In re Estate of Gabel

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE ESTATE OF GABEL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE ESTATE OF CHARLES L. GABEL, DECEASED.
JAMES L. GABEL, APPELLEE,
V.
JOLENE M. JEFFRIES ET AL., APPELLANTS.
Filed July 30, 2019. No. A-17-1248.
Appeal from the District Court for Cass County: MICHAEL A. SMITH, Judge. Affirmed as
modified.
Nicole Seckman Jilek and Robert M. Schartz, of Abrahams, Kaslow & Cassman, L.L.P.,
for appellants.
John M. Lingelbach, James A. Tews, and Minja Herian, of Koley Jessen, P.C., L.L.O., for
appellee.
ARTERBURN and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Jolene M. Jeffries (Jolene), Jane M. Hill (Jane), Judy A. McMeekin (Judy), Jack C. Gabel
(Jack), and Joyce L. Gabel (Joyce), (hereinafter referred to collectively as the Gabel 5), appeal
multiple rulings of the Cass County District Court following a jury trial in which the jury found
that Charles L. Gabel (Charles) lacked testamentary capacity to sign his will and trust dated
December 3, 2014, and that Charles had been unduly influenced to sign the documents. We affirm
as modified.
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II. STATEMENT OF FACTS
Charles and Mary Jo Gabel (Mary Jo) had seven children: James L. Gabel (James), Jolene,
Jane, Judy, Jack, Joyce, and Jeri L. Wichert (Jeri). James was the oldest child and worked on the
farming operation with Charles. Jack helped farm for a couple of years while he was in high school
but did not help with the farming operation thereafter. None of the other children were involved in
the farming operation to any significant degree.
The farming operation originally consisted of 160 acres, including the family home, and
was located near Osceola, Nebraska. In 1972 or 1973, Charles purchased another 80 acres of land.
In 1975, after James graduated from high school, Charles rented another 401 acres of farmland. In
1994, James and Charles formed CJ Land and Cattle LLP, for their farming business and, in 2006,
formed CJ Feedyard, LLC, for their cattle feeding business. James began handling the finances for
the farm in 1996. In 2010, at the request of a lender, Charles and James formed MCGFF, LLC, to
serve as a financing entity for their businesses. By 2012 or 2013, the farming operating had grown
to 2,402 acres including rented land. James and Charles worked the farming operation together,
used each other’s equipment, helped each other, and consulted on every major business decision
until March 2007 when Mary Jo passed away unexpectedly. Thereafter, Charles sold to James the
10 acres on which the house, farm buildings, and bins were located. Additionally, Charles
instructed James that Charles wanted James to have an option to purchase the farmland and
equipment upon his death and began to retreat from active farming.
In 2008, Charles executed a trust document in which he gave James the option to purchase
certain farmland at its assessed value upon Charles’ death. At about the same time, Charles
executed a “Statement of Intent” which provided that James had the option to purchase 94 acres
formerly owned by Mary Jo which was consistent with Mary Jo’s 1996 will. In that statement,
Charles provided, in part:
My son, James L. Gabel has helped me and provided assistance during my farm operation
for the past 30 years. In recognition of this contribution to my farming operation over the
past 30 years, I have elected to treat my son James L. Gabel, more favorably than my other
children. Were it not for his efforts over the past years, I would not have been able to
accumulate the estate which he has helped create.
Following Mary Jo’s death, Charles became depressed and began to drink heavily until
sometime in 2008. In July 2012, Charles was pulled over for driving on the wrong side of the road
and ended up losing his driver’s license.
Beginning in August 2012, Charles’ primary care physician, Dr. Cameron Sidak,
performed several mini-mental status examinations (MMSEs) on Charles. A MMSE is a test often
administered by primary care physicians to assess mental capability. Another doctor described the
test as sensitive to revealing cognitive defects, but not very effective at diagnosing the underlying
condition causing the defect. The MMSE test is scored on a 30-point scale. A score below 25
corresponds to dementia; a score below 20 corresponds to moderate dementia; and a score below
10 corresponds to severe dementia. In August 2012, Charles’ test resulted in a score of 14. At that
time, Dr. Sidak diagnosed Charles with early stage Alzheimer’s dementia.
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Shortly thereafter, on September 11, 2012, Charles executed a new will with the residue of
the estate to be devised to all seven children in equal shares. Charles also executed a new trust in
2012 with the only significant additions consisting of the inclusion of additional property acquired
by Charles and the inclusion of a provision intended to ensure compliance with a Natural Resource
District directive. Within the trust document, James was named as successor trustee to Charles.
Dr. Sidak continued MMSE testing on Charles and, in December 2012, after Charles
starting taking Aricept, a dementia medication, Charles’ MMSE test score increased to a 20. In
March and November 2013, Charles scored 17 on each of two MMSEs. In January 2014, he scored
a 19, which Sidak testified should have been scored as an 18, and in March 2015, he scored a 13.
On July 25, 2013, Charles called Jolene and asked for her assistance in connection with a
medical condition. On July 26, Jolene drove Charles to the doctor and proceeded to take him to
the office of attorney James Papik (Papik). According to Jeri’s testimony at trial, Jolene previously
told her that Jolene and Jason Gabel (Charles’ grandson) saw Charles’ will and trust and were
upset about the provisions favoring James. At Papik’s office, Charles asked Papik to change his
power of attorney from James to Jolene and remove James as successor trustee and name Jolene
in his place. After meeting with Papik, Jolene took Charles across the street to Cornerstone Bank
where she provided the new power of attorney and amended trust. Jolene testified that in the
following weeks after she became Charles’ attorney-in-fact, Charles learned that he was in much
greater debt than he previously thought. Charles moved in with Jolene following these meetings.
On August 16, 2013, Papik organized a family meeting to discuss Charles’ estate plan. The
meeting was attended by Charles, Papik, James, Jack, Jolene, and Jeri. At the meeting, Papik
discussed Charles’ 2012 will and trust, the recent amendment to the trust, and the recent naming
of Jolene as Charles’ attorney-in-fact. The subject matter of the meeting resulted in a heated
exchange between Charles and James and other members of the family. The fracturing of the
family continued after the meeting. By November 13, Charles and James got into an altercation at
Charles’ home which each accused the other of instigating and which was witnessed by Jason. The
incident resulted in James being charged with assault and obstruction of a police officer. James
pled guilty and was ordered to have no contact with Charles.
By August 2014, Charles again attempted to change his will and trust. In doing so, he
expressed his desire to now disinherit James and to leave assets to Jeri’s children, bypassing Jeri.
The members of the Gabel 5 testified that, among other things, the changes were due to James’
attempts to obtain a guardianship, his mishandling of Charles’ finances, and his treatment of
Charles. Charles’ counsel, who had prepared Charles’ 2014 will and trust, retained a third party
law firm to witness the signing. Counsel testified at trial to the steps counsel utilized to ensure
Charles’ competency prior to Charles’ final execution of the documents which took place on
December 3, 2014.
Charles lived with Jolene until March 30, 2015, when he moved to Silver Ridge Assisted
Living. During the time that Charles resided with Jolene, James and Jeri testified that Jolene
refused to provide them with updates on Charles’ health. On April 15, Charles left Silver Ridge to
be evaluated at Immanuel Hospital. By May 15, Charles moved to Prairie Meadows Nursing Home
and lived there until his death on November 18.
During Charles’ stay at Prairie Meadows, Jolene provided Prairie Meadows with
photographs of James and Jeri. Jolene instructed the facility that James had a no contact order
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legally preventing him from seeing Charles and instructing the staff to call to arrange a supervised
visit if Jeri sought to see Charles. At trial, James offered exhibit 259, a September 25, 2015,
document which demonstrated Charles’ change in care plan and which included photographs and
the instructions made by Jolene. Over the Gabel 5’s objection, the court accepted the portion of
exhibit 260, dated April 7, 2015, which contained Jolene’s photos and instruction but not the
change in care plan.
1. PETITION AND PRETRIAL
On April 18, 2016, James filed a petition for formal probate in the Cass County Court,
alleging that Charles’ 2012 will was his last will and testament and seeking to be appointed
personal representative of the estate. Jolene objected alleging that the 2014 will was valid and was
Charles’ last will and testament. Jolene sought to have Heritage Bank appointed as personal
representative. The case originated in the Cass County Court and was eventually transferred to the
Cass County District Court before trial.
In connection with the district court proceedings, the district court issued a Joint Pretrial
Conference Order which stated in relevant part:
D. Consolidated Exhibit List
Please see the parties’ Joint Exhibit List attached as Exhibit C. The first portion of
the Exhibit List is James Gabel’s and Jeri Wichert’s Exhibit List and the second portion of
the Exhibit List is Jolene Jeffries’ Exhibit List. If no objection is noted to an identified
exhibit, then said exhibit shall be considered a “joint” exhibit.
Prior to trial, the Gabel 5 filed a motion in limine. In response to the motion, the court ruled
that it would exclude from evidence several of the requested items including:
4. Any witness, expert opinions, testimony or evidence not previously disclosed in
discovery consistent with the deadlines set forth in this Court’s scheduling order. See,
Paulk v. Cent. Lab. Assocs. P.C., 262 Neb. 838, 636 N.W.2d 170 (2001).
....
5. The validity of the Will dated September 11, 2012, the validity of the Trust dated
December 28, 2012, or the validity of the Trust dated July 26, 2013. Parties may discuss
or offer into evidence the existence of said documents, but not whether said documents are
valid.
....
8. To prohibit reference to any testimony, argument, reference or evidence
concerning any documents not disclosed prior to trial in this matter, as such documents
would constitute an unfair surprise, would be prejudicial to the Gabel 5, and would violate
Nebraska Discovery Rules. Neb. Ct. R. Disc. § 6-326; Norquay v. Union P.R. Co., 225
Neb. 527, 407 N.W.2d 146 (1987).
....
10. To prohibit any references to offers to compromise or other offers to settle or
settlement negotiations between the parties.
....
13. To prohibit the use of the following documents:
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....
c. Last Will and Testament of Mary Jo Gabel dated Feb. 5, 1996 (Ex 3)
....
g. Statement of Intent of Charles Gabel dated February 20, 2008 (Ex 9)
The Gabel 5 also requested that the court exclude evidence of Charles’ health, mental
status, or medical care after January 1, 2015. In response, the court refused to make a general
determination of how long after the signing of the will evidence of Charles’ mental state would be
admissible reserving said determination for the time of trial.
2. TRIAL
(a) Evidence Presented by Gabel 5
At trial, the Gabel 5 asserted that the December 3, 2014, will was Charles’ valid will. James
and Jeri opposed this assertion and affirmatively alleged that the December 3, 2014, will was not
valid because of “undue influence” exerted over Charles. In connection therewith, Michelle
Miller-McCoy, an attorney who conducted the meeting where Charles signed his 2014 will and
trust, testified that she asked Niel Nielsen, another attorney at her firm, and DeAna Schaffer, a
paralegal at her firm to be present when the execution took place. Prior to the execution of the
documents, Miller-McCoy testified that she met with Charles and his conservator, Sam Moyer, an
employee of Heritage Bank, in order to thoroughly review the documents with them.
Miller-McCoy testified that the three went over the provisions of the will and trust “in some detail,”
and both Moyer and Charles asked questions about it. Miller-McCoy then brought in Nielsen and
Schaffer to serve as witnesses to the verification of Charles’ testamentary capacity and the actual
signing of the documents.
Miller-McCoy testified that she went through a checklist of questions to determine capacity
and recorded a yes or no for each question. She testified that she had certain follow up questions
rather than just accepting a yes or no answer as final. These follow up questions included asking
Charles who his children were and asking him to describe his property. After going through the
checklist, she and the other witnesses stepped out and conferred briefly on whether they believed
Charles had testamentary capacity. They returned and witnessed the signing of the will. During
the Gabel 5’s rebuttal case, both Nielsen and Schaffer provided substantially consistent testimonies
governing their version of the will’s execution.
(b) James Gabel’s Evidence
Following the Gabel 5’s completion of their evidence, James adduced testimony from
several individuals including himself; Dr. Sidak; Dr. Ty Callahan, a neuropsychologist; and Dr.
Deborah Hoffnung, a clinical neuropsychologist.
(i) James Gabel
James testified that he had farmed with his father since shortly after high school. James
further testified that, even after Charles retired from active farming James saw him daily, often
multiple times daily, and would do office work for the farm at Charles’ house. Toward the end of
Charles’ time living on his own, Charles needed labels on things and sometimes became physically
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aggressive. According to James, Charles lived in the house at the farm where he had raised his
children “until he was abducted by Jolene” in July 2013.
James testified that when Jolene took Charles to the medical appointment and to change
his power of attorney, she also took him to banks where they cut off James’ access to various
accounts, including accounts partially owned by James. He testified that Jolene’s action caused a
“domino effect” resulting in James’ inability to access money in different entities and conduct
business. He testified that Jolene’s actions and interference eventually led to a foreclosure and his
filing for bankruptcy while he worked to resolve these financial matters.
(ii) Dr. Cameron Sidak
James played a video deposition of Dr. Sidak for the jury. It included discussions of the
care referenced above. In connection with a March 12, 2015, visit, Sidak testified that Charles
seemed to be doing about the same as before based on general observations, but scored a 13 on an
MMSE. James then offered, and the court received into evidence, exhibit 151, a detailed progress
report governing that March 12, 2015, office visit.
(iii) Dr. Ty Callahan
In May 2014, Dr. Callahan administered a mental examination to determine if Charles
should continue to make his own medical decisions. Dr. Callahan testified that his informal mental
evaluation revealed that Charles knew Obama was the president, but when given multiple choice
answers, he said the previous president was Ronald Reagan. Callahan asked Charles questions
about his personal history and noted that Charles appeared to be an unreliable historian.
Callahan also conducted a formal neuropsychological evaluation of Charles. Callahan
testified he formally evaluates patients in multiple areas so that their abilities can be ranked against
other patients of similar age and gender. For each area, Charles was provided a percentile rank in
relation to men his age. Callahan testified that someone at the second percentile is considered
moderately impaired, and someone at the first percentile is considered severely impaired.
Callahan’s testimony and report demonstrated that Charles fell at or below the first percentile in
language comprehension, memory in both immediate and delayed assessments, speed of
processing, and in three other areas. Charles was ranked in the second percentile for attention span,
and was not above the seventh percentile in any area. Based on interactions with Charles and
reports from Jolene, Callahan believed that Charles’ everyday functional abilities were a relative
strength; however, Callahan believed Charles needed help making medical decisions. While his
report indicated that Charles would continue to decline, Dr. Callahan did not testify as to Charles’
mental abilities following this evaluation.
(iv) Dr. Deborah Hoffnung
Dr. Hoffnung, testified that, in forming her opinion regarding Charles’ mental capacity,
she reviewed records from Dr. Sidak including MMSEs that he had administered; a report of
neuropsychological testing from Dr. Ty Callahan; documents from SilverRidge, the Heritage
Center, and Prairie Meadows. She testified that the documents she reviewed, including those
medical records relating to periods of time after the execution date, are relevant to
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neuropsychologists in evaluating whether someone has testamentary capacity and were useful in
forming her opinion.
In relation to Charles’ MMSE test scores, including Charles’ documented increase in his
August 2012 score of 14 to his December 2012 score of 20, Dr. Hoffnung testified that, because
the test is mostly uniform, it is “very prone to practice effects,” which means that taking the test a
second time can increase a patient’s score. She continued by stating that it is a bad sign for a
patient’s mental abilities if their MMSE score does not increase when the MMSE is administered
again. Dr. Hoffnung also testified that a patient’s cognitive abilities can increase when he or she
starts taking Aricept.
Although Dr. Hoffnung declined to comment on whether it was likely that there was undue
influence, she stated that Jolene’s care for him and control of Charles’ life, as well as his memory
problems left Charles highly susceptible to undue influence. Dr. Hoffnung ultimately opined that
Charles did not have testamentary capacity when he executed his December 2014 will.
(c) Gabel 5 Motion for Directed Verdict and Rebuttal Witnesses
At the close of James’ evidence, the Gabel 5 moved for a directed verdict, which motion
was overruled by the district court. The Gabel 5 then called rebuttal witnesses including Dr. Renee
Hudson, Psy.D., a clinical psychologist; Jack Gabel; Jason Gabel; attorney Andrew Huettner; and
Sam Moyer, Charles’ conservator.
(i) Dr. Renee Hudson, Psy.D.
Dr. Hudson described the records she reviewed and their significance and testified to a
reasonable degree of neuropsychological certainty that Charles had testamentary capacity on the
day he signed his will. On cross-examination, she responded to questions about her opinion
governing the implications of the March 2015 MMSE without objection.
(ii) Jack Gabel
Jack testified that he had never heard Charles give James credit for building the farm. On
cross-examination, following a sidebar, the court allowed Jack to testify regarding Charles’ 2008
“Statement of Intent” and allowed that Statement of Intent to be received into evidence over the
Gabel 5’s objection.
(iii) Jason Gabel
Jason, Jack’s son and Charles’ grandson, testified regarding James’ alleged assault on
Charles. Following direct examination of Jason by the Gabel 5’s counsel, James’ counsel asked
the following questions during cross-examination:
Q. How is your memory?
A. My memory is great. I read daily . . . every year I have countless certifications
with the State of Nebraska.
Q. Have you ever had any medical issues or addiction issues that would impair your
memory?
A. No, sir.
[Gabel 5’s attorney]: Objection, relevance.
THE COURT: Overruled.
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BY [James’ attorney]:
Q. What’s that?
A. No.
Q. Have you had any addiction problems that might impair your memory?
A. No.
Q. Have you had any addiction problems?
A. No.
Q. Never?
A. No.
Q. You’ve never had trouble with meth?
A. Nope.
Q. Have you ever used meth?
[Gabel 5’s attorney]: Objection, relevance.
THE COURT: Overruled.
BY [James’ attorney]:
Q. Have you?
A. Yes.
Q. When was that?
A. High school.
Q. When’s the last time you used meth?
A. High school.
Q. Have you ever gotten in trouble for meth?
A. No.
Q. Never been an issue at all?
A. Nope.
Following Jason’s testimony, the Gabel 5 called another witness. Following that witness’
testimony, the Gabel 5 moved “to exclude all testimony regarding the questions and the answers
to Jason Gabel with regards to his prior drug use.” The court overruled the objection.
(iv) Andrew Huettner
Huettner, the attorney who drafted Charles estate plan in 2014, testified, in response to
inquiries, that when he talked about the will and trust documents with Charles, Charles was able
to list his assets and demonstrated an understanding of the distributions. Huettner further testified
that Charles told him that he understood that the document he was drafting would control what
happened to his assets. Huettner testified that an attorney working with him inquired into whether
anyone was exercising influence over Charles which Charles denied.
(v) Sam Moyer
Moyer testified that he worked with James and Charles serving as trustee and conservator
for Charles commencing in August 2013. He testified that the farm operation should have made
Charles $70,000 each year after property taxes just from owning and renting the land, but that
Charles was making almost no money. He testified that, in his opinion, the farm was failing
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financially. In order to impeach this testimony, James introduced exhibits 262 and 263, which were
financial statements prepared by Heritage Bank from 2015 and 2016 which showed positive equity
from operations. In response, the Gabel 5 objected arguing that the documents were irrelevant and
had not been previously disclosed to them. The court admitted the documents into evidence.
At the close of all the evidence, the Gabel 5 renewed their motion for directed verdict. The
district court again overruled their motion.
During closing arguments, James referred to the jury needing to decide if Charles’ 2012
will was valid. The argument is quoted below in the analysis section of this opinion. In response,
the Gabel 5 requested a sidebar conference, which the court granted, but neither the contents of
the sidebar conference nor any objection to James’ argument appears in the record. James also
argued that his parents’ intent in written wills could be traced back to 1996, a reference to his
mother’s will, which argument is also quoted below in the analysis section. The Gabel 5 did not
object to this argument.
3. JURY VERDICT AND MOTION FOR COSTS
The jury found that the Gabel 5 failed to prove by a preponderance of the evidence that
Charles’ December 3, 2014, will was valid and separately found that Charles was unduly
influenced in making that will, thereby rendering it invalid.
On August 29, 2017, James filed a motion for costs which was amended the following day.
The court awarded James $9,119.69, a majority of the costs he sought, and the liability was equally
apportioned among the Gabel 5. The Gabel 5 appeal from the court’s judgment on the verdict and
order taxing them with costs.
III. ASSIGNMENTS OF ERROR
The Gabel 5’s assignments of error, consolidated and restated, are that the trial court erred
in: (1) in making certain evidentiary rulings; (2) denying their motions for directed verdict, motion
for judgment notwithstanding the verdict, and motion for a new trial; and (3) awarding costs in
favor of James.
The Gabel 5 also argue that the district court erred in failing to make a verbatim record of
at least nine sidebar conferences during the trial. However, they do not assign this as error. Absent
plain error, errors argued but not assigned will not be considered on appeal. In re Estate of
Brown-Elliott, 27 Neb. Ct. App. 196, ___ N.W.2d ___ (2019). We find no plain error regarding this
claim and accordingly, we will not consider the Gabel 5’s argument related to the lack of records
in relation to sidebar conferences.
IV. STANDARD OF REVIEW
Proceedings to determine legal competency and alleged undue influence in a probate
context sound in law, and the findings of the trier of fact will not be disturbed unless clearly wrong.
In re Estate of Ellis, 9 Neb. Ct. App. 598, 616 N.W.2d 59 (2000).
A trial court has the discretion to determine the relevancy or admissibility of evidence, and
such determinations will not be disturbed on appeal unless they constitute an abuse of that
discretion. Hartley v. Metropolitan Util. Dist., 294 Neb. 870, 885 N.W.2d 675 (2016).
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In a civil case, the admission or exclusion of evidence is not reversible error unless it
unfairly prejudiced a substantial right of the complaining party. Id.
An abuse of discretion, warranting reversal of a trial court’s evidentiary decision on appeal,
occurs when a trial court’s decision is based upon reasons that are untenable and unreasonable or
if its action is clearly against justice or conscience, reason, and evidence. Id.
In reviewing rulings on motions for directed verdict and judgments notwithstanding the
verdict, an appellate court gives the nonmoving party the benefit of all evidence and reasonable
inferences in his or her favor, and the question is whether a party is entitled to judgment as a matter
of law. First Express Servs. Group v. Easter, 286 Neb. 912, 840 N.W.2d 465 (2013). Regarding
motions for new trial, an appellate court will uphold a trial court’s ruling on such a motion absent
an abuse of discretion. Id.
The decision of a trial court regarding taxing of costs is reviewed for an abuse of discretion.
Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d 569 (2017).
V. ANALYSIS
1. ALLEGED EVIDENTIARY ERRORS
The Gabel 5 first assign errors to many of the trial court’s evidentiary rulings governing
the following: (a) allowing evidence of Charles’ health and state of mind after December 3, 2014;
(b) allowing evidence and/or argument regarding the validity of prior testamentary documents and
Mary Jo’s 1996 Will; (c) admitting Charles’ 2008 “Statement of Intent” into evidence; (d) allowing
James’ statement offered at the sentencing in his assault case; (e) allowing testimony regarding a
witness’ drug use; and (f) allowing evidence of financial statements.
(a) Charles’ Health and State of Mind After December 3, 2014
The primary issue presented in this case was whether Charles had proper testamentary
capacity as of December 3, 2014, when he executed his new will and trust and/or whether he was
subjected to undue influence in making those documents. As such, the Gabel 5 first argue that the
court erred by allowing evidence, testimony, and documents regarding Charles’ health months
after that date. As noted by the Gabel 5:
At trial exhibits 151 [medical progress note dated March 12, 2015], 152 [April 13,
2015, medical note -- turning over Charles’ care to closer M.D.], 259 [Prairie Meadow
change in plan of care dated September 25, 2015, and] 260 [photographs and information
provided by Jolene to Prairie Meadows dated April 7, 2015], which all relate to events
months after the execution [of Charles’ December 2014 will], were received into evidence
and Drs. Hoffnung, Sidak, Callahan, and Hudson were permitted to testify regarding
Charles’ condition of mind long after the December 3, 2014 execution [of his will].
Brief for appellants at 27.
The standard governing the admission of evidence in connection with the execution of a
will was set forth in In re Estate of Schoch, 209 Neb. 812, 814, 311 N.W.2d 903, 905-06 (1981).
wherein the Nebraska Supreme Court stated, “[a]lthough competent evidence of a testator’s
condition of mind long before, closely approaching, and shortly after the execution of a will is
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admissible, it is received only to assist in revealing his state of mind at the time the will was
executed.”
Here, there was evidence submitted governing Charles’ medical condition up to 6 months
following the date his December 2014 will was executed. The Gabel 5 argue that evidence was too
far removed from the will’s execution date and the court abused its discretion in admitting it. The
Gabel 5 cite no authority which suggests that evidence 6 months removed from the operative date
of consideration is too late and falls outside the “shortly after” period of admissible evidence set
forth in In re Estate of Schoch. Nor would we expect to find an absolute cutoff date as matters like
this vary on a case-by-case basis. Dr. Hoffnung specifically testified that the documents she
reviewed, including those medical records relating to periods of time after the execution date, are
relevant to neuropsychologists in evaluating whether someone has testamentary capacity and were
useful in forming her opinion here. Further, the weight of the evidence is for the trier of fact to
determine to arrive at a decision. Muenchau v. Swarts, 170 Neb. 209, 102 N.W.2d 129 (1960).
Because our caselaw allows evidence of a testator’s state of mind for a period of time
following the operative date of determination as it bears on the testator’s state of mind on the
operative date, and based upon Dr. Hoffnung’s testimony that the evidence received was relevant
to her determination, we cannot say that the district court abused its discretion in allowing the
evidence.
(b) Prior Testamentary Documents and Mary Jo’s 1996 Will
The Gabel 5’s next argument centers on the district court’s order sustaining the Gabel 5’s
motion in limine governing the following requested exclusions from evidence:
5. The validity of the Will dated September 11, 2012, the validity of the Trust dated
December 28, 2012, or the validity of the Trust dated July 26, 2013. Parties may discuss
or offer into evidence the existence of said documents, but not whether said documents are
valid.
....
13. To prohibit the use of the following documents:
....
c. Last Will and Testament of Mary Jo Gabel dated Feb. 5, 1996 (Ex 3)
The Gabel 5 argue that, notwithstanding the court’s sustaining of their motion regarding
this evidence, certain arguments made by James during closing arguments violated the court’s
order. We first note that “[a] motion in limine is only a procedural step to prevent prejudicial
evidence from reaching the jury. It is not the office of such motion to obtain a final ruling upon
the ultimate admissibility of the evidence.” State v. Schreiner, 276 Neb. 393, 407, 754 N.W.2d
742, 755 (2008). Accordingly, in order to properly address this assignment of error, we must
review the specific evidence or argument the Gabel 5 assert was not allowable at trial and analyze
the trial rulings thereon.
First, the Gabel 5 argue that James, in his closing argument, argued:
Now, you might be saying, well, didn’t he have Alzheimer’s? The diagnosis came in
August of 2012. This will is a September of 2012 will. Well, guess what. Jolene has filed
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an objection to this will and the next jury gets the pleasure, I guess, of deciding whether
this one is valid. And if it isn’t, it’s the 2008 will or a prior will. You’re not being asked to
decide that, but I want to show you --
At this point, a sidebar conference was held but no ruling or instructions appear as a result thereof.
The record does not reflect any objection to James’ argument, only a request for a sidebar. A party
who fails to make a timely objection to evidence waives the right on appeal to assert prejudicial
error concerning the evidence received without objection. State v. Harris, 263 Neb. 331, 640
N.W.2d 24 (2002). Neither a defendant’s motion in limine nor his renewal of the motion in limine
will preserve an issue for appeal when he fails to object at trial when the evidence is introduced.
See State v. Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002) (because overruling motion in limine
is not final ruling on admissibility of evidence and does not present question for appellate review,
question concerning admissibility of evidence which is subject of motion in limine is raised and
preserved for appellate review by appropriate objection during trial). Because the Gabel 5 did not
raise an objection to James’ argument at trial, they did not preserve the issue for appeal.
The Gabel 5 next argue that James’ counsel argued, “So I would ask that while you’re in
the jury room, look at these wills and look at how going back for years they favored Jim because
of what he said in the Statement of Intent, because of what his mother said back in 1996.” They
then argue that Mary Jo’s 1996 Last Will and Testament was not received into evidence and was
excluded pursuant to the district court’s order in limine.
The Gabel 5 argue that the argument by James’ counsel was in direct contradiction to the
order in limine. Again, however, the Gabel 5 did not object to this argument at the time of trial.
Having failed to object to the argument, the Gabel 5 did not preserve the issue for appeal.
(c) Charles’ 2008 Statement of Intent
The Gabel 5 refer back to their motion in limine in connection with their next assignment
of error. They note the court sustained section 13.g. of their motion which sought to “prohibit the
use of” the “Statement of Intent of Charles Gabel dated Feb. 20, 2008.” Notwithstanding this
ruling, following a sidebar, the court allowed James to ask questions about, and received into
evidence, the statement of intent which the court had previously ruled would not be “used” during
the proceedings. As we mentioned earlier in the opinion, a motion in limine is a procedural step
but does not necessarily create a ruling on the ultimate admissibility of the evidence. State v.
Schreiner, supra.
Here, following James’ offer of the statement of intent into evidence, the Gabel 5 objected
but gave the basis for the objection as “Same objections for the last two months, Your Honor.”
Neb. Rev. Stat. § 27-103 (Reissue 2016) provides:
(1) Error may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected, and:
(a) In case the ruling is one admitting evidence, a timely objection or motion to
strike appears of record, stating the specific ground of objection, if a specific ground was
not apparent from the context; or
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(b) In case the ruling is one excluding evidence, the substance of the evidence was
made known to the judge by offer or was apparent from the context within which questions
were asked.
The specific ground for the Gabel 5’s objection was not stated and it is extremely difficult for this
reviewing court to understand the context of this objection. In referring to the original motion in
limine governing this matter, the Gabel 5 requested that the court “prohibit the use” of the
Statement of Intent, item 13.g., without specifying the basis for their objection. We also note that,
in its motion in limine order, the court stated:
As to the documents contained described in paragraph 13, it is difficult to rule
upon the motion without a better understanding of the possible relevance, whether there
will be an objection for hearsay or what other circumstances surround the offer of the
exhibit. That being said, barring some other showing, the Court will sustain the objection
to a, b, c, d, g, h, i[,] n and x. The Court will withhold ruling on the remaining documents.
Based upon this order, it is difficult to know the original basis for the court’s ruling, but the court
did make clear that the ruling was subject to some other showing.
At trial, the Gabel 5 attempted to argue that part of the reason Charles changed his mind
and desired to disinherit James came from the family meeting where Charles criticized James for
taking credit for building the farm. During his direct testimony, Jack testified that he had never
previously heard his father give credit to James for building the farm. Accordingly, in order to
impeach Jack’s testimony, James’ counsel referred to Charles’ 2008 Statement of Intent where
Charles specifically credited James for his assistance in building the farm. If the basis for the
objection and court’s original concern governing this document was its relevance, it became
relevant to impeach Jack’s testimony. The court foreshadowed the possibility of a showing at trial
which would demonstrate the relevance of documents subject to his order. Item 13.g, Charles’
2008 Statement of Intent, became relevant during trial. Accordingly, assuming the basis of the
objection was relevance as suggested by the court in its order, the document became relevant and
the court did not abuse its discretion in admitting it at trial.
(d) James’ Statement Offered at Sentencing in Assault Case
Over the Gabel 5’s objections, the court received into evidence a statement provided to the
judge at sentencing in James’ assault case. The Gabel 5 objected on the basis of relevancy, hearsay,
and foundation. In connection with its receipt of this exhibit, the court provided a limiting
instruction setting forth that the exhibit was “being received in evidence but does contain
statements from other individuals. Those are not being offered to prove that those statements, in
fact, are true but offered -- but are still contained within that document for other purposes.”
The Gabel 5’s only argument in connection with this assigned error is that
the court erred and abused its discretion in admitting Exhibit 84 into evidence. Exhibit 84,
coupled with all the other wrongly admitted evidence was highly prejudicial and constitutes
reversible error. As a result, the judgment in this case should be vacated and this case
should be remanded for a new trial.
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Brief for appellants at 32. Although the record specifies that the Gabel 5 objected to exhibit 84 on
the basis of relevancy, hearsay, and foundation, the Gabel 5 fail to argue which, if any, of those
objections constitutes the basis for their assignment of error. Nor do the Gabel 5 argue why they
believe exhibit 84 is not relevant, why it constitutes hearsay, or what foundation was lacking. The
brief statement contained in their brief which cites no law in support thereof, and which makes no
arguments in support thereof, is insufficient to constitute discussion of the assigned error. See State
v. Reyes, 18 Neb. Ct. App. 897, 794 N.W.2d 886 (2011). An alleged error must be both specifically
assigned and specifically argued in the brief of the party asserting the error to be considered by the
appellate court. State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019). Finding no plain error,
we decline to discuss this claim which did not receive even minimal argument in the Gabel 5’s
brief.
(e) Testimony Regarding Witness’ Drug Use
Jason was Charles’ grandson and testified about the altercation between Charles and James
which resulted in an assault charge against James. Jason’s version of events was favorable to the
Gabel 5, but contrary to James’ version of events. Following direct examination of Jason by the
Gabel 5’s counsel, James’ counsel asked the following during cross-examination:
Q. How is your memory?
A. My memory is great. I read daily . . . every year I have countless certifications
with the State of Nebraska.
Q. Have you ever had any medical issues or addiction issues that would impair your
memory?
A. No, sir.
[Gabel 5’s attorney]: Objection, relevance.
THE COURT: Overruled.
BY [James’ attorney]:
Q. What’s that?
A. No.
Q. Have you had any addiction problems that might impair your memory?
A. No.
Q. Have you had any addiction problems?
A. No.
Q. Never?
A. No.
Q. You’ve never had trouble with meth?
A. Nope.
Q. Have you ever used meth?
[Gabel 5’s attorney]: Objection, relevance.
THE COURT: Overruled.
BY [James’ attorney]:
Q. Have you?
A. Yes.
Q. When was that?
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A. High school.
Q. When’s the last time you used meth?
A. High school.
Q. Have you ever gotten in trouble for meth?
A. No.
Q. Never been an issue at all?
A. Nope.
Later in the proceedings, after Jason was dismissed and following the testimony of another
witness, the Gabel 5 moved “to exclude all testimony regarding the questions and the answers to
Jason . . . with regards to his prior drug use.” In their brief, the Gabel 5 argue that the basis for said
motion was Neb. Rev. Stat. §§ 27-404 and 27-609 (Reissue 2016) governing permissible and
impermissible bad character evidence and argued that the line of question “was inappropriate,
prejudicial, and done for the purpose of discrediting the witness” in violation of these rules. Brief
for appellants at 32-33.
As we previously stated, § 27-103 requires a timely objection and requires that objecting
party to state the specific ground for the objection. Here, the Gabel 5 timely objected to James’
counsel’s questions governing whether drug use impacted Jason’s memory of events on the basis
of relevancy. Counsel did not raise an objection to the basis of the testimony as being
impermissible character evidence and improper impeachment by evidence of conviction of crime
in violation of §§ 27-404 and 27-609 until long after Jason had been dismissed as a witness.
A party who fails to make a timely objection to evidence waives the right on appeal to
assert prejudicial error concerning the evidence received without objection. State v. Hicks, 241
Neb. 357, 488 N.W.2d 359 (1992). An objection to the admission of evidence is not timely unless
it is made at the earliest opportunity after the ground for the objection becomes apparent. State v.
Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991). The Gabel 5 timely objected to the colloquy
governing James’ use of drugs on the grounds of relevancy, however, they did not timely object
on the basis of § 27-404 or § 27-609, or unfair prejudice pursuant to Neb. Rev. Stat. § 27-403
(Reissue 2016) which constitutes a waiver of those objections. See State v. Bauldwin, 283 Neb.
678, 811 N.W.2d 267 (2012) (on appeal, defendant may not assert different ground for objection
for admission of evidence than was offered at trial).
Thus, the question becomes whether James’ counsel’s questions governing Jason’s use of
drugs as it might relate to his perception of events was relevant. “Relevant evidence means
evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence.”
Neb. Rev. Stat. § 27-401 (Reissue 2016). James argues that “[a] party has the right to
cross-examine a witness as to anything tending to affect accuracy, veracity, or the credibility of
the witness. Clark v. Smith, 181 Neb. 461, 465, 149 N.W.2d 425, 429 (1967).” Brief for appellee
at 31. We note that the full quotation from Clark is:
“The general rule is that a party has no right to cross-examine a witness except as to facts
and circumstances connected with matters testified about on his direct examination. . . .
However within the meaning of this rule cross-examination is proper as to anything tending
to affect the accuracy, veracity, or credibility of the witness. . . . Also where testimony is
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given by a witness on direct examination, from which an inference of fact arises favorable
to the party producing him, anything within the knowledge of the witness tending to rebut
that inference is admissible on cross-examination, and the opposing party is entitled to
pursue that line of cross-examination as a matter of right. . . . Again, anything within the
knowledge of a witness tending to rebut evidence given on direct examination is admissible
as a matter of right on cross-examination.”
Id. at 465, 149 N.W.2d at 429.
James further cites State v. Ballew, 291 Neb. 577, 601, 867 N.W.2d 571, 588 (2015) for
the proposition that “[w]hen the object of the cross-examination is to collaterally ascertain the
accuracy or credibility of the witness, the scope of the inquiry is ordinarily subject to the discretion
of the trial court.” We agree that the question here is whether the court abused its discretion in
allowing counsel to inquire about Jason’s prior drug use as it might impact on the accuracy of his
testimony -- an event whose details he was asked to recall 4 years earlier. Certainly prior drug use,
including methamphetamine use, can be relevant when the witnesses’ memory or mental abilities
are legitimately before the court. See U.S. v. Hodge, 594 F.3d 614, 618-19 (8th Cir. 2010) (“[p]rior
drug abuse may be relevant when the witness’s memory or mental abilities are legitimately before
the court”). In making this statement, the 8th Circuit cited to U.S. v. Cameron, 814 F.2d 403 (7th
Cir. 1987). In Cameron, the 7th Circuit framed the issues inherent in allowing testimony of this
nature in stating:
Evidence that a witness has used illegal drugs may be probative of the witness’ “possible
inability to recollect and relate,” United States v. Banks, 520 F.2d 627, 631 (7th Cir.1975).
This evidence may be admitted where the memory or mental capacity of a witness is
legitimately at issue. Id. At the same time, however, there is considerable danger that
evidence that a witness has used illegal drugs may so prejudice the jury that it will
excessively discount the witness’ testimony. See Fed.R.Evid. 403. A court must, therefore,
be chary in admitting such evidence when it is offered for the sole purpose of making a
general character attack. See Banks, 520 F.2d at 632; accord United States v. Sampol, 636
F.2d 621, 666-67 (D.C.Cir.1980). See generally, Annot., Use of Drugs as Affecting
Competency or Credibility of Witness, 65 A.L.R. 3rd 705 (1975 & Supp.) (collecting cases).
814 F.2d at 405.
Because James’ memory of events which transpired 4 years prior to this trial was at issue,
we cannot say that Jason’s prior use of illegal drugs was completely irrelevant as it relates to his
memory of events. That said, because the Gabel 5 did not timely object on §§ 27-403, 27-404, or
27-609 grounds, they waived any argument that the relevancy of the questioning was outweighed
by factors set forth in these rules. Under these facts, we cannot say the district court abused its
discretion in overruling the relevancy objection.
(f) Evidence of Financial Statements
The Gabel 5 again relate back to their motion and the court’s in limine ruling wherein the
court sustained the Gabel 5’s specific motions to the following:
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4. Any witness, expert opinions, testimony or evidence not previously disclosed in
discovery consistent with the deadlines set forth in this Court’s scheduling order. See,
Paulk v. Cent. Lab. Assocs. P.C., 262 Neb. 838, 636 N.W.2d 170 (2001).
....
8. To prohibit reference to any testimony, argument, reference or evidence
concerning any documents not disclosed prior to trial in this matter, as such documents
would constitute an unfair surprise, would be prejudicial to the Gabel 5, and would violate
Nebraska Discovery Rules. Neb. Ct. R. Disc. § 6-326; Norquay v. Union P.R. Co., 225
Neb. 527, 407 N.W.2d 146 (1987).
....
10. To prohibit any references to offers to compromise or other offers to settle or
settlement negotiations between the parties.
Based upon the court sustaining the motions as to these three items, the Gabel 5 assign
error to the court’s admission of financial statements dated November 23, 2015, and February 15,
2016. At trial, the Gabel 5 objected to James’ offer of these documents on the basis of relevancy
and their claim that the documents were not disclosed prior to use at trial. At trial, James argued
that the documents were being offered to impeach Moyer’s testimony.
Moyer served as the conservator for Charles prior to Charles’ death. During Moyer’s
testimony, the Gabel 5 obtained testimony from Moyer that, in his opinion, the farming operation
was failing financially. The Gabel 5 attempted to utilize this testimony to support their theory that
the financial condition of the farm, and Charles’ discovery thereof, were one basis for him
changing his will to exclude James. During cross-examination, James offered into evidence two
financial statements prepared by Moyer which showed calculations governing the financial status
of Charles’ farming operation on November 23, 2015, and February 15, 2016, respectively. James
used the financial statements to demonstrate that the farm showed a positive equity to impeach
Moyer’s testimony that the farm was failing financially. In that regard, the financial statements
were clearly relevant as they showed some indication of the farms’ financial picture being
inconsistent with Moyer’s testimony. The question becomes whether the financial statements were
properly disclosed prior to trial as claimed, and objected to, by the Gabel 5.
The Gabel 5’s argument on appeal on this issue is short and nonspecific. The Gabel 5 argue
that the two financial statements prepared by Moyer were “not disclosed prior to trial or in
compliance with the pretrial order” and that “[t]he admission of [the exhibits] also violates the
Order in Limine.” Brief for appellants at 34. They then argue that admission of these two exhibits
amounts to “unfair surprise” and “trial by ambush.” Id. Although the Gabel 5 do not cite any
authority, we interpret their argument to be that the court abused its discretion in overruling their
objection to the two financial statements due to James’ failure to disclose the documents prior to
trial in violation of discovery rules.
Neb. Ct. R. of Discovery 37(b)(2)(B) provides that, upon the failure of a party to comply
with an order to provide discovery, the court may sanction the failing party by prohibiting him or
her from introducing designated matter in evidence. A court’s ruling concerning sanctions will not
be disturbed on appeal absent a showing of an abuse of discretion. Shanko v. Chaloupka, 239 Neb.
101, 474 N.W.2d 470 (1991). A judicial abuse of discretion exists when a judge, within the
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effective limits of authorized judicial power, elects to act or refrain from action, but the selection
option results in a decision which is untenable and unfairly deprives the litigant of a substantial
right or a just result in matter submitted for disposition to a judicial system. Kopecky v. National
Farms, Inc., 244 Neb. 846, 510 N.W.2d 41 (1994).
Here, the Gabel 5 argue that James failed to disclose the financial statements admitted into
evidence as exhibits 262 and 263, but they do not include reference in the record to an interrogatory
or production request they claim was violated, nor to any order of the court pertaining to a
discovery request, nor do we find one. If the basis for their claim is simply that James violated the
pretrial order, there is no basis in the order to justly their position. In the “Joint Pretrial Conference
Order,” the court states in reference to the exhibit list:
D. Consolidated Exhibit List
Please see the parties’ Joint Exhibit List attached as Exhibit C. The first portion of
the Exhibit List is James Gabel’s and Jeri Wichert’s Exhibit List and the second portion of
the Exhibit List is Jolene Jeffries’ Exhibit List. If no objection is noted to an identified
exhibit, then said exhibit shall be considered a “joint” exhibit.
There is no other language in the pretrial order related to the exhibit list and the motion in limine
does not reference the exhibit list. Within the exhibit list attached as exhibit C, both parties reserved
the right to “offer any exhibit for purposes of impeachment” and “offer any exhibit for purposes
of rebuttal.” When reviewing the language of the pretrial order we cannot say that the exhibit list
was to contain all exhibits to be offered at trial, including exhibits for impeachment or rebuttal.
Nor is there any language in the pretrial order or order in limine which restricted the parties to
using exhibits only listed on the exhibit list.
Having failed to identify discovery requests or orders which demonstrate noncompliance
by James with discovery or language in any order which demonstrates James failed to comply
therewith, we cannot say the district court abused its discretion in overruling the Gabel 5’s
objections to exhibits 262 and 263 for James’ failure to disclose said documents prior to trial.
2. DENIAL OF MOTIONS
The Gabel 5 next contend that the district court erred in denying their motions for directed
verdict, motion for judgment notwithstanding the verdict, and motion for a new trial.
(a) Denial of Motions for Directed Verdict
The Gabel 5 contend that the district court erred in overruling their motions for directed
verdict because (i) James presented insufficient evidence that Charles lacked testamentary capacity
and (ii) James presented no evidence to show that Charles was unduly influenced when he executed
the 2014 will and trust.
The Gabel 5 first moved for directed verdict at the close of James’ evidence and then
proceeded to present rebuttal evidence. A party who moves for a directed verdict and, upon the
overruling of such motion, proceeds with trial and introduces evidence waives any error in the
ruling on the motion for a directed verdict. See Bridwell v. Walton, 27 Neb. Ct. App. 1, 925 N.W.2d
94 (2019). Because the Gabel 5 proceeded to adduce further evidence after the district court
overruled their motion, they have waived any error as to that motion. However, the Gabel 5
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renewed their motion for directed verdict at the close of all the evidence, which motion was again
overruled by the district court. A directed verdict is proper at the close of all the evidence only
when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is,
when an issue should be decided as a matter of law. Denali Real Estate v. Denali Custom Builders,
302 Neb. 984, 926 N.W.2d 610 (2019). We proceed to consider the Gabel 5’s arguments as applied
to the district court’s overruling of their motion for a directed verdict at the close of all the
evidence.
(i) Testamentary Capacity
The Gabel 5 first claim that the district court erred in overruling their motion for directed
verdict at the close of all the evidence because James presented insufficient evidence that Charles
lacked testamentary capacity to execute his 2014 will.
Prima facie proof of a testator’s testamentary capacity is established by the introduction of
a self-proved will. In re Estate of Stephens, 9 Neb. Ct. App. 68, 608 N.W.2d 201 (2000). Such prima
facie proof is rebuttable with competent evidence to the contrary. Id.
The evidence is undisputed that Charles’ 2014 will was self-proving; thus, the burden
shifted to James to establish that Charles lacked testamentary capacity at the time he signed the
will. Pursuant to Nebraska law:
One possesses testamentary capacity if he or she understands the nature of his or
her act in making a will, knows the extent and character of his or her property, knows and
understands the proposed disposition of his or her property, and knows the natural objects
of his or her bounty. . . . Such capacity is tested by the state of a testator’s mind at the time
the will is executed.
In re Estate of Ellis, 9 Neb. Ct. App. 598, 602, 616 N.W.2d 59, 64-65 (2000) (citations omitted).
Here, James adduced evidence from Drs. Sidak, Callahan, and Hoffnung regarding
Charles’ testamentary capacity. Dr. Sidak diagnosed Charles with moderately severe Alzheimer’s
on August 13, 2012. Dr. Callahan performed a neuropsychological assessment on Charles 7
months before the 2014 will signing and noted that, in many of the tests, Charles’ cognition was
significantly impaired with his performance on some tests falling at less than the first percentile.
Further, Dr. Hoffnung opined that Charles did not have testamentary capacity on December 3,
2014, when he executed his will. Clearly, James adduced sufficient evidence such that a reasonable
mind could conclude that Charles lacked testamentary capacity on December 3, 2014.
Accordingly, the district court did not abuse its discretion in denying the Gabel 5’s motion for
directed verdict at the close of all the evidence.
(ii) Undue Influence
Next, the Gabel 5 claim that the district court should have granted their motion for directed
verdict at the close of all the evidence because James presented no evidence to show that Charles
was unduly influenced when he executed the 2014 will and trust.
To show undue influence, a will contestant must prove the following elements by a
preponderance of the evidence: (1) The testator was subject to undue influence, (2) there
was an opportunity to exercise such influence, (3) there was a disposition to exercise such
influence, and (4) the result was clearly the effect of such influence. Undue influence
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sufficient to defeat a will is manipulation that destroys the testator’s free agency and
substitutes another’s purpose for the testator’s. Because undue influence is often difficult
to prove with direct evidence, it may be reasonably inferred from the facts and
circumstances surrounding the actor: his or her life, character, and mental condition.
In re Estate of Clinger, 292 Neb. 237, 248-49, 872 N.W.2d 37, 48 (2015).
Here, the evidence establishes that for 30 years, Charles and James farmed together,
sharing equipment, starting corporations and building a small farming operation into a large
successful one. In Charles’ 2008 statement of intent, he states that he has elected to treat James
more favorably due to their long history farming together and James’ contributions in helping
Charles amass his estate. This continues through Charles’ September 2012 execution of a new will
and trust. A change in Charles’ attitude toward James does not emerge until mid-2013, after Jolene
took Charles into her home, became Charles’ attorney-in-fact, froze accounts on which James was
a co-account owner, and isolated him from James and Jeri. Dr. Hoffnung testified that Jolene’s
control over Charles’ life and the fact that she was his caregiver, combined with Charles’ memory
problems, left Charles highly susceptible to undue influence. Clearly, James adduced sufficient
evidence such that a reasonable mind could conclude that Charles was unduly influenced when he
executed his will on December 3, 2014. Accordingly, the district court did not abuse its discretion
in denying the Gabel 5’s motion for directed verdict at the close of all the evidence.
(b) Denial of Motion for Judgment Notwithstanding Verdict
The Gabel 5 also contend that the district court erred in denying their motion for judgment
notwithstanding the verdict. Specifically, they argue that James presented no admissible evidence
that Charles did not possess testamentary capacity or that he was unduly influenced when he
executed the 2014 will and trust; that wrongly admitted evidence was considered by the jury
misleading them to such a degree that it resulted in an unjust verdict not supported by admissible
evidence relating to testamentary capacity or undue influence; that the jury was erroneously
allowed to consider evidence of Charles’ condition of mind well after the December 3, 2014; and
they contend that the evidence presented by James was insufficient to establish that Charles was
unduly influenced and, “[a]s a result, reasonable minds could only draw one conclusion, that
Charles possessed testamentary capacity and was not unduly influenced when he executed the
2014 Will and Trust.” Brief for appellants at 41.
On a motion for judgment notwithstanding the verdict, the moving party is deemed to have
admitted as true all the relevant evidence admitted that is favorable to the party against whom the
motion is directed, and, further, the party against whom the motion is directed is entitled to the
benefit of all proper inferences deducible from the relevant evidence. Hemsley v. Langdon, 299
Neb. 464, 909 N.W.2d 59 (2018). To sustain a motion for judgment notwithstanding the verdict,
the court resolves the controversy as a matter of law and may do so only when the facts are such
that reasonable minds can draw but one conclusion. Id.
As set forth previously, the facts in this case are such that the jury could reasonably reach
the conclusion that Charles lacked testamentary capacity at the time that he executed his will in
2014 and that he was subjected to undue influence. As such, the district court did not abuse its
discretion in denying the Gabel 5’s motion for judgment notwithstanding the verdict.
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(c) Denial of Motion for New Trial
The Gabel 5 also contend that the district court erred in denying their motion for new trial.
Specifically, the Gabel 5 contend that “the trial court erred and abused its discretion by admitting
certain exhibits and testimony in evidence. The sheer number of inadmissible exhibits clearly
misled the jury to the extent that its verdict is not supported by the evidence that was properly
admitted.” Brief for appellants at 42. Further, although the Gabel 5 make other arguments in their
brief regarding why their motion for a new trial should have been granted, these reasons were not
raised before the district court. Unless electing to notice plain error, an appellate court does not
consider arguments and theories not presented to the lower court. See Arens v. NEBCO, Inc., 291
Neb. 834, 870 N.W.2d 1 (2015).
A motion for new trial is addressed to the discretion of the trial court, whose decision will
be upheld in the absence of an abuse of that discretion. Robinson v. Dustrol, Inc., 281 Neb. 45,
793 N.W.2d 338 (2011); Farm & Garden Ctr. v. Kennedy, 26 Neb. Ct. App. 576, 921 N.W.2d 615
(2018). A motion for new trial should be granted only where there is error prejudicial to the rights
of the unsuccessful party. Hegarty v. Campbell Soup Co., 214 Neb. 716, 335 N.W.2d 758 (1983);
Farm & Garden Ctr. v. Kennedy, supra.
Earlier in this opinion, we addressed the Gabel 5’s arguments regarding the admissibility
of exhibits and found all of their claims to be without merit. We found that the exhibits were
properly admitted, were properly considered by the jury, and the jury’s verdict is supported by the
evidence as properly admitted. Accordingly, this assignment of error fails.
3. AWARD OF COSTS
The Gabel 5’s final assignment of error is that the district court erred in awarding costs in
favor of James. Specifically, the Gabel 5 contend that the award of $7,515.88 in expert witness
fees and the $490 cost of videotaping an expert witnesses’ deposition was erroneous.
James requested costs pursuant to Neb. Rev. Stat. § 25-1711 (Reissue 2016) which
provides that “the court may award and tax costs, and apportion the same between the parties . . .
as in its discretion it may think right and equitable.” Section 25-1711 generally states when a court
may tax costs but does not specify what costs are taxable. City of Falls City v. Nebraska Mun.
Power Pool, 281 Neb. 230, 795 N.W.2d 256 (2011). The Nebraska Supreme Court” has long held
that costs of litigation and expenses incident to litigation may not be recovered unless provided for
by statute or a uniform course of procedure. Id. Applying this principle, the court has held that
expert witness fees are not taxable court costs. Id. Accordingly, the court abused its discretion in
awarding James $7,515.88 in expert witness fees. Further, the fee for videotaping depositions is
not taxable as costs under § 25-711. Id. Accordingly, we find that the court erred in awarding
$7,515.88 in expert witness fees and the $490 cost of videotaping an expert witnesses’ deposition.
We note that the court’s order excluded a payment to CIOX Health and erroneously noted that the
amount was $354 instead of the correct amount of $354.66. After making this correction in our
calculations, we modify the court’s award of fees to award James $1,113.15 in costs which reflects
an award of $393 payable to Matheson-Taulborg Reporting; $711.15 payable to Thibault, Suhr &
Thibault; $3 payable to the Polk County Court; and $6 payable to the Clerk of the Cass County
District Court. As ordered by the district court, the liability for these costs shall by equally
apportioned among Jane, Jack, Judy, Joyce and Jolene.
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VI. CONCLUSION
In sum, we affirm the jury’s verdict determining that Charles lacked testamentary capacity
to sign his will and trust dated December 3, 2014, and that Charles had been unduly influenced to
sign the documents. However, we modify the district court’s award of costs to James decreasing
the award from $9,119.69 to $1,113.15.
AFFIRMED AS MODIFIED.
BISHOP, Judge, participating on briefs.
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