920 N.W.2d 18
Neb. Ct. App.2018Background
- Aimee, an incapacitated adult, had her mother Deborah previously appointed guardian but removed in 2011 after concerns about Aimee’s neglect and Deborah’s conduct; a successor guardian (Hytrek) and later Susanne Dempsey-Cook served.
- In Dec. 2013 Deborah and June Berger petitioned to remove the court-appointed guardian and to be appointed co-guardians/coconservators; Hytrek resigned in 2014 and Dempsey-Cook became guardian. The petition was not amended after the resignation.
- The guardian ad litem (GAL) and successor guardian moved for summary judgment (Jan.–May 2015), submitting affidavits and a psychological evaluation finding Deborah not competent to serve.
- The county court granted summary judgment July 24, 2015; after proceedings on whether the petition was frivolous, the court found it frivolous and awarded attorney fees of $75,906.20 against Deborah (Dec. 1, 2016).
- Appellants appealed, raising jurisdiction/mootness, challenges to summary judgment (including evidentiary rulings excluding parts of Deborah’s therapist’s affidavit), and contesting the frivolous-action finding and fee award; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Deborah) | Defendant's Argument (GAL / Dempsey-Cook) | Held |
|---|---|---|---|
| Jurisdiction: whether unresolved fee motions prevented appeal | Appeal premature because other fee applications remained pending | The summary-judgment order became final after county court resolved GAL’s fee motion; later fee applications filed after Dec. 1 order do not deprive appellate jurisdiction | Court had jurisdiction; Dec. 1 order rendered judgment final for appeal |
| Summary judgment on fitness/best interests: whether genuine issue existed | Deborah argued court erred; her therapist’s affidavit created triable issue | GAL/guardian produced affidavits and a psychological evaluation showing Deborah not competent; opposing affidavit lacked foundation | Summary judgment affirmed: appellees made prima facie showing and Deborah’s key affidavit was inadmissible for lack of foundation, so no genuine issue |
| Frivolous petition and award of attorney fees under §25-824 | Petition to remove guardian and seek reappointment was not frivolous; GAL exceeded role so fees improper | Petition alleged without factual basis; not amended after guardian change; Deborah had not remedied prior deficiencies—fees reasonable and recoverable, including GAL’s counsel | County court did not abuse discretion: petition found frivolous and attorney fees properly awarded against Deborah |
| Procedural due process: denial of motion to alter or amend without hearing/by different judge | Appellants were denied procedural and substantive due process because motion was overruled without oral argument and by a different judge | Judge who assumed case reviewed the record and permissibly ruled without further argument | No due process violation; ruling on motion without new hearing by successor judge was proper |
Key Cases Cited
- Murray v. Stine, 291 Neb. 125 (appellate jurisdiction may be defeated by unresolved attorney-fee motions)
- Salkin v. Jacobsen, 263 Neb. 521 (motion for §25-824 fees filed before judgment delays finality)
- Thompson v. Johnson, 299 Neb. 819 (summary judgment standard and view of evidence on appeal)
- In re Guardianship of Robert D., 269 Neb. 820 (role and limits of a GAL in juvenile guardianship proceedings)
- In re Guardianship of Brydon P., 286 Neb. 661 (standards for appointment/removal in guardianship contexts)
- Freeman v. Hoffman-La Roche, Inc., 300 Neb. 47 (standards for admissibility of expert testimony)
- Hike v. State, 288 Neb. 60 (trial court’s discretion in admitting/excluding expert opinions)