In re Estate of Helms , 302 Neb. 357 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/08/2019 08:05 AM CST
    - 357 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    IN RE ESTATE OF HELMS
    Cite as 
    302 Neb. 357
    In re Estate of M ark A nthony Helms, deceased.
    Christopher Helms, Personal R epresentative of the Estate
    of M ark A nthony H elms, deceased, appellant,
    v. Gregory L. Turek et al., appellees.
    ___ N.W.2d ___
    Filed March 1, 2019.    No. S-18-283.
    1.	 Summary Judgment: Appeal and Error. An appellate court will
    affirm a lower court’s grant of summary judgment if the pleadings and
    admitted evidence show that there is no genuine issue as to any material
    facts 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.
    2.	 ____: ____. In reviewing a summary judgment, an appellate court views
    the evidence in the light most favorable to the party against whom the
    judgment was granted and gives that party the benefit of all reasonable
    inferences deducible from the evidence.
    3.	 Judgments: Issue Preclusion: Appeal and Error. The applicability of
    issue preclusion is a question of law. On a question of law, an appellate
    court reaches a conclusion independent of the court below.
    4.	 Judgments: Issue Preclusion. Issue preclusion applies where (1) an
    identical issue was decided in a prior action, (2) the prior action resulted
    in a final judgment on the merits, (3) the party against whom the doc-
    trine is to be applied was a party or was in privity with a party to the
    prior action, and (4) there was an opportunity to fully and fairly litigate
    the issue in the prior action.
    5.	 Decedents’ Estates: Venue. Under 
    Neb. Rev. Stat. § 30-2410
    (a) (Reissue
    2016), venue for probate is proper in the county where the decedent was
    domiciled or, if the decedent was not domiciled in Nebraska, in any
    county where property of the decedent was located at the time of his or
    her death.
    Appeal from the County Court for Butler County: C. Jo
    Petersen, Judge. Affirmed.
    - 358 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    IN RE ESTATE OF HELMS
    Cite as 
    302 Neb. 357
    Lindsay E. Pedersen and Katherine R. Hall for appellant.
    Gregory M. Neuhaus and Joseph D. Neuhaus, of Neuhaus
    Law Offices, for appellees.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Cassel, J.
    INTRODUCTION
    Decades after the tragic death of Mark Anthony Helms in a
    terrorist bombing, his estate obtained a federal court wrongful
    death judgment determining that Helms had been domiciled
    in North Carolina and that damages would be shared accord-
    ing to that state’s law. After funds were collected on that
    judgment, his estate applied to the county court for Butler
    County, Nebraska, to distribute them instead under a Nebraska
    wrongful death statute.1 The county court entered summary
    judgment, declaring that the proceeds were to be distributed
    equally to Helms’ parents—being his heirs “as existed at the
    time of his death.” We conclude that because of the binding
    effect of the federal court judgment, the Nebraska wrongful
    death statute does not apply and the county court properly
    ordered distribution pursuant to the federal court judgment
    applying North Carolina law. We affirm the court’s entry of
    summary judgment.
    BACKGROUND
    Wrongful Death and Judgment
    On October 23, 1983, the Islamic Republic of Iran bombed
    a U.S. Marine barracks in Beirut, Lebanon. The bombing killed
    241 American servicemen, including Helms. Helms, who died
    intestate, was survived by his parents and two siblings.
    1
    
    Neb. Rev. Stat. § 30-810
     (Reissue 2016).
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    IN RE ESTATE OF HELMS
    Cite as 
    302 Neb. 357
    In 1996, an amendment2 to the Foreign Sovereign Immunities
    Act of 19763 allowed victims of state-sponsored terrorism to
    bring claims against foreign sovereigns that would otherwise be
    immune from civil litigation. In 2001, a claim for the wrongful
    death of Helms and other servicemen was brought in a case
    filed in the U.S. District Court for the District of Columbia.
    The federal court’s subsequent memorandum opinion does not
    name Helms’ personal representative, but recites that his estate
    was a party to the wrongful death action in federal court. At no
    time did a personal representative of Helms file an action for
    wrongful death in Nebraska.
    In 2007, the U.S. District Court for the District of Columbia
    rendered judgment against the Islamic Republic of Iran.4
    According to the court’s opinion, of the 128 deceased serv­
    icemen whose personal representatives and estates brought
    wrongful death claims, 123 were domiciled in North Carolina
    and none were domiciled in Nebraska.
    The federal court’s opinion specifically stated: “[E]ach of
    the deceased servicemen has made out a valid claim for wrong-
    ful death under North Carolina law. Accordingly, those valid
    heirs and beneficiaries under North Carolina’s intestate statute
    are entitled to share in the recovery of the damages awarded
    as a result of each serviceman’s untimely death.”5 The court
    allocated $1,028,509 of the judgment to the wrongful death
    claim brought by the personal representative of Helms’ estate.
    Helms’ mother died approximately 5 months prior to the entry
    of this judgment.
    In 2010, assets belonging to Iran that had been frozen by
    the U.S. government were discovered. A federal court allowed
    access to the assets, a decision which the U.S. Supreme Court
    2
    See Pub. L. No. 104-132, § 221(a), 
    110 Stat. 1241
    .
    3
    
    28 U.S.C. § 1602
     et seq. (2012 & Supp. IV 2016).
    4
    Peterson v. Islamic Republic of Iran, 
    515 F. Supp. 2d 25
     (D.D.C. 2007).
    5
    
    Id. at 40
    .
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    IN RE ESTATE OF HELMS
    Cite as 
    302 Neb. 357
    later affirmed.6 In 2016, distribution of the assets commenced.
    The amount paid to the estate, after payment of attorney fees
    and expenses, amounted to $222,925.77. The disbursement
    check was drawn as follows:
    PAY TO THE ORDER OF:
    ESTATE OF MARK A HELMS
    CHRISTOPHER T HELMS, PERSONAL REPRESENTATIVE
    Petition for Distribution
    On March 30, 2017, the successor personal representative of
    the estate filed in an existing probate case in the county court
    for Butler County a petition to authorize distribution of the
    judgment proceeds under § 30-810. The petition alleged that
    Helms was domiciled in Butler County at the time of his death
    and that his next of kin were his parents and siblings.
    According to the petition, Helms’ mother left any interest
    in the wrongful death claim to her spouse. Her spouse died
    in 2012, leaving all of his assets to his children, Gregory L.
    Turek, Pamela Joekel, and Deborah Michel (collectively the
    interested parties). The petition requested that the court hold a
    hearing and determine under § 30-810 the amount of the judg-
    ment proceeds that should be distributed to each next of kin
    who sustained damages.
    Summary Judgment
    The interested parties moved for summary judgment, and
    the county court sustained the motion. The court found “there
    exists no genuine issue as to any material fact regarding to
    whom said proceeds are to be distributed, that being the heirs
    of . . . Helms as existed at the time of his death, which by law
    are his parents equally.” The court ordered that the personal
    representative of the estate distribute one-half of the wrongful
    death proceeds to the estate of Helms’ mother and one-half to
    Helms’ father.
    6
    Bank Markazi v. Peterson, ___ U.S. ___, 
    136 S. Ct. 1310
    , 
    194 L. Ed. 2d 463
     (2016).
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    Nebraska Supreme Court A dvance Sheets
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    IN RE ESTATE OF HELMS
    Cite as 
    302 Neb. 357
    The estate filed a timely appeal, which we moved to our
    docket.7
    ASSIGNMENTS OF ERROR
    The estate assigns eight errors, which we consolidate and
    restate to three: The court erred in (1) granting the interested
    parties’ motion for summary judgment relating to the distribu-
    tion of wrongful death proceeds, (2) failing to comply with the
    provisions of § 30-810, and (3) finding that the wrongful death
    proceeds are to be distributed to Helms’ heirs as existed at the
    time of his death.
    STANDARD OF REVIEW
    [1,2] An appellate court will affirm a lower court’s grant
    of summary judgment if the pleadings and admitted evidence
    show that there is no genuine issue as to any material facts 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.8 In reviewing a summary judgment, an appel-
    late court views the evidence in the light most favorable to the
    party against whom the judgment was granted and gives that
    party the benefit of all reasonable inferences deducible from
    the evidence.9
    [3] The applicability of issue preclusion is a question of law.
    On a question of law, an appellate court reaches a conclusion
    independent of the court below.10
    ANALYSIS
    The crux of the estate’s appeal is its contention that § 30-810
    applies to the distribution of the federal court wrongful death
    judgment. Section 30-810 provides that “[t]he avails [of a
    7
    
    Neb. Rev. Stat. § 24-1106
    (3) (Cum. Supp. 2018).
    8
    In re Estate of Fuchs, 
    297 Neb. 667
    , 
    900 N.W.2d 896
     (2017).
    9
    
    Id.
    10
    See In re Interest of Noah B. et al., 
    295 Neb. 764
    , 
    891 N.W.2d 109
     (2017).
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    Nebraska Supreme Court A dvance Sheets
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    IN RE ESTATE OF HELMS
    Cite as 
    302 Neb. 357
    wrongful death verdict or judgment] shall be paid to and dis-
    tributed among the widow or widower and next of kin in the
    proportion that the pecuniary loss suffered by each bears to the
    total pecuniary loss suffered by all such persons.” This statute
    further requires that the court distribute any such proceeds “to
    the persons entitled thereto after a hearing thereon . . . .”11
    However, we agree with the interested parties that § 30-810 has
    no application in the situation before us.
    The estate’s argument based on § 30-810 fails, because we
    are not presented with a Nebraska wrongful death claim. No
    wrongful death action was brought and no judgment has been
    recovered pursuant to that statute for that death. The wrongful
    death judgment proceeds that the estate seeks to distribute were
    awarded in an action brought in the U.S. District Court for the
    District of Columbia under the wrongful death and intestate
    succession laws of North Carolina.12
    [4] In distributing the proceeds of the federal court wrong-
    ful death action, the estate is barred from now asserting that
    Nebraska was Helms’ domicile at the time of his death. The
    federal court case determined that North Carolina was Helms’
    domicile. Issue preclusion applies where (1) an identical issue
    was decided in a prior action, (2) the prior action resulted in
    a final judgment on the merits, (3) the party against whom the
    doctrine is to be applied was a party or was in privity with a
    party to the prior action, and (4) there was an opportunity to
    fully and fairly litigate the issue in the prior action.13 Here,
    all of those elements are satisfied. Helms’ domicile in North
    Carolina and his wrongful death pursuant to North Carolina
    law were decided in the federal court case,14 and that action
    resulted in a final judgment on the merits. Counsel for the
    11
    § 30-810.
    12
    See Peterson v. Islamic Republic of Iran, 
    supra note 4
    .
    13
    In re Interest of Noah B. et al., supra note 10.
    14
    See Peterson v. Islamic Republic of Iran, 
    supra note 4
    .
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    Nebraska Supreme Court A dvance Sheets
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    IN RE ESTATE OF HELMS
    Cite as 
    302 Neb. 357
    estate conceded at oral arguments that Helms’ personal repre-
    sentative was a party in the federal court case, which implicitly
    concedes that Helms’ successor personal representative here
    is in privity with that party. Finally, there was an opportunity
    to fully and fairly litigate Helms’ domicile in the prior action.
    Thus, the estate is bound by the federal court’s determination
    that North Carolina was Helms’ domicile.
    It necessarily follows that the distribution of the wrong-
    ful death proceeds is governed by North Carolina law. Under
    that state’s wrongful death statute,15 any amount recovered
    is applied to certain expenses and attorney fees and is then
    distributed “as provided in the [North Carolina] Intestate
    Succession Act.” North Carolina’s Intestate Succession Act,16
    in turn, states that “[i]f the intestate [decedent] is not survived
    by a child, children or any lineal descendant of a deceased
    child or children, but is survived by both parents, they shall
    take in equal shares, or if either parent is dead, the surviving
    parent shall take the entire share[.]”17 And the persons who,
    under that Intestate Succession Act, are entitled to recovery in
    a wrongful death action are to be determined as of the time of
    the decedent’s death.18 Because Helms was survived by his par-
    ents at the time of his death, North Carolina law dictates that
    they share equally in any wrongful death proceeds.
    [5] The estate argues that because a probate case has been
    pending in Nebraska since 2001, “Helms must have been
    domiciled in Nebraska at the time of his death.”19 But that
    premise is flawed. Under Nebraska law, venue for probate is
    proper in the county where the decedent was domiciled or, if
    the decedent was not domiciled in Nebraska, in any county
    15
    N.C. Gen. Stat. § 28A-18-2(a) (2007).
    16
    
    N.C. Gen. Stat. §§ 29-1
     through 29-30 (2007).
    17
    § 29-15(3).
    18
    Bank v. Hackney, 
    266 N.C. 17
    , 
    145 S.E.2d 352
     (1965).
    19
    Reply brief for appellant at 3.
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    IN RE ESTATE OF HELMS
    Cite as 
    302 Neb. 357
    where property of the decedent was located at the time of
    his or her death.20 Thus, commencement of a probate case in
    Nebraska did not, in and of itself, preclude Helms from having
    been domiciled in North Carolina.
    The estate instead may be implicitly arguing that the
    Nebraska probate case was commenced on the basis that Helms
    was domiciled in Nebraska. Assuming without deciding that
    the earlier pleadings in the probate case are properly before
    us and that these pleadings asserted that Helms was domi-
    ciled in Nebraska, any such allegation was immaterial here.
    Regarding distribution of proceeds of the federal court wrong-
    ful death judgment, the estate is collaterally estopped from
    asserting that Helms’ domicile is anywhere other than North
    Carolina. Likewise, the federal court judgment precludes the
    estate from distributing the proceeds other than in accordance
    with that judgment.
    The county court properly entered summary judgment,
    because there is no genuine issue of material fact in this case.
    We agree with the court that the proper distribution of the pro-
    ceeds is one-half to Helms’ father and one-half to the estate of
    Helms’ mother.
    CONCLUSION
    Because there is no genuine issue of material fact as to
    whom the wrongful death judgment proceeds should be distrib-
    uted, we affirm the county court’s entry of summary judgment.
    A ffirmed.
    20
    
    Neb. Rev. Stat. § 30-2410
    (a) (Reissue 2016).