In re Estate of Schurman

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www.nebraska.gov/apps-courts-epub/
10/26/2021 01:07 AM CDT
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Nebraska Court of Appeals Advance Sheets
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IN RE ESTATE OF SCHURMAN
Cite as 30 Neb. App. 259In re Estate of Victor Schurman, deceased.
Michael D. Schurman, appellant, v. Thomas
G. Lieske, Successor Personal Representative
and Special Administrator of the Estate of
Victor Schurman, appellee, and Patricia L.
Harris and Jeffrey R. Harris, Successor
Cotrustees of the Christine J.
Schurman Revocable Trust,
intervenors-appellees.
___ N.W.2d ___
Filed October 19, 2021. No. A-20-750.
1. Actions: Parties: Standing: Judgments: Jurisdiction: Appeal and
Error. Whether a party who commences an action has standing and is
therefore the real party in interest presents a jurisdictional issue. A juris-
dictional issue that does not involve a factual dispute presents a question
of law, which the appellate courts independently decide.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction to decide them.
3. ____: ____. When a lower court lacks the power, that is, the subject
matter jurisdiction, to adjudicate the merits of a claim, issue, or ques-
tion, an appellate court also lacks the power to determine the merits of
the claim, issue, or question presented to the lower court.
4. Standing: Words and Phrases. Standing is the legal or equitable right,
title, or interest in the subject matter of the controversy which entitles a
party to invoke the jurisdiction of the court.
5. Standing: Jurisdiction: Parties. Standing is a jurisdictional component
of a party’s case, because only a party who has standing may invoke the
jurisdiction of a court.
6. Standing: Claims: Parties. The purpose of an inquiry as to standing is
to determine whether one has a legally protectable interest or right in
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IN RE ESTATE OF SCHURMAN
Cite as 30 Neb. App. 259the controversy that would benefit by the relief to be granted. In order
to have standing, a litigant must assert the litigant’s own legal rights and
interests and cannot rest his or her claim on the legal rights or interests
of third parties.
7. Decedents’ Estates. The general rule is that any person beneficially
interested in the estate embraced in an administration account may file
objections to the terms or matters contained in the account.
8. Decedents’ Estates: Executors and Administrators. It is the duty of a
personal representative to take possession of a decedent’s property and
to settle and distribute the estate.
9. Decedents’ Estates: Executors and Administrators: Actions:
Standing. The right and duty to sue and recover assets for an estate reside
in the estate’s appointed personal representative, not in the devisees.
10. Decedents’ Estates: Wills: Actions: Parties: Standing. Actions in the
county court for probate of a will are in rem, and every person interested
in the subject matter is a party in the county court, whether named or
not. Such person may appear for the purpose of protecting his or her
interest in the county court.
Appeal from the County Court for Adams County: Michael
P. Burns, Judge. Affirmed in part, and in part vacated.
Bradley D. Holbrook and Elizabeth J. Klingelhoefer, of
Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for
appellant.
Richard Calkins and Patrick J. Calkins, of Calkins Law
Office, for appellee.
Kevin A. Brostrom, of Lauritsen, Brownell & Brostrom,
P.C., L.L.O., for intervenors-appellees.
Riedmann and Arterburn, Judges.
Riedmann, Judge.
INTRODUCTION
Michael D. Schurman appeals the decision of the county
court for Adams County, ordering him to return $160,000 to
his father’s estate. Finding that the intervenors who requested
the relief were without standing to do so, we vacate the
county court’s order on this issue. Other portions of the county
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IN RE ESTATE OF SCHURMAN
Cite as 30 Neb. App. 259court’s order are vacated for jurisdictional reasons, as set forth
below. The order is otherwise affirmed.
BACKGROUND
Victor Schurman died on April 23, 2012, and was survived
by two biological children, Michael and James V. Schurman.
Their mother, who was Victor’s first wife, predeceased him.
Victor’s second wife, Christine Schurman, survived him and
had four children, two of which are involved in this action as
intervenors, Patricia L. Harris and Jeffrey R. Harris (the inter-
venors). On May 1, Christine filed an application for informal
probate of will and informal appointment of personal repre-
sentative, asking the court to conduct an informal probate of
Victor’s will, dated July 5, 2011.
The will instructs that after paying funeral and estate admin-
istration costs, four of Victor’s grandchildren should receive
specific amounts of cash. The remainder of the cash assets was
granted to Michael and James in equal shares. Christine was
granted a vehicle and agricultural real estate, and one of the
grandsons was granted mineral interests. The remainder of the
estate, not specifically bequeathed, was granted to Michael.
The will designated a personal representative; however, in
August 2012, he filed a petition for leave to withdraw and
for the appointment of a successor personal representative. In
October, a successor personal representative was appointed.
Michael and Victor had entered into a farm lease in February
2012 by which they leased out six parcels of land (the Six
Parcels) for an annual fee of $114,000. On March 1, Michael
received the first installment payment on the lease of $57,000.
However, according to Michael, the second installment of
$57,000 on September 1 was paid to Victor’s estate to cover
Victor’s funeral costs. In 2013, Michael negotiated a new lease
for the Six Parcels for an annual fee of $120,000, all of which
Michael received. The lease renewed for 2014 and 2015. The
estate never demanded that Michael remit the rental payments
from the Six Parcels to the estate.
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IN RE ESTATE OF SCHURMAN
Cite as 30 Neb. App. 259This estate has a lengthy history of civil proceedings initiated
by Michael. Shortly after Christine moved for informal probate
of the will, Michael filed a claim of undue influence, which
he dismissed in December 2014 after considerable discovery.
Michael also filed a petition for allowance of claim in August
2012, claiming that he had a life estate in some of Victor’s
property and thereby was the rightful recipient of rental income
from the property. Michael requested that the probate court
allow him to recoup $612,000 from the estate, but the personal
representative denied the claim. Following discovery and the
retention of expert witnesses, Michael dismissed that peti-
tion in April 2014. In addition to the undue influence lawsuit,
Michael filed two other actions in the district court for Adams
County, one involving a certificate of deposit owned by Victor
and the other involving a promissory note allegedly owed to
Victor. The district court dismissed Michael’s complaint in
the case involving the certificate of deposit following trial and
entered summary judgment against Michael in the promissory
note case.
In August 2013, Michael filed a motion to remove the suc-
cessor personal representative, claiming that he failed to (1)
file a statutorily required inventory, (2) diligently investigate
the assets and liabilities of the estate, and (3) fulfill his duties
as personal representative in a timely and proper manner.
On May 18, 2015, the successor personal representative
deeded two parcels of land to Christine as bequeathed by the
will. Also on May 18, he deeded an undivided one-half interest
in the Six Parcels to Michael, pursuant to the will’s residual
clause. From the time of Victor’s death until the distribution
of these parcels of land, the successor personal representative
retained all of the income from Christine’s parcels of land to
pay estate expenses. The successor personal representative
testified that the income from the Six Parcels went directly to
Michael and that he never asked Michael to remit that income
to the estate.
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IN RE ESTATE OF SCHURMAN
Cite as 30 Neb. App. 259In July 2015, Michael filed an amended motion to remove
the successor personal representative, adding to the original
allegations that he failed to file an inheritance tax return and
failed to file legal actions to recover assets owed to the estate,
among others.
On March 6, 2018, the successor personal representative
filed a confession of judgment to be removed as the succes-
sor personal representative. The parties filed a joint stipulation
assenting to the confession of judgment and to remove him as
the successor personal representative. The court approved the
joint stipulation; however, the successor personal representa-
tive remained the special administrator of the estate for limited
purposes, including signing and filing tax returns, receiving
rents, and paying expenses for the estate’s oil interests. He
filed his last accounting of Victor’s estate on May 7.
In September 2018, Michael filed an application for appoint-
ment of a special administrator, nominating himself, for the
purpose of making a claim on behalf of the estate against the
estate of Christine, who had since passed away. The interve-
nors objected. The court denied Michael’s application.
The intervenors filed a complaint to intervene in January
2019. They claimed that after Christine’s death in August
2018, they became the successor cotrustees of the “Christine
J. Schurman Revocable Trust” (Trust) pursuant to the Trust’s
terms. They also claimed that as a result of Michael’s actions,
the Trust incurred expenses and/or was denied assets from
Victor’s estate, and that they should be allowed to inter-
vene to protect the interests of Christine, her Trust, and its
beneficiaries.
Our record does not include an order allowing the interve-
nors to intervene, but they filed a motion of intervenors in May
2019. In their motion, they set forth three “claims.” First, they
alleged that Christine and her Trust incurred unnecessary attor-
ney fees and costs defending against various claims Michael
filed in both the probate court and the district court, and
they sought reimbursement from Michael. Next, they asserted
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IN RE ESTATE OF SCHURMAN
Cite as 30 Neb. App. 259that Victor’s estate incurred fees and costs for the successor
personal representative and his two attorneys resulting from
Michael’s “frivolous claims” and requested that these amounts
be assessed against Michael. Finally, they claimed that farm
income to which Christine was entitled was used to pay estate
expenses, whereas Michael retained all of the rental income
from the Six Parcels. They requested that Christine be reim-
bursed for excess contributions and that Michael be ordered
to remit to the estate the income he received. They further
requested that the court complete a full accounting.
A hearing was scheduled on the intervenors’ motion. After
the intervenors presented their evidence, Michael’s counsel
moved for a directed verdict, raising the issue of standing.
He stated:
I’m still unsure as to how an interested party makes a
claim against another interested party, which is basically
what they’re trying to do, and/or trying to ask for an asset
to be put back into the estate. That’s what a [personal rep-
resentative] does. And the intervenors are not the personal
representative. So, I’m uncertain of the fact that they have
any authority whatsoever, but even if they did, they’ve
absolutely proven nothing today.
The court denied Michael’s motion. In a subsequent writ-
ten order, the probate court found that Michael had retained
$160,000 of assets from the estate between rent proceeds and
government payments and ordered Michael to turn over to the
special administrator that $160,000 within 30 days of its order.
Regarding the intervenors’ claim for attorney fees incurred in
the district court proceedings, the court found that the evidence
presented did not warrant reimbursement of such fees. As to
fees incurred in the probate proceeding, the court found that
the “extensive investigation and discovery” was “instigated
and perpetuated by Michael and for the primary (if not the
exclusive) purpose of pursuing Michael’s personal interests
in this estate”; however, it declined to award attorney fees.
The court did not perform an accounting and initially held in
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IN RE ESTATE OF SCHURMAN
Cite as 30 Neb. App. 259abeyance the intervenors’ claim for reimbursement of estate
expenses, but subsequently denied that request without preju-
dice to refiling at a later date. Michael appeals.
ASSIGNMENTS OF ERROR
Michael assigns that the probate court’s orders should be (1)
vacated because the intervenors lack standing to seek redress
as set forth in their motion of intervenors; (2) reversed because
even if the personal representative had brought an action to
recover rental income from Michael, the personal representa-
tive never demanded that Michael return rental income and
issued a deed of distribution to Michael; and (3) remanded
because if Michael is required to return rental income, the most
he should be ordered to return is $53,525.50.
STANDARD OF REVIEW
[1] Whether a party who commences an action has stand-
ing and is therefore the real party in interest presents a juris-
dictional issue. A jurisdictional issue that does not involve a
factual dispute presents a question of law, which the appellate
courts independently decide. In re Estate of Hedke, 278 Neb.
727, 775 N.W.2d 13 (2009).
ANALYSIS
Subject Matter Jurisdiction.
[2,3] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction to decide them. See In re Interest of Paxton H., 300
Neb. 446, 915 N.W.2d 45 (2018). When a lower court lacks the
power, that is, the subject matter jurisdiction, to adjudicate the
merits of a claim, issue, or question, an appellate court also
lacks the power to determine the merits of the claim, issue, or
question presented to the lower court. In re Trust Created by
Augustin, 27 Neb. App. 593, 935 N.W.2d 493 (2019).
As part of their first claim, the intervenors sought an order
requiring Michael to reimburse Christine and/or her Trust for
attorney fees she incurred while defending against the three
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IN RE ESTATE OF SCHURMAN
Cite as 30 Neb. App. 259district court actions. We determine that the probate court
lacked subject matter jurisdiction to address this issue. Neb.
Rev. Stat. § 30-2211 (Reissue 2016) grants subject matter juris-
diction to the probate court over all matters relating to estates
of decedents, including construction of wills and determination
of heirs and successors of decedents. Here, the attorney fees
incurred were those of an heir or a devisee, and the interve-
nors were seeking reimbursement not from the estate, but from
another heir or devisee. Moreover, the fees were incurred in
the district court, not the probate court. Therefore, we con-
clude that the probate court lacked subject matter jurisdiction
to address this issue. Accordingly, its order denying the fees
incurred in the district court is void and must be vacated.
Standing of Intervenors.
Michael assigns that the probate court’s orders should be
vacated because the intervenors lack standing to seek redress
as set forth in their motion. However, his argument is limited
to the intervenors’ standing to recover money from property
of the estate. Although an appellate court generally requires
that arguments be both assigned and argued in order to be
addressed on appeal, we briefly address the intervenors’ stand-
ing over all relief requested, because standing is jurisdictional.
See Sarpy Cty. Bd. of Comrs. v. Sarpy Cty. Land Reutil., 9 Neb.
App. 552, 615 N.W.2d 490 (2000).
[4,5] Standing is the legal or equitable right, title, or interest
in the subject matter of the controversy which entitles a party
to invoke the jurisdiction of the court. Nielsen v. Nielsen, 13
Neb. App. 738, 700 N.W.2d 675 (2005). Standing relates to a
court’s power, that is, jurisdiction, to address the issues pre-
sented and serves to identify those disputes which are appro-
priately resolved through the judicial process. Id. Standing is a
jurisdictional component of a party’s case, because only a party
who has standing may invoke the jurisdiction of a court. Id.[6] The purpose of an inquiry as to standing is to determine
whether one has a legally protectable interest or right in the
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IN RE ESTATE OF SCHURMAN
Cite as 30 Neb. App. 259controversy that would benefit by the relief to be granted. Id.In order to have standing, a litigant must assert the litigant’s
own legal rights and interests and cannot rest his or her claim
on the legal rights or interests of third parties. Id. The litigant
must have some legal or equitable right, title, or interest in the
subject of the controversy. Id.The duties and responsibilities of a personal representative
are outlined in Neb. Rev. Stat. § 30-2464 (Reissue 2016). The
basic responsibility of a personal representative is “to settle
and distribute the estate of the decedent in accordance with
the terms of any probated and effective will and this code,
as expeditiously and efficiently as is consistent with the best
interests of the estate.” § 30-2464(a). Additionally, the personal
representative shall “take all steps reasonably necessary for the
management, protection and preservation of, the estate in his
possession. He may maintain an action to recover possession
of property or to determine the title thereto.” Neb. Rev. Stat.
§ 30-2470 (Reissue 2016). To acquire the powers and under-
take the duties and liabilities of a personal representative, a
person must be appointed by the court and be issued letters.
Neb. Rev. Stat. § 30-2403 (Reissue 2016).
With these principles in mind, we turn to the intervenors’
claims. In their first claim, the intervenors sought recovery
from Michael for the attorney fees and costs incurred by
Christine and her Trust in defending against various claims
both in the probate court and in the district court. As stated
above, the probate court lacked subject matter jurisdiction
to address the claim for attorney fees incurred in the district
court. As to attorney fees incurred in the probate court, we
determine that the intervenors had standing to request that
the fees incurred by Christine and/or her Trust be directly
reimbursed by Michael. This was not a claim involving estate
assets, which only a personal representative can make; rather,
it was a request that the court assess costs against Michael for
fees paid directly by Christine or her Trust in defending against
Michael’s claims. And because these fees were incurred in
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Cite as 30 Neb. App. 259the county court, we find that it had subject matter jurisdic-
tion over the claim. The county court denied the intervenors’
request for attorney fees, and the intervenors do not cross-
appeal that decision. We therefore affirm the county court’s
denial of these fees.
[7] The intervenors assert in their second claim that Michael
should be held liable for the charges against the estate made
by the successor personal representative and his two attorneys.
In the accounting filed by the successor personal representa-
tive in May 2018, he listed outstanding fees and expenses he
incurred while administering the estate, as well as outstanding
fees for two attorneys who assisted him. The probate court
denied the intervenors’ claim without prejudice to refiling after
submission of a final accounting. We interpret the intervenors’
claim as an objection to the use of estate assets to satisfy these
claims. The general rule is that any person beneficially inter-
ested in the estate embraced in an administration account may
file objections to the terms or matters contained in the account.
See In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714(2018). Therefore, the intervenors would have standing to
object to a final accounting that proposed payment of these
fees from the estate. Although the intervenors did not file an
objection to the May 2018 accounting, but instead sought to
hold Michael liable for these costs through their motion, we
see no practical difference that would affect their standing.
Therefore, the intervenors had standing to bring this claim.
Because the probate court denied it without prejudice to refil-
ing after submission of a final accounting, we do not address
the merits of the claim.
[8,9] The essence of the intervenors’ third claim is that
Christine’s income from estate assets was used to pay estate
expenses, whereas Michael was allowed to retain his income
from estate assets; therefore, Christine should be reimbursed
for excess contributions and Michael should be required to
contribute to the expense. However, it is the duty of a personal
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IN RE ESTATE OF SCHURMAN
Cite as 30 Neb. App. 259representative to take possession of a decedent’s property
and to settle and distribute the estate. See §§ 30-2464 and
30-2470. See, also, Neb. Rev. Stat. § 30-2476 (Reissue 2016).
Under the Nebraska Probate Code, the right and duty to sue
and recover assets for an estate reside in the estate’s appointed
personal representative, not in the devisees. Malousek v. Meyer,
309 Neb. 803, 962 N.W.2d 676 (2021); In re Estate of Hedke,
278 Neb. 727, 775 N.W.2d 13 (2009).
Accordingly, we find no authority that allows an heir or devi-
see to maintain an action against another heir or devisee to col-
lect estate assets or assess estate expenses. But see In re Estate
of Hedke, supra (acknowledging exception for direct action
where personal representative refuses to act). Consequently,
although the intervenors would benefit from the recovery they
seek, because they are not personal representatives of Victor’s
estate, they lack standing to pursue these claims.
In In re Estate of Hedke, supra, the Nebraska Supreme
Court acknowledged that an heir can maintain an action to
enforce an obligation owed to the estate when the personal
representative refuses to act. However, because there was no
personal representative in that case, there was no refusal to act;
therefore, the heir lacked standing to maintain the action. The
court explained that where there is no personal representative,
a special administrator may be appointed. Id.Here, as in In re Estate of Hedke, supra, no personal rep-
resentative was appointed after the successor personal repre­
sentative was removed. The special administrator who had
been appointed had limited authority; however, the stipula-
tion entered between Michael and Christine provided that any
interested party could request that a new successor personal
representative be appointed. No such request was made by the
intervenors.
The county court based its authority to order Michael to
return $160,000 to the estate on Hahn v. Verret, 143 Neb.
820, 11 N.W.2d 551 (1943); In re Estate of Jurgensmeier,
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Cite as 30 Neb. App. 259142 Neb. 188, 5 N.W.2d 233 (1942); and Neb. Rev. Stat.
§ 30-24,107 (Reissue 2016). We find reliance upon these
authorities to be misplaced.
In Hahn v. Verret, supra, it was the executor that sought
to acquire or reacquire estate assets to pay debts, costs, and
expenses in the administration of the estate. Here, the execu-
tor is not the party taking steps to acquire or reacquire assets.
Rather, the intervenors are the parties taking action. However,
the authority to recover property from an heir lies with the per-
sonal representative. See, e.g., Mischke v. Mischke, 253 Neb.
439, 571 N.W.2d 248 (1997). Therefore, using Hahn as guiding
case law is erroneous.
In In re Estate of Jurgensmeier, supra, the personal repre-
sentative filed a final accounting and petition for final settle-
ment. Two of the devisees filed objections based on alleged
wrongdoing by the personal representative. In re Estate of
Jurgensmeier does not involve, nor does it support, a direct
action against a distributee by another heir, as is the situation
between the intervenors and Michael.
Nor does § 30-24,107 authorize such an action. Section
30-24,107 governs recoupment of an improper distribution and
states in part, “Unless the distribution or payment no longer
can be questioned because of adjudication, estoppel, or limita-
tion, a distributee of property improperly distributed or paid,
or a claimant who was improperly paid, is liable to return the
property improperly received and its income since distribution
if he has the property.” Nowhere in the statute does it indicate
who can file an action to recoup an improper distribution. See
id. When read in conjunction with § 30-2470, which authorizes
a personal representative to maintain an action to recover pos-
session of property, we read § 30-24,107 to authorize a per-
sonal representative to commence such an action. Accordingly,
§ 30-24,107 does not support the notion that the intervenors
have standing to maintain an action against a distributee to
recoup property that they claim was wrongfully distributed
or retained.
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Cite as 30 Neb. App. 259[10] The only remaining remedy sought by the intervenors
was for an accounting. In its order, the county court expanded
the duties of the special administrator to complete closing
tasks associated with final settlement. We determine that the
intervenors have standing to request an accounting to deter-
mine whether the estate in which they have an interest has
been properly administered. “Actions in the county court for
probate of a will are in rem, and every person interested in the
subject matter is a party in the county court whether named or
not. . . . Such person may appear for the purpose of protecting
his or her interest in the county court.” In re Estate of Emery,
258 Neb. 789, 792, 606 N.W.2d 750, 754 (2000), citing In re
Estate of Reikofski, 144 Neb. 735, 14 N.W.2d 379 (1944). The
intervenors have an interest in the finances of the Trust, as
they are its successor cotrustees and beneficiaries. Therefore,
because the intervenors have an interest in the finances of
the Trust, which stands to benefit from the manner in which
Victor’s estate is administered, they have the right to request
an accounting of Victor’s estate.
To summarize, we find that the county court lacked subject
matter jurisdiction over the intervenors’ claim for attorney
fees incurred in the district court. We also determine that the
intervenors lacked standing over the claim requesting that
Christine be reimbursed for excess contributions to the estate
and Michael be required to contribute to the expense. Because
the intervenors lacked standing to request this relief, the county
court lacked jurisdiction over them. Thus, all orders address-
ing relief based upon these two claims are void and vacated.
Because the county court lacked jurisdiction over them, so, too,
do we. See Paulsen v. Paulsen, 11 Neb. App. 582, 658 N.W.2d
49 (2003).
Remaining Arguments.
Michael’s remaining assigned errors are based upon the
court’s order requiring him to return $160,000 to the estate.
Because we have vacated that order, we need not address
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Cite as 30 Neb. App. 259his remaining assigned errors. See Papillion Rural Fire Prot.
Dist. v. City of Bellevue, 274 Neb. 214, 739 N.W.2d 162 (2007)
(appellate court is not obligated to engage in analysis which is
not needed to adjudicate controversy before it).
CONCLUSION
Based upon the reasons outlined above, the county court’s
order is vacated in part as specifically set forth herein; in all
other respects, it is affirmed.
Affirmed in part, and in part vacated.
Bishop, Judge, participating on briefs.