Filsinger v. Rauner (In re Filsinger)
| Decision Date | 04 May 2021 |
| Docket Number | No. A-20-347.,A-20-347. |
| Citation | 962 N.W.2d 366,29 Neb.App. 809 |
| Parties | IN RE ESTATE OF Orville W. FILSINGER, deceased. Marvin O. Filsinger et al., appellants and cross-appellees, v. Robert Rauner, Jr., Personal Representative of the Estate of Orville W. Filsinger, deceased, appellee and cross-appellant. |
| Court | Nebraska Court of Appeals |
Robert M. Brenner, of Robert M. Brenner Law Office, Gering, for appellants.
Torrey J. Gerdes, Lincoln, J. Michael Hannon, and Randall L. Goyette, Lincoln, of Baylor Evnen, L.L.P., and R. Kevin O'Donnell, of Law Office of R. Kevin O'Donnell, P.C., L.L.O, Ogallala, for appellees.
Marvin O. Filsinger, Javonne Krueger, and Gloria Vegas (the Claimants) appeal the order of the county court for Cheyenne County, Nebraska, which granted summary judgment in favor of Robert Rauner, Jr., the personal representative of the estate of Orville W. Filsinger (the Personal Representative). The order dismissed the claim filed by the Claimants against the Personal Representative which challenged the amount distributed to Orville's wife, Berniece Filsinger. The Personal Representative cross-appeals a separate order from the county court which denied his claim for attorney fees and his renewed application for attorney fees related to prior litigation. For the reasons set forth herein, we affirm the order of the county court granting summary judgment to the Personal Representative. We dismiss the cross-appeal for lack of jurisdiction.
Orville died in September 2009 in Cheyenne County. Pursuant to a provision found in the will signed by Orville in December 2002, Rauner was nominated by both Marvin and Berniece to be the Personal Representative. He accepted the appointment. Orville's will stated, as is relevant to this appeal, that upon his death, Berniece would receive the personal residence where they resided; Orville's personal effects, jewelry, and tools; and a further sum of $1 million reduced by probate or nonprobate transfers of real and personal property. The will goes on to state:
It is my intent that in the event the total value of the real estate and personal property owned in joint tenancy with or payable on death to Berniece ... or in which Berniece ... is a beneficiary, equals or exceeds One Million Dollars ($1,000,000.00), that the said Berniece ... not receive any additional sums pursuant to this my Last Will and Testament.
A postnuptial agreement signed by Orville and Berniece in October 2002 mirrored the language of Orville's will, stating that Berniece would receive the personal residence of the parties and the furniture, fixtures, and appliances in the property, as well as Orville's personal effects, jewelry, and tools upon Orville's death. The postnuptial agreement further mirrored his will by also stating that Berniece would receive the further sum of $1 million reduced by nonprobate transfers of real estate and personal property. Orville signed a codicil to his will in April 2006; however, the codicil did not change the portions of the will which are relevant to this appeal.
On August 10, 2010, the Personal Representative filed the initial inventory of property owned by Orville at the time of his death. This inventory disclosed that there was real and personal property owned in joint tenancy with Berniece in the approximate amount of $1.8 million. The inventory also disclosed that Berniece would receive a parcel of real property, commonly referred to as the "Sunol Property."
The Claimants are Orville's children. Pursuant to the terms of Orville's will, they would receive the remainder of the estate. After the Personal Representative's appointment, he communicated with the Claimants via letter explaining that the Sunol Property would be a part of the estate. However, the Personal Representative explained that Berniece would disclaim her rights to this property but, in so doing, wished to receive an assignment of the rights to a promissory note for a loan that was given to a debtor known as the Andersons in the amount of $25,000. The Personal Representative determined that this was a reasonable request, in light of the value of the Sunol Property, which was estimated to be $600,000. By virtue of Berniece's disclaimer, the Sunol Property would be devised to the Claimants. Subsequent to this letter, a "Disclaimer and Renunciation Pursuant to Agreement" executed by Berniece, wherein she renounced all rights to the Sunol Property, was filed on October 8, 2010.
After the filing of the disclaimer and renunciation, an amended inventory was filed by the Personal Representative on November 16, 2010, listing the nonprobate property Orville had owned in joint tenancy with Berniece and valuing that property at approximately $1.2 million. A second amended inventory was later filed on December 7 showing that the value of the nonprobate property Orville owned in joint tenancy with Berniece was also approximately $1.2 million.
In July 2012, two of the Claimants, Krueger and Vegas (then known as Gloria Haines), sent an electronic communication to the Personal Representative and his counsel stating their concern regarding Orville's estate and the distribution of assets. In that communication, they asserted that their interpretation of the postnuptial agreement and of Orville's will was that the distributions to Berniece were limited to a total value of $1 million. They also stated that based on the accounting submitted to the county court at that time, the value of Berniece's distributions were $1,186,686. They contended that after adding the life insurance policy and the loan made to the Andersons, the total amount that Berniece would receive would be $1,314,352. A response was sent to Krueger and Vegas by Steven Matoon, then counsel for the Personal Representative. Matoon expressed his opinion that the will and postnuptial agreement did not place a $1 million maximum on the amount Berniece could receive in total from all assets when nonprobate transfers were considered. He also noted that Berniece had renounced her claim to the Sunol Property in which she had a joint tenancy interest, an action she was not required to take. He noted that the Sunol Property was worth $587,000 and would now be divided between the Claimants. Following this exchange, our record reveals no further protest of the amount received by Berniece until 2015.
In January 2014, the Personal Representative prepared a formal petition for complete settlement after the informal testate proceeding (the Formal Petition), which was file stamped by the county court on January 10, 2014. In the Formal Petition, the Personal Representative affirmed the following: He collected and managed the assets for the estate; he filed a first inventory, second amended inventory, and final report; he paid all lawful claims against the estate; he distributed assets and proposed distribution of further assets as designated in the schedule of distribution that was attached to the Formal Petition; and there were no contingent, unliquidated, or future claims against the estate. He also stated that the Nebraska inheritance tax had been paid in full. He disclosed an additional asset, not previously inventoried, which was a promissory note of $60,000 payable to Orville's estate. He disclosed that Berniece would receive, by virtue of joint tenancy ownership and transfer and assignment of the promissory note of the Andersons, at least $1 million. He asked the court to approve the distributions made in the final report and in the schedule of distribution. He also asked for the court to discharge him as the personal representative.
That same day, January 10, 2014, the Personal Representative also submitted a final report. In the final report, the Personal Representative affirmed that he had received all income, payments, and receipts in Orville's estate and paid all costs, expenses, and disbursements. An accounting of the estate account from October 22, 2010, through January 2, 2014, was included with this final report. A schedule of distribution, also file stamped on January 10, was prepared. The schedule of distribution listed distributions to the Claimants and listed one distribution to Berniece. This distribution was the loan to the Andersons valued at approximately $25,000. On January 10, the county court set February 13 as the date for a hearing on the Formal Petition.
The Personal Representative filed an affidavit of mailing notice of complete settlement on January 17, 2014. This affidavit stated that the Personal Representative's attorney sent to the Claimants by U.S. mail a copy of the notice required for the February 13 hearing and copies of the Formal Petition, the schedule of distribution, and the final report. Additionally, the Personal Representative's attorney filed an affidavit stating that he mailed a notice of hearing of the complete settlement after the informal testate proceeding in Orville's estate to all interested parties on or about January 16. He also stated in his affidavit that he did not receive these mailings as returned mail. The Sidney Sun Telegraph, a legal newspaper in Cheyenne County, published notice for the hearing on January 15, 22, and 29.
The county court entered the formal order for complete settlement after the informal testate proceeding (the Formal Order) on February 13, 2014. In the Formal Order, the court noted that it considered the Formal Petition. The court found that the Personal Representative collected and managed the assets of the estate, filed an inventory and final accounting, paid all lawful claims against the estate, and performed all other acts required. The court stated that Berniece would receive a total of 28.61 percent of the probate and nonprobate assets of Orville's estate. It specifically noted that Berniece would receive at least $1 million from the estate. The court further found that Orville's will and codicil were declared...
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