In re Woltemath

• Decision Date: 28 May 2004
• Docket Number: No. S-02-550.,S-02-550.
• Citation: 268 Neb. 33,680 N.W.2d 142
• Parties: In re Guardianship and Conservatorship of W.G. WOLTEMATH, also known as Wilmer Woltemath, also known as Wilmer Johan Gotlieb Woltemath, an incapacitated and protected person. Kathleen A. Reents, appellant, v. Robert J. Woltemath, attorney in fact for W.G. Woltemath and Trustee of the Wilmer G. Woltemath Trust, appellee.
• Court: Nebraska Supreme Court

680 N.W.2d 142

268 Neb. 33

In re Guardianship and Conservatorship of W.G. WOLTEMATH, also known as Wilmer Woltemath, also known as Wilmer Johan Gotlieb Woltemath, an incapacitated and protected person.

Kathleen A. Reents, appellant, v. Robert J. Woltemath, attorney in fact for W.G. Woltemath and Trustee of the Wilmer G. Woltemath Trust, appellee.

No. S-02-550.

Supreme Court of Nebraska.

May 28, 2004.

William E. Seidler, Jr., of Seidler & Seidler, P.C., Omaha, for appellant.

Gregory C. Scaglione, of Koley Jessen P.C., L.L.O., Omaha, for appellee.

HENDRY, C.J., and WRIGHT, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

BACKGROUND

Kathleen A. Reents (Kathleen), the appellant, and Robert J. Woltemath (Robert), the appellee, are the adult children of W.G. Woltemath (W.G.). In 1995, W.G. executed a series of estate planning documents prepared by an attorney from the Koley Jessen law firm, which represented W.G. at that time and represents Robert in the current proceeding. In particular, W.G. executed a "springing" durable power of attorney, a health care power of attorney, a last will and testament, and a revocable trust. As pertinent, the durable power of attorney appointed Robert as W.G.'s attorney in fact in the event of his disability or incapacity, and Robert was named cotrustee of the trust in the event that W.G. became incompetent. The power of attorney and trust documents did not provide how W.G.'s disability, incapacity, or incompetence were to be determined.

By January 2001, W.G. was suffering from dementia of the Alzheimer's type, and Robert and Kathleen met to discuss the management of their father's affairs. They disagreed with respect to several issues. In April 2001, Kathleen filed a petition in the county court for appointment of a guardian and conservator for W.G., nominating herself as guardian, and a neutral attorney as conservator. Robert filed a responsive pleading alleging the existence of, and his authority pursuant to, the 1995 documents. Kathleen replied that the 1995 power of attorney was a "Springing" power of attorney that was effective only after a judicial determination of W.G.'s disability or incapacity to manage his own affairs and further that there had been no judicial determination of W.G.'s incompetence to manage the revocable trust. Robert replied that a judicial determination was unnecessary to activate his authority pursuant to those documents.

Kathleen also filed a motion to disqualify Koley Jessen from representing Robert, based on an alleged conflict of interest arising from the firm's prior representation of W.G. The county court denied that motion, but appointed independent counsel to represent W.G.

The matter proceeded to trial. Significantly, prior to trial, the parties stipulated that W.G. had properly executed the 1995 documents, that W.G. had become incompetent to handle his own affairs, and that "the Durable Power of Attorney executed by W.G .... on December 27, 1995 has now become effective due to the agreed upon incompetency of W.G." (Emphasis supplied.) After trial, Robert, joined by counsel for W.G., moved to dismiss Kathleen's petition. The county court granted the motion, finding no evidence, let alone clear and convincing evidence, that appointment of a guardian or conservator was necessary or advisable. After this decision, which was announced from the bench, Kathleen filed a notice of appeal and paid the required docket fee. Subsequently, the court entered a file-stamped order dismissing Kathleen's petition. Kathleen filed another notice of appeal, but this time did not pay the docket fee.

The county court's order dismissing Kathleen's petition specifically reserved the issue of attorney fees, which had been requested in Robert's responsive pleadings pursuant to Neb.Rev.Stat. § 25-824 (Reissue 1995). Kathleen's first two notices of appeal preceded the court's ruling on attorney fees. The county court subsequently awarded attorney fees against Kathleen, to Robert in the amount of $42,418.97 and to W.G.'s attorney in the amount of $12,568.72. Kathleen subsequently filed another notice of appeal, but again did not pay the docket fee. At that point, the procedural sequence of events occurring in 2002 stood as follows:

May 7 The county court announced, from the bench, its decision to dismiss the petition, and its intention to award attorney fees, but reserved ruling on the amount and to whom the attorney fees would be assessed. May 15 Kathleen filed her first notice of appeal and paid the docket fee. May 21 The county court filed a written order memorializing the decision announced from the bench on May 7, but still reserved ruling on attorney fees. June 19 Kathleen filed her second notice of appeal, styled as an "Amended Notice of Appeal," purporting to relate to the May 21 file-stamped order. Kathleen did not pay another docket fee. June 20 The county court filed its order assessing attorney fees against Kathleen. June 28 Kathleen filed another "Notice of Appeal." Kathleen again did not pay the docket fee.

ASSIGNMENTS OF ERROR AND ISSUES ON APPEAL

Kathleen assigns, consolidated and restated, that the county court erred in (1) not appointing a guardian or conservator for W.G. because Robert failed to obtain the judicial declaration necessary to give effect to the springing durable power of attorney, (2) not disqualifying Koley Jessen from representing Robert, and (3) ordering Kathleen to pay attorney fees.

Robert argues that this court lacks jurisdiction because of Kathleen's failure to pay the docket fee for the only notice of appeal she filed with respect to a final, appealable order. See Creighton St. Joseph Hosp. v. Tax Eq. & Rev. Comm., 260 Neb. 905, 620 N.W.2d 90 (2000) (filing of notice of appeal and depositing of docket fee are both mandatory and jurisdictional). Robert also argues that Kathleen has waived her assignment of error respecting the disqualification of Koley Jessen by not seeking timely review of that issue in a mandamus action. See Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004) (appellate action is inadequate means of presenting attorney conflicts of interest for review; party seeking review of order denying disqualification should seek mandamus).

STANDARD OF REVIEW

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678 N.W.2d 726 (2004).

ANALYSIS

We first turn to Robert's contention that we lack appellate jurisdiction. Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case. Pennfield Oil Co. v. Winstrom, 267 Neb. 288, 673 N.W.2d 558 (2004). Robert contends that we lack jurisdiction because Kathleen's first two notices of appeal were premature, and because her final notice of appeal was not accompanied by the required docket fee. Kathleen argues, in response, that (1) her May 15, 2002, notice of appeal divested the county court of jurisdiction to rule on attorney fees, (2) the notice of appeal filed on May 15 should be treated as filed on June 20 pursuant to Neb.Rev.Stat. § 25-1912(2) (Cum.Supp.2002), and (3) the docket fee filed with the May 15 notice of appeal should relate forward to the notice of appeal filed on June 28.

As a preliminary matter, we note, although the parties do not contend otherwise, that the notices of appeal filed on May 15 and June 19, 2002, were premature and not taken from a final, appealable order. When a motion for attorney fees under § 25-824 is made prior to the judgment of the court in which the attorney's services were rendered, the judgment will not become final and appealable until the court has ruled upon that motion. Salkin v. Jacobsen, 263 Neb. 521, 641 N.W.2d 356 (2002). Kathleen's May 15 and June 19 notices of appeal were not taken from final, appealable orders and failed to confer appellate jurisdiction on this court.

This conclusion is also dispositive of Kathleen's first argument with respect to jurisdiction: that the county court was divested of jurisdiction by the May 15, 2002, notice of appeal. Generally, after an appeal to an appellate court has been perfected in a civil case, a lower court is without jurisdiction to hear a case involving the same matter between the same parties. However, a party may appeal from a court's order only if the decision is a final, appealable order. Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001). A notice of appeal from a nonappealable order does not render void for lack of jurisdiction acts of the trial court taken in the interval between the filing of the notice and the dismissal of the appeal by the appellate court. Id.; Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592 N.W.2d 894 (1999). Because Kathleen's first two notices of appeal were taken from a nonappealable order, see Salkin, supra, the county court retained jurisdiction to award attorney fees.

Kathleen's argument that the May 15, 2002, notice of appeal should be treated as having been filed on June 20 is also without merit. She relies upon § 25-1912(2), which provides that

[a] notice of appeal or docket fee filed or deposited after the announcement of a decision or final order but before the entry of the judgment, decree, or final order shall be treated as filed or deposited after the entry of the judgment, decree, or final order and on the date of entry.

However, the plain language of § 25-1912(2) provides for the relation forward of a notice of appeal or docket fee only when filed or deposited "after the announcement of a decision or final order," but before "entry of the judgment" pursuant to Neb. Rev.Stat. § 25-1301 (Cum.Supp.2002). This statute essentially codifies our prior rule, expressed in State v. McDowell, 246 Neb. 692, 522 N.W.2d 738 (1994), that a notice of appeal filed after the trial court...