In re Conservatorship of Franke , 292 Neb. 912 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
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Nebraska A dvance Sheets
292 Nebraska R eports
IN RE CONSERVATORSHIP OF FRANKE
Cite as 292 Neb. 912
In re Conservatorship of Genevieve Franke, deceased.
Laurie Berggren, appellee, v. Genevieve Franke,
deceased, appellant, and John Franke, appellee.
___ N.W.2d ___
Filed March 4, 2016. No. S-14-959.
1. Guardians and Conservators: Appeal and Error. An appellate court
reviews guardianship and conservatorship proceedings for error appear-
ing on the record in the county court.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
3. ____: ____. An appellate court independently reviews questions of law
decided by a lower court.
4. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
5. Standing: Jurisdiction: Parties. Standing is a jurisdictional component
of a party’s case because only a party who has standing may invoke the
jurisdiction of a court.
6. Actions: Parties: Death: Abatement, Survival, and Revival: Appeal
and Error. The statutory provisions regarding abatement and revivor of
actions apply to cases in which a party dies pending an appeal.
7. ____: ____: ____: ____: ____. Whether a party’s death abates an appeal
or cause of action presents a question of law.
8. Statutes. Statutory interpretation presents a question of law.
9. Abatement, Survival, and Revival: Words and Phrases. The term
“abatement” can refer to the extinguishment of a cause of action or the
equitable suspension of suit for the lack of proper parties.
10. Abatement, Survival, and Revival: Moot Question: Appeal and
Error. An abatement can also refer to the extinguishment of an appeal
only when the legal right being appealed has become moot because of a
party’s death while the appeal was pending.
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IN RE CONSERVATORSHIP OF FRANKE
Cite as 292 Neb. 912
11. Actions: Parties: Death: Abatement, Survival, and Revival. Even if
a party’s death does not abate a cause of action, a substitution of parties
may be required before the action or proceeding can continue.
12. ____: ____: ____: ____. Neb. Rev. Stat. § 25-322 (Reissue 2008)
abrogates the common-law rule that all pending personal actions perma-
nently abate on the death of a sole plaintiff or defendant, regardless of
whether the cause of action on which it was based survived.
13. ____: ____: ____: ____. Under Neb. Rev. Stat. § 25-322 (Reissue
2008), a court may allow an action to continue after a party’s death
through a transfer of interests, if the cause of action survives the par-
ty’s death.
14. Actions: Parties: Death. A deceased person cannot maintain a right
of action against another or defend a legal interest in an action or
proceeding.
15. Attorney and Client: Death. Although an attorney of a deceased client
may have a duty to protect the client’s interests by alerting a legal repre-
sentative of his or her pending claim, absent a contractual agreement to
the contrary, an attorney’s representation of a client generally ends upon
the death of that client.
16. Actions: Parties: Death: Abatement, Survival, and Revival. A
deceased party’s representative or successor in interest must either
seek a conditional order of revival under chapter 25, article 14, of the
Nebraska Revised Statutes or seek a court’s substitution order under
Neb. Rev. Stat. § 25-322 (Reissue 2008) before an action or proceeding
can continue.
17. Actions: Attorney and Client. An attorney’s unauthorized actions on
the part of a deceased client are a nullity. So, unless a deceased client’s
legal representative or the client’s contractual agreement authorizes the
attorney to take or continue an action for the client, an attorney cannot
take any further valid action in the matter.
18. Guardians and Conservators: Final Orders: Appeal and Error.
Under Neb. Rev. Stat. § 30-1601(2) (Cum. Supp. 2014), a protected per-
son’s close family members have the right to appeal from a final order
in a conservatorship proceeding if they filed an objection and the county
court appointed a conservator.
19. Actions: Parties: Death: Abatement, Survival, and Revival. When a
party dies pending an appeal, the general rule is that the death does not
abate the cause of action or affect the underlying judgment.
20. Estates: Guardians and Conservators. A protected person’s death ter-
minates a conservator’s authority and responsibility as conservator but
does not affect the conservator’s liability for acts taken before the death
or the conservator’s obligation to account for the protected person’s
funds and assets.
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IN RE CONSERVATORSHIP OF FRANKE
Cite as 292 Neb. 912
21. Actions: Guardians and Conservators: Abatement, Survival, and
Revival: Appeal and Error. A protected person’s death pending an
appeal from a conservatorship proceeding does not abate the cause of
action or affect the underlying orders appointing a conservator.
Appeal from the County Court for Hall County: A rthur S.
Wetzel, Judge. Appeal dismissed.
Jordan W. Adam, of Fraser Stryker, P.C., L.L.O., for
appellant.
Susan M. Koenig, of Mayer, Burns, Koenig & Janulewicz,
for appellee Laurie Berggren.
Robert A. Mooney, of Gross & Welch, P.C., L.L.O., for
appellee John Franke.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ.
Connolly, J.
SUMMARY
This appeal involves a dispute between Genevieve Franke’s
children regarding the county court’s appointment of a conser-
vator for her. Genevieve has since died. Genevieve’s daughter,
Laurie Berggren, sought the conservatorship after Genevieve
agreed to sell her farmland to her son John Franke at a price
below its fair market value.
Genevieve appealed from the court’s appointment of
Cornerstone Bank as her permanent conservator. John also
appealed. But before the parties filed briefs, Genevieve’s attor-
ney filed a suggestion of death with the Nebraska Court
of Appeals stating that Genevieve had died on December
31, 2014.
This appeal presents four issues. First, does Genevieve’s
attorney have standing to continue representing a deceased cli-
ent in an appeal without authorization from Genevieve’s legal
representative? Second, does John have standing to appeal from
the county court’s appointment of a permanent conservator?
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IN RE CONSERVATORSHIP OF FRANKE
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Third, if John does have standing, does Genevieve’s death
abate his appeal? And fourth, does Genevieve’s death abate
the cause of action and require this court to vacate the county
court’s orders appointing a conservator?
We reach the following conclusions:
• Genevieve’s attorney has no standing to represent her in this
court after her death.
• Under the Nebraska Probate Code, John had standing to
appeal from the county court’s appointment of a conserva-
tor because he objected to the proceeding and asked for an
evidentiary hearing. But his standing on appeal is limited to
whether Genevieve was in need of a conservator.
• Genevieve’s death has abated John’s appeal because her com-
petency and need for a conservator are moot issues.
• Genevieve’s death does not require us to remand the case
with directions to the county court to vacate its order. We
conclude that an abatement of an appeal in a conservatorship
proceeding does not affect the validity of the final judgment
or order from which a party or statutorily authorized person
has appealed.
BACKGROUND
Before Genevieve’s death in 2014 at the age of 90, she had
been a resident of a nursing home since November 2011. The
catalyst for this dispute involved Genevieve’s agreement to
sell her farmland to John in 2013. According to John, in April
2013, he learned that some other farmland near his own prop-
erty, which he had wanted to buy, would soon be auctioned. He
asked Laurie if Genevieve had $400,000 to $500,000 to pur-
chase it, and Laurie said Genevieve did not have enough liquid
assets to do so. But Laurie, who took care of Genevieve’s
finances, authorized the bank to release Genevieve’s financial
information to John. He learned that Genevieve had $580,000
in investments and $780,000 in certificates of deposit. John
drove Genevieve out to the property for viewing; he said that
she authorized him to purchase it.
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IN RE CONSERVATORSHIP OF FRANKE
Cite as 292 Neb. 912
John said that he then met with Genevieve’s accountant and
attorney. The accountant told him that Genevieve wanted to
purchase the land for him. They arranged for the purchase to
be an asset of Genevieve’s trust and limited the purchase price
to $10,000 per acre of cropland. The plan called for John and
his wife to make payments to the trust for the property. But for
unexplained reasons, John did not purchase the property. He
said that the irrigated cropland sold for about $7,500 to $7,800
per acre.
Before the auction, John had learned that under Genevieve’s
estate plan, at her death, he would have the first option to buy
her property at its appraised value. But he said that he could
not profitably farm the property if he had to buy it at its fair
market value. He said that he was upset he could not buy the
auctioned property near his own farm. So after the auction, but
before Genevieve’s death, he had multiple conversations with
her about his purchasing her farmland, an asset of her trust. He
said that Genevieve agreed to sell him her farmland and that
her neighbor, who was John’s close friend and Genevieve’s
tenant farmer, recommended the purchase price. John proposed
to purchase Genevieve’s property for about $3,600 to $3,700
per acre. In November 2013, Genevieve’s “good quality irri-
gated” farmland, about 153 acres, was appraised at $1,653,000.
The appraiser believed that the property’s value in April 2013
would have been about the same.
Genevieve’s longtime attorney and accountant were con-
cerned Genevieve did not understand that there were tax
consequences to this sale, that the proposed purchase price
was well below the property’s fair market value, and that
the proposed sale was inconsistent with her continually
expressed desire to treat her children equally. In June 2013,
Laurie petitioned for the appointment of a conservator. John
objected and requested an evidentiary hearing. The court
appointed Laurie as Genevieve’s temporary conservator with
the limited duty to prevent the sale of the farm and preserve
Genevieve’s assets pending further order. After an evidentiary
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hearing, it appointed Cornerstone Bank as Genevieve’s perma-
nent conservator.
As noted, before the parties filed briefs, Genevieve’s attor-
ney filed a suggestion of death with the Court of Appeals stat-
ing that Genevieve had died on December 31, 2014. The Court
of Appeals then issued an order for the parties to show cause
why the appeal should not be dismissed as moot. Genevieve’s
attorney, Laurie, and John all filed responses to this order.
Laurie responded that the action was not moot because a
conservator has continuing duties for the estate even after a
protected person dies and because Genevieve’s children still
have an interest in a decision on her competency. Laurie
stated that the “administration and ultimately the distribution
of [Genevieve’s] assets remain[] at issue.”
Genevieve—not her personal representative—sought an
order (through her attorney of record) to dismiss the appeal
as moot and to vacate the county court’s order appointing a
permanent conservator. Two days later, John moved for an
order reviving the appeal. Alternatively, he sought an order
concluding that (1) the appeal was not moot but only abated by
Genevieve’s death and (2) the abatement required the county
court to vacate all its previous orders in the proceeding. John
claimed the right to file this motion as a person interested in
Genevieve’s conservatorship and as her successor in interest.
We overruled both of these motions without prejudice and
granted John’s petition to bypass the Court of Appeals.
ASSIGNMENTS OF ERROR
In Genevieve’s appellate brief, her attorney assigned that
the court erred in finding that she had mental or physical
disabilities that rendered her unable to manage her property.
Although John appealed also, he is designated an appellee and
did not assign errors. In his brief, he has not argued that we
should allow him to revive Genevieve’s appeal, so we treat
that request as abandoned. But he argues that because the con-
servatorship cause of action abated upon Genevieve’s death,
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this court should dismiss her appeal and remand the cause
with directions for the county court to vacate all its orders in
the proceeding.
STANDARD OF REVIEW
[1,2] An appellate court reviews guardianship and conser-
vatorship proceedings for error appearing on the record in the
county court.1 When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.2
[3-8] But we independently review questions of law decided
by a lower court.3 A jurisdictional issue that does not involve
a factual dispute presents a question of law.4 And standing is
a jurisdictional component of a party’s case because only a
party who has standing may invoke the jurisdiction of a court.5
The statutory provisions regarding abatement and revivor of
actions apply to cases in which a party dies pending an appeal.6
Whether a party’s death abates an appeal or cause of action
presents a question of law.7 Also, statutory interpretation pre­
sents a question of law.8
1
In re Guardianship & Conservatorship of Barnhart, 290 Neb. 314, 859
N.W.2d 856 (2015).
2
Id.
3
In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (2013).
4
See In re Interest of Enyce J. & Eternity M., 291 Neb. 965, 870 N.W.2d
413 (2015).
5
In re Guardianship & Conservatorship of Barnhart, supra note 1.
6
See, Schumacher v. Johanns, 272 Neb. 346, 722 N.W.2d 37 (2006); Long
v. Krause, 104 Neb. 599, 178 N.W. 188 (1920); Sheibley v. Nelson, 83
Neb. 501, 119 N.W. 1124 (1909).
7
See, e.g., Sherman v. Neth, 283 Neb. 895, 813 N.W.2d 501 (2012); Bullock
v. J.B., 272 Neb. 738, 725 N.W.2d 401 (2006); Schumacher, supra note 6;
Sheibley, supra note 6.
8
See D.I. v. Gibson, 291 Neb. 554, 867 N.W.2d 284 (2015).
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ANALYSIS
[9] The term “abatement” can have more than one mean-
ing in law. It can refer to the extinguishment of a cause of
action or the equitable suspension of suit for the lack of
proper parties:
[T]here is a distinction between the use of the word
“abatement” in common law, where it means an entire
overthrow or destruction of a suit, and in equity courts,
where abatement may indicate rather a temporary suspen-
sion of further proceedings in the suit because of want of
proper parties.9
[10] Additionally, as we explain later, an abatement can
refer to the extinguishment of an appeal only when the legal
right being appealed has become moot because of a party’s
death while the appeal was pending. This appeal raises the
issue whether a protected person’s death pending an appeal
from a conservatorship appointment abates only the appeal
or the entire cause of action. John argues that it abates the
entire cause of action, which means that we must vacate the
lower court’s orders. But first, we consider the standing of
Genevieve’s attorney to continue her appeal.
Genevieve’s A ppeal
After Genevieve’s attorney filed a suggestion of death,
he filed an appellant’s brief on her behalf. He argues that
because the conservatorship proceedings involved purely per-
sonal rights, Genevieve’s appeal is moot due to her death
and should be dismissed. Yet, he asks this court to vacate the
county court’s conservatorship orders. He notes that some
courts have held that when a party who has been adjudicated
9
In re Estate of Samson, 142 Neb. 556, 561, 7 N.W.2d 60, 62 (1942)
(superseded by statute as stated in In re Estate of Stephenson, 243 Neb.
890, 503 N.W.2d 540 (1993), overruled in part on other grounds, Knights
of Columbus Council 3152 v. KFS BD, Inc., 280 Neb. 904, 791 N.W.2d
317 (2010)). See, also, Fox v. Abbott, 12 Neb. 328, 11 N.W. 303 (1882);
Black’s Law Dictionary 3 (10th ed. 2014).
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as mentally incompetent dies during the pendency of an appeal,
the abatement of the appeal requires the lower court’s orders
to be vacated. Despite his claim that the issue is moot, he also
argues that the evidence was insufficient to show Genevieve
needed a conservator. We conclude that Genevieve’s attorney
lacks standing to seek any relief on her behalf.
[11-13] Even if a party’s death does not abate a cause of
action, a substitution of parties may be required before the
action or proceeding can continue. Neb. Rev. Stat. § 25-322
(Reissue 2008) abrogates the common-law rule that “all pend-
ing personal actions permanently abate on the death of a sole
plaintiff or defendant, regardless of whether the cause of
action on which it was based survived.”10 But under § 25-322,
a court may allow an action to continue after a party’s death
through a transfer of interests, if the cause of action survives
the party’s death:
An action does not abate by the death or other dis-
ability of a party, or by the transfer of any interest therein
during its pendency, if the cause of action survives or
continues. In the case of the death or other disability of
a party, the court may allow the action to continue by or
against his or her representative or successor in interest.
In case of any other transfer of interest, the action may be
continued in the name of the original party or the court
may allow the person to whom the transfer is made to be
substituted in the action.
[14-16] Through § 25-322, the Legislature anticipated that
a substitution of a legal representative or successor in interest
is required when a party dies, before the action can continue.
This substitution is required because a deceased person cannot
maintain a right of action against another11 or defend a legal
interest in an action or proceeding.12 Although an attorney of a
10
See 1 Am. Jur. 2d Abatement, Survival, and Revival § 44 at 129 (2005).
11
See Neb. Rev. Stat. § 25-1410 (Reissue 2008).
12
See Neb. Rev. Stat. § 25-1411 (Reissue 2008).
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deceased client may have a duty to protect the client’s interests
by alerting a legal representative of his or her pending claim,
absent a contractual agreement to the contrary, an attorney’s
representation of a client generally ends upon the death of that
client.13 And a deceased party’s representative or successor in
interest must either seek a conditional order of revival under
chapter 25, article 14, of the Nebraska Revised Statutes or seek
a court’s substitution order under § 25-322 before an action or
proceeding can continue.14
[17] In short, even if a legal right is not abated by a party’s
death, Nebraska’s abatement laws would require a suspension
of an action or proceeding until an appropriate representa-
tive is substituted by court order through one of the statutory
procedures. An attorney’s unauthorized actions on the part
of a deceased client are a nullity.15 So, unless a deceased
client’s legal representative or the client’s contractual agree-
ment authorizes the attorney to take or continue an action for
the client, an attorney cannot take any further valid action in
the matter.16
Here, even if the legal right that Genevieve had defended
(her competency to manage her own affairs) were not abated
by her death, her appeal could only be continued by someone
statutorily authorized to represent her interests. Her attorney is
not her personal representative or her successor in interest. He
stated at oral argument that a county court in a separate trust
proceeding authorized him to continue this appeal. But he has
not asked us to take judicial notice of such order or explained
the legal grounds for the purported authorization. He has not
13
See, State ex rel. Counsel for Dis. v. James, 267 Neb. 186, 673 N.W.2d
214 (2004); Long, supra note 6.
14
See Platte Valley Nat. Bank v. Lasen, 273 Neb. 602, 732 N.W.2d 347
(2007).
15
See Long, supra note 6.
16
See, id.; Schaeffler v. Deych, 38 So. 3d 796 (Fla. App. 2010); 7A C.J.S.
Attorney & Client § 335 (2015).
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claimed an interest in this action or shown that Genevieve
contractually authorized him to continue her appeal even if she
died. We conclude that Genevieve’s attorney has no author-
ity to continue her appeal and no interest in the litigation.
Accordingly, he lacked standing to file a brief and seek relief
for her. So we dismiss Genevieve’s appeal.
John’s A ppeal
In contrast to Genevieve’s attorney, her son John has stand-
ing to appeal the court’s appointment of a conservator. Under
Neb. Rev. Stat. § 30-1601(2) (Cum. Supp. 2014), an appeal
from a probate matter “may be taken by any party and may
also be taken by any person against whom a final judgment or
final order may be made or who may be affected thereby.” The
statute sets forth the requirements for filing an appeal in the
alternative. So § 30-1601(2) gives John standing to appeal if
he had an interest that was affected by the order or if the order
was final with regard to any objections he raised. But because
§ 30-1601(2) directly refers to a final order, he still must show
that the order affected a substantial right.
John must show that the order affected a substantial right
because proceedings initiated to appoint a guardian of a person
alleged to be incapacitated and to appoint a conservator are
special proceedings.17 And under Neb. Rev. Stat. § 25-1902
(Reissue 2008), an order in a special proceeding is final only
if it affects a substantial right. But under § 25-1902, we have
held that an order that disposes of every issue before a court is
necessarily a final order.18
[18] The conservatorship statutes do not explicitly autho-
rize any person to object to a conservator appointment. But
as relevant here, they do require notice of a petition for
a conservator to the subject’s adult children and a hearing
17
See In re Guardianship & Conservatorship of Larson, 270 Neb. 837, 708
N.W.2d 262 (2006).
18
See Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).
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before making an appointment.19 And this court has previ-
ously decided appeals from family members who objected to
a conservatorship appointment.20 So, under our implicit inter-
pretation of § 30-1601(2), a protected person’s close fam-
ily members have the right to appeal from a final order in a
conservatorship proceeding if they filed an objection and the
county court appointed a conservator. Although John is not a
party, the right to appeal under § 30-1601(2) is not limited to
parties. John filed an objection and requested an evidentiary
hearing. So, under the probate code’s generous appeal statute,
he is a person against whom a final order was entered and has
the right to appeal.
Nonetheless, John only has standing to address the sole issue
resolved in the final order, which is Genevieve’s need for a
conservator. But that issue is mooted by her death. Although
all the appellate attorneys asserted at oral argument that there
is a separate, pending trust proceeding, neither party has asked
us to take judicial notice of a proceeding that shows the issue
of Genevieve’s competency is not moot. Because the issue
appealed is moot, we conclude that Genevieve’s death has
abated John’s appeal.21 He does not dispute that point. But
he argues that the abatement on appeal requires us to vacate
the county court’s previous orders appointing a conservator.
Not so.
There is a distinction between a party’s death that abates
an appeal and a party’s death that abates a cause of action.
But courts have not always been clear on this point. In early
cases, if an appeal called for a trial de novo, perfecting the
appeal vacated the judgment, or the judgment was treated as
19
See Neb. Rev. Stat. §§ 30-2630 to 30-2635 (Reissue 2008 & Cum. Supp.
2014).
20
See, e.g., In re Guardianship & Conservatorship of Karin P., 271 Neb.
917, 716 N.W.2d 681 (2006); Winters v. Lange, 197 Neb. 157, 247 N.W.2d
617 (1976).
21
See Sherman, supra note 7, citing 4 C.J.S. Appeal and Error § 343 (2007).
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interlocutory. But if review was sought through a writ of error,
the judgment was not vacated; it was suspended.22 So a party’s
death pending a writ of error proceeding did not vacate or annul
the judgment reviewed. Unless the judgment was reversed on
appeal, it remained in effect and was res judicata between the
parties.23 Over time, however, this distinction was lost and con-
siderable confusion developed whether a party’s death pending
an appeal abated the appeal or the entire action.24 Our case law
illustrates this point.
For example, in 1927, we considered a case in which a
husband died pending a wife’s appeal of a marital dissolution
decree.25 At that time, our review of a dissolution decree was
a trial de novo and a divorce precluded a spouse from taking
insurance benefits from a former spouse. We stated that the
decree was interlocutory—i.e., not final until we issued a deci-
sion—and concluded that the husband’s death had abated the
action and annulled the judgment, as if he had died before the
trial court entered the decree. So the wife was not precluded
from taking the husband’s insurance benefits.
But we no longer treat marital dissolution decrees as inter-
locutory or review them in a trial de novo. If an order or decree
were not final, we would dismiss the appeal for lack of juris-
diction.26 And our disposition in a later case dealing with the
same issue showed that we concluded the party’s death pend-
ing his appeal abated the appeal, not the action.
Specifically, in 1945, we again considered a case in which
a husband died pending appeal from a marital dissolution
22
See, In re Estate of Marsh, 145 Neb. 559, 17 N.W.2d 471 (1945); Annot.,
148 A.L.R. 1111 (1944).
23
See, 148 A.L.R., supra note 22; Green v. Watkins, 19 U.S. (6 Wheat.) 260,
5 L. Ed. 256 (1821).
24
See 148 A.L.R., supra note 22; Annot., 33 A.L.R. 4th 47, § 2[b] (1984).
25
See Westphalen v. Westphalen, 115 Neb. 217, 212 N.W. 429 (1927).
26
See, e.g., Gerber v. Gerber, 218 Neb. 228, 353 N.W.2d 4 (1984).
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decree.27 There, we denied a special administrator’s motion on
appeal to revive the husband’s appeal for review of the decree’s
requirement that he pay alimony. We repeated the rule that a
dissolution decree was interlocutory. And we concluded that
the death of one of the parties destroys the subject matter of
the decree, including matters of alimony and property rights,
which we described as only incidental to the main object of
the action. But despite this broad language that the action
was extinguished, we only denied the motion for revivor and
dismissed the appeal. We did not hold that the decree was
annulled, nor did we remand the cause for the lower court to
vacate its decree. So, our disposition showed that the appeal
was abated—not the action.
Later, our disposition in another case dealing with a party’s
death pending appeal from a probate judgment similarly
showed that the party’s death abated only the appeal. There, a
surviving spouse appealed from an order denying him a statu-
tory allowance, a homestead exemption, and the decedent’s
personal property, but he died pending appeal. We decided
the case after the Legislature had amended the probate stat-
utes to allow a surviving spouse’s petition for allowances or
an elective share to survive the surviving spouse’s death,28
but the parties apparently did not raise the statute. We con-
cluded that the asserted rights did not survive the appellant’s
death: “[T]he rights in question, being personal to the sur-
viving spouse, terminated upon his death as did the cause of
action. . . . It is fundamental that when a party to a pending
suit dies and the right is personal in nature, the right dies
with the person.”29 But our statement that the cause of action
terminated with the appellant’s death clearly meant that the
27
See Williams v. Williams, 146 Neb. 383, 19 N.W.2d 630 (1945).
28
See In re Estate of Stephenson, supra note 9.
29
Jacobson v. Nemesio, 204 Neb. 180, 183, 281 N.W.2d 552, 554 (1979)
(superseded by statute as stated in In re Estate of Stephenson, supra
note 9).
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cause of action died from that point forward; i.e., his death
abated the appeal. The abatement obviously did not extin-
guish the entire action or annul the order denying his asserted
legal rights.
It is true that in Sherman v. Neth,30 we determined that
because a party’s death pending appeal from an administrative
license revocation abated the appeal, we should vacate the pro-
ceedings in the lower court. John relies on Sherman and a 1939
Missouri conservatorship case.31 The Missouri case was one of
the cases that we cited in Sherman to show courts will some-
times vacate a lower court’s judgment if the right asserted on
appeal was strictly personal. John also cites another Missouri
case and a New York case.32 In those cases, the court held
that a protected person’s death pending appeal from a mental
incompetency order abates not just the appeal but the cause
of action. But we decline to extend Sherman or to follow the
cases that John cites for three reasons.
First, in Sherman, we were clearly concerned that the Court
of Appeals had already issued a decision on a new question
of law that we could not review—because we concluded that
applying the public interest exception was inappropriate in
that circumstance. So our inability to review the Court of
Appeals’ precedent was a unique circumstance that is not
presented here. The county court’s orders are not precedent
for any other court, and final orders and judgments have no
preclusive effect if appellate review of them is denied as a
matter of law.33
[19] Second, in modern decisions by state courts explic-
itly deciding the effect of a party’s death pending an appeal,
30
Sherman, supra note 7.
31
See Gee v. Bess, 132 S.W.2d 242 (Mo. App. 1939).
32
See, Moberly v. Powell and Walker, 229 Mo. App. 857, 86 S.W.2d 383
(1935); Matter of Thomas v. Baumeister, 21 N.Y.2d 720, 234 N.E.2d 705
(1967).
33
See Restatement (Second) of Judgments § 28(1) (1982).
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the general rule is that the death does not abate the cause of
action or affect the underlying judgment.34 These courts have
frequently reasoned that under the doctrine of merger, an
action does not abate when a party dies after the final judg-
ment. Under that doctrine, a cause of action merges into the
final judgment, thus extinguishing the cause of action and
barring a subsequent action for the same cause.35 And some
of our case law is consistent with the rule that a party’s death
pending appeal does not abate the cause of action or affect the
final judgment.
Third, unlike the license revocation issue appealed in
Sherman, the legal right at stake in a conservatorship appeal
is not solely the protected person’s status. Vacating the county
court’s orders could leave a conservator exposed to liability.
And the conservatorship cases from other jurisdictions that
John cites were decided before the Legislature enacted the
Nebraska Probate Code in 1974.36
[20] We have stated that a protected person’s death termi-
nates a conservator’s authority and responsibility as conserva-
tor but does not affect the conservator’s liability for acts taken
before the death or the conservator’s obligation to account for
the protected person’s funds and assets.37 And those ­continuing
34
See, e.g., Kaufman v. Kaufman, 22 So. 3d 458 (Ala. Civ. App. 2007);
Variety Children’s Hospital, Inc. v. Perkins, 382 So. 2d 331 (Fla. App.
1980); Tunnell v. Edwardsville Intelligencer, 43 Ill. 2d 239, 252 N.E.2d
538 (1969); Goldstein v. Feeley, 299 S.W.3d 549 (Ky. 2009); Simpson
v. Strong, 234 S.W.3d 567 (Mo. App. 2007); Acito v. Acito, 72 A.D.3d
493, 898 N.Y.S.2d 133 (2010); Albrecht v. Albrecht, 856 N.W.2d 755
(N.D. 2014); Black v. Black, 673 S.W.2d 269 (Tex. App. 1984); Gordon v.
Hillman, 102 Wash. 411, 173 P. 22 (1918); 1 C.J.S. Abatement and Revival
§ 139 (2005); 1 Am. Jur. 2d, supra note 10, § 58. But see Panter v. Panter,
499 A.2d 1233 (Me. 1985).
35
See 46 Am. Jur. 2d Judgments §§ 451 and 452 (2006).
36
See In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).
37
See In re Guardianship & Conservatorship of Trobough, 267 Neb. 661,
676 N.W.2d 364 (2004).
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obligations mean that a conservator could also be liable for
actions taken after a protected person’s death. Under Neb. Rev.
Stat. § 30-2654(e) (Reissue 2008), a conservator has the duty
to wind up the conservatorship and deliver the estate to an
appointed personal representative.
A conservator’s potential liability exists because title to both
real and personal property passes immediately upon death to a
decedent’s devisees or heirs, subject to administration, allow-
ances, and a surviving spouse’s elective share.38 Additionally,
the Nebraska Probate Code authorizes nontestamentary, non-
probate transfers on death, including transfers through trusts.39
So a conservator could take actions that directly conflict with
the interests of heirs, devisees, and beneficiaries of nontes-
tamentary transfers. This could happen, for example, if a
conservator takes or retains property of the protected per-
son to pay for administration costs or attorney fees during
the conservatorship.40
But if the death of a protected person pending an appeal
rendered a conservator’s appointment void, by what authority
would the conservator have acted before or after the protected
person’s death? Concluding that the death abated the action
ab initio would call into question the conservator’s actions
and create unnecessary disputes and litigation. So here, there
is good reason to follow the general rule that a party’s death
after a final judgment does not extinguish the cause of action
or affect the underlying judgment.
[21] Finally, although the parties here have failed to show
that this appeal is not moot, we recognize that conservator-
ship proceedings for elderly persons are frequently prompted
by the elderly person’s land or financial transactions that
38
Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).
39
In re Estate of Chrisp, supra note 36; 1993 Neb. Laws, L.B. 250.
40
See, e.g., Naito v. Naito, 125 Or. App. 231, 864 P.2d 1346 (1993); In re
Estate of Briley, 16 Kan. App. 546, 825 P.2d 1181 (1992).
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threaten the person’s well-being or affect his or her heirs
or family members who have contributed to the assets.41 As
stated, dismissing an appeal as moot because of the protected
person’s death pending appeal would not render the conser-
vatorship order conclusive in another action. But the interests
of judicial economy would often be better served by deciding
an appeal from a final adjudication of incompetency if the
parties showed that the issue was not moot. So, we hold that a
protected person’s death pending an appeal from a conserva-
torship proceeding does not abate the cause of action or affect
the underlying orders appointing a conservator.
But because Genevieve’s competency is a moot issue, her
death extinguishes this appeal.
CONCLUSION
We conclude that after Genevieve’s death pending her
appeal, her appeal could be continued only by someone statuto-
rily authorized to represent her interests. Because her attorney
has not shown any interest in the litigation or authorization to
continue her appeal, he lacks standing to seek any relief on her
behalf. We therefore dismiss Genevieve’s appeal.
We conclude that Genevieve’s son John has standing under
§ 30-1601(2) to appeal from the county court’s appointment
of a conservator for Genevieve because he filed an objection
and asked for an evidentiary hearing. His standing on appeal
is limited, however, to challenging the court’s finding that
Genevieve was in need of a conservator. That issue is abated
by Genevieve’s death.
But Genevieve’s death abates only John’s appeal. It does not
abate the cause of action or affect the validity of the county
court’s orders appointing a conservator.
A ppeal dismissed.
41
See, e.g., 6 Causes of Action 2d 625, § 7 (1994).