Kerrigan & Line v. Foote

• Decision Date: 04 February 1997
• Docket Number: No. A-95-1023,A-95-1023
• Citation: 558 N.W.2d 837,5 Neb.App. 397
• Parties: KERRIGAN & LINE, a partnership, Appellant, v. Clarinda FOOTE and Clara Mae Lange, Copersonal Representatives of the Estate of Delphine C. Wagner, deceased, Appellees.
• Court: Nebraska Court of Appeals

Page 837

558 N.W.2d 837

5 Neb.App. 397

KERRIGAN & LINE, a partnership, Appellant, v. Clarinda FOOTE and Clara Mae Lange, Copersonal Representatives of the Estate of Delphine C. Wagner, deceased, Appellees.

No. A-95-1023.

Court of Appeals of Nebraska.

Feb. 4, 1997.

Syllabus by the Court

1. Demurrer: Pleadings: Appeal and Error. When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader.

2. Demurrer: Pleadings: Appeal and Error. In reviewing a ruling on a general demurrer, an appellate court cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.

3. Judgments: Demurrer: Appeal and Error. An order sustaining a demurrer will be affirmed if any one of the grounds on which it was asserted is well taken.

4. Statutes: Appeal and Error. Statutory interpretation presents a question of law in connection with which an appellate court has an obligation to reach an independent conclusion.

5. Statutes: Legislature: Intent: Appeal and Error. When settling upon the meaning of a statute, an appellate court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense, it being the court's duty to discover, if possible, the Legislature's intent from the language of the statute itself.

6. Statutes: Legislature: Intent. The components of a series or collection of statutes pertaining to a certain subject matter may be conjunctively considered and construed to determine the intent of the Legislature so that different provisions of the act are perceived as consistent, harmonious, and sensible.

7. Decedents' Estates: Claims: Words and Phrases. Under the Nebraska Probate Code, "claim" is defined to include, inter alia, expenses of administration.

8. Decedents' Estates: Attorney Fees. In probate proceedings, attorney fees are administration expenses.

9. Decedents' Estates: Claims. Based on the plain and ordinary meaning of the language of Neb.Rev.Stat. § 30-2485(b) (Reissue 1995), administration expenses are only excepted from the time-bar provisions for bringing claims; § 30-2485(b) cannot be read to except administration expenses from the probate claims procedure itself.

10. Decedents' Estates: Claims: Attorney Fees. A claim for attorney fees may be brought pursuant to the probate claims procedure.

11. Decedents' Estates: Claims. The county court is not the only avenue available to a party with a claim against an estate in some circumstances.

12. Decedents' Estates: Claims. An allowance of a claim in probate is generally not equivalent to an ordinary judgment.

13. Decedents' Estates: Claims. The proper manner to obtain payment of a claim in probate that has been allowed, but not paid, is to file a petition in the county court requesting an order that the personal representative pay the claim.

14. Decedents' Estates: Claims: Jurisdiction. Because there is no statute allowing an action for payment of an allowed claim in probate not yet reduced to an order in a court other than the county court, the county court has exclusive original jurisdiction over such an action.

William G. Line, of Kerrigan & Line, Fremont, for appellant.

Kelle J. Westland, of Raynor, Rensch & Pfeiffer, Omaha, and Darrell K. Stock, of Snyder & Stock, Lincoln, for appellees.

MILLER-LERMAN, C.J., and HANNON and IRWIN, JJ.

MILLER-LERMAN, Chief Judge.

Kerrigan & Line, a partnership, appeals the judgment of the district court for Dodge County sustaining the demurrers of Clarinda Foote and Clara Mae Lange, copersonal representatives of the estate of Delphine C. Wagner, deceased (defendants), and dismissing its action. For the reasons stated below, we affirm.

ASSIGNMENTS OF ERROR

Kerrigan & Line assigns as error that the district court erred (1) in finding that the statutory claims procedure does not apply to a claim for administrative expenses, including attorney fees, and (2) in sustaining the demurrers and dismissing the action.

STANDARD OF REVIEW

When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader. Vowers & Sons, Inc. v. Strasheim, 248 Neb. 699, 538 N.W.2d 756 (1995); Proctor v. Minnesota Mut. Fire & Cas., 248 Neb. 289, 534 N.W.2d 326 (1995). In reviewing a ruling on a general demurrer, an appellate court cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. Id. An order sustaining a demurrer will be affirmed if any one of the grounds on which it was asserted is well taken. Vowers & Sons, Inc., supra; Gallion v. Woytassek, 244 Neb. 15, 504 N.W.2d 76 (1993).

FACTUAL BACKGROUND

For the purpose of reviewing the sustaining of the demurrers, we take as true the following facts set forth by Kerrigan & Line in its petition and attached exhibit, which were filed April 27, 1995, in the district court:

Kerrigan & Line is a partnership engaged in the general practice of law. The partnership furnished legal services to Clara Mae Lange, special administratrix of the estate of Delphine C. Wagner, deceased. Kerrigan & Line filed its claim for legal services in the county court for Dodge County in the manner prescribed in Neb.Rev.Stat. § 30-2486 (Reissue 1995) within the time limit prescribed in Neb.Rev.Stat. § 30-2485 (Reissue 1995). Neither copersonal representative mailed a notice of disallowance of the claim within 60 days as required by Neb.Rev. Stat. § 30-2488 (Reissue 1995), and therefore, the claim has been allowed.

Attached to the petition and incorporated therewith is a pleading captioned for filing in the county court for Dodge County entitled "Amended Statement of Administrative Claim," dated February 13, 1995, in which Kerrigan & Line makes claim against the estate in the amount of $74,804.38 for legal services rendered.

In its petition filed in district court, the dismissal of which is the subject of this appeal, Kerrigan & Line sought judgment against the defendants for $74,804.38 with interest and costs.

On May 26, 1995, the defendants each demurred to the petition, alleging lack of personal jurisdiction, lack of subject matter jurisdiction, that another action was pending between the same parties for the same cause in the county court for Dodge County, and that the petition does not state facts constituting a cause of action. The defendants attached to their demurrers a May 17, 1995, order of the county court for Dodge County finding that Kerrigan & Line had been fully compensated for services rendered on behalf of the estate in the amount of $24,750 and that the estate was not further obligated to Kerrigan & Line.

The district court sustained the defendants' demurrers and dismissed the action. It found that the claims procedure set forth in § 30-2485 does not apply to a claim for administrative expenses, including attorney fees, and that the county court has jurisdiction to review the payment of attorney fees in a probate proceeding. This appeal followed.

ANALYSIS

We first address whether an action for attorney fees may be brought under the probate claims procedure provided in the Nebraska Probate Code, Neb.Rev.Stat. § 30-2201 et seq. (Reissue 1995), and more particularly §§ 30-2483 through 30-2498. Statutory interpretation presents a question of law in connection with which an appellate court has an obligation to reach an independent conclusion. Payne v. Dept. of Corr. Servs., 249 Neb. 150, 542 N.W.2d 694 (1996).

When settling upon the meaning of a statute, an appellate court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense, it being the court's duty to discover, if possible, the Legislature's intent from the language of the statute itself. Koterzina v. Copple Chevrolet, 249 Neb. 158, 542 N.W.2d 696 (1996); McCook Nat. Bank v. Bennett, 248 Neb. 567, 537 N.W.2d 353 (1995). The components of a series or collection of statutes pertaining to a certain subject matter may be conjunctively considered and construed to determine the intent of the Legislature so that different provisions of the act are perceived as consistent, harmonious, and sensible. Becker v. Nebraska Acct. & Disclosure Comm., 249 Neb. 28, 541 N.W.2d 36 (1995); In re Application of City of Lincoln, 243 Neb. 458, 500 N.W.2d 183 (1993).

The probate claims procedure set forth in §§ 30-2483 through 30-2498 addresses the presentation, allowance, and payment of creditors' claims. The code defines "claim" to include "liabilities of the decedent or protected person whether arising in contract, in tort or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration." (Emphasis supplied.) § 30-2209(4). The Nebraska Supreme Court has held that in probate proceedings, attorney fees are administration expenses. See In re Estate of Reimer, 229 Neb. 406, 427 N.W.2d 293 (1988). Therefore, based on a plain reading of the code, it appears that attorney fees are claims which may be brought under the probate claims procedure.

The defendants seem to argue that demands for attorney fees may be brought only under § 30-2482 and that certain language in § 30-2485(b) excepts administration expenses from the probate claims procedure. Section 30-2482 provides that after appropriate notice, the...