In re Trust of Giventer

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE TRUST OF GIVENTER
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 TRUST OF PEARL R. GIVENTER, DECEASED.
EDWARD F. FOGARTY, APPELLANT,
V.
WELLS FARGO BANK, N.A., TRUSTEE, AND MARLYS LEBOWITZ,
PERSONAL REPRESENTATIVE, APPELLEES.
Filed March 28, 2023. No. A-22-433.
Appeal from the County Court for Douglas County: CRAIG Q. MCDERMOTT, Judge.
Affirmed.
Edward F. Fogarty, pro se.
Scott D. Jochim and Josiah J. Shanks, of Croker Huck Law Firm, for appellee Wells Fargo
Bank, N.A.
Diana J. Vogt and James L. Schneider, of Sherrets, Bruno & Vogt, L.L.C., for appellee
Marlys Lebowitz.
MOORE and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
This appeal involves ongoing litigation regarding the trust of Pearl R. Giventer, who passed
away in 2013. Edward F. Fogarty appeals the Douglas County Court’s December 2021 order
dismissing his complaint for pre-death attorney fees and costs due to lack of standing and the
court’s May 2022 order denying his motion to alter or amend and/or grant a new trial. For the
reasons set forth herein, we affirm.
-1-
STATEMENT OF FACTS
FACTS RELATED TO PREVIOUS LITIGATION
In 1996, Pearl established a revocable trust which was amended in 2005 and 2008. An
April 2010 settlement agreement provided, inter alia, that Pearl would not take any action to
amend, alter, or change the dispositive provisions of her trust and the settlement agreement without
the prior written consent of both the successor trustee and a third-party unrelated to Pearl selected
by agreement of the successor trustee and Pearl’s two children.
In July 2010, a guardian and conservator were appointed for Pearl based upon
documentation showing that Pearl had Alzheimer’s disease and dementia and exhibited signs of
cognitive decline and impairment.
In January 2011, while under guardianship, Pearl executed a client noncontingent fee
agreement with Fogarty. In June, the Douglas County Court found that Fogarty’s authority to act
as an attorney for Pearl was limited to “the sole purpose of challenging the guardianship, the terms
of the guardianship, or the actions of the guardian on behalf of the ward.” On Pearl’s behalf,
Fogarty challenged the county court’s ruling limiting the scope of representation. While the
guardianship and conservatorship were in place and pending appeal, Fogarty prepared a will
ostensibly at Pearl’s request which Pearl signed in September 2012. In 2013, this court affirmed
this limitation of Fogarty’s representation of Pearl. See In re Guardianship of Giventer, No.
A-11-806 and A-11-974, 2013 WL 2106656 (Neb. App. Apr. 9, 2013) (selected for posting to
court website).
Pearl passed away in May 2013. Following her death, a proceeding was commenced to
administer the Trust created by Pearl Giventer (PR 10-683) (herein Trust Proceedings) and to
probate Pearl’s will (PR 13-664) (herein Probate Proceedings). In June 2013, Fogarty filed an
application in the Trust Proceedings for the payment of $138,096.47 in fees and costs for services
incurred during Pearl’s lifetime. This application included itemized statements of fees incurred
prior to Pearl’s death. In 2015, within the Trust Proceedings, the county court found that the 2012
Will drafted by Fogarty was “of no force and effect” which determination was affirmed by this
court. See In re Matter of the Trust of Giventer, A-15-825 (November 4, 2016) (memorandum
opinion – not selected for posting to court website).
Fogarty continued to file motions in the county court in the Trust Proceedings and Probate
Proceedings relating to these fees including, but not limited to, a 2016 claim filed in the
conservatorship, trust, and probate proceedings on “Informational and Supplemental Cumulative
Interim Claim of Edward F. Fogarty, Creditor” for fees and costs incurred prior to Pearl’s death
and a March 2018 statement of claim in which he claimed pre-death attorney fees and expenses
related to the trust.
On June 26, 2018, within the Trust Proceedings, the Douglas County Court dismissed all
of Fogarty’s claims for fees and expenses in the Trust Proceedings explicitly finding that the
“Liens, Claims, Petitions and/or Motions of Edward Fogarty and J. Bruce Tiechman filed in this
Trust matter are hereby dismissed as Mr. Fogarty and Mr. Tiechman do not have standing in the
Trust matter.” Neither Fogarty nor Tiechman appealed from this order.
-2-
PROBATE PROCEEDING
Regarding Fogarty’s “Informational and Supplemental Cumulative Interim Claim” filed in
the probate proceeding, to the extent that the filing was a claim or notice of claim in the probate
proceedings, the special administrator disallowed the filing noting that Fogarty had not previously
claimed fees in the probate proceeding. The county court held that Fogarty’s claim for pre-death
fees in the probate proceedings were filed outside the 3-year statute of limitations and this
determination was affirmed by the Nebraska Supreme Court in In re Estate of Giventer, 310 Neb.
39, 964 N.W.2d 234 (2021). The Nebraska Supreme Court further noted:
But the liability of Pearl’s trust is not an issue before us. As we have already noted, this
appeal arises from the probate proceedings involving Pearl’s estate, not the trust
proceedings. In the context of the probate proceedings, the county court did not have
jurisdiction to rule on whether Fogarty could receive predeath fees and expenses from the
trust, and consequently, neither do we.
Id., 310 Neb. at 56, 964 N.W.2d at 246.
CURRENT LITIGATION
Following the release of the Nebraska Supreme Court’s opinion in In re Estate of Giventer,
id., Fogarty once again filed a complaint in the Trust Proceedings seeking $138,096.47 in attorney
fees for legal services and associated costs provided to Pearl prior to her death. Lebowitz, as
personal representative of Pearl’s estate, and Wells Fargo, the trustee bank, filed motions to strike
Fogarty’s complaint. The motions to strike filed by Lebowitz and Wells Fargo asserted that the
Douglas County Court’s June 26, 2018, order previously held that Fogarty had no standing in the
trust matter.
In December 2021, the Douglas County Court granted Lebowitz’ and Wells Fargo’s
motions to strike Fogarty’s complaint without making specific findings related to those motions.
Fogarty timely filed a motion to alter or amend the court’s order regarding pre-death fees and/or
grant of a new trial. Following a hearing thereon, in May 2022, the county court denied Fogarty’s
motion noting, inter alia, that Fogarty’s complaint failed to state a claim upon which relief could
be granted. Specifically, the court found
that Fogarty briefly argued or stated at [the] hearing on December 14, 2021, that the proper
attack should be presented as a failure to state a claim upon which relief can be granted,
and counsel for Movant basically argued that Fogarty did not have a claim upon which
relief could be granted and further that there was a lack of standing; thus, even if the court
treats the Motion to Strike as a motion that a proper claim was not stated upon which relief
can be granted, this court would grant the same as a claim was not stated upon which relief
can be granted; the underlying claims of Fogarty . . . for pre-death fees were denied by the
court under the estate proceeding as not being timely filed within three (3) years and the
same was affirmed by the Nebraska Supreme Court (No. S-20-111 and 310 Neb. 39(2021)); thus, the time-barred claim cannot be pursued; there was not a showing that a
personal representative received a written demand and a proceeding against the estate was
not commenced within one (1) year after the death of decedent (see § 30-3850(3)); the
application for claim of $138,096.47 pre-death fees by Fogarty . . . was filed on June 12,
-3-
2013, in the trust case itself, after the death of settlor, Pearl Giventer, which occurred on
May 10, 2013; further, . . . Fogarty . . . [cannot] proceed directly against the Trust as [he]
did not perform services in relation to the Trust itself and did not file [his] claim during the
lifetime of the settlor, Pearl Giventer . . .
This appeal followed.
ASSIGNMENTS OF ERROR
Fogarty’s assignments of error, restated, are that the county court erred in (1) failing to
award reasonable pre-death fees and expenses and other equitable relief; (2) failing to order “a
process at least approximating a summary judgment or judgment on the pleadings or one along the
‘consolidate and due process’ model”; (3) excluding relevant and necessary evidence; and (4)
failing to find that the appellees were equitably estopped from opposing his pre-death fees and
expenses from Pearl’s trust.
STANDARD OF REVIEW
Whether a party who commences an action has standing, and is therefore the real party in
interest, presents a jurisdictional issue. Alpha Wealth Advisors v. Cook, 313 Neb. 237, 983 N.W.2d
526 (2023). When a jurisdictional question does not involve a factual dispute, determination of the
issue is a matter of law which requires an appellate court to reach a conclusion independent from
the trial court. Id.ANALYSIS
Before addressing Fogarty’s assigned errors, we first address whether Fogarty has standing
in this matter. Before reaching the legal issues presented for review, it is the duty of an appellate
court to determine whether it has jurisdiction over the matter before it, and this is so even where
neither party has raised the issue. In re Interest of K.C., 313 Neb. 385, 984 N.W.3d 277 (2023).
Standing refers to whether a party had, at the commencement of the litigation, a personal
stake in the outcome of the litigation that would warrant a court’s exercise of its subject matter
jurisdiction and remedial powers on that party’s behalf. Alpha Wealth Advisors v. Cook, supra. A
party must have standing before a court can exercise jurisdiction, and either a party or the court
can raise a question of standing at any time during the proceeding. Id.Here, in the county court’s June 26, 2018, order, the court held that the “Liens, Claims,
Petitions and/or Motions . . . filed in this Trust matter are hereby dismissed” because of Fogarty’s
lack of standing in the Trust Proceedings. This finding encompassed Fogarty’s multiple claims for
pre-death attorney fees and costs filed in the Trust Proceedings which he now attempts to relitigate
in connection with the current filing made in the same case in which the June 26 order was issued.
The question becomes whether Fogarty can relitigate the 2018 finding by the county court that he
lacks standing to assert his claim for pre-death fees in the Trust Proceedings within the present
claim.
Under Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2022), the four types of final orders which
may be reviewed on appeal are (1) an order affecting a substantial right in an action, when such
order in effect determines the action and prevents a judgment; (2) an order affecting a substantial
-4-
right made during a special proceeding; (3) an order affecting a substantial right made on summary
application in an action after a judgment is entered; and (4) an order denying a motion for summary
judgment when such motion is based on the assertion of sovereign immunity or the immunity of a
government official. In re Interest of K.C., supra.Neb. Rev. Stat. § 25-1902(1)(b) (Cum. Supp. 2022) defines a final order as “[a]n order
affecting a substantial right made during a special proceeding.” A proceeding under the Nebraska
Probate Code is a special proceeding. In re Estate of Anderson, 311 Neb. 758, 974 N.W.2d 847(2022). The question becomes whether the county court’s 2018 order in the Trust Proceeding
determining that Fogarty lacked standing to assert a claim for fees affected a substantial right. We
hold that it does.
In In re Guardianship & Conservatorship of Larson, 270 Neb. 837, 708 N.W.2d 262(2006), the Nebraska Supreme Court examined whether the county court’s order dismissing an
attorney-in-fact for lack of standing in a guardianship and conservatorship proceedings was a final
order for the purposes of appeal. After reciting final order jurisprudence governing special
proceedings, in determining whether the dismissal order affected a substantial right, the Court held
that “[A] peremptory denial of permission to file a claim is a final, appealable order.” Id., 270 Neb.
at 850, 708 N.W.2d at 273. See, also, In re Estate of Emery, 258 Neb. 789, 606 N.W.2d 750 (2000).
The county court’s June 26, 2018, order denied Fogarty permission to file a claim for fees
and costs in the Trust Proceeding for lack of standing. That order affected a substantial right in a
special proceeding. Fogarty did not appeal from the county court’s order.
The Nebraska Supreme Court has noted:
Res judicata, the law of the case, and stare decisis are members of the same family
and have in view the final termination of controverted questions of fact and of law. Where
a final judgment has been entered on a proved or admitted state of facts, it is conclusive on
the parties and their privies, and where this court has declared that a given rule is applicable
to a question before it, and the case is brought here a second time, the rule thus announced
becomes the law of the case and will not be changed, unless the testimony on the second
trial materially differs from that on the first, or there is some other strong reason for
adopting a different rule.
Scott v. Scotts Bluff County, 106 Neb. 355, 183 N.W. 573, 574 (1921).
Under the law-of-the-case doctrine, a well-recognized waiver rule has emerged: A decision
made at a previous stage of litigation, which could have been challenged in the ensuing appeal but
was not, becomes the law of the case; the parties are deemed to have waived the right to challenge
that decision. Pinnacle Enters. v. City of Papillion, 302 Neb. 297, 923 N.W.2d 372 (2019). Accord
Becher v. Becher, 311 Neb. 1, 970 N.W.2d 472 (2022). The law-of-the-case doctrine reflects the
principle that an issue that has been litigated and decided in one stage of a case should not be
relitigated at a later stage. Spratt v. Crete Carrier Corp., 311 Neb. 262, 971 N.W.2d 335 (2022).
The law-of-the-case doctrine promotes judicial efficiency and protects parties’ settled expectations
by preventing parties from relitigating settled issues within a single action. Id.Fogarty’s failure to appeal the county court’s 2018 order finding that he lacked standing in
the Trust Proceedings waived any objections to the court’s determination on this issue and prevents
him from subsequently litigating it. Accordingly, the county court properly dismissed Fogarty’s
-5-
claim for pre-death fees and costs against the Trust based upon the court’s 2018 determination that
Fogarty lacked standing in the Trust matter.
Having determined that Fogarty’s current claim for pre-death attorney fees and costs are
barred by the law-of-the-case doctrine based upon the county court’s 2018 order determining that
Fogarty lacked standing in the trust case, we need not consider Fogarty’s remaining assignments
of error. See Schaeffer v. Frakes, 313 Neb. 337, 984 N.W.2d 290 (2023) (appellate court not
obligated to engage in analysis that is not necessary to adjudicate case and controversy before it).
CONCLUSION
Having determined that the Douglas County Court previously determined in its June 26,
2018, order finding that Fogarty’s “Liens, Claims, Petitions and/or Motions . . . filed in this Trust
matter are hereby dismissed” because Fogarty lacked standing, was a final order which was not
appealed, the law-of-the case doctrine precludes this subsequent relitigation of the issue of
pre-death attorney fees and costs. Accordingly, we affirm the order of the county court.
AFFIRMED.
RIEDMANN, Judge, participating on briefs.
-6-