbursement made to his sister. These checks were never cashed.
In the county court, Filsinger argued that he should be awarded interest on the money owed
to him by the estate as one of Orville’s heirs. He contended that Rauner unlawfully retained the
funds which could, and should, have been paid out to the heirs in 2014. Filsinger conceded that he
had received a check from the estate in the amount of $29,500, but that he had not cashed the check
because “he was never shown how that figure was calculated.”
In its order, the county court denied Filsinger’s request for interest. The court stated:
For the past 9 years, there have been a multitude of court hearings, both in this Court and
the District court, initiated by the [heirs], including Mr. Filsinger. It is ironic that Mr.
Filsinger now complains about the delay in distribution of estate assets when he and the
other [heirs] have been instrumental in creating that delay.
The county court went on to explain its belief that Rauner could not in good faith have distributed
the estate’s assets prior to the resolution of the litigation and the final award of attorney fees as
well as other fees and costs: “It was and is impossible to determine the final payment to the heirs
until the issue of attorney’s fees and [personal representative] fees is determined by the Court.”
Filsinger appeals from the denial of his request for interest.
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Upon our review, we find no error in the county court’s denial of interest to Filsinger.
Requiring Rauner, as personal representative, to pay interest to Filsinger would be inequitable,
when the delay in the disbursement of estate assets has been caused, in large part, by litigation
filed by Filsinger which has prevented the speedy administration of the estate. See In re Estate of
Kierstead, 128 Neb. 654, 259 N.W. 740 (1935). The disbursement of estate assets was delayed by
the litigation initiated by Filsinger and the other heirs in this case, in Berniece’s estate case, and in
a district court case brought against Rauner, individually. As personal representative, Rauner could
not disburse the entirety of the estate assets until such litigation was resolved and attorney fees and
other expenses were paid. In addition, we note the evidence that the estate continued to regularly
receive additional assets after January 2014. Such additions added to the difficulty in providing
the heirs their final disbursements. Filsinger did receive disbursements during the course of the
estate administration. One disbursement check was provided to Filsinger in June 2014, but he
chose to not cash it. Clearly no interest as to those funds was warranted, as it was Filsinger’s choice
to not accept the disbursement. We affirm the decision of the county court denying Filsinger any
interest on the money retained by the personal representative in the estate account pending final
closure of the estate.
6. FILSINGER TO PAY SANCTIONS
In Filsinger’s response to Rauner’s May 2022 petition for final administration of the estate,
he asserted in paragraph 9 that Rauner had “committed fraud, misrepresentation or inadequate
disclosure and distribution information at the February 13, 2014 hearing and his filings for that
hearing.” In the county court’s order, it found that such assertion by Filsinger was frivolous, as it
had already been asserted by Filsinger and the other heirs, fully litigated, and denied. As a result
of the frivolous assertion, the court ordered Filsinger to pay attorney fees to the estate in the amount
of $500. The court instructed that “[p]ayment of that attorney’s fees is to [be] withheld by [Rauner]
from Mr. Filsinger[‘s] share of the residuary estate, and paid directly to O’Donnell, or as he shall
direct.”
On appeal, Filsinger challenges the county court’s order requiring him to pay attorney fees
to O’Donnell in the amount of $500. He asserts that none of the claims asserted in his response to
Rauner’s May 2022 petition for final administration of the estate were frivolous. Upon our review,
we affirm the order of the county court finding a portion of Filsinger’s response to be frivolous
and ordering him to pay $500 in sanctions.
Neb. Rev. Stat. § 25-824(2) (Reissue 2016) provides, in relevant part:
[I]n any civil action commenced or appealed in any court of record in this state, the court
shall award as part of its judgment and in addition to any other costs otherwise assessed
reasonable attorney’s fees and court costs against any attorney or party who has brought or
defended a civil action that alleges a claim or defense which a court determines is frivolous
or made in bad faith.
For purposes of § 25-824, “frivolous” means an attempt to relitigate the same issues resolved in
prior proceedings with the same parties or a legal position wholly without merit, that is, without
rational argument based on law and evidence to support a litigant’s position. Cox v. Civil Serv.
Comm. of Douglas Cty., 259 Neb. 1013, 614 N.W.2d 273 (2000).
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In Filsinger I, we addressed Filsinger’s and the other heirs’ claim that Rauner committed
inadequate disclosure, fraud, or misrepresentation in his handling of the estate during the early part
of 2014 when he attempted to wrap up the estate proceedings. After a full review of the evidence,
we concluded that there was no fraud, misrepresentation, or inadequate disclosure perpetrated by
Rauner. Our reading of Filsinger’s response to Rauner’s May 2022 petition for final administration
of the estate reveals that he asserted this issue again, verbatim. Because this issue had been
previously litigated and decided, we agree with the county court that it is a frivolous claim. Given
the frivolous nature of this claim, we can find no abuse of discretion by the county court in ordering
Filsinger to pay $500 in attorney fees as a sanction for his conduct.
VI. CONCLUSION
For the reasons set forth herein, with the exception of the court’s order awarding attorney
fees to O’Donnell, we affirm the order of the county court as modified. The attorney fees awarded
to Mattoon are reduced by a total of $2,698.25 resulting in a total fee award to Mattoon in the
amount of $10,801.75. Because the award of fees to O’Donnell was not supported by competent
evidence, we vacate that portion of the county court’s order and remand the matter to the county
court with directions to hold a further evidentiary hearing. The remainder of the county court’s
order awarding fees and sanctions in Orville’s estate is affirmed.
AFFIRMED IN PART AS MODIFIED, AND IN PART
VACATED AND REMANDED WITH DIRECTIONS.
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