Martens v. Newman (In re Estate of Newman)

25 Neb.App. 771

913 N.W.2d 744

IN RE ESTATE OF Harley NEWMAN, deceased.

Linda Martens, Personal Representative of the Estate of Harley Newman, deceased, appellee,

v.Stewart Newman, appellant.

No. A-16-1049.

Court of Appeals of Nebraska.

Filed April 17, 2018.

Stewart Newman, pro se.

Nick Halbur, of Elder Law of Omaha, P.C., L.L.O., Omaha, for appellee.

Pirtle, Bishop, and Arterburn, Judges.

Pirtle, Judge.

INTRODUCTION

Stewart Newman appeals from an "Order for Probate of Will" entered in the county court for Douglas County wherein the court found that the last will and testament of Harley Newman, executed February 15, 2016, was a valid will and should be probated by the personal representative, Linda Martens. Stewart challenges multiple pretrial matters, as well as the court’s determination that the will was valid, and the court’s failure to allow his claim for the return of personal property. Based on the reasons that follow, we reverse, and remand for a new trial.

BACKGROUND

This case involves the formal probate of Harley’s last will and testament. Harley, the father of Stewart and Martens, passed away on February 22, 2016. On March 28, Martens filed an "Application for Informal Probate of Will and Informal Appointment of Personal Representative," along with Harley’s last will and testament executed on February 15. On March 29, the "Registrar" issued a "Certificate to Probate Will" and appointed Martens the personal representative. Stewart filed a "Petition of Claim and Request of Formal Testacy" on April 15, requesting a formal probate of Harley’s will and requesting an order to return Stewart’s personal property that was left in Harley’s custodial care. The court set a pretrial conference hearing for May 31. Stewart filed additional motions before the May 31 hearing.

Stewart was not present at the pretrial conference hearing on May 31, 2016, because he was incarcerated. Several matters were addressed. However, the hearing was ultimately set aside for a new pretrial conference on August 12 to afford Stewart the opportunity to be heard. At the August 12 hearing, Stewart participated in the hearing by telephone and the court informed the parties that all issues addressed at the May 31 hearing would be reconsidered.

At the August 12, 2016, hearing, Stewart was granted in forma pauperis status. The court denied his motion for appointment of counsel. The court also considered Stewart’s "Motion for Subpoena," in which he asked the court for "an Order to Subpoena the phone records of the Nebraska Department of Corrections Services," specifically those records of calls between him and Harley. Martens objected to the form of the filing, which the court sustained. Stewart also filed a motion which included a request that Martens produce an address for Diana Kappel, his ex-wife. At the hearing, Martens’ counsel stated that Martens did not have Kappel’s address and the court ruled that Martens could not be compelled to produce evidence it did not have or to investigate for Stewart.

Stewart had also filed a motion to appear telephonically. Martens objected to allowing Stewart to appear or to testify telephonically for trial, citing Neb. Rev. Stat. § 24-734(4) (Reissue 2016). The court granted Stewart’s motion to the extent of nonevidentiary hearings. It ruled that trial would not be held telephonically because there was no stipulation or consent by all the parties to conduct an evidentiary hearing by such means.

Another nonevidentiary hearing was held on September 22, 2016, to address additional motions and filings by Stewart. Stewart participated by telephone. Stewart’s request for Kappel’s address was again discussed, and Martens’ attorney again stated neither he nor Martens had the address. Stewart’s "Motion to Issue a Transport Order," allowing him to be physically present for trial, was denied. Before the conclusion of the hearing, the court told Stewart that he could submit his arguments for trial in a brief and indicated that it would not make a decision until it had received his brief.

Trial was held on September 27, 2016. The court took judicial notice of Harley’s last will and testament already in the court record and heard testimony from three witnesses. The evidence showed that Harley executed his last will and testament on February 15 in his wife’s room at a health care facility where she resided. Harley’s wife and two daughters were present, and he was able to identify those individuals correctly.

Melinda Streetman, a paralegal and notary public, testified that she reviewed the key provisions of the will with Harley and that he verified their accuracy. Streetman specifically went over a provision in the will that excluded Stewart from receiving any portion of Harley’s estate, and Harley affirmed his intent to exclude Stewart. Only Streetman, Harley, and his wife were present during the discussion of the provisions in the will.

Streetman identified Harley’s last will and testament and her own signature on the will accompanied by her notary seal. She also testified that she witnessed Harley sign the document and that she observed the two witnesses, who both worked at the facility, sign the will.

The first witness, a social worker, testified that she signed the will on February 15, 2016. She identified her signature and Harley’s signature on the will. She testified that she knew Harley because his wife was her patient at the facility where she worked, Harley had been her patient at one time, and Harley visited his wife every day. The social worker testified that on the day the will was executed, Harley was not acting out of the ordinary, there was nothing unusual about his behavior, and she had no concerns about his cognition.

The other witness to the will, a nurse, testified that she knew Harley and his wife because she provided care to Harley’s wife. She testified that she was present when Harley signed the will, she had no concerns about his cognition, and there was nothing unusual about his behavior. She identified her signature and Harley’s signature on the will.

Following trial, the court entered an order on September 29, 2016, finding that Harley’s last will and testament was a valid will. It granted the application for probate of the will and ordered that the will be probated by Martens.

ASSIGNMENTS OF ERROR

Stewart assigns that the trial court erred in (1) having ex parte communication with Martens’ attorney, as well as failing to allow Stewart to be heard and present at trial; (2) making a decision on the will before the court received his brief; (3) not allowing him his right to the discovery of evidence to support his claims; (4) finding that the document at issue was a self-proven will and that Harley was competent to sign it; (5) failing to find that Stewart is a "rightful heir in accordance to Article Four of the instrument"; and (6) failing to allow his claim of unlawful taking of his personal property.

STANDARD OF REVIEW

An appellate court reviews probate cases for error appearing on the record made in the county court. In re Estate of Balvin, 295 Neb. 346, 888 N.W.2d 499 (2016). When reviewing questions of law in a probate matter, an appellate court reaches a conclusion independent of the determination reached by the court below. Id. The probate court’s factual findings have the effect of a verdict, and an appellate court will not set those findings aside unless they are clearly erroneous. Id.

ANALYSIS

Stewart makes two separate arguments under his first assignment of error. He argues that the court erred in having ex parte communication with Martens’ attorney at the May 31, 2016, hearing and that the court erred in failing to allow him to be heard and present at the September 27 trial.

We first address Stewart’s ex parte communication argument. Stewart argues that the trial judge used the hearing on May 31, 2016, to engage in an ex parte communication with Martens’ attorney where the two of them discussed how they were going to proceed to ensure Stewart could not bring any evidence or appear, while keeping him from having any grounds for an appeal.

The May 31, 2016, hearing was held without Stewart’s participation. However, no ex parte communication took place. An ex parte communication occurs when a judge communicates with any person concerning a pending or impending proceeding without notice to an adverse party. State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004). Stewart had notice of the hearing. The court entered an order on April 18 for a pretrial conference, notifying the parties that a pretrial conference would be held on May 31. Stewart even responded to the notice by filing a motion for continuance asking that the May 31 hearing be rescheduled. Stewart was unable to attend the hearing because he was incarcerated and was not represented by counsel, so the hearing proceeded without him.

Further, there was no prejudice to Stewart from the May 31, 2016, hearing, because at the hearing, the court concluded that Stewart should be allowed to participate in the proceedings by telephone. A subsequent pretrial conference hearing was held on August 12, where Stewart participated by telephone. At that hearing, the court informed the parties that all issues addressed at the May 31 hearing would be reconsidered. The court then gave Stewart the opportunity to address his filings and motions.

Stewart also suggests that an ex parte communication occurred at a June 10, 2016, hearing and that the court reporter had not filed a complete bill of exceptions because the June 10 hearing was not in the record. However, the record before us reflects that a hearing was never held on June 10.

We conclude that Stewart’s argument under his first assignment of error—the court’s ex parte communication with Martens’ attorney—is without merit.

As previously stated, Stewart also argues under his first assignment of error that the court erred in denying him the right to appear either in person or telephonically at the trial on September 27,...