Ganzel v. Ganzel
A-16-620
| Neb. Ct. App. | Jun 27, 2017Background
- Bernice Ganzel (age 99 at trial) executed a durable power of attorney in 1995 naming her son Norman as attorney-in-fact; Norman began using it after his father Orval died in October 2008.
- Beverly (another daughter) was appointed Bernice’s guardian and conservator in August 2014 and discovered missing funds; she revoked Norman’s POA and sued him in November 2016 seeking recovery of misappropriated funds and other relief.
- Evidence showed multiple large cashier’s checks drawn on Bernice’s Pinnacle Bank accounts (three dated Oct. 7, 2008 totaling $160,000 and one dated Sept. 29, 2008 for $50,000) with endorsements and transaction forms referencing Norman as P.O.A.; portions of those funds were deposited into a joint Community Bank account in Indiana that Norman controlled.
- Community Bank records (Oct. 2008–Feb. 2015) showed substantial deposits traced to Bernice and numerous withdrawals, transfers, cash advances, and payments (including mortgage payments to Citimortgage and a vehicle sale) that the district court found were for Norman’s benefit, not Bernice’s.
- Norman offered a handwritten summary (exhibit 38) he claimed evidenced $59,000 of his own outlays for Bernice; the district court excluded it as not the best evidence and on foundation/disclosure grounds.
- The district court found Norman not credible, concluded he misappropriated Bernice’s funds, and entered judgment for $296,224.77 plus interest and costs in favor of Beverly on behalf of Bernice (attorney-fee claim dismissed).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of exhibit 38 (Norman’s handwritten summary) | Exhibit 38 is a reliable summary/original reflecting payments Norman made on Bernice’s behalf and shows he contributed substantial personal funds. | Exhibit 38 is not the best evidence of the underlying ledger, was disclosed late, lacks foundation, and contains hearsay. | Exclusion upheld: not best evidence, foundation/late disclosure/hearsay issues. |
| Whether Norman misappropriated Bernice’s funds under the POA fiduciary duty | Bernice (via Beverly) argued documentary and testimonial evidence trace initial large deposits to Bernice and that withdrawals/transfers were for Norman’s benefit, breaching fiduciary duty. | Norman disputed receipt/endorsement of cashier’s checks, claimed deposits were his funds or proceeds of his retirement, and asserted he spent personal funds for Bernice. | Court affirmed: sufficient evidence and credibility findings support misappropriation; Norman breached fiduciary duty. |
| Damages award of ~$296,224.77 | The award reflects specific withdrawals, transfers, cash taken from checks, mortgage payments not for Bernice, and vehicle sale proceeds. | Norman argued he deposited personal funds into the account and incurred net outlays (~$59,000) that offset liability. | Affirmed: trial court discredited Norman’s offset evidence; documentary record supports the damages total. |
Key Cases Cited
- Elting v. Elting, 288 Neb. 404, 849 N.W.2d 444 (Neb. 2014) (nature of action determined by pleadings and relief sought)
- Jim’s Dodge Country v. LeGrande Excavating, 6 Neb. App. 719, 575 N.W.2d 890 (Neb. App. 1998) (money-judgment-only suit is an action at law)
- Donut Holdings v. Risberg, 294 Neb. 861, 885 N.W.2d 670 (Neb. 2016) (bench-trial factual findings in law action reviewed for clear error)
- Equitable Life v. Starr, 241 Neb. 609, 489 N.W.2d 857 (Neb. 1992) (purpose of best-evidence rule: prevent fraud/inaccuracy in proving content of writings)
- Archbold v. Reifenrath, 274 Neb. 894, 744 N.W.2d 701 (Neb. 2008) (agent under POA occupies fiduciary relationship; cannot profit in principal’s transactions)
- Crosby v. Luehrs, 266 Neb. 827, 669 N.W.2d 635 (Neb. 2003) (no self-gift by attorney-in-fact absent express grant and clear principal intent)
- Moreno v. City of Gering, 293 Neb. 320, 878 N.W.2d 529 (Neb. 2016) (trial court as sole judge of witness credibility in bench trial)
- Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (Neb. 2011) (prior inconsistent testimony may be disregarded where change lacks explanation)
- Aguallo v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 82 (Neb. 2004) (earlier ambiguous statements do not bind a party under the rule against changing testimony)