Zimmerman v. FirsTier Bank, N.A.

• Decision Date: 23 October 1998
• Docket Number: No. S-97-672,S-97-672
• Citation: 585 N.W.2d 445,255 Neb. 410
• Parties: Joyce ZIMMERMAN, Appellant, v. FIRSTIER BANK, N.A., et al., Appellees.
• Court: Nebraska Supreme Court

Page 445

585 N.W.2d 445

255 Neb. 410

Joyce ZIMMERMAN, Appellant, v. FIRSTIER BANK, N.A., et al., Appellees.

No. S-97-672.

Supreme Court of Nebraska.

Oct. 23, 1998.

Syllabus by the Court

1. Summary Judgment: Appeal and Error. In reviewing an order granting a motion for summary judgment, an appellate court views the evidence in a light most favorable to the party opposing the motion and gives that party the benefit of all reasonable inferences deducible from the evidence.

2. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

3. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

4. Summary Judgment: Final Orders: Appeal and Error. Although the denial of a motion for summary judgment, standing alone, is not a final, appealable order, when adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over both motions and may determine the controversy which is the subject of those motions or make an order specifying the facts which appear without substantial controversy and direct such further proceedings as it deems just.

5. Torts: Conversion: Property: Proof: Words and Phrases. Tortious conversion is any distinct act of dominion wrongfully asserted over another's property in denial of or inconsistent with that person's rights. The plaintiff must establish a right 6. Conversion: Property. Where the defendant has come into the possession of property lawfully or without fault, it is generally necessary to make demand of possession of him or her before suit will lie, since there is no conversion until there has been a refusal to surrender such possession. However, a demand and refusal are not essential when it is clear that a demand would have been useless or unavailing.

to immediate possession of the property at the time of the alleged conversion.

7. Conversion: Property: Proof. In general, demand and refusal may constitute evidence necessary to prove conversion under some circumstances, but need not be shown where there is other evidence of an act of dominion or control over property inconsistent with the rights of the owner.

8. Conversion: Property. In circumstances where a party in possession of property has notice of another's claim of ownership and transfers the property to a third party, such transfer is itself an act of dominion, inconsistent with the rights of the owner, sufficient to establish actionable conversion without the necessity of showing prior demand and refusal.

9. Conversion: Property. A bona fide reasonable detention of property by one who has assumed some duty respecting it, for the purpose of ascertaining its true ownership, or of determining the right of a demandant to receive it, will not sustain an action for conversion.

10. Attorney Fees. In general, attorney fees and expenses may be recovered only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of an attorney fee. The general rule applies, however, only where the party to litigation is attempting to recover attorney fees in the very case being litigated.

11. Torts: Actions: Damages: Attorney Fees. One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees, and other expenditures thereby suffered or incurred in the earlier action.

12. Proximate Cause: Damages: Words and Phrases. A proximate cause is that which, in a natural and continuous sequence, without any efficient intervening cause, produces the injury, and without which the injury would not have occurred. In other words, there must be some reasonable connection between the wrongful act of the defendant and the damage suffered by the plaintiff.

13. Attorney Fees: Words and Phrases. In the context of Neb.Rev.Stat. § 25-824 (Reissue 1995), a frivolous action is one in which a litigant asserts a legal position wholly without merit, that is, without rational argument based on law and evidence to support the litigant's position.

14. Attorney Fees: Presumptions. In determining the value of legal services rendered by an attorney, it is proper to consider the amount involved, the nature of the litigation, the time and labor required, the novelty and difficulty of the questions raised, the skill required to properly conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attorney, and the customary charges of the bar for similar services. There is no presumption of reasonableness placed on the amount offered by the party requesting fees.

15. Attorney Fees. An attorney may not recover for services rendered if those services are rendered in contradiction to the requirements of professional responsibility and inconsistent with the character of the profession.

16. Attorney Fees: Courts. A court has authority to monitor and determine the reasonableness of contingent fee contracts under the court's inherent power to regulate the bar.

Mark J. Curley, of Brown & Brown, P.C., Omaha, for appellant.

Kermit A. Brashear, Scott E. Daniel, and Anna M. Bednar, of Brashear & Ginn, Omaha, for appellee FirsTier Bank.

Donald J. Pavelka, Jr., of Hansen, Engles & Locher, P.C., Omaha, for appellee Norwest Bank Nebraska.

Julie Noonan, of Kivett & Knickrehm, Omaha, for appellee Commercial Federal Bank.

WRIGHT, GERRARD, STEPHAN, and McCORMACK, JJ., and HANNON, JJ.

STEPHAN, Justice.

In this action, Joyce Zimmerman seeks recovery of attorney fees and other expenses which she allegedly incurred in a probate proceeding involving the estate of Thelma Griess, her deceased aunt. Zimmerman alleged in her operative petition that upon Griess' death, the appellee banks tortiously converted funds on deposit in three joint accounts by transferring them to an account at FirsTier Bank, N.A., as the personal representative of Griess' estate, in disregard of Zimmerman's rights of survivorship, necessitating her successful assertion of those rights in the probate proceeding. Zimmerman appeals from an order of the district court for Douglas County, denying her motion for partial summary judgment on the issue of liability and entering summary judgment in favor of the banks. We reverse, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of her death, Griess had several joint bank accounts and certificates of deposit. These included a joint checking account at FirsTier in the names of "Thelma D. Griess and Joyce Zimmerman"; a checking account at Norwest Bank, N.A., titled in the names of "Thelma D. Griess or Joyce A. Zimmerman" as "Joint Depositors with Right of Survivorship"; and a savings account certificate at Commercial Federal Bank titled in the names of "Thelma D. Griess, TR, and Joyce Zimmerman, BENE."

On July 8, 1993, a will executed by Griess on June 1, 1989, was admitted to probate in the county court for Douglas County, and FirstTier was appointed personal representative of Griess' estate. Mary Jewell, an attorney employed by FirsTier as a personal trust administrator, was assigned to the Griess estate. At Jewell's request, the funds which were on deposit in the FirsTier, Norwest, and Commercial Federal accounts were transferred to an account maintained by FirsTier for the Griess estate. FirsTier, as the personal representative, filed an amended inventory on January 24, 1994, which listed the proceeds of these three accounts, having a combined value of $141,615.72, as assets owned by the decedent at the time of her death. A schedule of distribution filed on the same day stated that these proceeds were to be distributed to FirsTier as trustee of a testamentary trust, of which two minor grandsons of the deceased, Brian Griess and David Griess, were designated beneficiaries. Although Griess' will did not name Zimmerman as a devisee, she was scheduled to receive $13,547.05 from the estate, representing the proceeds of another FirsTier account on which she and Griess were shown as joint owners. On March 4, 1994, the county court entered an order, stating that the authority of the personal representative would terminate and the personal representative would be discharged from all claims or demands from interested persons when all receipts of distribution were filed with the court. All distributees except Zimmerman filed receipts on that date.

At the time of Griess' death, Zimmerman was aware of the fact that she had executed signature cards for the FirsTier and Norwest accounts but was unaware of the legal effect of her signatures. At that time, she had no knowledge of the Commercial Federal account. Zimmerman consulted an attorney, who wrote a letter to Jewell, asserting that the FirsTier and Norwest accounts were held in joint tenancy and therefore became the property of Zimmerman upon the death of Griess and should be returned to her. FirsTier did not comply with this request because it claimed uncertainty regarding Griess' intent.

Zimmerman then filed an objection to the schedule of distribution, contending that the FirsTier and Norwest accounts were payable to her upon Griess' death and therefore should not be included among the assets scheduled for distribution to the testamentary Attorney Diane B. Metz testified that she represented Griess at the time of the execution of the 1989 will. Metz stated that she was aware that Griess had certain accounts titled jointly with...