Platte Valley Nat. Bank & Trust v. Lasen
| Decision Date | 25 May 2007 |
| Docket Number | No. S-05-1073.,S-05-1073. |
| Citation | 732 N.W.2d 347,273 Neb. 602 |
| Parties | PLATTE VALLEY NATIONAL BANK & TRUST COMPANY, Special Administrator of the Estate of Robert P. Anderson, appellee, v. Barbara J. LASEN and Paul S. Lasen, wife and husband, appellants. |
| Court | Nebraska Supreme Court |
Larry L. Miller, of Curtiss, Moravek, Curtiss, Margheim & Miller, P.C., L.L.O., for appellants.
John A. Selzer, of Simmons Olsen Law Firm, P.C., Scottsbluff, for appellee.
This action was originally brought by Platte Valley National Bank & Trust Company (Platte Valley), as the conservator for Robert P. Anderson, to recover money and real property from Barbara J. Lasen and Paul S. Lasen. While the case was awaiting trial, Anderson died. The case was revived in the name of Platte Valley as special administrator of Anderson's estate. From the order of revivor, the Lasens appeal. The issue presented is whether an order of revivor is a final order from which an appeal can immediately be taken.
When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decision made by the lower court. See Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006).
In an earlier case, the county court for Scotts Bluff County appointed Platte Valley as Anderson's conservator because he suffered from mental and physical disabilities that left him unable to manage his property and personal affairs. Anderson's adult daughter, Barbara Lasen, appealed and contended that she should have been appointed conservator. We determined it was in Anderson's best interests to have a disinterested third party appointed as his conservator and affirmed the judgment of the county court. See In re Conservatorship of Anderson, 262 Neb. 51, 628 N.W.2d 233 (2001).
In December 2001, Platte Valley, as conservator, filed the current action against the Lasens in the district court for Scotts Bluff County to recover money and real property the Lasens allegedly had improperly transferred to themselves and members of their family from Anderson's assets. Before the action could be tried, Anderson died on February 22, 2003. Anderson's grandchildren by his deceased son asked the county court to probate a will Anderson had executed in 1997. Attorneys for Platte Valley and the Lasens advised the district court of the will proceedings and requested that their action be stayed, pending the resolution of the probate case.
Barbara Lasen filed an objection to probate of the 1997 will and offered for probate wills that were allegedly executed by Anderson in 1998. A jury found that Anderson's 1997 will was valid and that the two 1998 wills offered by Barbara Lasen were the result of undue influence exerted upon Anderson by the Lasens.
On July 15, 2005, the county court entered an order admitting the 1997 will to formal probate. In that same order, the court found as follows:
Now that the Will Contest has been resolved, and the . . . 1997 Will has been determined to be the valid last Will of the decedent, a general Personal Representative should be appointed for the decedent's estate and such Personal Representative should be authorized to be substituted as Plaintiff in the District Court case brought against the Lasens. The appointment of a Personal Representative for this purpose should not be further delayed.
The county court then appointed Platte Valley as personal representative of Anderson's estate.
On July 19, 2005, Anderson's grandchildren by his deceased son moved the county court to amend its order and appoint Barbara Lasen's nominee as general personal representative of the estate on the condition that Platte Valley be appointed as special administrator for the purpose of maintaining the claims against the Lasens. The court sustained the motion, and Platte Valley was appointed special administrator.
On July 21, 2005, Platte Valley filed in the district court a motion to revive the action against the Lasens in the name of Platte Valley as special administrator of Anderson's estate. The motion was served on the Lasens' attorney. Platte Valley then filed a motion to amend the pleadings along with an attached amended complaint, which included in the caption the name of Platte Valley as "[s]pecial [a]dministrator." The Lasens objected to Platte Valley's motion to revive. A hearing was held on Platte Valley's motion to revive and motion for leave to file an amended pleading. Both parties appeared by their attorneys and offered evidence that was received by the district court.
On August 26, 2005, the district court entered an order reviving the action in the name of Platte Valley, as special administrator of Anderson's estate. The Lasens appealed from this order. This court transferred the appeal to its docket in accordance with its authority to regulate the caseloads of the appellate courts of this state. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).
The Lasens claim, restated, that the district court erred (1) in reviving the action when more than 1 year had passed since the order of revivor could have first been entered, (2) in determining that the Lasens consented to revivor by filing the joint stipulation after Anderson died, (3) in finding that the court had personal jurisdiction over the Lasens, and (4) in reviving the action solely in the name of Platte Valley as special administrator when the action involved real property.
Platte Valley argues that this court is without jurisdiction over the Lasens' appeal because the district court's order substituting the party plaintiff and reviving the action was not a final, appealable order. An appellate court is without jurisdiction to entertain appeals from nonfinal orders. Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006). Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Id.
A pending action that survives a party's death must be revived in the manner provided by statute. Fox v. Nick, 265 Neb. 986, 660 N.W.2d 881 (2003). Nebraska law provides for two coexisting methods by which an action may be revived. The statutory procedures for revivor are set forth in Neb.Rev.Stat. §§ 25-1403 to 25-1420 (Reissue 1995 & Cum. Supp. 2006) and in Neb.Rev.Stat. § 25-322 (Cum. Supp. 2006). See Fox v. Nick, supra.
Under the first method of revival, a conditional order may be made on the motion of the representative or successor of the party who died. See §§ 25-1406 and 25-1407. This method contemplates that a hearing will be held on the conditional order of revivor and that if "sufficient cause be not shown against the revivor, the action shall stand revived." See § 25-1408.
Section 25-322 provides the alternate and independent method by which an action may be revived. See, Fox v. Nick, supra; Hayden v. Huff, 62 Neb. 375, 87 N.W. 184 (1901). Under § 25-322, when a party dies, "the court may allow the action to continue by or against his or her representative or successor in interest." This section confers authority upon the court to allow the action to be prosecuted by the representatives of the deceased party. For this purpose, supplemental pleadings may be filed and summons served as in the commencement of the action. Rakes v. Brown, 34 Neb. 304, 51 N.W. 848 (1892).
In the case at bar, the Lasens argue that the order of revivor was immediately appealable because Platte Valley sought to revive the action under the method prescribed in §§ 25-1403 to 25-1420. Conversely, Platte Valley argues that the order was not immediately appealable because it claims to have revived the action under § 25-322.
This court has held that when the method of revivor set forth in §§ 25-1403 to 25-1420 is followed, a conditional order of revivor made absolute is a final order and appealable. See Levin v. Muser, 107 Neb. 230, 185 N.W. 431 (1921). In Levin v. Muser, on the plaintiff's motion, a conditional order of revivor was entered, and in pursuance of that order, the court revived the action after finding that no sufficient cause had been shown against the revivor. The defendant immediately appealed.
On appeal, the issue arose whether the revivor order was final and appealable. Based on our statutory definition of a final order found in Rev. Stat. § 8176 (1913) (now Neb.Rev.Stat. § 25-1902 (Reissue 1995)), this court concluded that the order was appealable, even though it neither terminated the action nor constituted a final disposition of the case, because it was made in a special proceeding and it affected a substantial right.
We stated that in cases
where the special statutory method of revivor [i.e., §§ 25-1403 to 25-1420] is followed, as distinguished from the procedure to revive by the filing of supplemental pleadings and the issuance of summons ... and where the conditional order is made and, in pursuance thereof, an absolute order of revivor entered ... the absolute order conclusively adjudicates the matters regarding the right of revivor, and those questions cannot then be later tried along with the merits of the case, nor reviewed on an appeal from the final judgment.
Levin v. Muser, 107 Neb. at 232, 185 N.W. at 432. This revivor method was considered to be an independent and special proceeding rather than a provisional remedy that was merely incidental to and a part of the main case.
As described above, this court has held (at least under one revivor method) that a revivor order is immediately appealable. See ...
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