In re Estate of Flemming ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE ESTATE OF FLEMMING
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE ESTATE OF ADENA C. FLEMMING, DECEASED.
YOLANDA BYERS, PERSONAL REPRESENTATIVE OF THE ESTATE OF
ADENA C. FLEMMING, DECEASED, APPELLEE,
V.
DENNIS C. JACKSON, APPELLANT.
Filed March 29, 2016. No. A-13-1094.
Appeal from the County Court for Douglas County: THOMAS K. HARMON, Judge.
Affirmed.
Dennis C. Jackson, pro se.
No appearance for appellee.
MOORE, Chief Judge, and IRWIN and BISHOP, Judges.
BISHOP, Judge.
INTRODUCTION
Dennis C. Jackson appeals from an order of the county court for Douglas County denying
his motion to remove his sister, Yolanda Byers, as the personal representative of the estate of his
deceased mother, Adena C. Flemming, and authorizing Byers to sell Flemming’s real estate.
Jackson, who is incarcerated at Tecumseh State Correctional Institution (Tecumseh), argues the
county court erroneously denied his request to participate telephonically in the evidentiary hearing
resulting in the order from which he appeals. He also challenges the order on the merits and raises
various other issues. For the following reasons, we affirm.
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BACKGROUND
On December 25, 2011, Flemming died intestate in Douglas County, Nebraska. Her
surviving heirs were her three adult children: her daughter, Byers; her son, David Moore, who is
not involved in this appeal; and her other son, Jackson.
On April 12, 2012, following Flemming’s death, Byers filed in the county court a “Petition
for Formal Adjudication of Intestacy, Determination of Heirs, and Appointment of Personal
Representative,” seeking, among other things, to have herself appointed personal representative of
Flemming’s estate. On August 15, the county court appointed Byers personal representative.
On November 14, 2012, Byers filed a “Short Form Inventory,” listing a total of $71,870.37
in assets in Flemming’s estate: a home located on 16th Street in Omaha, Nebraska, valued at
$40,000; household and personal items valued at $7,500; checking and savings accounts totaling
$11,214.98; a “Federal/State Income Tax Refund” of $1,700; a vehicle valued at $1,600; and a
retirement account of which Byers was the beneficiary. The inventory also listed a mortgage of
$11,801.31 and a home equity loan of $7,848.98; the home equity loan had been paid with “life
insurance proceeds.”
On March 29, 2013, Byers filed a “Formal Petition for Complete Settlement after Formal
Intestate Proceeding.” She requested a hearing to (1) approve her final accounting, which also was
filed on March 29; (2) approve her past and proposed distributions in accordance with an attached
“Schedule of Distribution”; and (3) discharge herself as personal representative. The hearing was
scheduled for May 1.
On April 19, 2013, Jackson, who was represented by counsel, filed a pro se motion
requesting that the hearing on Byers’ petition be held by video or telephonic conference. On April
29, Jackson’s attorney filed a separate motion to allow Jackson and his attorney to appear by
telephone at the hearing. Also on April 29, Jackson’s attorney filed an objection to Byers’ proposed
distribution of estate property.
On May 1, 2013, the county court entered an order noting that the “matter at bar is
contested, and should be rescheduled for a contested hearing.” An evidentiary hearing was initially
scheduled for July 8; it was later rescheduled to October 11 on Byers’ motion.
On or about July 25, 2013, (the file stamp is not readable but the order otherwise reflects
this date) the county court entered an order denying Jackson’s request for an appraisal of
Flemming’s real estate (it appears from our record that Jackson’s attorney communicated
Jackson’s request for an appraisal in a letter to the court dated July 20). The July 25 order indicated
that the evidentiary hearing remained scheduled for October 11 and that “all parties” and their
counsel “are ordered to be present on that date.” It further stated that “[n]o other Motions will be
heard absent compelling circumstances and consent of the Court.”
On August 1, 2013, Jackson filed a pro se “Motion to Alter or Amend” in which he asked
the court to reconsider its denial of his request for an appraisal. The court did not rule on this
motion until after the October 11 evidentiary hearing.
On October 7, 2013, Jackson’s attorney filed a motion to remove Byers as personal
representative and appoint a disinterested third party. On the same date, Jackson’s attorney filed a
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motion requesting that Jackson be allowed to “testify and be present” by telephone at the October
11 hearing.
At the October 11, 2013, evidentiary hearing, Byers was present with her attorney; Jackson
was not present but was represented by his attorney. At the commencement of the hearing,
Jackson’s attorney reminded the court of his pending motion to allow Jackson to appear by
telephone and indicated Jackson was available at Tecumseh by phone. Byers’ attorney objected
based on Neb. Rev. Stat. § 25-2704(2) (Reissue 2008), which required a stipulation of the parties
before an evidentiary hearing could be conducted telephonically; Byers’ attorney indicated that
Byers had not so stipulated. The court denied Jackson’s request.
The evidentiary hearing proceeded, and Byers was the only witness to testify. We discuss
the pertinent details of Byers’ testimony in the analysis section below. Generally, Byers testified
to her actions as personal representative and submitted into evidence her short form inventory, her
final accounting, and her proposed schedule of distribution, among other documents. Jackson’s
attorney cross-examined Byers regarding inconsistencies among the documents, and objected to
Byers’ testimony and evidence when appropriate. In addition, Jackson’s attorney admitted into
evidence a “Schedule of Values” that Byers filed with the court on April 12, 2012, which revealed
further inconsistencies. Otherwise, Jackson’s attorney was unsuccessful in introducing evidence;
the court sustained objections to his exhibits 11, 12, 13, and 14, all of which consisted of letters
between Byers’ attorney and Jackson’s attorney or between Jackson personally and Byers’
attorney.
At the conclusion of the hearing, the court took the matter under advisement, and on
October 15, 2013, the court entered an order directing the parties to submit briefs addressing two
issues: (1) whether Jackson had the right, while incarcerated, to appear telephonically without
Byers’ consent, and (2) whether the court should order the real and personal property sold or
distributed in-kind. Also in the October 15 order, the court struck Jackson’s August 1 “Motion to
Alter or Amend,” reasoning that Jackson did not have the right to file motions while represented
by an attorney. The court ordered that Jackson “may not file any further pro se pleadings in this
case, except a Motion to Discharge counsel should he wish to represent himself.” On October 18,
Jackson filed an “Affidavit of Dennis C. Jackson” in which he stated that his attorney was “no
longer [his] attorney of record.”
On October 21, 2013, Jackson’s attorney filed a brief addressing the two issues identified
in the court’s order. He argued that although there was “no direct statute on point giving a ‘right’
to an incarcerated individual to appear by phone or video conference,” the issue was “one which
is decided by the due process rights of the heir.” Regarding the issue of whether the real and
personal property should be sold or distributed in-kind, Jackson’s attorney indicated he had not
had an opportunity to speak with Jackson to learn his wishes, but that during negotiations Jackson
had agreed the personal property should be sold at an estate auction.
Also on October 21, 2013, Jackson’s attorney filed a motion to withdraw as counsel of
record for Jackson. The record before us does not contain an order ruling on the motion to
withdraw, but it appears that thereafter Jackson represented himself.
On November 12, 2013, the county court entered an order deciding four primary issues:
(1) citing § 25-2704(2), the court denied Jackson’s request to provide testimony via telephone
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since “no party attempted to enter into a stipulation regarding telephonic testimony”; (2) it
authorized Byers to sell the real estate because “distribution ‘in-kind’ would result in execution of
a deed that would vest title in” Byers, Moore, and Jackson, “who obviously do not ‘get along’”;
(3) it ordered Byers to prepare an amended final accounting, because “[t]he accounting records
submitted by [Byers] do not accurately reflect assets and expenditures to the degree that is
necessary so that the Court can rule on the veracity of the accounting”; and (4) it denied Jackson’s
motion to remove Byers as personal representative, since “there was no evidence adduced at trial
that assets of the Estate were shown to have been lost or wasted during its administration.”
Jackson timely appealed to this court. Initially, the county court denied Jackson in forma
pauperis (IFP) status; however, after two remands by this court, the county court granted Jackson
IFP status on February 10, 2015.
ASSIGNMENTS OF ERROR
Jackson assigns 17 errors, which we have consolidated, reordered, and restated as follows:
The county court erred in (1) denying Jackson’s motion to appear by telephone or other electronic
means; (2) ruling on the admissibility of certain testimony and exhibits; (3) denying Jackson’s
motion to remove Byers as personal representative; (4) denying Jackson’s request for an appraisal;
(5) authorizing Byers to sell the real estate; (6) striking Jackson’s pro se “Motion to Alter or
Amend” and refusing to consider filings from Jackson while he was represented by counsel; and
(7) ordering that no other motions would be heard in the absence of compelling circumstances and
the court’s consent.
STANDARD OF REVIEW
An appellate court reviews probate cases for error appearing on the record made in the
county court. In re Estate of Shell, 290 Neb. 791, 862 N.W.2d 276 (2015). When reviewing
questions of law in a probate matter, an appellate court reaches a conclusion independent of the
determination reached by the court below. Id. Statutory interpretation presents a question of law,
Schaffer v. Cass County, 290 Neb. 892, 863 N.W.2d 143 (2015), as does the issue of whether the
procedures afforded an individual comport with constitutional requirements for procedural due
process. Liljestrand v. Dell Enters., 287 Neb. 242, 842 N.W.2d 575 (2014).
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is
controlled by the rules; judicial discretion is involved only when the rules make discretion a factor
in determining admissibility. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015). The
exercise of judicial discretion is implicit in determining the relevance of evidence, and we will not
reverse a trial court’s decision regarding relevance absent an abuse of discretion. Arens v. NEBCO,
Inc., 291 Neb. 834, 870 N.W.2d 1 (2015). A judicial abuse of discretion exists when the reasons
or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right
and denying just results in matters submitted for disposition. Id.
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ANALYSIS
REQUEST TO APPEAR TELEPHONICALLY
Jackson argues the county court erred in denying his request to appear telephonically so he
could testify at the October 11, 2013, evidentiary hearing. He contends that § 25-2704(2), requiring
the stipulation of all parties before the court may conduct an evidentiary hearing telephonically or
by videoconferencing or similar equipment, “only applies to those instances where an entire
hearing may be scheduled via telephonic or video conferencing” and “may not apply to individual
appearances and testimony.” Brief for appellant at 16. He also maintains his testimony was
necessary and that prison inmates have a constitutional right to adequate, effective, and meaningful
access to the courts. Byers has not filed a brief, so her positions on the issues raised by Jackson
are unknown.
As stated, in denying Jackson’s request to participate telephonically in the evidentiary
hearing, the county court relied on § 25-2704(2), which requires court approval and “stipulation
of all parties that have filed an appearance” before “any evidentiary hearings . . . may be heard by
the court telephonically or by videoconferencing or similar equipment.” Although Jackson
contends this statute applies only to the scheduling of an “entire hearing” and not to “individual
appearances and testimony,” brief for appellant at 16, we need not address this issue, as another
statute provides an adequate basis for the court’s order.
While not cited below by either party or the county court, Neb. Rev. Stat. § 24-734(4)
(Cum. Supp. 2014) provides: “A judge, in any case with the consent of the parties, may permit any
witness who is to be examined by oral examination to appear by telephonic, videoconferencing, or
similar methods, with any costs thereof to be taxed as costs.” The statute was enacted on May 7,
2013, approximately 5 months before the evidentiary hearing in this case. See 2013 Neb. Laws,
L.B. 103. Thus, although the county court may not have identified the specifically applicable
statute in its ruling, its conclusion that Jackson could not testify by telephonic, videoconferencing,
or similar methods without Byers’ consent was proper.
Now that we have determined Jackson did not have a right to testify by telephonic,
videoconferencing, or similar methods without Byers’ consent, we turn to Jackson’s broad
assertion below and on appeal that he was denied his constitutional right to adequate, effective,
and meaningful access to the courts. We interpret this as an assertion of his procedural due process
rights under the United States and Nebraska Constitutions, which provide that no person shall be
deprived of life, liberty, or property, without due process of law. U.S. Const. amends. V and XIV;
Neb. Const. art. I, § 3. Procedural due process is an “inherently flexible” concept; its “‘central
meaning’” is that “‘[p]arties whose rights are to be affected are entitled to be heard.’” In re Interest
of L.V., 240 Neb. 404, 413, 482 N.W.2d 250, 257 (1992), quoting Fuentes v. Shevin, 407 U.S. 67,
92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972).
The Nebraska Supreme Court has held that “[a] prison inmate has no absolute
constitutional right to be released from prison so that he can be present at a hearing in a civil action,
and there is no authority which requires the appointment of counsel to represent him in a private
civil matter.” Caynor v. Caynor, 213 Neb. 143, 144-45, 327 N.W.2d 633, 635 (1982).
Nevertheless, courts of this state have recognized that prison inmates have a right to procedural
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due process in civil cases, even if not through physical presence; some of the circumstances
supporting a determination that an inmate was afforded procedural due process have been that the
prisoner received notice of the proceeding, was represented by counsel, and had an opportunity to
present testimony by deposition. See In re Interest of L.V., supra, and cases cited therein. See, also,
Board of Regents v. Thompson, 6 Neb. Ct. App. 734, 577 N.W.2d 749 (1998) (incarcerated defendant
in debt collection action was not required to be physically present but had to be given an
opportunity to present her side of the case).
In In re Interest of Azia B., 10 Neb. Ct. App. 124, 626 N.W.2d 602 (2001), an incarcerated
mother was represented by counsel at a termination-of-parental-rights hearing. The mother’s
motion for a continuance so she could appear at trial upon her release from prison, and the mother’s
motion to testify telephonically, both of which were made on the day of trial, were denied. This
court held it was not an abuse of discretion to deny her motions, largely because she did not make
the requests until the day of trial. Id. We also reasoned that the mother’s due process rights were
not violated, since she was represented by counsel, who cross-examined witnesses and presented
evidence at the hearing, and since there was “no showing that [the mother] was prevented from
offering evidence on her behalf.” Id. at 131, 626 N.W.2d at 609.
Here, even though the county court scheduled the October 11, 2013, evidentiary hearing in
an order dated June 18, Jackson’s motion to participate telephonically in the evidentiary hearing
was not brought until October 7, only 4 days prior to trial. While Jackson and his attorney filed
motions in April to appear telephonically at a previously scheduled hearing, they did not renew
those motions once the court noted the matter was contested and rescheduled it for an evidentiary
hearing on October 11.
Because of the delay in bringing the motion to participate telephonically, Jackson and his
attorney left themselves little opportunity to arrange alternative means to present Jackson’s
testimony once the county court denied the motion. Notably, Neb. Rev. Stat. § 25-1233(1) (Reissue
2008) permits any prisoner in this State to be examined by deposition, where the prisoner is
incarcerated outside the county of the venue of trial. State v. Stott, 243 Neb. 967, 503 N.W.2d 822
(1993). We take judicial notice that Tecumseh is located in Johnson County, Nebraska, while
venue was in Douglas County, which meant Jackson could have presented his testimony via
deposition.
When the county court asked Jackson’s attorney at the October 11, 2013, evidentiary
hearing whether he had attempted to schedule Jackson’s deposition, counsel responded that there
was “no money” for a deposition and that he had not arranged for a deposition because the court’s
July 25 order indicated that “all parties” were “to be present” at the hearing. We place little stock
in these arguments, because the time to resolve the issue of how to present Jackson’s testimony
was well before October 7, especially considering that § 24-734(4) was enacted more than 5
months prior to the hearing and should have put Jackson and his attorney on notice of the need to
arrange alternative means to present his testimony, assuming they could not obtain Byers’ consent
to telephonic testimony.
We acknowledge that unlike in In re Interest of Azia B., supra, where there was “no
showing that [the mother] was prevented from offering evidence on her behalf,” id. at 131, 626
N.W.2d at 609, there was some indication that Jackson’s absence hampered his attorney’s ability
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to present evidence. Most importantly, Jackson was unavailable to lay foundation to authenticate
the letters contained in exhibits 11, 12, 13, and 14. On appeal, Jackson indicates these letters were
relevant to showing his and his attorney’s repeated requests for documentation from Byers and her
attorney, which would have supported Jackson’s claim that Byers neglected her duties as personal
representative.
While we agree the letters were relevant for this purpose, this consideration does not
convince us that Jackson was denied procedural due process. Byers’ failure to produce adequate
documentation was apparent to the county court and formed the primary basis for the court’s
decision to order Byers to submit an amended accounting. Upon reviewing Byers’ accounting and
other documentary evidence, it is clear that she failed to adequately document all estate assets,
receipts, and disbursements. Because the county court was aware of the lack of documentation and
ordered an amended accounting and further hearing (the court noted in its November 12, 2013,
order that the adequacy of the amended accounting would have to be reviewed at a future hearing),
Jackson’s interests have been protected despite his inability to participate in the hearing.
EVIDENTIARY RULINGS
Jackson challenges a number of the county court’s evidentiary rulings. He argues the court
abused its discretion in admitting Byers’ testimony as to the reasons for his incarceration and the
length of his incarceration, Byers’ use of personal funds to pay estate expenses, and Byers’
payment of taxes for her mother’s “last wages.” Jackson also challenges the admission of a
retirement account statement dated June 30, 2012, which allegedly showed the funds that had been
rolled over from Flemming’s 401(k) into an Individual Retirement Account (IRA) in Byers’ name.
Jackson also contends it was error for the court to take judicial notice of the opinion issued in his
direct appeal of his criminal convictions. Finally, Jackson argues the court abused its discretion in
excluding from evidence exhibits 11, 12, 13, and 14.
We first address Jackson’s challenge to Byers’ testimony regarding her payment of taxes
for Flemming’s last wages. Jackson’s attorney did not object the first time Byers testified to this
matter (Byers addressed the matter twice and Jackson’s attorney objected only the second time).
Therefore, the issue has not been preserved for appeal. See Richardson v. Children’s Hosp., 280
Neb. 396, 787 N.W.2d 235 (2010) (to preserve a claimed error in admission of evidence, a litigant
must make a timely objection which specifies the ground of the objection).
We next address Jackson’s challenges to Byers’ testimony concerning her use of personal
funds to pay estate expenses, and to the retirement account statement. Jackson argues his attorney’s
objections to this evidence should have been sustained, but he has not identified any prejudice to
him resulting from its admission. Therefore, he has not established reversible error. See In re Estate
of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015) (in civil case, admission of evidence is not
reversible error unless it unfairly prejudiced a substantial right of complaining party).
We now address Jackson’s challenges to Byers’ testimony as to why he was incarcerated
and when he was first incarcerated, and to the taking of judicial notice of the opinion issued in the
appeal of his criminal convictions. Jackson contends these matters were irrelevant and prejudicial
in that they portrayed him in a negative light. We agree with Jackson that these matters were
irrelevant, especially since Jackson did not testify and was not subject to impeachment with his
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prior convictions. See Neb. Evid. R. 609, Neb. Rev. Stat. § 27-609 (Reissue 2008) (allowing under
certain circumstances for impeachment by prior criminal conviction).
However, we disagree with Jackson that the error requires reversal. The orders Jackson
challenges on appeal denied Jackson’s motion to remove Byers as personal representative,
authorized Byers to sell Flemming’s real estate, and denied Jackson’s request for an appraisal of
the real estate. The court adequately articulated its reasoning for each of these decisions, and there
is no indication that Jackson’s incarceration or prior convictions played any role in the court’s
decision-making. We find no prejudice to Jackson’s rights requiring reversal.
We now turn to the court’s refusal to admit exhibits 11, 12, 13, and 14. As we explained
above, to the extent these exhibits showed Jackson’s and his attorney’s requests for documentation
from Byers and her attorney, they were relevant. However, even overlooking any issues regarding
the lack of foundation to authenticate the letters, their exclusion from evidence resulted in no
prejudice to Jackson. Again, Byers’ failure to produce adequate documentation was apparent to
the county court, and the issue was addressed by ordering an amended accounting, the adequacy
of which will be reviewed at a future hearing.
Any other information contained in the letters was not admissible in evidence. In particular,
the letters contained the attorney’s legal arguments and statements of the parties’ legal positions,
which do not constitute relevant evidence. See In re Interest of McCauley H., 3 Neb. Ct. App. 474,
529 N.W.2d 77 (1995) (a letter containing an attorney’s pretrial view of the case was not relevant
evidence). In addition, while only exhibit 12 was objected to on hearsay grounds, portions of that
exhibit were inadmissible on that basis. See Neb. Evid. R. 801, Neb. Rev. Stat. § 27-801 (Reissue
2008) (hearsay is “a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted”).
REMOVAL OF PERSONAL REPRESENTATIVE
Jackson also argues the county court erred in denying his motion to remove Byers as
personal representative for cause. He asserts five bases for Byers’ removal: (1) she filed an
inadequate inventory that failed to identify the estate’s property with reasonable detail or list its
fair market value; (2) she misappropriated estate funds for personal profit and gain; (3) she paid
her personal attorney fees using estate funds without court approval; (4) she failed to keep the
estate heirs adequately apprised of the status of the inventory and proceedings; and (5) she falsified
documents submitted to the court.
Neb. Rev. Stat. § 30-2454(a) (Reissue 2008) permits a person interested in the estate to
petition for removal of a personal representative for cause at any time. Section 30-2454(b)
provides:
Cause for removal exists when removal would be in the best interests of the estate, or if it
is shown that a personal representative or the person seeking his appointment intentionally
misrepresented material facts in the proceedings leading to his appointment, or that the
personal representative has disregarded an order of the court, has become incapable of
discharging the duties of his office, or has mismanaged the estate or failed to perform any
duty pertaining to the office.
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A personal representative’s duties include settling and distributing the decedent’s estate as
expeditiously and efficiently as is consistent with the best interests of the estate. Neb. Rev. Stat.
§ 30-2464 (Reissue 2008). In addition, within 3 months after appointment, a personal
representative is to prepare and file an inventory of property owned by the decedent at the time of
death, which lists the decedent’s property with reasonable detail and includes fair market values.
Neb. Rev. Stat. § 30-2467 (Reissue 2008).
Here, Byers complied with her duty to file an inventory of Flemming’s property within 3
months of her appointment, and her testimony at trial indicated she took steps toward settling the
estate with the goal of expeditiously distributing it equally among the three heirs. In particular, the
evidence showed Byers filed Flemming’s federal and state tax returns, paid claims against the
estate for an unpaid furniture bill and unpaid medical bills, and paid the mortgage, property taxes,
utilities, and other expenses associated with Flemming’s real estate. While Jackson asserts Byers
misappropriated estate funds, there is no evidence to support this; in fact, the evidence was that
Byers used her personal funds to pay many of the expenses associated with Flemming’s real estate,
and Byers indicated she was not seeking reimbursement.
To the extent Jackson relies upon the lack of documentation supporting Byers’ final
accounting, or upon inconsistencies among Byers’ inventory, final accounting, and other
documents, we disagree that these required removal of Byers as personal representative. While the
lack of documentation and the inconsistencies are apparent upon review of the evidence, the county
court’s finding that “there was no evidence adduced at trial that assets of the Estate were shown to
have been lost or wasted during its administration” was not clearly erroneous. The discrepancies
are not substantial, and there is no reason to believe an amended accounting will not resolve them.
Furthermore, none of the evidence suggests Byers falsified documents.
Finally, Byers’ use of $1,404 in estate funds to pay attorney fees (as reflected on Byers’
final accounting) does not warrant her removal as personal representative. Neb. Rev. Stat.
§ 30-2481 (Reissue 2008) provides that “[i]f any personal representative . . . defends or prosecutes
any proceeding in good faith, whether successful or not he is entitled to receive from the estate his
necessary expenses and disbursements including reasonable attorneys’ fees incurred.” The issue
of whether the attorney fees were reasonable and incurred in good faith will be for the county court
to decide when addressing Byers’ amended accounting. See In re Estate of Odineal, 220 Neb. 168,
368 N.W.2d 800 (1985) (the fixing of reasonable fees pursuant to § 30-2481 is within the county
court’s sound discretion).
REQUEST FOR APPRAISAL
As discussed above, a personal representative’s duties include submitting an inventory that,
among other things, lists the fair market value of the decedent’s property at the time of death.
§ 30-2467. A personal representative “may employ a qualified and disinterested appraiser to assist
him in ascertaining the fair market value as of the date of the decedent’s death of any asset the
value of which may be subject to reasonable doubt.” Neb. Rev. Stat. § 30-2468 (Reissue 2008).
According to Jackson, the county court erred in declining to require an appraisal of Flemming’s
real estate in this case.
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At the hearing on Jackson’s request for an appraisal, Byers’ attorney submitted a print-out
from the Douglas County Assessor’s website showing that the assessed value of the real estate for
tax purposes was $30,400. In her short form inventory, Byers estimated the fair market value of
the property to be $40,000. Neither Jackson nor his attorney was present at the hearing; Jackson’s
attorney submitted an affidavit which he asked the court to consider in his absence. In the affidavit,
he stated Jackson had advised him that Jackson believed the home was worth more than $40,000
“based upon his knowledge that his mother had completed a number of renovations to the home
prior to her death.”
In its July 25, 2013, order denying Jackson’s request for an appraisal, the county court
reasoned that if the property was distributed in-kind in equal shares, as Byers was proposing at the
time, there was no need for an appraisal. The court further reasoned that if the property was sold
and the proceeds divided equally, there was no need for an appraisal, since “the market would
control the value based upon its sale at fair market value.” The court reasoned that “the interests
of all parties including [Jackson] will be adequately protected without an appraisal.” At trial, Byers
indicated she had no objection to selling the property and dividing the proceeds equally among the
heirs.
We find no error in the court’s denial of Jackson’s request for an appraisal. Jackson’s
general claim, asserted in the form of his attorney’s affidavit, that his mother had completed
unspecified renovations to the home increasing its value, was not enough to create reasonable
doubt about the home’s value. The court had no reason to believe that Byers’ valuation of $40,000,
which exceeded the assessed value by 31.5%, was inaccurate. Furthermore, because the home has
been ordered sold “on the most advantageous and most beneficial . . . terms obtainable,” and
because the proceeds will be divided equally among the three heirs, we agree with the county court
that Jackson’s property interest in the home has been adequately protected without an appraisal.
AUTHORITY TO SELL REAL ESTATE
Jackson also argues the county court erred in authorizing Byers to sell Flemming’s real
estate without providing Jackson a meaningful opportunity to address whether the property should
be sold. Jackson notes that on October 15, 2013, the court ordered the parties to submit briefs
addressing whether the estate’s real and personal property should be sold or distributed in-kind.
Jackson notes that when the court and the parties’ attorneys were discussing the briefing schedule,
Jackson’s attorney indicated he would not be meeting with Jackson at Tecumseh for 14 days;
nevertheless, the court ordered the briefs due on October 21. In Jackson’s attorney’s brief filed on
that date, counsel indicated he had not had an opportunity to speak with Jackson to learn his wishes,
but that during negotiations Jackson had agreed the personal property should be sold at an estate
auction.
While Jackson’s attorney’s inability to meet with Jackson prior to submitting the brief was
unfortunate, we cannot conclude Jackson was denied procedural due process. The distribution of
Flemming’s real estate was an issue at the October 11, 2013, evidentiary hearing, and we
concluded above that Jackson was afforded procedural due process at that hearing. Additionally,
while Jackson’s attorney indicated in his brief that he was unable to learn Jackson’s wishes
regarding the real estate, the record before us includes more than one pro se document submitted
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by Jackson indicating his desire that the real estate be sold. Therefore, Jackson’s due process rights
have not been infringed.
AUTHORITY TO FILE PRO SE PLEADINGS
Jackson argues the county court erred in striking his pro se “Motion to Alter or Amend”
the order denying his request for an appraisal and in refusing to consider any other pro se filings
from Jackson while he was represented by counsel. In its October 15, 2013, order, the court struck
Jackson’s “Motion to Alter or Amend,” reasoning Jackson did not have the right to file motions
while represented by an attorney. The court ordered that Jackson “may not file any further pro se
pleadings in this case, except a Motion to Discharge counsel should he wish to represent himself.”
The Nebraska Supreme Court has held in the context of a criminal case that a defendant
does not have a right to “hybrid representation” in which the pro se defendant appears as cocounsel
with his or her appointed attorney. State v. Wilson, 252 Neb. 637, 652, 564 N.W.2d 241, 252
(1997). Rather, it is within a trial court’s discretion to allow this type of representation. Id.
Although Jackson has not cited, and our research has not uncovered, any Nebraska case
addressing the issue of “hybrid representation” in a civil case, a number of courts have held that a
civil litigant who is represented by counsel has no right to personally conduct any aspect of the
litigation except through counsel. Brasier v. Jeary, 256 F.2d 474 (8th Cir. 1958); Lincoln v.
Lincoln, 746 P.2d 13 (Ariz. Ct. App. 1987); Thomas v. National State Bank, 628 P.2d 188 (Colo.
Ct. App. 1981); Waite v. Wellington Boats, Inc., 459 So. 2d 431 (Fla. Dist. Ct. App. 1984); Watson
v. Gibson Capital, L.L.C., 2008 OK 56. See, also, Annot., Right of Litigant in Civil Action Either
to Assistance of Counsel Where Appearing Pro Se or to Assist Counsel Where Represented, 67
A.L.R. 2d 1102 (1959); 7A C.J.S. Attorney & Client § 246. In Brasier, supra at 478, the court
noted that “in rare circumstances it might be good practice and could aid in the fair presentation
of claim or defense if a party were allowed to actively participate in the conduct of the trial, even
though represented by counsel”; however, the court noted that such a determination rested squarely
within the trial court’s discretion. Id.
Here, there was nothing to indicate that allowing Jackson to file pro se motions or pleadings
while represented by counsel was necessary to the fair representation of his positions. Jackson’s
“Motion to Alter or Amend” was largely a reiteration of information the county court had already
considered in addressing Jackson’s request for an appraisal. Therefore, we conclude the county
court did not err in striking Jackson’s pro se motion or in prohibiting him from submitting further
pro se filings.
LIMITATION ON FILING ADDITIONAL MOTIONS
Jackson’s final argument is that the county court erred in ordering on July 25, 2013, that
“[n]o other Motions will be heard absent compelling circumstances and consent of the Court.” We
need not resolve the propriety of this order, because there is no indication the court enforced this
limitation. Following entry of the July 25 order, Jackson filed his “Motion to Alter or Amend” and
Jackson’s attorney filed a motion to remove Byers as personal representative and a motion to
permit Jackson to testify telephonically. The court addressed all of these motions, and it did not
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strike any of them for failure to comply with the requirement of presenting “compelling
circumstances.”
CONCLUSION
For the foregoing reasons, we affirm the judgment of the county court for Douglas County.
AFFIRMED.
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