Seid v. Seid , 310 Neb. 626 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    12/23/2021 08:07 AM CST
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    SEID v. SEID
    Cite as 
    310 Neb. 626
    Beverly J. Seid, appellee, v.
    Rita J. Seid and Judy L.
    Ramer, appellants.
    ___ N.W.2d ___
    Filed December 17, 2021.   No. S-21-205.
    1. Appeal and Error. An alleged error must be both specifically assigned
    and specifically argued in the brief of the party asserting the error to be
    considered by an appellate court.
    2. Courts: Receivers: Appeal and Error. The request for the appointment
    of a receiver is addressed to the sound, equitable discretion of the court,
    and its ruling thereon will not be reversed on appeal unless an abuse of
    discretion is shown.
    3. Receivers: Judgments: Appeal and Error. An order giving directions
    to a receiver will not be disturbed on review in the absence of an abuse
    of discretion.
    4. 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.
    5. Courts: Receivers. Ordinarily the appointment of a receiver is an ancil-
    lary remedy, for the purpose of aiding the court in the granting of appro-
    priate relief in the main suit upon which it is dependent.
    6. Courts: Equity: Receivers: Property. A receivership serves to assist
    the court in safeguarding assets, suitably administering property, and
    achieving a final, equitable distribution of assets, accomplishing com-
    plete justice, as far as practicable, for the parties before the court.
    7. Courts: Receivers. The purpose of a receivership is to carry out the
    orders of the court.
    8. Receivers: Property. A receivership receives and preserves the property
    or fund in litigation, and it preserves and properly disposes of the sub-
    ject of litigation.
    9. Receivers. A receivership will not be permitted to continue indefinitely.
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    310 Nebraska Reports
    SEID v. SEID
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    310 Neb. 626
    10. Receivers: Property. Whenever the reason or necessity for a receiver­
    ship ceases to exist, the property should be discharged therefrom
    although the mere coming into existence of this state of things does not
    ipso facto discharge the receiver.
    11. Courts: Receivers. A receivership may be terminated only by an order
    of the court, and a receivership should be closed and terminated without
    unnecessary delay.
    12. Courts: Equity: Receivers. Courts of equity have original power to
    appoint receivers and to make such orders and decrees with respect to
    the discharge of their trust as justice and equity may require.
    13. Constitutional Law: Legislature: Receivers. Because the Legislature
    incorporated the district court’s inherent constitutional power to appoint
    receivers into 
    Neb. Rev. Stat. § 25-1081
    (8) (Reissue 2016), that subsec-
    tion is declaratory of a power already existing under the constitution.
    14. Receivers: Final Orders. An order appointing a receiver is a final,
    appealable order.
    15. Final Orders: Time: Appeal and Error. Pursuant to 
    Neb. Rev. Stat. § 25-1912
    (1) (Cum. Supp. 2020), an appeal must be filed within 30 days
    of the final order from which an appeal is taken.
    16. Jurisdiction: Final Orders: Time: Appeal and Error. Where a notice
    of appeal is not filed within 30 days after the entry of a final order, an
    appellate court obtains no jurisdiction to hear an appeal from that order,
    and an attempt to appeal from that order must be dismissed.
    17. Appeal and Error. A lower court cannot commit error in resolving an
    issue never presented and submitted to it for disposition.
    18. Equity. Equity looks through form to substance. Thus, a court of equity
    goes to the root of the matter and is not deterred by form.
    19. Appeal and Error. A party cannot complain of error which the party
    has invited the court to commit.
    Appeal from the District Court for Richardson County:
    Julie D. Smith, Judge. Affirmed and remanded for further
    proceedings.
    Angelo M. Ligouri, of Ligouri Law Office, for appellants.
    Steven J. Mercure and Lindy L. Mahoney, of Nestor &
    Mercure, for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    SEID v. SEID
    Cite as 
    310 Neb. 626
    Cassel, J.
    INTRODUCTION
    Rita J. Seid and Judy L. Ramer (Judy), a testator’s children,
    appeal from a district court’s order that instructed a receiver
    to continue its management of agricultural land, in which they
    each held fractional life estates along with Beverly J. Seid,
    the testator’s surviving spouse. They assert the court erred or
    abused its discretion by “appointing a [r]eceiver for 2021.” The
    court’s order did not “appoint” a receiver; it simply provided
    further instructions to the one who was previously appointed.
    It is too late to attack the receiver’s appointment in 2019. We
    affirm the order and remand the cause for further proceedings.
    BACKGROUND
    Beverly, Rita, and Judy possess fractional life estates,
    one third each, in agricultural land (the land). After Beverly
    could not agree with Rita and Judy regarding the manage-
    ment of the land, Beverly filed in May 2019 a “Complaint
    for Accounting, Disbursement of Income and Appointment of
    Receiver.” Beverly alleged that she had not received payment
    for her share of the income derived from the land in 2018 or
    any related documentation of income, expenses, and assets.
    Beverly demanded she receive the aforementioned payment
    and documentation.
    Beverly also moved that “a [r]eceiver be appointed for
    the purpose of entering into farm lease agreements with any
    perspective [sic] tenants for 2019 in order to generate income
    during the pendency of these proceedings.” The court origi-
    nally overruled Beverly’s motion, but after ineffective media-
    tion, the court in December 2019 appointed a receiver. The
    court ordered:
    The Court finds that [the receiver] should be, and
    hereby is appointed, as receiver for the purpose of solic-
    iting bids for cash rent and entering into any farm lease
    agreements with tenants for 2020. [Beverly’s] Motion to
    reconsider appointment of a receiver, filed on October 16,
    2019 is granted.
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    SEID v. SEID
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    In March 2020, Rita and Judy moved the court to order
    the parties to equally contribute funds for the maintenance
    and repair of the land for “necessary dirt work” to ensure it
    remains suitable for farming. The court overruled the motion,
    finding “the evidence before the Court does not prove that
    failure to perform the conservation and dirt work [in 2020]
    would do lasting damage, diminish the value of the inherit­
    ance, or cause a permanent loss to the remainderpersons.”
    (Emphasis omitted.)
    The receiver apparently performed his duties, and
    in December 2020, he filed a “Motion to Make Final
    Disbursements and Pay Expenses 2020” and also a “Motion
    for Instructions,” requesting further instructions regarding his
    management of the land for the 2021 farm year. The court
    announced that it planned on granting the receiver’s motion for
    final distribution, but the court did not discharge the receiver.
    The record does not include an order granting the motion.
    The court held a hearing in February 2021 regarding the
    receiver’s motion for instructions. Rita and Judy opposed the
    receiver’s motion, arguing, “That [May 2019] complaint [had]
    completely been resolved. Any relief requested, anything within
    that complaint is all done.” The record does not show that Rita
    and Judy ever moved the court to discharge the receiver or
    otherwise sought a final order or judgment to dispose of the
    pending complaint. Nor does the record include any such final
    order or judgment.
    At the same hearing in February 2021, Rita and Judy orally
    renewed their March 2020 motion for the maintenance and
    repair of the land. Rita and Judy supported their request with
    affidavits stating that the land’s terraces and water lines were
    in disrepair. Beverly opposed Rita and Judy’s request, arguing
    that they would be self-dealing because Rita’s husband would
    be performing the repairs.
    During the hearing, the court inquired into whether the
    relief requested in Beverly’s May 2019 complaint had been
    resolved. The court asked whether Beverly had received “the
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    money that was owed to her from 2018[?]” Beverly’s counsel
    confirmed that she had received “moneys,” but stated that
    Beverly was “still in the process of evaluating all of the docu-
    ments that were submitted.”
    On the same date as the hearing, the court ordered:
    The Receiver shall solicit bids and enter into any farm
    lease agreements for 2021 in a similar manner as he did
    in 2020. Cash rent shall be paid up front.
    ....
    . . . The Court orders the Receiver to investigate to
    determine whether failure to perform the requested main-
    tenance would do lasting damage, diminish the value
    of the inheritance, or cause a permanent loss to the
    remainder­persons. . . . The Receiver shall report back to
    the [c]ourt within sixty (60) days.
    The record does not include a responsive report from the
    receiver, but 28 days after the court’s order, Rita and Judy filed
    an appeal from the order instructing the receiver. We moved
    the appeal to our docket. 1
    ASSIGNMENTS OF ERROR
    Rita and Judy assert six assignments of error, five of which
    characterize that the district court “appoint[ed] a [r]eceiver for
    2021.” These five assign that the court did so “without either
    party requesting the appointment,” “without deciding that a
    [r]eceiver was needed or necessary,” and “without consider-
    ing the evidence in affidavits presented by [Rita and Judy]”;
    that the “appointment” was “unjust, inequitable and cannot
    be reached as a matter of law”; and an abuse of discretion as
    “contrary to Nebraska [l]aw.” The sixth assignment asserts
    that the court’s order was “not requested within [Beverly’s]
    [c]omplaint” and thus was an abuse of discretion.
    [1] An alleged error must be both specifically assigned and
    specifically argued in the brief of the party asserting the error
    1
    
    Neb. Rev. Stat. § 24-1106
    (3) (Cum. Supp. 2020).
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    SEID v. SEID
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    to be considered by an appellate court. 2 We address only those
    issues both assigned as error and argued by Rita and Judy.
    STANDARD OF REVIEW
    [2-4] The request for the appointment of a receiver is
    addressed to the sound, equitable discretion of the court, and its
    ruling thereon will not be reversed on appeal unless an abuse
    of discretion is shown. 3 Similarly, an order giving directions to
    a receiver will not be disturbed on review in the absence of an
    abuse of discretion. 4 A jurisdictional question which does not
    involve a factual dispute is determined by an appellate court as
    a matter of law. 5
    ANALYSIS
    Receivership Principles
    [5-8] Ordinarily the appointment of a receiver is an ancil-
    lary remedy, for the purpose of aiding the court in the grant-
    ing of appropriate relief in the main suit upon which it is
    dependent. 6 A receivership serves to assist the court in safe-
    guarding assets, suitably administering property, and achiev-
    ing a final, equitable distribution of assets, accomplishing
    complete justice, as far as practicable, for the parties before
    the court. 7 Its purpose is to carry out the orders of the court. 8
    A receivership receives and preserves the property or fund in
    2
    AVG Partners I v. Genesis Health Clubs, 
    307 Neb. 47
    , 
    948 N.W.2d 212
    (2020).
    3
    O’Neill Production Credit Assn. v. Putnam Ranches, Inc., 
    198 Neb. 145
    ,
    
    251 N.W.2d 884
     (1977).
    4
    Priesner v. Starry, 
    300 Neb. 81
    , 
    912 N.W.2d 249
     (2018).
    5
    
    Id.
    6
    Bodge v. Skinner Packing Co., 
    115 Neb. 41
    , 
    211 N.W. 203
     (1926).
    7
    65 Am. Jur. 2d Receivers § 5 (2021).
    8
    Id. See, also, Dickie v. Flamme Bros., 
    251 Neb. 910
    , 
    560 N.W.2d 762
    (1997).
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    SEID v. SEID
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    litigation, and it preserves and properly disposes of the subject
    of litigation. 9
    [9-11] A receivership will not be permitted to continue
    indefinitely. 10 Whenever the reason or necessity for a receiver-
    ship ceases to exist, the property should be discharged there-
    from although the mere coming into existence of this state of
    things does not ipso facto discharge the receiver. 11 A receiver-
    ship may be terminated only by an order of the court, and a
    receivership should be closed and terminated without unneces-
    sary delay. 12
    The Nebraska Legislature has prescribed a process by which
    a district court may appoint and instruct a receiver. A statute
    authorizes appointment of a receiver by a district court
    in an action . . . by a creditor to subject any property or
    fund to his or her claim, or between . . . others jointly
    owning or interested in any property or fund on the appli-
    cation of any party to the suit when the property or fund is
    in danger of being lost, removed, or materially injured.” 13
    Another statute dictates, “Every order appointing a receiver
    shall contain special directions in respect to his powers and
    duties, and . . . such further directions may be made in that
    behalf by the court or judge as may in the further progress of
    the cause become proper.” 14
    [12,13] We pause to reconcile seemingly inconsistent
    case law regarding the source of a district court’s power to
    appoint a receiver. In Floral Lawns Memorial Gardens Assn. v.
    9
    See 65 Am. Jur. 2d, supra note 7. See, also, Vila v. Grand Island Electric
    Light, Ice & Cold Storage Co., 
    68 Neb. 222
    , 
    97 N.W. 613
     (1903).
    10
    75 C.J.S. Receivers § 79 (2013).
    11
    Id.
    12
    Id. See, also, State, ex rel. Sorensen, v. Hoskins State Bank, 
    132 Neb. 878
    , 
    273 N.W. 834
     (1937); 21A Am. Jur. Pl. & Pr. Forms Receivers § 392
    (2012).
    13
    
    Neb. Rev. Stat. § 25-1081
    (1) (Reissue 2016).
    14
    
    Neb. Rev. Stat. § 25-1087
     (Reissue 2016).
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    SEID v. SEID
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    Becker, 15 we stated that “a court’s ability to appoint a receiver
    is governed by statute. The court can appoint a receiver only
    in specific situations . . . .” On the other hand, in State, ex
    rel. Sorensen, v. Nebraska State Bank, 16 we explained that
    the Nebraska Constitution conferred the power to appoint a
    receiver upon district courts. 17 We reaffirmed that a district
    court’s power to appoint a receiver is “beyond the power of
    the legislature to limit or control; that while the legislature
    may grant to the district courts such other jurisdiction as it
    may deem proper, it cannot limit or take from such courts their
    broad and general jurisdiction which the Constitution has con-
    ferred upon them.” 18 Accordingly, courts of equity have origi-
    nal power to appoint receivers and to make such orders and
    decrees with respect to the discharge of their trust as justice
    and equity may require. 19 Because the Legislature incorporated
    the district court’s inherent constitutional power to appoint
    receivers into § 25-1081(8), that subsection is declaratory of a
    power already existing under the constitution. 20
    Here, the district court’s 2019 appointment of a receiver was
    premised upon § 25-1081(1). We now turn to the arguments
    attacking the 2021 order before us.
    Application
    Rita and Judy present three arguments in support of their
    assignments that the court abused its discretion by “appoint-
    ing a [r]eceiver for 2021.” Rita and Judy argue that the court
    15
    Floral Lawns Memorial Gardens Assn. v. Becker, 
    284 Neb. 532
    , 537, 
    822 N.W.2d 692
    , 697 (2012).
    16
    State, ex rel. Sorensen, v. Nebraska State Bank, 
    124 Neb. 449
    , 
    247 N.W. 31
     (1933).
    17
    See Neb. Const. art. 5, § 9.
    18
    State, ex rel. Sorensen, v. Nebraska State Bank, supra note 16, 124 Neb. at
    454, 247 N.W. at 33.
    19
    See id.
    20
    See Smith v. White, 
    62 Neb. 56
    , 
    86 N.W. 930
     (1901).
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    abused its discretion by appointing the receiver for 2021
    because (1) neither party requested the appointment, (2) the
    court never determined that the receiver was needed or neces-
    sary for 2021, and (3) the court failed to consider the evidence
    in affidavits presented by Rita and Judy.
    All three of Rita and Judy’s arguments are fundamentally
    flawed because they are premised upon the notion that the
    court “appoint[ed] a [r]eceiver for 2021.” It did not. The court
    appointed the receiver in 2019 and never discharged him—nor
    did Rita and Judy ever seek his discharge. There is no motion
    to discharge the receiver in our record. Nor does there appear
    any attempt by Rita and Judy to invoke any recognized proce-
    dure to dispose of the main action.
    [14-16] It is now too late to attack the 2019 appointment
    order. An order appointing a receiver is a final, appealable
    order. 21 Pursuant to 
    Neb. Rev. Stat. § 25-1912
    (1) (Cum. Supp.
    2020), an appeal must be filed within 30 days of the final order
    from which an appeal is taken. 22 Where a notice of appeal is
    not filed within 30 days after the entry of a final order, an
    appellate court obtains no jurisdiction to hear an appeal from
    that order, and an attempt to appeal from that order must be
    dismissed. 23 No appeal was taken from the 2019 order, and we
    lack jurisdiction to address its merits.
    [17] The court’s 2021 order did not “appoint” a receiver; it
    simply provided further instructions to the one who was pre-
    viously appointed. During the 2021 hearing, the court asked
    whether Beverly had received her share of the income from the
    land in 2018 and related documentation—which was demanded
    in the complaint. Beverly’s attorney responded that she had
    21
    Floral Lawns Memorial Gardens Assn. v. Becker, supra note 15.
    22
    Goodman v. City of Omaha, 
    274 Neb. 539
    , 
    742 N.W.2d 26
     (2007),
    overruled on other grounds, McEwen v. Nebraska State College Sys., 
    303 Neb. 552
    , 
    931 N.W.2d 120
     (2019).
    23
    See State v. Reed, 
    226 Neb. 575
    , 
    412 N.W.2d 848
     (1987). See, also,
    § 25-1912.
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    received “moneys,” but that she was still reviewing the related
    documentation. Rita and Judy’s attorney protested Beverly’s
    assertion that she was still reviewing the documentation, but
    provided no evidence to the contrary. Further, Rita and Judy’s
    affidavits did not claim that Beverly’s complaint was resolved.
    Instead, the affidavits focused on Rita and Judy’s renewed
    request that the court order the parties to equally contribute to
    the maintenance and repair of the land. Because Rita and Judy
    did not seek a discharge of the receiver, they cannot premise
    error on the court’s failure to do so. A lower court cannot com-
    mit error in resolving an issue never presented and submitted
    to it for disposition. 24
    Two other issues merit brief discussion. First, Rita and Judy
    urge that the February 2021 order was flawed because it was
    not based “upon application of any party to the suit.” 25 Second,
    they argue that the February 2021 order was void for lack of
    the notice required by a statute. 26 Both lack merit.
    [18,19] Although the receiver—who, we assume for pur-
    poses of discussion, was not a “party”—initially filed the
    motion for further instructions, at the hearing both sides
    requested interim relief from the court consistent only with
    further action by the receiver. While formal joinder in the
    receiver’s motion would have been preferable, equity looks
    through form to substance. Thus, a court of equity goes to
    the root of the matter and is not deterred by form. 27 In sub-
    stance, the parties sought relief through the existing receiver.
    Moreover, a party cannot complain of error which the party
    has invited the court to commit. 28
    24
    See Eletech, Inc. v. Conveyance Consulting Group, 
    308 Neb. 733
    , 
    956 N.W.2d 692
     (2021).
    25
    § 25-1087 (emphasis supplied).
    26
    See 
    Neb. Rev. Stat. § 25-1089
     (Reissue 2016).
    27
    Huffman v. Peterson, 
    272 Neb. 62
    , 
    718 N.W.2d 522
     (2006).
    28
    See VKGS v. Planet Bingo, 
    309 Neb. 950
    , 
    962 N.W.2d 909
     (2021).
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    Rita and Judy’s reliance on lack of notice fares no better.
    First, the statute they cite applies to “[e]very order appointing a
    receiver . . . .” 29 But we have already exposed the flaw in their
    reasoning—the 2019 order and not the 2021 order “appointed”
    the receiver. But more fundamentally, they participated in the
    hearing. The requirements of the statute in regard to notice
    may be waived. 30 Having participated and requested affirm­
    ative relief, they waived objection to notice of the motion
    for instructions.
    We find no merit to the assignments of error attacking the
    validity of the February 2021 order further instructing the
    receiver, and we find no abuse of discretion in the instructions
    given. Thus, we affirm the court’s order.
    Before concluding, we return to two basic principles cited
    above: Appointment of a receiver is an ancillary remedy 31 and
    a receivership will not be permitted to continue indefinitely. 32
    Trial judges are encouraged to implement firm, consistent pro-
    cedures for minimizing continuances to meet the case progres-
    sion standards of the Nebraska Supreme Court. 33 Each member
    of the bar shall cooperate with the judiciary in meeting the
    case progression standards of the Nebraska Supreme Court. 34
    The receivership here cannot be viewed as an end goal of
    the litigation.
    CONCLUSION
    Rita and Judy’s assignments are fundamentally flawed,
    because the receiver was appointed in 2019—not 2021. The
    29
    See § 25-1089.
    30
    See Modisett v. Campbell, 
    144 Neb. 222
    , 
    13 N.W.2d 126
     (1944). See, also,
    Farmers & Merchants Bank v. German Nat. Bank, 
    59 Neb. 229
    , 
    80 N.W. 820
     (1899).
    31
    See Bodge v. Skinner Packing Co., supra note 6.
    32
    75 C.J.S. Receivers, supra note 10.
    33
    Putnam v. Scherbring, 
    297 Neb. 868
    , 
    902 N.W.2d 140
     (2017).
    34
    
    Id.
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    district court did not abuse its discretion in its instructions to
    the receiver. We affirm the court’s order and remand the cause
    for further proceedings.
    Affirmed and remanded for
    further proceedings.