Seid v. Seid

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/14/2022 08:09 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
SEID v. SEID
Cite as 310 Neb. 626Beverly 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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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
SEID v. SEID
Cite as 310 Neb. 62610. 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. 626Cassel, 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
Cite as 310 Neb. 626In 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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310 Nebraska Reports
SEID v. SEID
Cite as 310 Neb. 626money 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
Cite as 310 Neb. 626to 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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310 Nebraska Reports
SEID v. SEID
Cite as 310 Neb. 626litigation, 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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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
SEID v. SEID
Cite as 310 Neb. 626Becker, 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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SEID v. SEID
Cite as 310 Neb. 626abused 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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SEID v. SEID
Cite as 310 Neb. 626received “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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SEID v. SEID
Cite as 310 Neb. 626Rita 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.- 637 -
Nebraska Supreme Court Advance Sheets
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SEID v. SEID
Cite as 310 Neb. 626district 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.