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IN RE ESTATE OF NEWMAN
Cite as 25 Neb. App. 771
In re Estate of H arley Newman, deceased.
Linda M artens, Personal R epresentative of the
Estate of H arley Newman, deceased, appellee,
v. Stewart Newman, appellant.
___ N.W.2d ___
Filed April 17, 2018. No. A-16-1049.
1. Decedents’ Estates: Appeal and Error. An appellate court reviews pro-
bate cases for error appearing on the record made in the county court.
2. Decedents’ Estates: Judgments: Appeal and Error. When reviewing
questions of law in a probate matter, an appellate court reaches a conclu-
sion independent of the determination reached by the court below.
3. Decedents’ Estates: Appeal and Error. 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.
4. Trial: Judges: Words and Phrases. An ex parte communication occurs
when a judge communicates with any person concerning a pending or
impending proceeding without notice to an adverse party.
5. Trial: Witnesses: Parties. Neb. Rev. Stat. § 24-734(4) (Reissue 2016)
only pertains to allowing a witness to be examined telephonically with
the consent of the parties. It does not address permitting a party to
appear and participate at trial telephonically.
6. Due Process: Trial: Witnesses: Evidence. When a person has a right
to be heard, procedural due process includes a reasonable opportunity to
refute or defend against a charge or accusation and a reasonable oppor-
tunity to confront and cross-examine adverse witnesses and present
evidence on the charge or accusation.
7. Constitutional Law: Prisoners. A prisoner has no absolute constitu-
tional right to be released from prison so that the prisoner can be present
at a hearing in a civil action.
8. Due Process: Prisoners: Right to Counsel. Although due process
does not require the appointment of counsel to represent a prisoner in
a private civil matter, due process does require that the prisoner receive
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IN RE ESTATE OF NEWMAN
Cite as 25 Neb. App. 771
meaningful access to the courts to defend against suits brought against
him or her.
9. Prisoners: Courts: Claims: Damages: Proof. To establish a violation
of the right of meaningful access to the courts, a prisoner must establish
the State has not provided an opportunity to litigate a claim challenging
the prisoner’s sentence or conditions of confinement in a court of law,
which resulted in actual injury.
10. Constitutional Law: Prisoners: Courts. The constitutional right to
access the courts does not guarantee inmates the wherewithal to trans-
form themselves into litigating engines capable of filing everything
from shareholder derivative actions to slip-and-fall claims. The tools it
requires to be provided are those that the inmates need in order to attack
their sentences directly or collaterally and in order to challenge the con-
ditions of their confinement. Impairment of any other litigating capacity
is simply one of the incidental and perfectly constitutional consequences
of conviction and incarceration.
11. Pretrial Procedure: Appeal and Error. Decisions regarding discovery
are directed to the discretion of the trial court, and will be upheld in the
absence of an abuse of discretion.
12. Pretrial Procedure: Proof: Appeal and Error. The party asserting
error in a discovery ruling bears the burden of showing that the ruling
was an abuse of discretion.
13. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the County Court for Douglas County: Craig
Q. McDermott, Judge. Reversed and remanded for a new trial.
Stewart Newman, pro se.
Nick Halbur, of Elder Law of Omaha, P.C., L.L.O., for
appellee.
Pirtle, Bishop, and A rterburn, 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
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IN RE ESTATE OF NEWMAN
Cite as 25 Neb. App. 771
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 request-
ing 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 appoint-
ment 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
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IN RE ESTATE OF NEWMAN
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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 physi-
cally present for trial, was denied. Before the conclusion of the
hearing, the court told Stewart that he could submit his argu-
ments 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 individ
uals 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
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IN RE ESTATE OF NEWMAN
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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 behav-
ior, 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 signa-
ture 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 fail-
ing to allow Stewart to be heard and present at trial; (2) mak-
ing a decision on the will before the court received his brief;
(3) not allowing him his right to the discovery of evidence to
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IN RE ESTATE OF NEWMAN
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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
[1-3] 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 errone-
ous. Id.
ANALYSIS
Stewart makes two separate arguments under his first assign-
ment 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 argu-
ment. 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.
[4] 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 commu-
nicates 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
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IN RE ESTATE OF NEWMAN
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pretrial conference, notifying the parties that a pretrial confer-
ence 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 assign-
ment 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, 2016. At the August 12 pretrial conference
hearing, Martens objected to allowing Stewart to appear or to
testify at trial by telephone, citing § 24-734(4). Although the
court had granted Stewart’s motion to participate by telephone
for nonevidentiary hearings, it ruled that trial would not be
held telephonically because there was no stipulation or consent
by all the parties to conduct the evidentiary hearing by such
means. Stewart had also filed a motion to issue a transport
order, allowing him to be physically present at trial, which the
trial court denied.
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IN RE ESTATE OF NEWMAN
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[5] We first address Marten’s reliance upon § 24-734(4)
in support of her objection to allowing Stewart to appear or
testify by telephone. Subsection (4) of § 24-734 provides: “A
judge, in any case with the consent of the parties, may permit
any witness who is to be examined by oral examination to
appear by telephonic, videoconferencing, or similar methods,
with any costs thereof to be taxed as costs.” (Emphasis sup-
plied.) This subsection only pertains to allowing a witness to
be examined telephonically with the consent of the parties. It
does not address permitting a party to appear and participate at
trial telephonically. We conclude that the statute is irrelevant
to the issue of whether the court erred in denying Stewart the
right to appear either in person or telephonically at the trial.
[6-8] Stewart argues that the court’s refusal to allow him
to appear in person or by telephone at trial deprived him of
procedural due process. He relies on Conn v. Conn, 13 Neb.
App. 472, 695 N.W.2d 674 (2005), where this court deter-
mined that an inmate’s due process rights were violated when
the trial court denied his request to participate by telephone
in a dissolution proceeding brought against him by his wife.
We held that “‘[w]hen a person has a right to be heard, pro-
cedural due process includes . . . a reasonable opportunity to
refute or defend against a charge or accusation [and] a rea-
sonable opportunity to confront and cross-examine adverse
witnesses and present evidence on the charge or accusation . .
. .’” Id. at 475, 695 N.W.2d at 677, quoting In re Interest of
L.V., 240 Neb. 404, 482 N.W.2d 250 (1992). We further stated
in Conn:
“Although it is clear that a prisoner has no absolute
constitutional right to be released from prison so that the
prisoner can be present at a hearing in a civil action . . .
and that due process does not require the appointment of
counsel to represent the prisoner in a private civil mat-
ter . . . due process does require that the prisoner receive
meaningful access to the courts to defend [against] suits
brought against him or her.”
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IN RE ESTATE OF NEWMAN
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13 Neb. App. at 475, 695 N.W.2d at 677, quoting Board of
Regents v. Thompson, 6 Neb. App. 734, 577 N.W.2d 749
(1998) (citations omitted).
The Conn case can be distinguished from the present case
in that Conn involved a civil matter brought against an inmate,
whereas Stewart could be designated as an “objector” or a
“contestant” in the instant probate matter which he did not ini-
tiate. See Neb. Rev. Stat. §§ 30-2429.01 and 30-2431 (Reissue
2016). Stewart is not defending against a charge or accusation
brought against him. However, he is not in the position of a
plaintiff either. Stewart did not file this action. Rather, he is in
the position of trying to protect what he views as his property
interest in the estate of Harley.
[9,10] In Jacob v. Nebraska Dept. of Corr. Servs., 294 Neb.
735, 884 N.W.2d 687 (2016), the Nebraska Supreme Court
held that to establish a violation of the right of meaningful
access to the courts, a prisoner must establish the State has
not provided an opportunity to litigate a claim challenging the
prisoner’s sentence or conditions of confinement in a court of
law, which resulted in actual injury, that is, the hindrance of a
nonfrivolous and arguably meritorious underlying legal claim.
The court further noted that the constitutional right to access
the courts does not guarantee inmates the wherewithal to
transform themselves into litigating engines capable of filing
everything from shareholder derivative actions to slip-and-fall
claims. Id.
The tools it requires to be provided are those that the
inmates need in order to attack their sentences directly
or collaterally and in order to challenge the conditions
of their confinement. Impairment of any other litigating
capacity is simply one of the incidental and perfectly con-
stitutional consequences of conviction and incarceration.
Id. at 745, 884 N.W.2d at 695, citing Lewis v. Casey, 518 U.S.
343, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996).
Stewart is not challenging his sentence or the conditions of
his confinement. However, he is challenging the validity of
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the will of Harley, his father. The will, on the one hand, is in
no way related to his imprisonment, but, on the other hand,
is an attempt to simply protect a property right that he has in
Harley’s estate. In that sense, Stewart stands similarly situ-
ated to the husband in Conn v. Conn, 13 Neb. App. 472, 695
N.W.2d 674 (2005), who was the defendant in a divorce action.
The trial court’s refusal to allow Stewart to even participate by
telephone at trial is more than “one of the incidental and per-
fectly constitutional consequences of conviction and incarcera-
tion.” See Jacob v. Nebraska Dept. of Corr. Servs., 294 Neb. at
745, 884 N.W.2d at 695, citing Lewis v. Casey, supra.
We conclude the court’s failure to allow Stewart to partici-
pate in the trial by telephone was a deprivation of his funda-
mental due process rights pursuant to U.S. Const. amends. V
and XIV and Neb. Const. art. I, § 3.
Stewart next assigns that the court erred in making a deci-
sion on the validity of the will before it received his trial brief.
At the September 22, 2016, hearing, the court told Stewart
he could submit a brief to the court within 14 days after trial,
where he could argue his position because he would not be
present in person or telephonically. The court indicated that it
would refrain from making a decision on the matter until after
it received his brief. Stewart’s brief was filed on October 3.
The court announced its decision at trial on September 27 and
entered an order on September 29.
Although the court was not technically required to wait
to make its decision until after it received Stewart’s brief, it
should have done so. Given our finding above that Stewart’s
due process rights were violated when he was not allowed to
participate by telephone at trial, we find this error by the court
compounded the situation. Given the violation of Stewart’s
due process rights discussed previously, we must reverse, and
remand for a new trial.
Stewart’s third assignment of error is that the trial court
erred in not allowing him his right to the discovery of evi-
dence to support his claims. Stewart argues that he was denied
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two specific discovery requests: the address of Kappel and
recordings of telephone conversations between him and Harley
from the Department of Correctional Services. He argues that
Kappel would have provided evidence in regard to Stewart’s
personal property left in Harley’s care, a 2009 will by Harley,
and the relationship between Stewart’s children and his par-
ents prior to Harley’s death. He alleges the recorded telephone
conversations would show the continued relationship between
him and Harley, discussions of Stewart’s personal property,
Harley’s desire to leave Stewart his home, and Harley’s lack
of coherence due to heavy medication on or about February
15, 2016.
[11,12] Decisions regarding discovery are directed to the
discretion of the trial court, and will be upheld in the absence
of an abuse of discretion. Moreno v. City of Gering, 293 Neb.
320, 878 N.W.2d 529 (2016). The party asserting error in a dis-
covery ruling bears the burden of showing that the ruling was
an abuse of discretion. Id.
In regard to the first discovery issue, Stewart filed vari-
ous motions requesting Kappel’s address from Martens. The
court denied his motions related to Kappel’s address at the
hearings on August 12 and September 22, 2016. At both
hearings, Martens’ counsel stated that neither he nor Martens
had Kappel’s current address. The court ruled that Martens
could not be compelled to produce evidence it did not have
or to investigate for Stewart. Martens did not have Kappel’s
address, and it was Stewart’s burden to locate a witness he
believed could support his case. Martens was not respon-
sible for finding information for Stewart that she did not
have. The court did not err in denying his motions related to
Kappel’s address.
The second discovery ruling Stewart challenges is the
denial of his efforts to obtain recorded telephone conversa-
tions from the Department of Correctional Services. Stewart
filed a “Motion for Subpoena” related to telephone records and
recorded conversations kept by the Department of Correctional
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Services. Martens objected to the motion based on the improper
form of the filing, which the trial court granted. Stewart sub-
sequently filed a “Motion for Order to Release Discovery
Information,” seeking telephone records and recorded con-
versations. Martens again objected as to form, stating that
a motion for the release of telephone records is not proper
discovery. Martens’ counsel further stated that the Department
of Correctional Services could be compelled under the proper
form for a subpoena, but Stewart’s filing was not a subpoena,
it was a motion. The trial court denied Stewart’s “Motion for
Order to Release Discovery Information.”
On appeal, Stewart does not argue that either of his requests
for the telephone records and recorded conversations were in
the proper form. Rather, he asserts that the court’s failure to
grant his requests for telephone records and recorded conver-
sations prevented him from obtaining evidence to support his
claims. Stewart has failed to meet his burden to show that the
discovery ruling was an abuse of discretion. See Moreno v. City
of Gering, supra. We conclude the trial court did not err in the
discovery rulings challenged by Stewart.
Stewart’s next assignment of error is that the court erred
in not allowing his claim for unlawful taking of his property.
In his “Petition of Claim and Request of Formal Testacy,” his
initial filing, Stewart requested an order to return personal
property belonging to him or the value thereof that was left
in Harley’s custodial care. Stewart states that he left personal
property in Harley’s care when he was incarcerated in 2011,
that Martens had knowledge of the personal property, and that
she sold or disposed of his property without his permission.
Stewart attempted to combine the contest of the will with a
creditor’s claim against the estate. The claim against the estate
was discussed at the September 22, 2016, hearing. Martens’
counsel stated that she had disallowed Stewart’s property claim
in the “Objections” she filed in response to Stewart’s “Petition
of Claim and Request of Formal Testacy.” The “Objections”
stated that she was disallowing all claims beyond his demand
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for formal probate of the will. Martens further stated that
Stewart had not filed a petition for allowance and that the time
allowed to do so had elapsed.
Neb. Rev. Stat. § 30-2488(a) (Reissue 2016) provides in
relevant part:
Every claim which is disallowed in whole or in part by
the personal representative is barred so far as not allowed
unless the claimant files a petition for allowance in the
court or commences a proceeding against the personal
representative not later than sixty days after the mailing
of the notice of disallowance or partial allowance if the
notice warns the claimant of the impending bar.
In the present case, Martens disallowed Stewart’s claim for
the return of personal property in the “Objections” filed May
24, 2016. Pursuant to § 30-2488, the disallowance shifted the
burden to Stewart to file a petition for allowance no later than
60 days after the notice of disallowance. He did not file a
petition for allowance within the time allowed. Accordingly,
Stewart’s claim for the return of his personal property was not
before the court. This assignment of error is without merit.
[13] Finally, because we have determined that Stewart’s
due process rights were violated requiring us to reverse, and
remand for a new trial, we need not address his remaining
assignments of error. An appellate court is not obligated to
engage in an analysis that is not necessary to adjudicate the
case and controversy before it. Walters v. Sporer, 298 Neb.
536, 905 N.W.2d 70 (2017).
CONCLUSION
We conclude that the trial court violated Stewart’s due
process rights when it did not allow him to participate in the
trial by telephone. Accordingly, we reverse, and remand for a
new trial.
R eversed and remanded for a new trial.