Meisinger v. Meisinger
A-17-135
| Neb. Ct. App. | Jan 9, 2018Background
- 1987: Bessie Meisinger executed a quitclaim deed conveying property to herself and her sons, Jerry and Marlin, with language creating (1) a joint-tenancy relationship between Bessie and her sons and (2) an instruction that after Bessie's death the sons would each own an undivided one-half as tenants in common.
- Marlin (father of appellant Mark) died in 1993; Bessie died in 2012. Jerry later (2014) executed a quitclaim deed conveying the property to himself and his wife Bonnie as joint tenants.
- 2015: Mark filed a declaratory judgment action seeking transfer of Marlin’s share (or half of one-half) to Marlin’s heirs (Mark and Bryan), and asked to void or limit Jerry’s 2014 deed.
- Jerry and Bonnie moved for judgment on the pleadings, arguing Mark’s claim was time-barred; Mark moved for judgment on the pleadings arguing his claim accrued at Bessie’s death and was timely.
- The district court concluded the 1987 deed created two tenancies: (a) joint tenancy between Bessie and her sons (so Marlin’s interest passed to Bessie on his death), and (b) tenancy in common between the sons after Bessie’s death. It granted judgment for Jerry and Bonnie and dismissed Mark’s petition.
- Mark appealed pro se; his brief failed to include the required separate assignments-of-error section, so the appellate court reviewed the record only for plain error and affirmed.
Issues
| Issue | Plaintiff's Argument (Mark) | Defendant's Argument (Jerry & Bonnie) | Held |
|---|---|---|---|
| Nature of interests created by 1987 deed (joint tenancy vs tenancy in common) | Deed created a life estate in Bessie with remainder to sons; survivorship not controlling until Bessie died | Deed expressly created joint tenancy between Bessie and sons and provided that after Bessie's death sons hold as tenants in common | Court held deed created joint tenancy between Bessie and sons and, upon Bessie's death, sons would hold as tenants in common; Marlin's interest reverted to Bessie at his death |
| Whether Marlin's interest passed to his heirs on his death | Mark: Marlin’s interest should have passed to his heirs (Mark & Bryan) | Jerry: Marlin’s joint-tenancy interest passed to surviving joint tenant (Bessie) on his death, not to heirs | Held Marlin’s interest passed by right of survivorship to Bessie, not to his heirs; Mark has no title interest |
| Timeliness / statute of limitations | Mark: statute didn't run until Bessie's death (2012); action timely | Jerry & Bonnie: claim barred by applicable limitations (filed too late) | Court did not need to rule on limitations after finding Mark had no interest; judgment on pleadings affirmed |
| Appellate briefing defects / review standard | Mark: (did not properly assign errors) | Appellees: enforcement of briefing rules; court may review only for plain error | Appellate court reviewed for plain error, found none, and affirmed district court judgment |
Key Cases Cited
- In re Interest of Samantha L. & Jasmine L., 286 Neb. 778 (2013) (failure to comply with briefing rules permits treating brief as not filed or limits review to plain error)
- Steffy v. Steffy, 287 Neb. 529 (2014) (plain-error standard explained)
- In re Trust Created by Hansen, 274 Neb. 199 (2007) (motion for judgment on the pleadings appropriate where only questions of law remain)
- In re Estate of Steppuhn, 221 Neb. 329 (1985) (clear expression of intent required to create joint tenancy)
- Norwest Bank Neb. v. Katzberg, 266 Neb. 19 (2003) (joint tenancy passes to surviving joint tenant by nature of title, not by will)
- Logan v. Logan, 22 Neb. App. 667 (2015) (assignments-of-error must appear in a separate section of appellate brief)