In re Estate of Hutton , 306 Neb. 579 ( 2020 )


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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    IN RE ESTATE OF HUTTON
    Cite as 
    306 Neb. 579
    In re Estate of William Daniel
    Hutton, deceased.
    John Hodge, Successor Personal Representative
    of the Estate of William Daniel Hutton,
    deceased, appellee, v. Webster County,
    Nebraska, appellant.
    ___ N.W.2d ___
    Filed July 24, 2020.    No. S-19-875.
    1. Guardians and Conservators: Judgments: Appeal and Error.
    Appeals of matters arising under the Nebraska Probate Code, Neb. Rev.
    Stat. §§ 30-2201 through 30-2902 (Reissue 2016, Cum. Supp. 2018 &
    Supp. 2019), are reviewed for error on the record. When reviewing a
    judgment for errors on the record, the inquiry is whether the decision
    conforms to the law, is supported by competent evidence, and is neither
    arbitrary, capricious, nor unreasonable.
    2. Decedents’ Estates: Attorney Fees. Ordinarily, the fixing of reasonable
    compensation, fees, and expenses under the statutes governing com-
    pensation of personal representatives, expenses in estate litigation, and
    compensation of personal representatives and employees of the estate, is
    within the sound discretion of the county court.
    3. Statutes: Appeal and Error. Statutory interpretation is a question of
    law, which an appellate court resolves independently of the trial court.
    4. Costs. Costs of litigation and expenses incident to litigation may not
    be recovered unless provided for by statute or a uniform course of
    procedure.
    5. ____. Whether costs and expenses are authorized by statute or by the
    court’s recognition of a uniform course of procedure presents a question
    of law.
    6. Statutes: Legislature: Intent. In construing a statute, a 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.
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    IN RE ESTATE OF HUTTON
    Cite as 
    306 Neb. 579
    7. Statutes. It is not within the province of the courts to read a meaning
    into a statute that is not there or to read anything direct and plain out of
    a statute.
    8. Legislature: Intent. The intent of the Legislature is expressed by omis-
    sion as well as by inclusion.
    Appeal from the County Court for Webster County: Michael
    O. Mead, Judge. Judgment vacated.
    Sara J. Bockstadter, Webster County Attorney, for appellant.
    No appearance for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Funke, J.
    Webster County, Nebraska (County), appeals from an order
    of the county court requiring the County to pay fees and
    expenses to a court-appointed successor personal representa-
    tive. Because the court lacked the authority to order the County
    to pay the successor personal representative fees, we vacate
    the order.
    BACKGROUND
    William Daniel Hutton died intestate without a surviv-
    ing spouse in February 2015. The county court granted an
    application filed by Hutton’s only children, John Hutton and
    Alexis Elledge, for informal appointment of copersonal repre-
    sentatives of the estate. In July 2015, counsel for the coper-
    sonal representatives withdrew from the case. Thereafter, each
    coper­sonal representative retained independent counsel.
    In January 2016, John filed a “Motion to Distribute Estate
    Assets,” requesting that the court order Elledge to pay him
    half the value of E.W. Seals, a business owned and operated
    by William at the time of his death. John alleged that the busi-
    ness had a value of $250,000. The court ordered the business
    to be liquidated or sold with the proceeds to be paid to the
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    IN RE ESTATE OF HUTTON
    Cite as 
    306 Neb. 579
    estate. The copersonal representatives filed an inventory that
    included valuations for all estate assets except E.W. Seals.
    In January 2017, in response to an order to show cause,
    Elledge filed a motion seeking the appointment of a new
    personal representative who was not a family relative. The
    motion alleged that there was a breakdown in communication
    between the copersonal representatives due to disagreement
    over the valuation and distribution of the E.W. Seals assets.
    At the show cause hearing, the copersonal representatives
    informed the court it was unlikely they would be able to
    complete the administration of the estate. On February 14, the
    court discharged John and Elledge as copersonal representa-
    tives and appointed attorney John Hodge as successor per-
    sonal representative.
    In October 2018, Hodge filed an amended inventory which
    valued the estate at approximately $420,000. Hodge filed a
    statement of distributions of the prior copersonal representa-
    tives showing that John had taken $210,455.62 and Elledge
    had taken $147,908.43. Although the assets of the estate were
    to be divided equally between the surviving children, John had
    received $62,547.19 more than Elledge.
    The estate owed $60,346.23 in federal income taxes and
    $8,429.29 in state income taxes. The court ordered John and
    Elledge to return liquid funds to Hodge for payment of estate
    taxes, and then it granted Elledge’s motion for reconsideration
    and ordered John to return the value of an investment account
    and the value of a 2013 Toyota pickup.
    Hodge filed a “Petition for Order to Pay Debts of the
    Estate and Equalization of Assets Among Beneficiaries”
    and a “Petition for Determination of Inheritance Tax and
    Reimbursement of Prior Paid Tentative Inheritance Tax.”
    Around this same time, Hodge filed an application for payment
    of his fees and expenses. In December 2018, following a hear-
    ing, the court ordered John to immediately return $62,547.19,
    of which John returned $30,000. The court ordered Hodge to
    pay court costs and outstanding federal and state taxes. The
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    306 Nebraska Reports
    IN RE ESTATE OF HUTTON
    Cite as 
    306 Neb. 579
    court continued to a later date the final settlement and Hodge’s
    application for fees and expenses. Hodge used the remaining
    funds in the estate’s account to pay $478 in court costs and
    $42,545.89 in federal taxes.
    Hodge completed administration of the estate and renewed
    his application for fees and expenses. Per order of the court,
    Hodge served the Webster County Attorney with a notice of
    hearing for August 2, 2019. At the hearing, the court informed
    the County that the estate was insolvent and that Hodge would
    submit his request for payment to the County. The County
    objected to being responsible for Hodge’s fees and expenses,
    and it stated that Hodge’s application had not requested that
    the County pay his fees and expenses. The County argued
    that the estate at one point had substantial assets and that the
    heirs of the estate should be held responsible for Hodge’s fees.
    Hodge admitted he knew of no statutory authority to require
    the County to pay his fees.
    In its order dated August 13, 2019, the court found that
    Hodge had served as a court-appointed successor personal
    representative for 21⁄2 years and that his fees were fair and
    reasonable given the amount of work involved. The court
    found that the estate was insolvent and that the amount owed
    by the heirs to the Internal Revenue Service and the Nebraska
    Department of Revenue was likely uncollectible. The court
    found that “the County . . . shall pay the amount of $6,455.63 to
    . . . Hodge.”
    The County appealed and is the only party to participate
    in this matter. We moved this case to our docket on our own
    motion.
    ASSIGNMENTS OF ERROR
    The County assigns, restated, that the court lacked ­authority
    to order the County to pay the fees and expenses of the court-
    appointed successor personal representative. The County fur-
    ther contends that had the distributions taken by the original
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    IN RE ESTATE OF HUTTON
    Cite as 
    306 Neb. 579
    copersonal representatives not occurred, there would have
    been sufficient assets for the estate to pay Hodge.
    STANDARD OF REVIEW
    [1] Appeals of matters arising under the Nebraska Probate
    Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue
    2016, Cum. Supp. 2018 & Supp. 2019), are reviewed for error
    on the record. 1 When reviewing a judgment for errors on the
    record, the inquiry is whether the decision conforms to the law,
    is supported by competent evidence, and is neither arbitrary,
    capricious, nor unreasonable. 2
    [2] Ordinarily, the fixing of reasonable compensation, fees,
    and expenses, pursuant to § 30-2480, governing compensation
    of personal representatives; § 30-2481, governing expenses in
    estate litigation; and § 30-2482, governing compensation of
    personal representatives and employees of the estate, is within
    the sound discretion of the county court. 3
    [3] Statutory interpretation is a question of law, which an
    appellate court resolves independently of the trial court. 4
    ANALYSIS
    [4,5] The issue presented to us is whether the county court
    was authorized to order the County to pay the reasonable
    fees and expenses of the court-appointed successor personal
    representative. We have long held that costs of litigation and
    expenses incident to litigation may not be recovered unless
    provided for by statute or a uniform course of procedure. 5
    Whether costs and expenses are authorized by statute or by the
    1
    In re Guardianship of Eliza W., 
    304 Neb. 995
    , 
    938 N.W.2d 307
    (2020).
    2
    Id. 3
        In re Estate of Graham, 
    301 Neb. 594
    , 
    919 N.W.2d 714
    (2018).
    4
    In re Guardianship of Eliza W., supra note 1.
    5
    City of Falls City v. Nebraska Mun. Power Pool, 
    281 Neb. 230
    , 
    795 N.W.2d 256
    (2011). See Nat. Bank of Commerce Trust & Savings Assn. v.
    Rhodes, 
    207 Neb. 44
    , 
    295 N.W.2d 711
    (1980).
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    IN RE ESTATE OF HUTTON
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    court’s recognition of a uniform course of procedure presents
    a question of law. 6
    [6,7] In construing a statute, a court must determine and
    give effect to the purpose and intent of the Legislature as ascer-
    tained from the entire language of the statute considered in its
    plain, ordinary, and popular sense. 7 It is not within the province
    of the courts to read a meaning into a statute that is not there or
    to read anything direct and plain out of a statute. 8
    In In re Guardianship of Suezanne P., 9 the Nebraska Court
    of Appeals addressed whether, in a guardianship proceeding, a
    county may be ordered to pay the fees of an attorney appointed
    to represent the minor child’s mother. Although the county was
    not involved in the case, the trial court ordered the county to
    pay the attorney fees. When the county appealed, the appellate
    court found that the attorney pled no authority for requiring the
    county to pay his fees and that no authority was cited in the
    trial court’s order. In vacating the order, the Court of Appeals
    found that although various other statutes authorize a court to
    order a county to pay attorney fees, there was no authority for
    the trial court to order the county to pay the fees of the parent’s
    court-appointed attorney in a civil guardianship case in which
    the county was no way involved. 10
    [8] In In re Adoption of Kailynn D., 11 this court consid-
    ered whether a county could be required to pay the fee of a
    guardian ad litem in a private adoption. Our interpretation
    of the statutes at issue focused on the rule that the intent of
    6
    See, D.I. v. Gibson, 
    295 Neb. 903
    , 
    890 N.W.2d 506
    (2017); In re
    Guardianship of Brydon P., 
    286 Neb. 661
    , 
    838 N.W.2d 262
    (2013).
    7
    Anderson v. A & R Ag Spraying & Trucking, ante p. 484, ___ N.W.2d ___
    (2020).
    8
    State v. Swindle, 
    300 Neb. 734
    , 
    915 N.W.2d 795
    (2018).
    9
    In re Guardianship of Suezanne P., 
    6 Neb. Ct. App. 785
    , 
    578 N.W.2d 64
         (1998).
    10
    Id. 11
         In re Adoption of Kailynn D., 
    273 Neb. 849
    , 
    733 N.W.2d 856
    (2007).
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    IN RE ESTATE OF HUTTON
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    306 Neb. 579
    the Legislature is expressed by omission as well as by inclu-
    sion. 12 The statutory provision at issue in that case, Neb. Rev.
    Stat. § 43-104.18 (Reissue 2016), addressed the court’s author-
    ity to appoint a guardian ad litem to represent the interests of
    the biological father. We reasoned that because the Legislature
    expressly obligated a county to pay guardian ad litem or attor-
    ney fees in other statutes, such as Neb. Rev. Stat. § 43-292.01
    (Reissue 2016), but not in the statute at issue, the Legislature
    did not intend to grant a court the authority to order a county
    to pay the fees of a guardian ad litem appointed for a biological
    father in a private adoption case. 13 We cited with approval In
    re Guardianship of Suezanne P., noting that in both cases the
    county was not involved in the case until the court ordered it
    to pay fees. 14
    In this matter, we must examine the statutory provisions
    under the Nebraska Probate Code that address personal rep-
    resentatives. A personal representative “includes executor,
    administrator, successor personal representative, special admin-
    istrator, and persons who perform substantially the same func-
    tion under the law governing their status.” 15 A successor per-
    sonal representative is “a personal representative, other than a
    special administrator, who is appointed to succeed a previously
    appointed personal representative.” 16 A personal representative
    is entitled to reasonable compensation. 17 We have held that the
    fixing of reasonable compensation is within the sound discre-
    tion of the county court. 18
    12
    Id. 13
         See
    id. 14
         See
    id. See, also, In
    re Guardianship of Suezanne P., supra note 9.
    15
    § 30-2209(33).
    16
    § 30-2209(45).
    17
    § 30-2480.
    18
    See, In re Estate of Graham, supra note 3; In re Estate of Odineal, 
    220 Neb. 168
    , 
    368 N.W.2d 800
    (1985).
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    IN RE ESTATE OF HUTTON
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    This court has not been presented with any authority or
    recognized course of procedure to support an order requiring a
    county to pay a personal representative’s fees. Our review of
    the relevant statutes indicates that a personal representative’s
    fees are paid by the estate. Under § 30-2481, a personal rep-
    resentative who defends or prosecutes any proceeding in good
    faith is entitled to receive necessary expenses “from the estate.”
    Under § 30-2482(1), the court may review the reasonableness
    of the compensation determined by the personal representative
    for his or her own services and may order the return of exces-
    sive “compensation from an estate.” Section 30-2487 states
    that “[c]osts and expenses of administration” are paid from
    “assets of the estate.” Under § 30-2473, a personal representa-
    tive is liable to interested persons for damage or loss resulting
    from breach of his or her fiduciary duty.
    We digress to note that the county court discharged the
    coper­sonal representatives instead of merely removing them
    or terminating their authority. Typically, courts remove or
    terminate the status of a personal representative rather than
    discharge the personal representative so that the terminated
    personal representative remains responsible for any misdeeds
    he or she may have committed while acting as personal
    representative. 19
    In returning to the case at bar, the Legislature has expressly
    designated the estate as being responsible for personal rep-
    resentative compensation. Additionally, the Legislature has
    not expressly stated that a county is responsible for personal
    representative compensation. Any rules governing whether
    a county should be ordered to pay for a personal repre­
    sentative’s costs and expenses should be established by the
    Legislature. 20
    The County notes in its brief that there are a number of
    statutory provisions which grant the court authority to require
    19
    See In re Estate of Graham, supra note 3.
    20
    See White v. White, 
    296 Neb. 772
    , 
    896 N.W.2d 600
    (2017).
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    counties to pay fees in other circumstances. 21 Regarding such
    provisions under the Nebraska Probate Code, § 30-2620.01
    permits a court to order a county to pay the reasonable fees
    and costs of an attorney, a guardian ad litem, a physician, and
    a visitor appointed by the court for an incapacitated person,
    if the incapacitated person does not possess an estate. Section
    30-2643 permits a court to order a county to pay the reasonable
    fees and costs of an attorney, a guardian ad litem, a physician,
    a conservator, a special conservator, and a visitor appointed by
    the court for a protected person, if the protected person does
    not possess an estate. The fact that the Legislature did not
    expressly obligate counties to pay personal representative fees
    and expenses reflects a legislative intent that a county cannot
    be ordered to pay those fees. Moreover, this is a probate matter
    in which the County was in no way involved. Accordingly, pur-
    suant to In re Guardianship of Suezanne P. 22 and In re Adoption
    of Kailynn D., 23 we conclude that the court erred in ordering
    the County to pay Hodge’s fees.
    Additionally, the County contends that the court should
    have ordered the estate to pay for Hodge’s services before the
    estate became insolvent. Prior to ordering the County to pay
    Hodge’s reasonable compensation, the court ordered Hodge to
    pay the estate’s court costs and outstanding federal and state
    income taxes. Hodge paid court costs and a large portion, but
    not all, of the federal taxes owed. The estate had insufficient
    assets to satisfy the remaining federal and state taxes or com-
    pensate Hodge. The County contends that if the estate cannot
    fully pay all of its claims, the court should have given priority
    to Hodge’s compensation under § 30-2487(a)(1). However,
    21
    See, Neb. Rev. Stat. § 29-3905 (Reissue 2016) (payment for attorneys
    appointed to represent indigent felony defendants); Neb. Rev. Stat.
    § 42-358 (Reissue 2016) (payment for attorneys appointed for minor child
    in domestic relations cases if responsible party is indigent).
    22
    In re Guardianship of Suezanne P., supra note 9.
    23
    In re Adoption of Kailynn D., supra note 11.
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    we need not address the County’s argument regarding the
    priority of payments to be made under § 30-2487(a), because
    either way, the court lacked the statutory authority to order
    the County to pay the successor personal representative’s fees.
    An appellate court is not obligated to engage in an analysis
    that is not necessary to adjudicate the case and controversy
    before it. 24
    CONCLUSION
    Because the county court lacked the authority to order the
    County to pay the successor personal representative’s fees and
    expenses, the order granting fees and expenses is vacated.
    Judgment vacated.
    24
    Saylor v. State, 
    304 Neb. 779
    , 
    936 N.W.2d 924
    (2020).
    Cassel, J., concurring.
    This court’s opinion, which I join unreservedly, correctly
    resolves the narrow issue presented in this appeal. But the
    court’s opinion gives a glimpse of an estate that went horribly
    wrong.
    One lesson that deserves emphasis to the bench and bar is
    the distinction between the termination of an appointment of a
    personal representative and the discharge of a personal repre-
    sentative. They are not synonymous. And unwitting use of the
    wrong terminology can have disastrous consequences.
    According to our transcript, on January 31, 2017, one of
    the heirs sought the appointment of a new personal represent­
    ative to replace the original copersonal representatives. The
    motion did not request that the original copersonal represent­
    atives be discharged.
    Only 3 days later, at a hearing where the attorney for the
    original copersonal representatives apparently informed the
    court that they likely would be unable to complete admin-
    istration, the county court not only appointed a new per-
    sonal representative, it “discharged” the original copersonal
    representatives. Because we have no record of the hearing
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    IN RE ESTATE OF HUTTON
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    306 Neb. 579
    on that date, our record contains only the court’s written
    order.
    The Nebraska Probate Code, 1 which is based on the Uniform
    Probate Code, 2 clearly distinguishes a “termination of appoint-
    ment” from a “discharge.” 3 Section 30‑2451 states:
    Termination of appointment of a personal representa-
    tive occurs as indicated in sections 30‑2452 to 30‑2455.
    Termination ends the right and power pertaining to the
    office of personal representative as conferred by this
    code or any will . . . . Termination does not discharge a
    personal representative from liability for transactions or
    omissions occurring before termination, or relieve him
    of the duty to preserve assets subject to his control, to
    account therefor and to deliver the assets. Termination
    does not affect the jurisdiction of the court over the per-
    sonal representative, but terminates his authority to repre-
    sent the estate in any pending or future proceeding.
    (Emphasis supplied.) One of the methods for termination is
    specified in § 30‑2454, which authorizes the county court to
    remove a personal representative and sets forth the procedure
    to do so. The comment to the equivalent provision of the uni-
    form act explains, “‘Termination’, as defined by this and suc-
    ceeding provisions, provides definiteness respecting when the
    powers of a personal representative (who may or may not be
    discharged by court order) terminate. . . . It is important to note
    that ‘termination’ is not ‘discharge’.” 4
    Under § 30‑24,115(a), a court “may enter an order or
    orders, on appropriate conditions, . . . discharging the personal
    1
    Neb. Rev. Stat. §§ 30‑401 to 30‑406, 30‑701 to 30‑713, 30‑2201 to
    30‑2902, 30‑3901 to 30‑3923, 30‑4001 to 30‑4045, 30‑4101 to 30‑4118,
    and 30‑4201 to 30‑4210 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019).
    2
    Unif. Probate Code, § 1‑101 et seq., 8 U.L.A. 1 et seq. (2013 & Supp.
    2019).
    3
    § 30‑2451.
    4
    Unif. Probate Code § 3‑608, comment, 8 (part II) U.L.A. 138 (2013).
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    representative from further claim or demand of any inter-
    ested person.”
    I express no opinion regarding the legal effect of the county
    court’s order of February 9, 2017, which memorialized the
    hearing of February 3. But I urge that courts be precise in the
    use of this terminology.