Fogarty v. Lebowitz (In re Giventer), 090321 NESC, S-20-111

CourtSupreme Court of Nebraska
JudgeHeavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Writing for the CourtPAPIK, J.
PartiesIn re Estate of Pearl R. Giventer, deceased. v. Marlys Lebowitz et al., appellees. Edward F. Fogarty and J. Bruce Teichman, appellants,
Docket NumberS-20-111

310 Neb. 39

In re Estate of Pearl R. Giventer, deceased.

Edward F. Fogarty and J. Bruce Teichman, appellants,


Marlys Lebowitz et al., appellees.

No. S-20-111

Supreme Court of Nebraska

September 3, 2021


Guardians and Conservators: Judgments: Appeal and Error. Appeals of matters arising under the Nebraska Probate Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019), are reviewed for error on the record.

2. Decedents' Estates: Appeal and Error. An appeal from the county court's allowance or disallowance of a claim in probate will be heard as an appeal from an action at law. In reviewing a judgment of the probate court in a law action, an appellate court does not reweigh evidence, but considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. The probate court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous.

3. Judgments: Appeal and Error. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

4. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

5. Decedents' Estates: Claims: Time. The requirements of Neb. Rev. Stat. § 30-2485 (Reissue 2016) are mandatory, and where a claim is not filed within the time provided in the statute, it is barred.

6. Statutes. It is not within the province of the courts to read meaning into a statute that is not there or to read anything direct and plain out of a statute.

[310 Neb. 40] 7. Legislature: Intent. The intent of the Legislature is expressed by omission as well as by inclusion.

8. Appeal and Error. An appellee's argument that a lower court's decision should be upheld on grounds specifically rejected below constitutes a request for affirmative relief, and the appellee must cross-appeal in order for that argument to be considered.

Appeal from the County Court for Douglas County: Craig Q. McDermott, Judge.

Edward F. Fogarty, pro se, and J. Bruce Teichman, pro se.

Diana J. Vogt and James L. Schneider, of Sherrets, Bruno & Vogt, L.L.C., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.


This is an appeal from the denial of petitions to recover fees and expenses incurred by a nominated personal representative and his attorney who were unsuccessful in probating a will that was drafted by the attorney. We conclude that the county court did not err in finding in these probate proceedings that claims for fees and expenses from the estate for services performed by the attorney prior to the decedent's death were time barred. However, we conclude the county court's reasons for denying fees and expenses for services after the decedent's death were legally erroneous. Regarding the remaining requests for relief, we conclude they are not supported by a discernible legal argument. Therefore, we affirm in part and in part reverse the county court's judgment and remand the cause with directions.


1. Parties and Overview This appeal from probate proceedings involves the estate of Pearl R. Giventer, who was born in 1920. In 2012, she [310 Neb. 41] signed a will drafted by Edward F. Fogarty, naming J. Bruce Teichman as her nominated personal representative. The 2012 will purported to revoke Pearl's preexisting pourover will and the provisions of a related revocable trust of which Pearl was the settlor and which provided for the disposition of trust assets upon her death. Shortly after Pearl died in 2013, Fogarty filed in the trust proceedings a request for fees from the trust for services he performed prior to Pearl's death. More than 3 years later, Fogarty requested predeath fees from the trust and from the estate. In addition, Fogarty and Teichman, represented by Fogarty, sought from Pearl's estate and trust fees and expenses incurred after Pearl's death, primarily in their unavailing efforts to probate the 2012 will. All told, Fogarty and Teichman sought fees and expenses of approximately $500, 000. Fogarty and Teichman appeal the county court's complete denial of fees and expenses.

Appellees include Marlys Lebowitz (Marlys), who is Pearl's daughter and personal representative of her estate, and Wells Fargo Bank (Wells Fargo), the trustee of Pearl's trust. Wells Fargo waived briefing and oral argument. Also an appellee is Pearl's son, Paul Giventer, who plays a role in this case as an interested party. The record indicates that there was animosity between Fogarty and Paul. Paul has not filed a brief in this appeal.

The procedural history of this appeal from probate proceedings is complicated. In addition to the underlying probate proceedings, also relevant are guardianship and conservatorship proceedings, trust proceedings, and several appeals. An exhaustive history of all of these related proceedings would be too lengthy to repeat here. What follows are the facts salient to the legal issues before us.

2. Pearl's Trust and Guardianship

In 1996, Pearl established the Pearl R. Giventer Revocable Trust, naming herself as trustee. Pearl executed a pourover will to the trust in 2005. The trust, as amended in 2005 and 2008, gave Pearl the power to revoke it during her lifetime. [310 Neb. 42] Under certain conditions, it provided for distribution of trust assets during Pearl's life. The trust also functioned as an estate planning tool. According to the trust's dispositive provisions. Paul and Marlys would be the primary beneficiaries of the trust assets when Pearl died.

In November 2009, Paul initiated a proceeding to have himself appointed guardian for Pearl. A temporary guardian was appointed. After negotiations during which Pearl and Paul were represented by independent counsel, they came to a settlement agreement in April 2010. Under the agreement, the trust was again amended. Pearl resigned as trustee and was succeeded by Wells Fargo. Pearl agreed not to remove Wells Fargo as trustee without Paul's consent or a court order. Pearl also agreed to limitations on her ability to alter the settlement agreement and to alter the provisions to distribute the trust assets when she died. To change these aspects, Pearl needed permission of Wells Fargo and an unrelated third party, to be selected by agreement of Wells Fargo, Paul, and Marlys or, if they could not agree, by the county court. In exchange for the 2010 settlement agreement, Paul terminated the guardianship and conservatorship proceedings. Subsequently, the amended trust was registered with the county court.

In July 2010, a second guardianship and conservatorship proceeding for Pearl was opened. Supporting documentation showed that Pearl had Alzheimer's disease and dementia and exhibited symptoms of cognitive decline and impairment. Pearl consented to the proceedings, and in December, a guardian and conservator were appointed.

3. Fogarty Retained and Services Limited by Court Order

On January 3, 2011, Pearl, while under guardianship, retained Fogarty and another attorney as her counsel on a noncontingent basis. The retainer agreement identified the legal services to be performed as "[guardianship and conservatorship proceeding] PR10-1026, Estate, guardianship and family/financial [310 Neb. 43] & conservatorship, recoupment of money (250K?)-will start appeal, defer pushing." Paul, however, filed a motion in the guardianship proceeding challenging the authority of Fogarty and his cocounsel to act as Pearl's attorneys. Pearl, represented by Fogarty and his cocounsel, opposed it.

The county court did not void Pearl's contract with Fogarty and his cocounsel, but, in an order entered on June 23, 2011, it limited the scope of their representation to those purposes outlined in Neb. Rev. Stat. § 30-2620(9) (Reissue 2008): "After appointment, the ward may retain an attorney for the sole purpose of challenging the guardianship, the terms of the guardianship, or the actions of the guardian on behalf of the ward." On behalf of Pearl, Fogarty and his cocounsel eventually appealed to the Nebraska Court of Appeals the ruling that limited the scope of their representation; they also appealed an order approving an annual accounting by Wells Fargo and authorizing payment of attorney fees and costs associated with it. The appeals were consolidated and docketed as cases Nos. A-11-806 and A-11-974.

4. Pearl Signs 2012 Will

While the consolidated appeals in cases Nos. A-11-806 and A-11-974 were pending, Fogarty, purporting to represent Pearl, met with Pearl's guardian to discuss a will for Pearl and other matters. The guardian relied on a February 2012 evaluation that found that Pearl lacked testamentary capacity, but Fogarty viewed the evaluation as legally insufficient. Thereafter, without the guardian's awareness or approval, Fogarty retained a psychiatrist to assess Pearl's testamentary capacity. The psychiatrist determined that Pearl suffered from mild to moderate dementia but possessed testamentary capacity.

On September 5, 2012, Pearl signed a will prepared by Fogarty. At that time, nearly all of Pearl's assets were property of the trust. The 2012 will nominated Teichman as personal representative and cotrustee, along with another individual, of the testamentary trusts it created. The 2012 will purported [310 Neb. 44] to revoke Pearl's trust as amended in 2010, as well as any prior wills. As in earlier instruments, Paul and Marlys were the primary beneficiaries under the 2012 will, but unlike the earlier instruments, the...

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