In re Estate of Giventer

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/24/2021 12:09 AM CDT
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39In re Estate of Pearl R.
Giventer, deceased.
Edward F. Fogarty and J. Bruce Teichman,
appellants, v. Marlys Lebowitz
et al., appellees.
___ N.W.2d ___
Filed September 3, 2021. No. S-20-111.
1. Guardians and Conservators: Judgments: Appeal and Error.
Appeals of matters arising under the Nebraska Probate Code, Neb. Rev.
Stat. §§ 30-2201 through 30-2902 (Reissue 2016, Cum. Supp. 2018 &
Supp. 2019), are reviewed for error on the record.
2. Decedents’ Estates: Appeal and Error. An appeal from the county
court’s allowance or disallowance of a claim in probate will be heard as
an appeal from an action at law. In reviewing a judgment of the probate
court in a law action, an appellate court does not reweigh evidence, but
considers the evidence in the light most favorable to the successful party
and resolves evidentiary conflicts in favor of the successful party, who is
entitled to every reasonable inference deducible from the evidence. The
probate court’s factual findings have the effect of a verdict and will not
be set aside unless clearly erroneous.
3. Judgments: Appeal and Error. On a question of law, an appellate court
is obligated to reach a conclusion independent of the determination
reached by the court below.
4. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
5. Decedents’ Estates: Claims: Time. The requirements of Neb. Rev. Stat.
§ 30-2485 (Reissue 2016) are mandatory, and where a claim is not filed
within the time provided in the statute, it is barred.
6. Statutes. It is not within the province of the courts to read meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 397. Legislature: Intent. The intent of the Legislature is expressed by omis-
sion as well as by inclusion.
8. Appeal and Error. An appellee’s argument that a lower court’s deci-
sion should be upheld on grounds specifically rejected below constitutes
a request for affirmative relief, and the appellee must cross-appeal in
order for that argument to be considered.
Appeal from the County Court for Douglas County: Craig
Q. McDermott, Judge. Affirmed in part, and in part reversed
and remanded with directions.
Edward F. Fogarty, pro se, and J. Bruce Teichman, pro se.
Diana J. Vogt and James L. Schneider, of Sherrets, Bruno &
Vogt, L.L.C., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
This is an appeal from the denial of petitions to recover fees
and expenses incurred by a nominated personal representative
and his attorney who were unsuccessful in probating a will
that was drafted by the attorney. We conclude that the county
court did not err in finding in these probate proceedings that
claims for fees and expenses from the estate for services
performed by the attorney prior to the decedent’s death were
time barred. However, we conclude the county court’s reasons
for denying fees and expenses for services after the dece-
dent’s death were legally erroneous. Regarding the remaining
requests for relief, we conclude they are not supported by a
discernible legal argument. Therefore, we affirm in part and in
part reverse the county court’s judgment and remand the cause
with directions.
I. BACKGROUND
1. Parties and Overview
This appeal from probate proceedings involves the estate
of Pearl R. Giventer, who was born in 1920. In 2012, she
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39signed a will drafted by Edward F. Fogarty, naming J. Bruce
Teichman as her nominated personal representative. The 2012
will purported to revoke Pearl’s preexisting pourover will and
the provisions of a related revocable trust of which Pearl was
the settlor and which provided for the disposition of trust assets
upon her death. Shortly after Pearl died in 2013, Fogarty filed
in the trust proceedings a request for fees from the trust for
services he performed prior to Pearl’s death. More than 3 years
later, Fogarty requested predeath fees from the trust and from
the estate. In addition, Fogarty and Teichman, represented by
Fogarty, sought from Pearl’s estate and trust fees and expenses
incurred after Pearl’s death, primarily in their unavailing efforts
to probate the 2012 will. All told, Fogarty and Teichman
sought fees and expenses of approximately $500,000. Fogarty
and Teichman appeal the county court’s complete denial of fees
and expenses.
Appellees include Marlys Lebowitz (Marlys), who is Pearl’s
daughter and personal representative of her estate, and Wells
Fargo Bank (Wells Fargo), the trustee of Pearl’s trust. Wells
Fargo waived briefing and oral argument. Also an appellee is
Pearl’s son, Paul Giventer, who plays a role in this case as an
interested party. The record indicates that there was animos-
ity between Fogarty and Paul. Paul has not filed a brief in
this appeal.
The procedural history of this appeal from probate proceed-
ings is complicated. In addition to the underlying probate
proceedings, also relevant are guardianship and conservator-
ship proceedings, trust proceedings, and several appeals. An
exhaustive history of all of these related proceedings would be
too lengthy to repeat here. What follows are the facts salient to
the legal issues before us.
2. Pearl’s Trust and Guardianship
In 1996, Pearl established the Pearl R. Giventer Revocable
Trust, naming herself as trustee. Pearl executed a pourover
will to the trust in 2005. The trust, as amended in 2005 and
2008, gave Pearl the power to revoke it during her lifetime.
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310 Nebraska Reports
IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39Under certain conditions, it provided for distribution of trust
assets during Pearl’s life. The trust also functioned as an estate
planning tool. According to the trust’s dispositive provisions,
Paul and Marlys would be the primary beneficiaries of the trust
assets when Pearl died.
In November 2009, Paul initiated a proceeding to have
himself appointed guardian for Pearl. A temporary guardian
was appointed. After negotiations during which Pearl and
Paul were represented by independent counsel, they came to
a settlement agreement in April 2010. Under the agreement,
the trust was again amended. Pearl resigned as trustee and was
succeeded by Wells Fargo. Pearl agreed not to remove Wells
Fargo as trustee without Paul’s consent or a court order. Pearl
also agreed to limitations on her ability to alter the settlement
agreement and to alter the provisions to distribute the trust
assets when she died. To change these aspects, Pearl needed
permission of Wells Fargo and an unrelated third party, to be
selected by agreement of Wells Fargo, Paul, and Marlys or, if
they could not agree, by the county court. In exchange for the
2010 settlement agreement, Paul terminated the guardianship
and conservatorship proceedings. Subsequently, the amended
trust was registered with the county court.
In July 2010, a second guardianship and conservatorship
proceeding for Pearl was opened. Supporting documentation
showed that Pearl had Alzheimer’s disease and dementia and
exhibited symptoms of cognitive decline and impairment. Pearl
consented to the proceedings, and in December, a guardian and
conservator were appointed.
3. Fogarty Retained and Services
Limited by Court Order
On January 3, 2011, Pearl, while under guardianship, retained
Fogarty and another attorney as her counsel on a noncontingent
basis. The retainer agreement identified the legal services
to be performed as “[guardianship and conservatorship pro-
ceeding] PR10-1026, Estate, guardianship and family/financial
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IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39& conservatorship, recoupment of money (250K?)—will start
appeal, defer pushing.” Paul, however, filed a motion in the
guardianship proceeding challenging the authority of Fogarty
and his cocounsel to act as Pearl’s attorneys. Pearl, represented
by Fogarty and his cocounsel, opposed it.
The county court did not void Pearl’s contract with Fogarty
and his cocounsel, but, in an order entered on June 23, 2011,
it limited the scope of their representation to those purposes
outlined in Neb. Rev. Stat. § 30-2620(9) (Reissue 2008):
“After appointment, the ward may retain an attorney for the
sole purpose of challenging the guardianship, the terms of
the guardianship, or the actions of the guardian on behalf of the
ward.” On behalf of Pearl, Fogarty and his cocounsel eventu-
ally appealed to the Nebraska Court of Appeals the ruling that
limited the scope of their representation; they also appealed
an order approving an annual accounting by Wells Fargo and
authorizing payment of attorney fees and costs associated
with it. The appeals were consolidated and docketed as cases
Nos. A-11-806 and A-11-974.
4. Pearl Signs 2012 Will
While the consolidated appeals in cases Nos. A-11-806 and
A-11-974 were pending, Fogarty, purporting to represent Pearl,
met with Pearl’s guardian to discuss a will for Pearl and other
matters. The guardian relied on a February 2012 evaluation
that found that Pearl lacked testamentary capacity, but Fogarty
viewed the evaluation as legally insufficient. Thereafter, with-
out the guardian’s awareness or approval, Fogarty retained a
psychiatrist to assess Pearl’s testamentary capacity. The psy-
chiatrist determined that Pearl suffered from mild to moderate
dementia but possessed testamentary capacity.
On September 5, 2012, Pearl signed a will prepared by
Fogarty. At that time, nearly all of Pearl’s assets were property
of the trust. The 2012 will nominated Teichman as personal
representative and cotrustee, along with another individual,
of the testamentary trusts it created. The 2012 will purported
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39to revoke Pearl’s trust as amended in 2010, as well as any
prior wills. As in earlier instruments, Paul and Marlys were the
primary beneficiaries under the 2012 will, but unlike the ear-
lier instruments, the 2012 will contained a penalty clause that
substantially reduced Paul’s and Marlys’ residuary shares in the
event they challenged the will.
5. Limitation of Services Affirmed, Pearl Dies,
Will Contest Begins, Fogarty Seeks
Fees From Trust, and Attempts
to Revive Appeal
In April 2013, the Court of Appeals affirmed the county
court’s order limiting the scope of Fogarty’s legal services
to those listed in § 30-2620. See In re Guardianship &
Conservatorship of Giventer, Nos. A-11-806, A-11-974, 2013
WL 2106656 (Neb. App. Apr. 9, 2013) (selected for posting
to court website). Fogarty filed a motion for rehearing on
Pearl’s behalf.
On May 10, 2013, Pearl died.
On May 15, 2013, Paul requested a declaratory judgment
action in the trust proceeding ordering that the trust assets
should be distributed pursuant to the terms of the trust as
amended in 2010 by his settlement agreement with Pearl.
On May 16, 2013, Fogarty, whom Teichman retained to
probate the 2012 will, filed the 2012 will for probate in county
court. At some point in the summer of 2013, the 2005 pourover
will that devised assets to Pearl’s trust was also submitted for
probate by Paul.
The will contest was transferred to district court but then
stayed pending the county court’s determination of issues
related to the 2010 trust amendments.
On June 12, 2013, Fogarty and his cocounsel filed in the
trust proceedings an application for the payment of fees and
costs for services incurred during Pearl’s lifetime “if it be
within the authority of the Pearl R. Giventer [Revocable] Trust
to do so.” The application included itemized statements of fees
incurred before Pearl’s death.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39After Pearl’s death, Fogarty made many filings related to her
motion for rehearing under submission in the Court of Appeals
in cases Nos. A-11-806 and A-11-974, in an attempt to revive
the appeal in Teichman’s name. None of these efforts were suc-
cessful, and the Court of Appeals overruled Pearl’s motion for
rehearing for failure of the parties to properly revive the appeal
within 1 year after Pearl’s death. Fogarty sought further review,
but the petition was denied.
6. 2014 Settlement Agreement Between Paul and
Marlys, Trust Determined Controlling, and
2012 Will Has No Force or Effect
Marlys initially opposed the 2010 trust settlement agree-
ment, but in 2014, Paul and Marlys reached a settlement agree-
ment and joined in a motion for summary judgment in Paul’s
declaratory judgment action to have the 2010 trust settlement
agreement declared valid and enforceable and to find Teichman
had no standing.
In opposition, Fogarty filed a cross-motion for summary
judgment on Teichman’s behalf. After Fogarty was advised of
the settlement reached between Paul and Marlys, Teichman
designated a specific nonprofit organization as a beneficiary
under the 2012 will’s penalty clause, which allowed the per-
sonal representative to distribute significant assets to “Omaha
synagogues and Omaha Jewish non-profit organizations”
selected by him in the event that Paul and Marlys challenged
the will.
On August 2, 2015, the county court entered an order grant-
ing summary judgment in favor of Paul and Marlys and deny-
ing Teichman’s motion for summary judgment. It found that
the 2010 trust settlement agreement was valid and enforceable
and that Teichman had no standing to challenge its validity
or to raise issues regarding the trust. The county court further
found that the purported 2012 will did not alter the dispositive
scheme of the trust as amended and that “[b]ecause the 2012
Will is of no force and effect, any beneficiaries, contingent
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39or otherwise, named in the 2012 Will, but not named in the
Trust have no standing to raise issues regarding the administra-
tion of the trust or participate in related proceedings.”
Represented by Fogarty, Teichman appealed. In case No.
A-15-825, the Court of Appeals affirmed the county court order
in an unpublished memorandum opinion filed on November 4,
2016. Fogarty filed unsuccessful motions for rehearing and
further review on Teichman’s behalf.
7. Requests for Fees and Expenses
On July 14, 2016, while the appeal in case No. A-15-825
was still pending, Fogarty filed in the conservatorship, trust,
and probate proceedings an “Informational and Supplemental
Cumulative Interim Claim of Edward F. Fogarty, Creditor” for
fees and costs incurred before and after Pearl’s death. Fogarty
identified himself as a creditor of Pearl’s “Estate and Trust” and
characterized the document as a “supplement[]” to the applica-
tion for fees he filed in the trust proceedings in May 2013. On
August 3, 2016, the special administrator filed a response in the
probate proceedings. To the extent that Fogarty’s July 14 filing
was a claim or notice of claim in the probate proceedings, the
special administrator disallowed it, noting that Fogarty had not
previously claimed fees in the probate proceeding.
On April 4, 2018, Fogarty and Teichman filed petitions for
allowance of claims in the probate proceedings. Fogarty reiter-
ated that he was entitled to fees and expenses incurred before
Pearl’s death, requesting fees from the trust and probate estate.
Similarly, as for fees and expenses for his services to Teichman
after Pearl’s death, Fogarty asserted the trust and probate
estate were liable. In total, Fogarty claimed he was entitled
to approximately $500,000 for fees and expenses. Teichman
sought postdeath fees and expenses of $8,000.
Each also asked for declaratory and equitable relief declar-
ing meritless “ad hominem attacks” and “slanders” by Paul
and Marlys. These “attacks” included unsuccessful motions for
attorney fees by Marlys, alleging bad faith and frivolousness
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Nebraska Supreme Court Advance Sheets
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IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39by Fogarty and Teichman, and pleadings filed by Paul assert-
ing that Fogarty’s retainer was in bad faith and that Fogarty
coerced and defrauded Pearl into signing the 2012 will.
8. County Court’s Orders
On June 10, 2019, the county court denied fees in the
probate proceeding incurred prior to Pearl’s death, because
Fogarty and Teichman filed their claims for those fees out of
time, apparently pursuant to Neb. Rev. Stat. §§ 30-2485(a)(2)
and 30-2486 (Reissue 2016). It also denied postdeath fees and
expenses, articulating the test as “what is reasonable and nec-
essary and beneficial to the estate.” The county court reasoned
that Teichman’s acts, through Fogarty, in pursuing probate of
the will did not benefit the estate, even if done in good faith.
But the county court observed that the evidence did not sup-
port a finding of bad faith or vexatious acts by Fogarty and
Teichman or by Paul’s and Marlys’ attorneys.
On June 14, 2019, Fogarty and Teichman filed a motion for
new trial or to alter and amend the judgment. They asserted
that they were not required to show some benefit to the estate,
but, rather, that their actions were taken in good faith consist­
ent with Pearl’s directions while she was living and with the
2012 will. The motion also challenged the county court’s find-
ing that claims for predeath fees were time barred, asserting
that Neb. Rev. Stat. § 30-2482 (Reissue 2016) applied, rather
than § 30-2486.
On January 17, 2020, the county court denied the motion
for new trial in its entirety and entered a new order modifying
its reasoning but still denying fees. The county court rejected
the assertion that § 30-2482 applied to Fogarty’s claim for
predeath fees, noting that that section, along with Neb. Rev.
Stat. § 30-2481 (Reissue 2016), applies to services on behalf of
the estate and that there was no estate or personal representa-
tive prior to Pearl’s death and there were likewise no probate
or administration expenses. Instead, it found that claims for
predeath fees were associated with services Fogarty performed
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39for Pearl directly, rather than her estate or her nominated per-
sonal representative, and should have been filed in the probate
proceeding within the 3-year limitations period set forth in
§ 30-2485(a)(2).
Regarding the postdeath fees and expenses, the county court
modified its previous order to address whether Fogarty and
Teichman’s actions were “‘necessary’” to the estate, rather
than whether they were of some “benefit to the estate.” The
county court stated that it did not find Fogarty and Teichman
acted in bad faith, “as the evidence was insufficient to prove
the same”; that Fogarty and Teichman believed they had a duty
to pursue the 2012 will; and that they believed they had carried
out their duty under the 2012 will in good faith. However, the
county court found that Fogarty created this supposed duty by
drafting an unenforceable will in disregard of the provisions
in the 2010 trust amendment that controlled Pearl’s future
estate planning and was later determined to be the controlling
instrument. The county court observed that Fogarty “seemed to
ignore” the 2010 trust amendment.
The county court further observed that § 30-2482 did not
apply to postdeath fees incurred by Teichman because he was
not and could not have been appointed as “personal representa-
tive” via an unenforceable will. It also deemed it significant
that the probate estate did not contain any assets to satisfy
claims by Fogarty and Teichman and appeared to conclude
that Fogarty and Teichman could not have their claims satis-
fied by assets from the trust, because they did not comply with
the provisions of Neb. Rev. Stat. § 30-3850 (Reissue 2016).
Considering “the necessity of pursuing an unenforceable will
and whether that will should have been drafted in the first
place,” the county court determined that Fogarty and Teichman
could not recover postdeath fees and expenses.
Fogarty and Teichman have timely filed this appeal.
II. ASSIGNMENTS OF ERROR
Fogarty and Teichman assign that the county court erred
by (1) “not awarding and ordering the Trust to pay [Fogarty]
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IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39and [Teichman] fair and reasonable fees,” (2) “ruling [Fogarty’s]
fees and expenses in service to Pearl before she died were
time-barred” and failing “to order the Trust to pay these fair
and reasonable fees and expenses,” and (3) “not declaring
all claims of Paul and Marlys[] (a) are without merit” and
“(b) are res judicata and/or claim precluded against [Fogarty]
and [Teichman] by them or any person in privity with them.”
(Emphasis omitted.)
III. STANDARD OF REVIEW
We set forth the appropriate standards of review in the
analysis portion of this opinion.
IV. ANALYSIS
1. Fees Incurred Before Pearl’s Death
We begin by addressing Fogarty’s claim that the county
court erred in not ordering that he be compensated for the fees
and expenses he incurred in representing Pearl prior to her
death. He disputes the county court’s finding that a claim for
such fees was not presented within the 3-year limitations period
after Pearl’s death, as set forth in § 30-2485(a) for “[a]ll claims
against a decedent’s estate which arose before the death of the
decedent . . . .” Not only does Fogarty argue that a different
subsection for claims “which arise at or after the death of the
decedent,” § 30-2485(b), applied to impose a 4-month statute
of limitations commencing upon Pearl’s death, he asserts that
an application for fees from the trust filed on June 12, 2013, in
the trust proceedings was sufficient to present his claim within
that limitations period, see § 30-2485(b)(2). Marlys counters
that the county court applied the correct statute of limitations,
that an application filed in the trust proceedings could not
operate to satisfy the statute of limitations for claims against
the probate estate, and that the claim for predeath fees is there-
fore barred as untimely.
As we will explain in greater detail below, we conclude
that Fogarty did not file a claim against the probate estate
within any limitations period imposed by § 30-2485. Shortly
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39after Pearl’s death in May 2013 he requested predeath fees and
expenses from the trust, but he did not file a claim for those
fees and expenses against the probate estate until July 14,
2016. As a result, he did not file any claim against the probate
estate within 3 years of Pearl’s death, and any such claim filed
afterward was barred.
(a) Standard of Review
[1-4] We first address the standard of review. Generally,
appeals of matters arising under the Nebraska Probate Code,
Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue 2016,
Cum. Supp. 2018 & Supp. 2019), are reviewed for error on
the record. In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d
669 (2020). But we apply a different standard of review to
appeals regarding claims against the probate estate. An appeal
from the county court’s allowance or disallowance of a claim
in probate will be heard as an appeal from an action at law. In
re Estate of Karmazin, 299 Neb. 315, 908 N.W.2d 381 (2018).
In reviewing a judgment of the probate court in a law action,
an appellate court does not reweigh evidence, but considers the
evidence in the light most favorable to the successful party and
resolves evidentiary conflicts in favor of the successful party,
who is entitled to every reasonable inference deducible from
the evidence. Id. The probate court’s factual findings have the
effect of a verdict and will not be set aside unless clearly erro-
neous. Id. On a question of law, an appellate court is obligated
to reach a conclusion independent of the determination reached
by the court below. Id. Statutory interpretation is a question
of law, which an appellate court resolves independently of the
trial court. In re Estate of Hutton, supra.(b) Applicable Statute of Limitations
Through the years, the litigation involving Pearl has
included both probate proceedings and trust proceedings. Our
law recognizes probate proceedings and trust proceedings as
separate spheres of jurisdiction, see In re Estate of Chrisp, 276
Neb. 966, 759 N.W.2d 87 (2009), and this appeal arises solely
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IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39from probate proceedings in which the probate of the 2005
pourover will was at issue. Where probate of a will is at issue
in probate proceedings, devolution of the decedent’s property
devised by the will, subject to, among other things, the rights
of creditors, is controlled by the Nebraska Probate Code. See
§§ 30-2201 and 30-2401.
[5] Under our probate code, creditors’ claims in probate
proceedings must be presented within the time limitations set
forth in § 30-2485, also called the nonclaim statute. It states,
in part:
(a) All claims against a decedent’s estate which arose
before the death of the decedent, . . . whether due or to
become due, absolute or contingent, liquidated or unliq-
uidated, founded on contract, tort, or other legal basis,
if not barred earlier by other statute of limitations, are
barred against the estate, the personal representative, and
the heirs and devisees of the decedent, unless presented
as follows:
(1) Within two months after the date of the first publi-
cation of notice to creditors if notice is given in compli-
ance with sections 25-520.01 and 30-2483 . . . ;
(2) Within three years after the decedent’s death if
notice to creditors has not been given in compliance with
sections 25-520.01 and 30-2483.
(b) All claims . . . against a decedent’s estate which
arise at or after the death of the decedent . . . are barred
. . . unless presented as follows:
....
(2) Any . . . claim [other than one based on a contract
with the personal representative], within four months after
it arises.
§ 30-2485. The requirements of § 30-2485 are mandatory, and
where a claim is not filed within the time provided in the stat-
ute, it is barred. In re Estate of Masopust, 232 Neb. 936, 443
N.W.2d 274 (1989); J. J. Schaefer Livestock Hauling v. Gretna
St. Bank, 229 Neb. 580, 428 N.W.2d 185 (1988).
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Cite as 310 Neb. 39Fogarty’s argument that he is entitled to fees for his services
for Pearl personally is limited to services he performed before
Pearl died. Based on our reading of § 30-2485 and the facts
of this case, we conclude that the 3-year limitations period
in § 30-2485(a)(2) controlled any claim by Fogarty for pre-
death fees and expenses against Pearl’s estate in the probate
proceedings. Section 30-2485(a) applies to claims against the
decedent’s estate that “arose before the death of the decedent,”
regardless of whether those fees were “due or to become due.”
Pearl retained Fogarty for the legal work he performed before
she died. Fogarty billed Pearl while she lived. Even though the
fees remained outstanding upon Pearl’s death, Pearl’s indebted-
ness to Fogarty for predeath fees arose during her lifetime. And
there is no evidence in the record that notice to creditors was
given as described in § 30-2485(a)(2).
Fogarty apparently accepts that his claim for predeath fees
and expenses is governed by the nonclaim statute, but he
seems to believe that it “ar[ose] at or after” Pearl’s death, see
§ 30-2485(b), such that § 30-2485(b)(2) applied, imposing a
4-month limitations period following Pearl’s death. We do not
understand how fees Fogarty seeks for representing Pearl per-
sonally during her life can be said to arise at or after her death.
In the end, however, it does not matter, because Fogarty did
not properly present a claim against Pearl’s estate for predeath
fees and expenses within 3 years of Pearl’s death as required
by § 30-2485(a)(2), much less within 4 months as required by
§ 30-2485(b)(2).
(c) Presenting Claim Against Decedent’s Estate
Nebraska has authorized only two methods of presenting
“claims against a decedent’s estate” to satisfy the limitations
period in § 30-2485—(1) filing a timely “written statement
of the claim . . . with the clerk of the court,” pursuant to
§ 30-2486(1), or (2) commencing a proceeding against the
personal representative “in any court which has subject mat-
ter jurisdiction and [where] the personal representative may
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IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39be subjected to jurisdiction,” pursuant to § 30-2486(2). See
Lenners v. St. Paul Fire & Marine Ins. Co., 18 Neb. App.
772, 793 N.W.2d 357 (2010). Here, Fogarty has not filed a
proceeding against the personal representative. His recovery of
predeath fees and expenses depends on whether he timely filed
a written statement of the claim. The only written request for
predeath fees and expenses that Fogarty made within 3 years of
Pearl’s death was the application he made in the trust proceed-
ings on June 12, 2013. Fogarty claims that this was a proper
presentation of the claim for purposes of the nonclaim statute.
For the reasons below, we conclude that this application did
not present a claim against Pearl’s estate for the purposes of
§§ 30-2485 and 30-2486.
We first look at the nature of Fogarty’s June 12, 2013, appli-
cation. To be a claim against the decedent’s estate, we have
required “a demand . . . upon the estate for satisfaction of [an]
obligation.” In re Estate of Feuerhelm, 215 Neb. 872, 875, 341
N.W.2d 342, 345 (1983). Here, it is clear that Fogarty made
a demand on Pearl’s trust assets, not her probate estate. The
application requested payment of fees and costs for services
incurred during Pearl’s lifetime “if it be within the authority
of the Pearl R. Giventer [Revocable] Trust to do so.” Further
demonstrating that Fogarty sought fees from the trust rather
than from the probate estate is the fact that his application was
filed in the trust proceedings. The question becomes whether
a demand against the trust assets is a claim against the dece-
dent’s estate for the purposes of §§ 30-2485 and 30-2486. We
conclude that it is not.
We read the language of §§ 30-2485 and 30-2486 to require
claims to be timely filed against the probate estate. Both
sections are part of the Nebraska Probate Code and apply
to “claims against the decedent’s estate.” In In re Estate of
Chrisp, 276 Neb. 966, 975, 759 N.W.2d 87, 95 (2009), we
read references to “‘estate’” in our probate code to include
only the “‘probate estate.’” In doing so, we recognized that
the definition of “[e]state” for purposes of the probate code
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Cite as 310 Neb. 39includes “the property of the decedent, trust, or other person
whose affairs are subject to the Nebraska Probate Code.” See
§ 30-2209(12) (emphasis supplied). We interpreted the refer-
ence to “trust” in the definition of “estate” to refer to certain
limited circumstances in which courts in probate proceedings
are authorized to exercise jurisdiction over trusts, but specifi-
cally rejected the notion that administration of a probate estate
necessarily includes trust property in which the decedent had
an interest. Indeed, as referenced above, we held that a county
court does not have jurisdiction in a probate proceeding to
consider a petition against a trust to determine whether the
trust is liable for, among other things, claims against the pro-
bate estate. See, § 30-3850(a)(3); In re Estate of Chrisp, supra.See, also, In re Estate of George, 265 P.3d 222 (Wyo. 2011)
(probate court did not have jurisdiction over trust, and creditor
could not bootstrap rejection of claim against probate estate
into right to file claim against trust, where limitations period
for filing claim against trust had expired).
Drawing this distinction between demands against the pro-
bate estate and those against the trust is in harmony with other
provisions of our probate code. Section 30-2401, cited above,
indicates that probate procedures relating to the rights of credi-
tors apply only to property that passes through the decedent’s
probate estate:
The power of a person to leave property by will, and
the rights of creditors, . . . are subject to the restrictions
and limitations contained in this code to facilitate the
prompt settlement of estates. Upon the death of a person,
his real and personal property devolves to the persons
to whom it is devised by his last will . . . subject . . . to
rights of creditors . . . .
If property of the probate estate is distributed before payment
of creditors whose claims are not barred, those creditors may
pursue their claims against the distributees, not nonprobate
transferees such as trust beneficiaries. See § 30-2404. In fact,
all proceedings and actions to enforce creditors’ claims against
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Cite as 310 Neb. 39the decedent’s estate are governed by the procedure in the
probate code, with the intention of forcing creditors initially
to engage in the probate process. Id. See, also, Unif. Probate
Code § 3-104, 8 (part II) U.L.A. 31 (2013) (process for making
claims against decedent’s estate designed to force decedents’
creditors to assert their claims against duly appointed personal
representatives). See, also, In re Estate of Chrisp, supra (non-
testamentary trust is not subject to procedures for administra-
tion of decedent’s estate); In re Estate of Rosso, 270 Neb. 323,
701 N.W.2d 355 (2005) (personal representative’s duty to settle
and distribute estate does not extend to nontestamentary assets
that do not lawfully belong to estate).
Requiring Fogarty to ask the probate estate, rather than
the trust estate, for predeath fees and expenses to satisfy the
limitations period is also consistent with the purposes of the
nonclaim statute. The purpose of § 30-2485 is to facilitate and
expedite proceedings to distribute a decedent’s estate, includ-
ing an early appraisal of the respective rights of interested
persons, which include creditors, and prompt settlement of
demands against the estate. See, § 30-2209(21); In re Estate
of Feuerhelm, 215 Neb. 872, 341 N.W.2d 342 (1983). As a
result, the probate court or the personal representative can
readily ascertain the nature and extent of a decedent’s debts,
determine whether any sale of property is necessary to satisfy
the decedent’s debts, and project a probable time at which
the decedent’s estate will be ready for distribution. Id. Once
this process is complete, a creditor of the probate estate may
eventually recover from the decedent’s revocable trust, if one
exists. See § 30-3850(a)(3) (“[a]fter the death of a settlor,
and subject to the settlor’s right to direct the source from
which liabilities will be paid, the property of a trust that was
revocable at the settlor’s death is subject to claims of the set-
tlor’s creditors, . . . to the extent the settlor’s probate estate is
inadequate to satisfy those claims . . .”). See, also, In re Estate
of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009) (personal
representative has no interest in decedent’s validly created
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Cite as 310 Neb. 39nontestamentary trust except to assert trust’s liability for speci-
fied claims against probate estate and statutory allowances that
probate estate cannot satisfy). But because Fogarty did not
file a timely claim against the probate estate, his entitlement
to predeath fees and expenses from the probate estate was not
under consideration.
Fogarty suggests that his filing against the trust estate in
the trust proceedings satisfied the nonclaim statute because
Paul, Marlys, Wells Fargo, and Teichman all had notice of
the filing and consequently of his claim. But we have held
that mere notice to a representative of an estate regarding a
possible demand or claim against the estate does not consti-
tute presenting or filing a claim under § 30-2486. See, J.R.
Simplot Co. v. Jelinek, 275 Neb. 548, 748 N.W.2d 17 (2008);
In re Estate of Feuerhelm, supra. “If notice were accorded the
stature of a claim, the resultant state of flux and uncertainty
would frustrate and avoid the purpose and objectives of the
nonclaim statute.” In re Estate of Feuerhelm, 215 Neb. at 875,
341 N.W.2d at 345.
Lastly, Fogarty seems to submit that his claim was preserved
because, as he contends, he was entitled to payment from the
trust estate. He asserts that his method of seeking payment of
predeath fees and expenses from the trust assets conformed to
the terms of Pearl’s trust, which allowed the trustee, under cer-
tain circumstances, to pay “claims against the Settlor’s estate”
directly to the creditor or through the personal representative of
the estate. Moreover, Fogarty implies that the trust is liable for
his claims against Pearl’s estate pursuant to § 30-3850(a)(3).
But the liability of Pearl’s trust is not an issue before us. As
we have already noted, this appeal arises from the probate
proceedings involving Pearl’s estate, not the trust proceedings.
In the context of the probate proceedings, the county court did
not have jurisdiction to rule on whether Fogarty could receive
predeath fees and expenses from the trust, and consequently,
neither do we. See In re Estate of Chrisp, supra.- 57 -
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Cite as 310 Neb. 39For the reasons articulated above, the county court did not
err in denying as time barred Fogarty’s request for the fees and
expenses he incurred before Pearl died.
2. Fees Incurred After Pearl’s Death
Fogarty and Teichman next argue that they were entitled
to fees and expenses incurred after Pearl’s death and that the
county court erred by not ordering that any of their fees and
expenses be paid. They base this claim for fees and expenses
on the attempt by Teichman as the nominated personal rep-
resentative and Fogarty serving as his attorney to revive the
appeal in cases Nos. A-11-806 and A-11-974 and to probate the
2012 will. Section 30-2481 governs this matter and provides,
“If any personal representative or person nominated as per-
sonal 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 have 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
Odineal, 220 Neb. 168, 169, 368 N.W.2d 800, 801 (1985).
Before turning to Fogarty and Teichman’s arguments, however,
we again review the governing standard of review.
(a) Standard of Review
As we have already discussed, appeals of matters arising
under the Nebraska Probate Code are reviewed for error on the
record. In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 669(2020). When reviewing a judgment for errors on the record,
the inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable. Id. Fogarty and Teichman’s claim
for fees and expenses for actions taken after Pearl’s death,
however, is made under §§ 30-2481 and 30-2482. We have
said that ordinarily, the fixing of reasonable compensation,
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Cite as 310 Neb. 39fees, and expenses, pursuant to these sections, is within the
sound discretion of the county court. See In re Estate of
Odineal, supra.Our prior cases demonstrate that both of these standards
of review—errors on the record and abuse of discretion—can
come into play when compensation is sought under these sec-
tions. While the fixing, i.e., the determination of the amount,
of reasonable compensation, fees, and expenses will ordinarily
be reviewed for abuse of discretion, we have reviewed deter-
minations antecedent to the fixing of the amount of reasonable
compensation, fees, and expenses under an errors on the record
standard. For example, in In re Estate of Watkins, 243 Neb.
583, 501 N.W.2d 292 (1993), we affirmed a county court’s
award of compensation to a personal representative and his
lawyer after finding that the county court’s determination that
the personal representative acted in good faith was supported
by evidence. Similarly, in In re Estate of Reimer, 229 Neb.
406, 427 N.W.2d 293 (1988), we affirmed a county court’s
award of compensation to a nominated personal representa-
tive and his attorney after finding that competent evidence
supported the county court’s determination that the nominated
personal representative’s effort to probate a will were done in
good faith. We will proceed in the same manner here.
(b) County Court’s Reasons for
Denying Compensation
Fogarty and Teichman argue that the reasons provided by the
county court for denying them compensation under § 30-2481
were legally erroneous. Although the county court’s 2020 order
in which it modified its reasons for denying the fee request
filed by Fogarty and Teichman is not perfectly clear to us in
all respects, we understand it to have denied compensation for
essentially three reasons: (1) Teichman was merely nominated
as a personal representative in the 2012 will, but did not actu-
ally serve in that capacity; (2) there were insufficient funds
in the probate estate to compensate Fogarty and Teichman;
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Cite as 310 Neb. 39and (3) the services Fogarty and Teichman provided in attempt-
ing to probate the 2012 will were not “necessary” for purposes
of § 30-2481 because the 2012 will was unenforceable. As we
explain below, we agree with Fogarty and Teichman that the
county court committed errors of law by relying on each of
these reasons.
To the extent the county court denied fees because Teichman
was merely a nominated personal representative and did not
actually serve as personal representative, that was an error of
law. It bears repeating that § 30-2481, the statute under which
Fogarty and Teichman sought compensation, provides, “If any
personal representative or person nominated as personal rep-
resentative 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 rea-
sonable attorneys’ fees incurred.” (Emphasis supplied.) Section
30-2481 expressly provides that a person that is merely nomi-
nated as a personal representative may receive from the estate
necessary expenses and disbursements if he or she defends or
prosecutes a proceeding in good faith, whether that effort is
successful or not. The fact that Teichman was merely nomi-
nated as personal representative under the 2012 will was not a
legally viable reason to deny Fogarty and Teichman’s claim for
fees. See In re Estate of Reimer, supra.We find that the county court also committed an error of
law when it found that Fogarty and Teichman were not entitled
to compensation under § 30-2481 on the grounds that there
were insufficient funds in the probate estate. Assuming the
funds in the probate estate were, in fact, inadequate to pay the
compensation Fogarty and Teichman sought, the statute did not
authorize the county court to deny the claim for that reason.
Fogarty and Teichman sought a determination of the fees and
expenses, that is, administration expenses, to which they were
entitled under § 30-2481. See In re Estate of Reimer, supra. If
a probate estate is inadequate to pay a creditor’s claims, costs
of administration, or certain other expenses, a mechanism
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Cite as 310 Neb. 39exists for those entitled to funds from the probate estate to pur-
sue property that the decedent placed in a revocable trust that
was revocable at his or her death. See § 30-3850(a)(3). Even if
there were inadequate funds in the probate estate to compen-
sate Fogarty and Teichman, the county court was still obligated
to determine what they were entitled to receive.
The county court seems to have concluded that Fogarty and
Teichman did not comply with the procedural requirements
of § 30-3850(a)(3) and thus could not have had any entitle-
ment to compensation satisfied from the trust. The county
court had no authority, however, to make such a determination
in the probate proceeding. As we have already said, we have
expressly held that a county court does not have jurisdic-
tion in a probate proceeding to consider a petition against a
trust under § 30-3850(a)(3). See In re Estate of Chrisp, 276
Neb. 966, 759 N.W.2d 87 (2009). Any failure on the part of
Fogarty and Teichman to comply with the procedural require-
ments of § 30-3850(a)(3) could be considered only in the trust
proceeding.
This leaves the county court’s conclusion that none of the
services Fogarty and Teichman provided were “necessary”
under § 30-2481, because the 2012 will was unenforceable.
Here, the county court appears to have concluded that the serv­
ices provided were not necessary either because the 2012 will
was unenforceable or because Fogarty and Teichman should
have known that the 2012 will was unenforceable. We find
either determination to be legally erroneous.
[6] As discussed above, a nominated personal representa-
tive and his or her attorney cannot be denied compensation for
their services under § 30-2481 on the grounds that they were
unsuccessful in defending or prosecuting a proceeding. The
statute expressly provides that when a personal representative
or person nominated as a personal representative defends or
prosecutes any proceeding in good faith, “whether successful
or not,” he or she is entitled to receive from the estate his or
her necessary expenses including reasonable attorneys’ fees.
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IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39§ 30-2481 (emphasis supplied). If litigation efforts pursued
by a personal representative and his or her attorney could be
deemed not “necessary” under § 30-2481 simply because they
were unsuccessful, the language providing that the personal
representative or nominated personal representative is entitled
to receive funds from the estate “whether successful or not”
would be read out of the statute. It is not within the province
of the courts to read a meaning into a statute that is not there
or to read anything direct and plain out of the statute. Seivert
v. Alli, 309 Neb. 246, 959 N.W.2d 777 (2021). The mere fact
that the 2012 will was found to be unenforceable was not, in
itself, a legally valid basis to deny Teichman’s claim for fees
and expenses.
We also believe the county court committed an error of law
to the extent it concluded that because Fogarty and Teichman
should have known that the 2012 will was unenforceable, the
services provided were not “necessary” under § 30-2481. As
we have emphasized, that statute provides that a personal rep-
resentative or nominated personal representative is entitled to
receive from the estate “necessary expenses and disbursements
including reasonable attorneys’ fees incurred” for defending or
prosecuting a proceeding in good faith. § 30-2481. We have
previously interpreted “good faith” in § 30-2481 to refer to
“honesty in fact concerning conduct or a transaction” and clari-
fied that a person can act in good faith despite “mere negli-
gence or an honest mistake.” In re Estate of Watkins, 243 Neb.
583, 590, 501 N.W.2d 292, 296 (1993).
In our view, the language of § 30-2481 is most sensibly
understood as providing that if a personal representative or
nominated personal representative prosecutes or defends a
proceeding in good faith, he or she is entitled to receive com-
pensation from the estate for those expenses and disburse-
ments that were reasonably needed to defend or prosecute that
proceeding. As we understand it, the word “necessary” limits
the expenses that can be recovered to those that were required
to pursue the litigation position in the proceeding at issue.
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Cite as 310 Neb. 39We see no basis to conclude that it allows the county court to
deny fees because it finds that the personal representative or
nominated personal representative who prosecuted or defended
proceedings in good faith should have known that the litigation
position it took lacked merit.
We find confirmation in this understanding of § 30-2481
by comparing it to similar statutes from other states. Section
30-2481 mirrors Unif. Probate Code § 3-720, 8 (part II) U.L.A.
228 (2013). Many other states have enacted statutes that are
very similar to this provision of the Uniform Probate Code, but
with a key addition. Maryland, to take one illustrative example,
has a statute that provides, “A personal representative or person
nominated as personal representative who defends or pros-
ecutes a proceeding in good faith and with just cause shall be
entitled to receive necessary expenses and disbursements from
the estate regardless of the outcome of the proceeding.” Md.
Code Ann., Est. & Trusts § 7-603 (West 2019) (emphasis sup-
plied). Several other states have similar statutes that also make
a personal representative’s or nominated personal representa-
tive’s right to compensation from the estate for prosecuting or
defending proceedings regarding a will depend on a showing
that he or she pursued the proceedings in good faith and with
just cause. See, e.g., Iowa Code § 633.315 (2021); Kan. Stat.
Ann. § 59-1504 (2021).
[7] Those states that have added a “just cause” provision
to their statutes similar to § 30-2481 have, by that addition,
authorized courts to deny compensation to a personal repre-
sentative or nominated personal representative who should
have known that he or she was pursuing a litigation position
that lacked merit. In contrast to these statutes, § 30-2481 does
not include a reference to “just cause” or any similar concept.
Under § 30-2481, a personal representative or nominated per-
sonal representative is entitled to receive compensation if he
or she prosecutes or defends a proceeding in good faith. The
intent of the Legislature is expressed by omission as well as by
inclusion. Nelssen v. Ritchie, 304 Neb. 346, 934 N.W.2d 377- 63 -
Nebraska Supreme Court Advance Sheets
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IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39(2019). While perhaps a policy argument could be made that
a personal representative or nominated personal representative
should not be able to recover expenses incurred in pursuit of a
litigation position that he or she should know is meritless, we
find our Legislature, unlike that of some other states, has not
adopted such a policy.
To be clear, it is not our view that the objective merits of a
legal position taken by a personal representative or nominated
personal representative could never be relevant to a deter-
mination of whether he or she, in the words of § 30-2481,
“defend[ed] or prosecute[d] [a] proceeding in good faith.”
While we have interpreted “good faith” in the context of
§ 30-2481 to refer to the subjective mindset of the personal
representative or nominated personal representative, see In re
Estate of Watkins, 243 Neb. 583, 501 N.W.2d 292 (1993), we
believe the objective merits of a legal position could be rel-
evant to whether a person pursued it with an honest belief in
its validity. See, e.g., Enders v. Parker, 66 P.3d 11, 17 (Alaska
2003) (concluding that in making findings concerning good
faith under statute similar to § 30-2481, court should consider
whether nominated personal representative had “reasonably
arguable grounds” to challenge will). In this case, however, the
county court did not find that the lack of a reasonable basis
to contend that the 2012 will was enforceable was merely
evidence of the absence of good faith; it found that because
Fogarty and Teichman should have known the 2012 will was
unenforceable, they were not entitled to compensation. As we
have explained, this was legally erroneous.
(c) Marlys’ Arguments for Affirmance
We have said very little to this point about Marlys’ argu-
ments regarding the county court’s denial of Fogarty and
Teichman’s claim for fees and expenses incurred after Pearl’s
death. That is because, for the most part, Marlys does not argue
that the county court’s reasons for denying their claim were
correct. Instead, Marlys argues that the county court’s decision
should be affirmed for other reasons.
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Cite as 310 Neb. 39Marlys’ arguments for affirming the county court’s denial of
the claim for fees and expenses Fogarty and Teichman incurred
after Pearl’s death fall into several categories. She argues that
they should not receive compensation because their efforts did
not benefit the estate. She argues they should not receive com-
pensation because Fogarty pursued his own interest, sought to
punish Paul, and violated his duties as an attorney and because
Fogarty and Teichman disfavored the true beneficiaries and
violated their duty to the estate. Finally, she argues that certain
efforts undertaken by Fogarty and Teichman were not neces-
sary. As we will explain, we disagree with Marlys that we can
affirm the county court’s order on any of these bases.
We begin by addressing Marlys’ argument that we should
affirm the county court’s order on the grounds that the efforts
of Fogarty and Teichman did not benefit the estate. In In re
Estate of Watkins, we rejected an argument that county courts
could consider “‘benefit to the estate’ as a judicially fashioned
criterion to determine whether a personal representative may
receive compensation for services rendered.” 243 Neb. at 588,
501 N.W.2d at 296. We observed that a personal representa-
tive’s or nominated personal representative’s entitlement to
compensation was controlled by statute and that those statutes
contained no requirement that the services be a benefit to
the estate.
Marlys argues, without referencing our decision in In re
Estate of Watkins, that if the efforts of a personal representative
or nominated personal representative do not benefit the estate,
he or she is not entitled to compensation. For support, she
relies on In re Estate of Odineal, 220 Neb. 168, 368 N.W.2d
800 (1985), contending that in that case, we affirmed a county
court’s denial of compensation to a personal representative
because he was pursuing his own interests rather than those of
the estate. Although we found that the county court did not err
in denying compensation in that case, we did so after finding
that the county court did not err in concluding the personal
representative did not act in good faith. We reject Marlys’
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Cite as 310 Neb. 39argument that a court can deny a claim for fees and expenses
filed under § 30-2481 merely because the efforts of the per-
sonal representative or nominated personal representative were
not a benefit to the estate.
In her next category of arguments, Marlys contends that the
county court order should be affirmed because Fogarty and
Teichman, particularly Fogarty, were attempting to probate
the 2012 will, not because they believed it was enforceable,
but because they wanted to increase their own compensation
and punish Paul. As just mentioned above, we held in In re
Estate of Odineal that the county court did not err by finding
that a nominated personal representative who pursued legal
action solely to generate a fee—and therefore did not act in
good faith—was not entitled to compensation under § 30-2481.
Although the absence of good faith is a basis upon which a
court could deny compensation to a nominated personal repre-
sentative who prosecuted or defended legal proceedings, it is
not, given the county court’s findings, a basis upon which we
could affirm in this case.
[8] An argument could be made that the county court affirm­
atively found in this case that Fogarty and Teichman did act in
good faith. In its 2020 order, the county court stated that it “did
not rule that Fogarty and Teichman acted in bad faith as the
evidence was insufficient to prove the same” and that Fogarty
and Teichman “believed [that] they had a duty to pursue the
[2012] will and that they proceeded in good faith.” If the
county court had affirmatively rejected Marlys’ contention that
Fogarty and Teichman did not act in good faith, we could not
consider an argument by Marlys that such a determination was
erroneous. An appellee’s argument that a lower court’s decision
should be upheld on grounds specifically rejected below con-
stitutes a request for affirmative relief, and the appellee must
cross-appeal in order for that argument to be considered. Weber
v. Gas ’N Shop, 278 Neb. 49, 767 N.W.2d 746 (2009). Marlys
did not file a cross-appeal in this case.
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Cite as 310 Neb. 39Although certain language in the county court’s 2020 order
might be read to suggest the county court found that Fogarty
and Teichman acted in good faith, we ultimately conclude that
it did not reach that issue. The county court did not expressly
state that it found Fogarty and Teichman acted in good faith for
purposes of § 30-2481, and it was not necessary for the county
court to make such a determination, because it denied com-
pensation for other reasons. But even though we find that the
county court did not reach the question of whether Fogarty and
Teichman acted in good faith, it would not be appropriate for
this appellate court, in reviewing the county court’s decision
for error appearing on the record, to make a factual finding
about whether Fogarty and Teichman acted in good faith before
the county court has passed on the question. See Weber v. Gas
’N Shop, supra. That is a determination that must be made by
the county court on remand. See Darling Ingredients v. City of
Bellevue, 309 Neb. 338, 960 N.W.2d 284 (2021).
Finally, Marlys argues that we should affirm the county
court’s order denying compensation to Fogarty and Teichman
because various actions they took were not necessary. We
have explained above that we do not understand § 30-2481 to
allow the county court to find that fees and expenses were not
necessary because they were incurred in litigation efforts that
were unsuccessful or in litigation efforts that the personal rep-
resentative or nominated personal representative should have
known would be unsuccessful. A personal representative or
nominated personal representative could, however, prosecute
or defend proceedings in good faith and still seek compensa-
tion for actions that were not necessary to that effort. The
county court’s 2020 order alluded to its concern that certain
actions undertaken by Fogarty and Teichman were not neces-
sary to probating the 2012 will. The county court has not, how-
ever, made a determination as to the necessity of the claimed
expenses, and, as with the determination of whether Fogarty
and Teichman acted in good faith, it would not be appropriate
for this court to make that determination in the first instance.
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Cite as 310 Neb. 39That too is a determination that must be made, if necessary, by
the county court on remand. See Darling Ingredients, supra.(d) Summary
To summarize our conclusions regarding the county court’s
denial of compensation for Fogarty and Teichman’s activities
after Pearl’s death, we find that the county court’s reasons for
denying compensation were legally erroneous. Additionally, we
find that while there may be other reasons to deny Fogarty and
Teichman’s claim for fees and expenses incurred after Pearl’s
death either in whole or in part, it would not be appropriate for
this court to determine whether it would be appropriate to do so
in the first instance. Accordingly, we reverse the county court’s
denial of compensation to Fogarty and Teichman for actions
taken after Pearl’s death and remand the cause for the county
court to determine, in light of this opinion and on the existing
record, whether and to what extent Fogarty and Teichman are
entitled to compensation for those actions.
3. Remaining Requests for Relief
In addition to their challenges to the county court’s order
regarding fees and expenses, Fogarty and Teichman assign that
the county court erred in not declaring that “all claims of Paul
and Marlys[] (a) are without merit” and “(b) are res judicata
and/or claim precluded against [Fogarty] and [Teichman] by
them or any person in privity with them.” (Emphasis omit-
ted.) They ask that we issue a declaration stating that all “ad
homine[m] slanders” in claims and defenses by Paul and
Marlys are without merit and precluding all claims or theo-
ries that Paul, Marlys, and anyone in privity with them may
have against Fogarty and Teichman. Brief for appellants at 36
(emphasis omitted).
Even if this court could extend the affirmative relief Fogarty
and Teichman request, we cannot discern a meaningful legal
argument in their brief as to why it would be justified. Fogarty
and Teichman allude to the doctrine of claim preclusion, but
they do not explain how it applies in this particular case.
- 68 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF GIVENTER
Cite as 310 Neb. 39Consequently, they have made no showing that the relief they
seek is warranted.
V. CONCLUSION
We reverse the county court’s denial of compensation for
Fogarty’s and Teichman’s activities after Pearl’s death and
remand the cause for the county court to determine, on the
existing record, whether and to what extent they are entitled
to their fees and expenses during that period. We otherwise
affirm.
Affirmed in part, and in part reversed
and remanded with directions.