Armbruster v. Brower (In re Trust Created by Crawford)

• Decision Date: 05 February 2013
• Docket Number: No. A–11–823.,A–11–823.
• Citation: 20 Neb.App. 502,826 N.W.2d 284
• Parties: In re TRUST created BY Henry W. CRAWFORD, Deceased. Allan A. Armbruster, Jr., Successor Personal Representative of the Estate of Esther Zoe Crawford, Deceased, appellant, v. Sam R. Brower, Successor Trustee, et al., appellees.
• Court: Nebraska Court of Appeals

20 Neb.App. 502

826 N.W.2d 284

In re TRUST created BY Henry W. CRAWFORD, Deceased.Allan A. Armbruster, Jr., Successor Personal Representative of the Estate of Esther Zoe Crawford, Deceased, appellant,

v.Sam R. Brower, Successor Trustee, et al., appellees.

No. A–11–823.

Court of Appeals of Nebraska.

Feb. 5, 2013.

Syllabus by the Court

[20 Neb.App. 502]1. Judgments: Final Orders.Neb.Rev.Stat. § 25–1301 (Reissue 2008) sets forth two ministerial requirements for a final judgment. The first is rendition of the judgment, defined as the act of the court, or a judge thereof, in making and signing a written notation of the relief granted or denied in an action. The second ministerial step for a final judgment is that entry of a final order occurs when the clerk of the court places the file stamp and date upon the judgment.

2. Final Orders. Final orders must be signed by the judge as well as file stamped and dated by the clerk.

3. Judgments: Records: Notice: Fees: Appeal and Error. A notice of appeal or docket fee filed or deposited after the announcement of a decision or final order but before the judgment is properly rendered shall be treated as filed or deposited after the entry of the judgment, decree, or final order and on the date of entry.

4. Judges: Recusal: Judgments. Recusal or disqualification of a trial judge generally requires that the judge take no further action in the case, and generally any order entered subsequent to recusal is considered void and without effect.

5. Judges: Recusal: Judgments. Where the trial judge orally announces a ruling, subsequently enters an order of recusal, and thereafter performs the ministerial act of simply entering a written order or judgment reflecting the prior oral ruling, the written order is not void.

6. Trusts: Equity: Appeal and Error. Appeals involving the administration of a trust are equity matters and are reviewable in an appellate court de novo on the record.

7. Decedents' Estates: Appeal and Error. In the absence of an equity question, an appellate court, reviewing probate matters, examines for error appearing on the record made in the county court.

8. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

9. Judgments: Appeal and Error. An appellate court, in reviewing a trial court judgment for errors appearing on the record, will not substitute its factual findings for those of the trial court where competent evidence supports those findings.

10. Judgments: Evidence: Fees: Appeal and Error. Where it is clear from a de novo review of the record that the court did not receive any evidence, and no witnesses were called or testified concerning the request for payment of fees, whether they were reasonable or properly payable, or providing any basis for allowing them, the order is not supported by competent evidence.Allan A. Armbruster, Jr., of Armbruster Law Office, pro se.

Sam R. Brower, of Andersen, Lauritsen & Brower, Omaha, pro se.

Joseph E. Jones and Elizabeth A. Culhane, of Fraser Stryker, P.C., L.L.O., Omaha, for appellee Alta Empkey.

IRWIN, SIEVERS, and PIRTLE, Judges.

IRWIN, Judge.

I. INTRODUCTION

Allan A. Armbruster, Jr., successor personal representative of the estate of Esther Zoe Crawford, appeals an order of the county court for Douglas County, Nebraska, which authorized the payment of accounting fees incurred by the trust established by Henry W. Crawford from funds previously ordered to be returned from the trust to Esther's estate. See In re Estate of Crawford, No. A–09–733, 2010 WL 3137525 (Aug. 3, 2010) (selected for posting to court Web site). Because the county court's order is not supported by competent evidence, we vacate, and remand to the county court with directions to hold an evidentiary hearing. See In re Trust of Rosenberg, 269 Neb. 310, 693 N.W.2d 500 (2005).

II. BACKGROUND

This case is related to In re Estate of Crawford, supra. As we recounted in the factual background of that case, Esther executed a series of wills during the course of her life, including wills executed in 1973, 1977, 1982, 1988, 1990, 1992, 1993, 1997, 1999, and 2001. In December 2001, Esther's husband, Henry, established a trust. In the 2001 will, Esther bequeathed all her assets to Henry, if he survived her, or to the trustee of his trust, if Henry predeceased her.

Henry predeceased Esther. Esther died in November 2003. Pursuant to the terms of the 2001 will, the personal representative of Esther's estate transferred assets of Esther to Henry's trust. In December 2005, however, an objection was filed challenging the validity of the 2001 will. In June 2008, a jury returned a verdict finding that the 2001 will was invalid. In June 2009, the county court entered an order holding that Esther's estate should proceed as an intestate proceeding and directing that any assets previously transferred from Esther's estate to the trust under the invalid 2001 will should be returned as wholly as possible to the estate.

In August 2010, in In re Estate of Crawford, supra, we affirmed the county court's holding that assets previously transferred from Esther's estate to Henry's trust under the invalid 2001 will should be returned as wholly as possible to the estate. No petition for further review was filed.

On October 6, 2010, the trustee of Henry's trust filed an application seeking approval to pay an accounting bill. The application indicated that an accountant had performed “tax services on behalf of the Trust” and had submitted an invoice for $2,800 for his services.

On October 15, 2010, a “Stipulation and Agreement” was filed. The agreement was entered into by interested parties in Esther's estate and Henry's trust. The agreement concerned, among other things, the return of assets previously distributed to the trust from the estate pursuant to Esther's invalid 2001 will and the continued administration of the estate and the trust.

According to the agreement, the trust then held $695,982.68 that had been improperly distributed to the trust from the estate pursuant to Esther's invalid 2001 will. The agreement provided that the trust would immediately return $675,162.99 to the estate, while holding back the remaining $20,819.69. Of the money held back, the parties agreed to authorize the trust to pay attorney fees of $17,719.69 incurred in challenging Esther's 2001 will. The parties agreed that the trust could keep another $300 for potential taxes owed by the trust. The remaining $2,800 held back by the trust is the subject of this appeal.

The agreement includes a provision that the parties labeled “ DISPUTE REGARDING ACCOUNTING FEES.” In that provision, the parties specifically acknowledged that “there is a dispute concerning certain charges for tax services ... in the amount of $2,800.00” and that “[t]he parties disagree[d] regarding whether obligations incurred on behalf of the Trust are payable out of funds that have been ordered returned to Esther's estate and/or whether the amount charged is reasonable for and in consideration of the services performed.” In the same provision, the parties then agreed as follows:

[A]n award of accounting fees by the County Court out of the cash held by the Trustee shall be paid out of the $2,800.00 retained by the Successor Trustee. If the County Court determines that the cash held in the Trust is not available for payment of obligations of the Trust or orders that less than $2,800.00 is reasonable under the circumstances, the amount by which $2,800.00 exceeds the amount determined as payable to [the accountant] by the Successor Trustee shall be paid by the Successor Trustee to [the] Successor Personal Representative.

In the agreement, the parties agreed to release a variety of potential claims, including claims against the prior trustee and personal representative. Pursuant to these releases, the estate agreed as follows:

[To] fully and completely release and discharge, and ... to indemnify and hold harmless the Trust, the Successor Trustee and the Trust Beneficiaries from any and all claims, suits and causes of action of any kind whatsoever (with the exception of those claims, if any, which statutes cannot [sic] be waived), whether in law or in equity, whether known or unknown, contingent or non-contingent, that they (or any other person might assert as a legal heir of Esther ... ) might have had, now may have, or may have in the future against such released parties which have accrued as of the date of execution of this Agreement, or hereafter accruing.... Notwithstanding, [the] Successor Personal Representative, and [the heirs] reserve the Estate's claim for the return to Esther's estate of $2,800.00 less the amount the county court orders to be paid to [the accountant] out of the cash retained by the Successor Trustee....

On October 15, 2010, the county court entered an order approving the parties' agreement.

On November 17, 2010, the county court held a hearing on the application for payment of accounting fees. During that hearing, the successor personal representative specifically indicated to the court there was a question of whether the outstanding accounting bill could be paid with a portion of the money that had been improperly transferred to the trust pursuant to Esther's invalid 2001 will and that had been previously ordered by the county court and this court returned to the estate. The successor personal representative argued that the bill had been incurred by the trust and that the obligations had nothing to do with the estate.

During the hearing, the court first indicated that “the Court of Appeals' [August 2010] order should be implemented, [and] that the money should be paid back to—whatever is in the trust that belongs to [the estate] should be returned to the estate.” The court indicated that it would then need to...