*1 grant New summary judgment party inappropriate, Servs., Co. Wells Light Fargo Alarm ante p.
25 (1994).
Thus, remand, I too would reverse and would but do so not defend, under a that Union has a ruling duty to for leaving determination the аmount fees due Land attorney Inc., but, rather, and Sky, for trial on the issue of whether Union has to defend. duty assignee Vervaecke, Vervaecke, Donald M. of Lucille A.
individually Representative as Personal the Estate Vervaecke, deceased, appellant, Maurice M. v. State Balka, of Nebraska and M. Berri Nebraska Tax appellees. Commissioner, Filed March No. 1995. S-93-735. *2 McCormack, Hillman & McCormack, Cooney, of
Michael Elder, for appellant. General, Bartel for and L. Jay Stenberg, Attorney
Don appellees. Wright, Lanphier, Caporale, Fahrnbruch, White, C.J., Retired.
and Connolly, Boslaugh, J., JJ., J. Fahrnburch, that held a summary judgment Donald M. appeals Nebraska, an unintentional when it refunded the State of tax, not to pay an estate was required of the date of the overpayment. statute, a which is This involves interрretation appeal of Neb. law. a result of our interpretation a As question 1992), we reverse the judgment Lancaster and hold County court for of the district he claims is due entitled to the additional interest Vervaecke is of his father’s of the personal representative him as assignee in the refund. of his mother’s interest estate and as assignee Court of this filed in the Nebraska Appeals, appeal Originally to to our authority regulate removed to this court pursuant was courts. the caseloads of appellate REVIEW
STANDARD OF an court views a reviewing summary judgment, appellate In favorable to the whom against the evidence in a most light party the benefit of all gives party is granted judgment from the evidence. Huntwork inferences deducible reasonable Voss, 184, Cо. v. (1995); 632 New Light ante 525 N.W.2d p. Servs., (1994). ante Wells Alarm Fargo p. when the is pleadings, Summary judgment proper admissions, in the and affidavits stipulations, depositions,
709 material issue as to no genuine that there is record disсlose drawn from be inferences may the ultimate fact or as to as to judgment is entitled and that the moving party those facts Co., Huntwork, Light supra. New law. supra; matter of connection of law in а matter is Statutory interpretation reach an has obligation with an court which appellate conclusion irrespective an correct independent, Nurse v. Visiting below. Grady made the court determination No Frills Assn., (1994); 559 246 N.W.2d
FACTS in the most favorable light we view the evidence When all reasonable Vervaecke the benefit of Vervaecke and give evidence, facts from the undisputed inferences deducible as follows: case are father, Maurice M. Vervaecke’s On Donald August Vervaecke, estate M. died. the Vervaecke On August *3 a estate tax and Nebraska filed both a federal estate tax return $122,472 taxes estate Vervaecke in state return. The estate paid to the of Nebraska. audit, Revenue an the Internal
On June following that marital deduction the Vervaecke estate the Service notified adjustment on return be increased. This its federal should $703,691, the refund to estáte of resulted in a federal estate tax $143,332.86. amount of with interest in the tоgether of the as a estate tax is computed percentage Nebraska’s Rev. Stat. tax Neb. federal estate liability. 1994) 77-2103 (Cum. 1994). Supp. liability federal tax if the amount of estate
provides decreases, be adjusted Nebraska estate tax shall increases or the the federal tax entitled A reduction in the estate accordingly. in its estate tax to a reduction Nebraska Vervaecke estate liability. tax amended Nebraska estate estate filed an
The Vervaecke $117,652. The estate amount of a refund in the claiming return at 14 from August the refund also calculated on percent tax, December 30, 1990, to date of of the estate the payment 28, 1992, refund, $34,732.48. the date of the in the amount of
Section 77-2106.01 is silent as to interest on of overpayment taxes. In L.B. 1004 аmended 77-2106.01 to for provide interest as follows:
When any amount of transfer tax estate [state tax] excess of due has been legally or his or party making overpayment her successors or shall be entitled refund assigns of such interest at the rate in section overpayment plus specified 45-104.01, as such rate time may to time be adjusted from Legislature. The effective date of L.B. 1004 was (Emphasis supplied.) July 15, 1992. 21, 1992,
On October the State of Nebraska refunded to the $117,652 Vervaecke estate as an of Nebraska estate overpayment 28, 1992, tax. On December the State of Nebraska paid $4,196.76 in interest to the Vervaecke estate. The interest was $117,652 calculated on the tax Nebraska estate 15, 1992, the effective date of L.B. which July interest, 28, 1992, for December the date рrovided through the refund.
The parties of the stipulated accepting cashing State’s warrant the interest refund would representing not constitute a waiver or to Vervaecke his claim assеrting estoppel for interest from the date estate taxes payment through effective date of L.B. 1004. 1, 1993,
On a July brought declaratory judgment action seeking declaration that he is entitled to additional interest on the Nebraska estate tax refund from the date of 15, 1992, at the payment, August rate of 14 July annum. percent per
Both Vervaecke and the State filed motions for summary The district judgmеnt. court sustained the State’s motion and denied Vervaecke’s motion. district court determined that *4 Nebraska, “in interest on claims the state is allowable against when authorized statute and that unlеss and [intent] of a act it purpose legislative show is to be applied it retroactively, applies only.” prospectively ERROR
ASSIGNMENT OF court erred as a matter Vervaecke claims thаt district and in for summary judgment law in State’s motion granting motion for summary judgment. his denying
ANALYSIS
In the
to the contrary, statutory language
absence
anything
Frills
and
No
meaning.
is to be
its
given
plain
ordinary
Beermann,
(1994);
“has paid” of estate tax to those made after the overpayments overpayments its effective date of the statute. Given ordinary plain term includes “has been meaning, overpayments paid” еstate tax made to the effective date of L.B. July prior 1992.
Section 77-2106.01 certain limitations the State’s places upon on an of an estate tax. In obligation pay overpayment сase, this the State is not of those limitations claiming filed his claim for refund. since timely apply, to 77-2106.01 as amended in the Vervaecke Pursuant estate, law, its a matter of was entitled to interest on аs tax from the date of its of Nebraska estate 30, 1990. August payment,
Therefore, court erred when it the State’s granted the district and also erred when it denied motion for summary judgment motion for Vervaeсke’s summary judgment.
712
The district court’s on each rulings motion for party’s reversed, is and the summary judgment cause is remanded to the district court with direction enter a in summary judgment favor of Vervaecke which shall fix the judgment amount of additional interest due Vervaecke the State.
Reversed and remanded with direction. J., dissenting. Wright, invokes the rule of construction which majority states in the absence of to thе anything contrary, statutory to be
language is its given See No plain ordinary meaning. Frills 246 822, However, (1994). 528 the following principle of law has been a of Nebraska at part since least jurisprudence 1897: law will not be given retrospective operation, “[A] unless that intention has been manifested most clear and 337, State v. unequivocal expression.” City Kearney, 49 Neb. “ 339, 70 N.W. (1897). 256 A act legislative opеrates and not prospectively unless retrospectively legislative intent and it should purpose is operate retrospectively ” clearly disclosed.’ v. Bd. Young Dodge Cty. Supervisors, 242 Neb. 493 (1992). N.W.2d
The statute at issue
in
states
“When
pertinent part:
amount of transfer tax in excess of that
due
legally
has been
party making
. . . shall be entitled to refund of such
interest
overpayment plus
. . . .” Neb. Rev.
77-2106.01
1992). The
§
stаtes that the
majority
“has been
does not limit
phrase
paid”
interest on
of estate tax to
overpayments
those overpayments
made
Laws,
after the effective date of 1992 Neb.
L.B.
11. I
оut that
point
before the
enactment of L.B.
had no
taxpayer
on an
right
See
overpayment.
State,
Peterson v.
Thus,
Nothing or its legislative history clearly indicates the statute unequivocally should be given retroactive effect. I conclude that the calculation of interest was authorized from the effective date of L.B. only prospectively 1004. The district court the rule forth recognized set properly I would affirm the order of City Kearney, supra. the district court.
Caporale, J., in this joins dissent. *6 appellee Hull, cross-appellant, Darrell D. and v. Aetna appellee Company, cross-appellee, Insurance and appellant Company, Continental Western Insurance
cross-appellee.
Filed March 1995. No. S-93-887.