Herrick v. Paulsen (In re Herrick)

21 Neb.App. 971

846 N.W.2d 301

In re Guardianship & Conservatorship of Thomas L. Herrick, a protected person.Todd A. Herrick, appellant,

v.Tina M. Paulsen, appellee.

No. A–12–962

Court of Appeals of Nebraska.

Filed April 29, 2014

Appeal from the County Court for Dawson County: Carlton E. Clark, Judge. Affirmed.

Kent A. Schroeder, of Ross, Schroeder & George, L.L.C., for appellant.

Nathan T. Bruner, of Greenwall, Bruner & Frank, L.L.C., for appellee.

Inbody, Chief Judge, and Moore and Riedmann, Judges.

Syllabus by the Court

1. Guardians and Conservators: Appeal and Error. An appellate court reviews guardianship and conservatorship proceedings for error appearing on the record made in the county court.

2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

3. Judgments: Appeal and Error. An appellate court, in reviewing a judgment of the trial court for errors appearing on the record, will not substitute its factual findings for those of the trial court where competent evidence supports those findings.

4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

5. Judgments: Jurisdiction. Determination of a jurisdictional issue which does not involve a factual dispute is a matter of law.

6. Standing: Jurisdiction. Standing relates to a court's power, that is, jurisdiction, to address issues presented and serves to identify those disputes which are appropriately resolved through the judicial process.

7. Standing. Under the doctrine of standing, a court may decline to determine merits of a legal claim because the party advancing it is not properly situated to be entitled to its judicial determination. The focus is on the party, not the claim itself.

8. Standing: Jurisdiction. Standing requires that a litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court's jurisdiction and justify exercise of the court's remedial powers on the litigant's behalf.

9. Standing: Jurisdiction. The defect of standing is a defect of subject matter jurisdiction.

10. Parties: Standing: Jurisdiction. The issue of standing is jurisdictional; a party must have standing before a court can exercise jurisdiction, and either a party or the court can raise a question of standing at any time during the proceeding.

11. Courts: Parties: Justiciable Issues: Words and Phrases. The capacity to sue is the right to come into court. A party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy.

12. Rules of the Supreme Court: Pleadings. Under Nebraska's pleading rules, a party wishing to raise the issue of whether another party has the necessary capacity must specifically deny that the opposing party has capacity.

13. Courts: Parties: Jurisdiction. Unlike standing, a party's capacity to sue or be sued is not jurisdictional; however, lack of capacity deprives a party of the right to come into court.

14. Standing: Moot Question. A plaintiff's personal interest is to be assessed under the rubric of standing at the commencement of the case, and under the rubric of mootness thereafter.

15. Moot Question: Appeal and Error. A case becomes moot when the issues initially presented in the litigation cease to exist, when the litigants lack a legally cognizable interest in the outcome of litigation, or when the litigants seek to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive.

16. Moot Question: Appeal and Error. A case is not moot unless a court cannot fashion some meaningful form of relief, even if that relief only partially redresses the prevailing party's grievances.

17. Parties: Jurisdiction: Waiver. Because a party's capacity to sue or be sued is not jurisdictional, a challenge to a party's capacity must be brought at the earliest opportunity or it is waived.

18. Parties: Proof. The party seeking to raise the issue that a party has lost capacity during the course of litigation bears the burden of establishing that the party raised such issue at the first opportunity, thereby properly preserving it.

19. Appeal and Error. Errors argued but not assigned will not be considered on appeal.

Inbody, Chief Judge.

I. INTRODUCTION

This appeal was filed by Todd A. Herrick (Todd), the proposed successor conservator of Thomas L. Herrick (Herrick), alleging that the Dawson County Court erred in certain determinations regarding the challenge of the inventory of Herrick's estate filed by the original conservator, Tina M. Paulsen.

II. STATEMENT OF FACTS

Herrick is the protected person in this case. Todd is Herrick's son, and Paulsen is Herrick's daughter. In September 2010, Herrick suffered a stroke resulting in his incapacity. Paulsen was appointed as the original conservator, and Todd was appointed as the original guardian.

On June 6, 2011, Paulsen filed an “Accounting of the Protected Party's Assets and Liabilities” in which she listed a 2007 Hummer H3 owned by Herrick as an asset valued at $16,700. On June 7, the county court sustained Paulsen's motion to sell Herrick's assets, personal property, and real estate. Paulsen and her husband, William Paulsen, traveled to Herrick's home in Lexington, Nebraska, to pick up Herrick's Hummer and return it to their home in Aberdeen, South Dakota. When Paulsen retrieved the Hummer, it was locked in Herrick's garage and had a “shorted out” battery. Paulsen and William replaced the battery in the Hummer before returning to South Dakota. The Hummer was smoking when they picked it up and continued smoking, and the engine ran sluggishly during the trip back to South Dakota. After arriving in South Dakota, William drained the oil from the Hummer's engine and found that the oil was sludge and had clumps in it.

Shortly thereafter, Paulsen took the Hummer, which had not been driven since being brought to South Dakota, to a local Aberdeen automobile repair shop owned by Brad Brake. Brake inspected the Hummer and provided Paulsen with an estimate for the cost of repairing the Hummer. Brake indicated that the “[e]ngine light was on” and that the Hummer was “[using] oil and smoking” and needed “lots of [e]ngine work.” Brake estimated the cost for repair at “about” $4,900. Paulsen testified that she checked the “cars.com” and Kelley Blue Book Web sites between May 1 and July 1, 2011, and determined that the value of the Hummer was between $9,000 and $12,000. On July 1, Paulsen sold the Hummer to Brake for $4,200, which price reflected a $4,900 discount for the cost of necessary repairs. At the time of the sale to Brake, the Hummer had 58,307 miles and had been driven less than 2,000 miles from the time it was originally purchased by Herrick in March 2010.

In February 2012, Paulsen filed an accounting of Herrick's assets and liabilities. On February 15, Todd, in his capacity as the original guardian, filed an application for complete accounting, surcharge, and indemnification, alleging that the accounting filed by Paulsen was insufficient and that Paulsen sold the Hummer for substantially less than its fair market value. Todd requested in the application that Paulsen be surcharged or required to indemnify Herrick's estate. Paulsen filed an updated inventory/annual accounting on April 4, which did not list the Hummer as an asset and to which Todd objected. A hearing was held on April 9, which was continued on June 25. The issues raised by Todd on appeal center around the sale of the Hummer. Consequently, we focus our factual synopsis around that testimony and evidence concerning the Hummer.

The evidence established that on March 2, 2010, Herrick purchased a used Hummer with 56,870 miles for $18,400 from Plum Creek Motors in Lexington. The office manager at Plum Creek Motors testified that although used vehicles are sold “ ‘as is,’ ” if the vehicle has a manufacturer's warranty, the warranty transfers to the subsequent owner of the vehicle.

The Hummer that Herrick purchased had a “five-year or 100,000 mile factory power train warranty” that transferred to Herrick upon his purchase of the Hummer. The warranty “would cover the engine, transmission, drive train, [and] the four-wheel drive system.” The beginning of warranty coverage is determined by the “in-service date” of the vehicle. The “in-service” date, and start of the warranty coverage, applicable to Herrick's Hummer was January 12, 2007. Thus, according to the office manager, if something had been wrong with the Hummer's engine in July 2011, the issue would have been covered by warranty, provided that the Hummer was still within the applicable mileage limits and no other exceptions applied. For example, she testified that the warranty does not apply to vandalism to vehicles and that the warranty might not apply if an engine has been tampered with; however, the decision of whether a warranty would apply would be made by someone else at the dealership.

Paulsen admitted that she did not take the Hummer to the General Motors dealership in Aberdeen to determine why the vehicle was smoking or whether any necessary repairs would have been covered by warranty. Paulsen testified that she did not consult with a General Motors dealership to determine if the Hummer was under warranty and that she assumed because the Hummer was a used vehicle, the factory warranty would not have been transferred to Herrick because he was a successive owner. Instead, she initially relied upon her husband, William, to determine what was wrong with the Hummer, then she took the Hummer to Brake's shop for a repair estimate. Paulsen testified that she has taken her personal vehicles to...