Berggren v. Franke (In re Franke)
| Decision Date | 04 March 2016 |
| Docket Number | No. S–14–959,S–14–959 |
| Parties | In re Conservatorship of Genevieve Franke, Deceased. Laurie Berggren, Appellee, v. Genevieve Franke Deceased, Appellant, and John Franke, Appellee |
| Court | Nebraska Supreme Court |
Jordan W. Adam, of Fraser Stryker, P.C., L.L.O., Omaha, for appellant.
Susan M. Koenig, of Mayer, Burns, Koenig & Janulewicz, Grand Island, for appellee Laurie Berggren.
Robert A. Mooney, of Gross & Welch, P.C., L.L.O., Omaha, for appellee John Franke.
This appeal involves a dispute between Genevieve Franke's children regarding the county court's appointment of a conservator for her. Genevieve has since died. Genevieve's daughter, Laurie Berggren, sought the conservatorship after Genevieve agreed to sell her farmland to her son John Franke at a price below its fair market value.
Genevieve appealed from the court's appointment of Cornerstone Bank as her permanent conservator. John also appealed. But before the parties filed briefs, Genevieve's attorney filed a suggestion of death with the Nebraska Court of Appeals stating that Genevieve had died on December 31, 2014.
This appeal presents four issues. First, does Genevieve's attorney have standing to continue representing a deceased client in an appeal without authorization from Genevieve's legal representative? Second, does John have standing to appeal from the county court's appointment of a permanent conservator?
Third, if John does have standing, does Genevieve's death abate his appeal? And fourth, does Genevieve's death abate the cause of action and require this court to vacate the county court's orders appointing a conservator?
We reach the following conclusions:
Before Genevieve's death in 2014 at the age of 90, she had been a resident of a nursing home since November 2011. The catalyst for this dispute involved Genevieve's agreement to sell her farmland to John in 2013. According to John, in April 2013, he learned that some other farmland near his own property, which he had wanted to buy, would soon be auctioned. He asked Laurie if Genevieve had $400,000 to $500,000 to purchase it, and Laurie said Genevieve did not have enough liquid assets to do so. But Laurie, who took care of Genevieve's finances, authorized the bank to release Genevieve's financial information to John. He learned that Genevieve had $580,000 in investments and $780,000 in certificates of deposit. John drove Genevieve out to the property for viewing; he said that she authorized him to purchase it.
John said that he then met with Genevieve's accountant and attorney. The accountant told him that Genevieve wanted to purchase the land for him. They arranged for the purchase to be an asset of Genevieve's trust and limited the purchase price to $10,000 per acre of cropland. The plan called for John and his wife to make payments to the trust for the property. But for unexplained reasons, John did not purchase the property. He said that the irrigated cropland sold for about $7,500 to $7,800 per acre.
Before the auction, John had learned that under Genevieve's estate plan, at her death, he would have the first option to buy her property at its appraised value. But he said that he could not profitably farm the property if he had to buy it at its fair market value. He said that he was upset he could not buy the auctioned property near his own farm. So after the auction, but before Genevieve's death, he had multiple conversations with her about his purchasing her farmland, an asset of her trust. He said that Genevieve agreed to sell him her farmland and that her neighbor, who was John's close friend and Genevieve's tenant farmer, recommended the purchase price. John proposed to purchase Genevieve's property for about $3,600 to $3,700 per acre. In November 2013, Genevieve's "good quality irrigated" farmland, about 153 acres, was appraised at $1,653,000. The appraiser believed that the property's value in April 2013 would have been about the same.
Genevieve's longtime attorney and accountant were concerned Genevieve did not understand that there were tax consequences to this sale, that the proposed purchase price was well below the property's fair market value, and that the proposed sale was inconsistent with her continually expressed desire to treat her children equally. In June 2013, Laurie petitioned for the appointment of a conservator. John objected and requested an evidentiary hearing. The court appointed Laurie as Genevieve's temporary conservator with the limited duty to prevent the sale of the farm and preserve Genevieve's assets pending further order. After an evidentiary hearing, it appointed Cornerstone Bank as Genevieve's permanent conservator.
As noted, before the parties filed briefs, Genevieve's attorney filed a suggestion of death with the Court of Appeals stating that Genevieve had died on December 31, 2014. The Court of Appeals then issued an order for the parties to show cause why the appeal should not be dismissed as moot. Genevieve's attorney, Laurie, and John all filed responses to this order. Laurie responded that the action was not moot because a conservator has continuing duties for the estate even after a protected person dies and because Genevieve's children still have an interest in a decision on her competency. Laurie stated that the "administration and ultimately the distribution of [Genevieve's] assets remain[ ] at issue."
Genevieve—not her personal representative—sought an order (through her attorney of record) to dismiss the appeal as moot and to vacate the county court's order appointing a permanent conservator. Two days later, John moved for an order reviving the appeal. Alternatively, he sought an order concluding that (1) the appeal was not moot but only abated by Genevieve's death and (2) the abatement required the county court to vacate all its previous orders in the proceeding. John claimed the right to file this motion as a person interested in Genevieve's conservatorship and as her successor in interest. We overruled both of these motions without prejudice and granted John's petition to bypass the Court of Appeals.
In Genevieve's appellate brief, her attorney assigned that the court erred in finding that she had mental or physical disabilities that rendered her unable to manage her property. Although John appealed also, he is designated an appellee and did not assign errors. In his brief, he has not argued that we should allow him to revive Genevieve's appeal, so we treat that request as abandoned. But he argues that because the conservatorship cause of action abated upon Genevieve's death, this court should dismiss her appeal and remand the cause with directions for the county court to vacate all its orders in the proceeding.
An appellate court reviews guardianship and conservatorship proceedings for error appearing on the record in the county court.1 When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.2
But we independently review questions of law decided by a lower court.3 A jurisdictional issue that does not involve a factual dispute presents a question of law.4 And standing is a jurisdictional component of a party's case because only a party who has standing may invoke the jurisdiction of a court.5 The statutory provisions regarding abatement and revivor of actions apply to cases in which a party dies pending an appeal.6 Whether a party's death abates an appeal or cause of action presents a question of law.7 Also, statutory interpretation presents a question of law.8
The term "abatement" can have more than one meaning in law. It can refer to the extinguishment of a cause of action or the equitable suspension of suit for the lack of proper parties:
[T]here is a distinction between the use of the word "abatement" in common law, where it means an entire overthrow or destruction of a suit, and in equity courts, where abatement may indicate rather a temporary suspension of further proceedings in the suit because of want of proper parties.9
Additionally, as we explain later, an abatement can refer to the extinguishment of an appeal only when the legal right being appealed has become moot because of a party's death while the appeal was pending. This appeal raises the issue whether a protected person's death pending an appeal from a conservatorship appointment abates only the appeal or the entire cause of action. John argues that it abates the entire cause of action, which means that we must vacate the lower court's orders. But first, we consider the standing of Genevieve's attorney to continue her appeal.
After Genevieve's attorney filed a suggestion of death, he filed an appellant's brief on her behalf. He argues that because the conservatorship proceedings involved purely personal rights, Genevieve's appeal is moot due to her death and should be dismissed. Yet, he asks this court to vacate the county court's conservatorship...
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......Rice, 295 Neb. 241,. 888 N.W.2d 159 (2016); In re Conservatorship of. Franke, 292 Neb. 912, 875 N.W.2d 408 (2016). . . [ 7 ] See In re Conservatorship of. Franke, ......
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State v. Rice
...OF REVIEW Whether a party's death abates an appeal or cause of action presents a question of law. In re Conservatorship of Franke , 292 Neb. 912, 875 N.W.2d 408 (2016). When attorney fees are authorized, the trial court exercises its discretion in setting the amount of the fee, which ruling......
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State v. Rice
...OF REVIEW [1] Whether a party's death abates an appeal or cause of action presents a question of law. In re Conservatorship of Franke, 292 Neb. 912, 875 N.W.2d 408 (2016). [2] When attorney fees are authorized, the trial court exercises its discretion in setting the amount of the fee, which......
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...We have described Nebraska's statutory grant of the right to appeal in these cases as "generous." See In re Conservatorship of Franke , 292 Neb. 912, 923, 875 N.W.2d 408, 417 (2016). Compare Unif. Probate Code § 1-308, 8 (part I) U.L.A. 70 (2013). We have previously explained that the distr......